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Lord Campbell of Croy: My Lords, I am grateful to the noble Earl for giving way. I think that he has slightly misunderstood me. I came in right at the beginning of the day in order to draw attention to Scotland. The first amendments on the Marshalled List right up to his two amendments deal with the part of the Bill on England and Wales. Before we started discussing all the amendments I thought it was important that it should be made clear that they apply to England and Wales only but that I do not find fault with that on the basis that if it takes a great deal of time and if in principle amendments are accepted, the Scottish equivalents could be considered at a later stage. I think the noble Earl will agree with me that it is complicated to try to make amendments to Clauses 4 and 5 which themselves amend an existing Scottish Act. That would make the work of the Committee rather more complicated than it need be.

3.45 p.m.

The Earl of Mar and Kellie: I am grateful to the noble Lord for reminding the Committee that Scotland is perhaps in advance on this. I am certainly not decrying that.

I have no difficulty with the concept of direct payments. However, I wish to support Amendment No. 44, which definitely relates to Scotland. It would be regarded as unhelpful for whole classes of people in Scotland to be disentitled en bloc. Section 12 of the Social Work (Scotland) Act requires the local authority to assess and assist all persons in need. Such payments are made under that section only if they are deemed appropriate after assessment. Discretion is already built into the system. Therefore I would argue that there is no need for further definition by class or grouping, especially if it is to be done by regulation by the Secretary of State for Scotland after the passage of the Bill through Parliament.

Lord Pearson of Rannoch: I do not want to take up the time of the Committee, because I have my own

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amendments later to speak to, but I would like to amplify some of the comments made by the noble Lord, Lord Murray of Epping Forest, and the noble Baroness, Lady Seear, and invite the Committee to consider the case of the severely mentally handicapped, who are in effect incapable of taking their own decisions in this matter. I hope that what has been said and broadly supported by noble Lords this afternoon will take into account the carer in charge of such a person. I would hope that that carer would as often as possible be a close family member of that severely mentally handicapped person who perhaps has a mental age of four or even less.

Lord Hayhoe: During the course of the persuasive speeches that have been made in favour of this series of amendments reference has often been made to discretion. Perhaps we ought to think carefully whether it is right to take away from the Government the discretion which is implicit in Clause 1(1)(b). I believe that that discretion would be exercised along the lines suggested by my noble friend Lord Jenkin and that this would be a phased process. At this stage, when we are taking a major, important and broadly welcomed step forward into direct payments, it will require very powerful arguments indeed to deny the Government who are introducing this legislation the element of discretion which would be denied to them if these amendments were carried. Therefore, though I find persuasive the speeches which have been made in their support, they are not persuasive enough for me to be willing to deny to the Government the degree of discretion which I believe is their right in this matter.

Lord Swinfen: When my noble friend replies, can she tell the Committee whether Clause 1(1)(b) is in line with the provisions of the Disability Discrimination Act?

Baroness Hollis of Heigham: When the Minister comes to reply, will she address two points which have arisen in the contributions of the noble Lords, Lord Hayhoe and Lord Jenkin of Roding? Will she confirm that under these proposals the local authorities themselves will have the right to introduce this scheme on a phased basis? According to the experience a local authority brings to direct payments, it may want a quite limited scheme to start with or it may, through third parties or whatever, already be operating a comprehensive scheme. For example, if these regulations were to be introduced they would have to limit a scheme that is already in place and running.

If local authorities have the discretion to phase in the scheme as fits their local circumstances, why should the Secretary of State do it? He cannot know the speed at which local authorities are operating, the experience they have and local demand. We do not need discretion at central government level if it is properly and professionally exercised at local level, otherwise one subverts the purpose of the Bill.

My next question arises as a result of the consultative document which has been published within the past two days or so. I believe that the responses have to be in by middle or late February. In paragraph 12 of the

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document the Government say that they are limiting the groups of people who will be eligible in order to give local authorities the best opportunity to implement direct payments effectively: in other words, this provision is meant to be helpful to local authorities. At the end of paragraph 16 an array of possibilities is offered as to which groups will be eligible and the Government are asking for responses, saying that they prefer the more limited option but will receive recommendations for a wider option. Is it an open choice? In other words, if the local authorities, which the Minister is so anxious to help, say, "Minister, we do not find your proposals helpful. We would prefer that all groups, on paper, be eligible and that local authorities should determine how they phase in the scheme", will the Minister listen and accept that?

Baroness Cumberlege: I thank the noble Lord, Lord Rix, and other Members of the Committee for their opening remarks. I usually refrain from giving health advice, but I do not recommend renal colic or kidney stones. The pain equals that of labour pains but there is no baby to show for it at the end.

I also offer my congratulations to the noble Baroness, Lady Darcy (de Knayth): her becoming a Dame gave many of us enormous pleasure.

In my opening remarks I would like to thank many Members of the Committee, including the noble Baroness, Lady Hollis, for their timely amendments. That was greatly appreciated by myself and my officials. All these amendments seek to remove or amend the regulation-making power in Clause 1(1). The reason for this regulation-making power is so that we can restrict the size of the potential client group for this new and largely untested development, as many noble Lords have pointed out.

With no restrictions, we feel that the potential client group would include all people who would otherwise receive community care services, and that is a very large group. We think that it is sensible to limit eligibility in the first instance so that we can see how this policy works in practice. What we propose is to make regulations so that it is clear who local authorities should focus their attention on in the first instance. I believe that local authorities will welcome that clarity.

Perhaps I may take up the point made by the noble Lord, Lord Addington, and the noble Baroness, Lady Seear, about restriction being discrimination. That is not our intention at all, and neither do we want to prejudge that certain groups, depending on age or whatever, would not be able to manage. The provision is about selecting a group of an appropriate size who are keen to take on this new freedom. This is a new approach to delivery of care and all parties involved need time to adjust to it. It makes a great deal more sense to specify in regulations who is in that group rather than who is not, as would be the effect of the second amendment tabled by the noble Baroness, Lady Hollis.

We are consulting on how the client group should be defined in regulations. I apologise to the Committee for the fact that the consultation paper did not arrive earlier.

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But it explains our reasons for preferring that only physically disabled people under the age of 65 should be eligible, and invites comments. The paper also makes clear that this would not exclude people who have a physical disability as well as some other form of impairment such as learning difficulties. The noble Baroness, Lady Darcy (de Knayth), asked whether people who are already receiving direct payments would be eligible after their 65th birthday. The answer is yes, and we would want them to continue.

The noble Baroness also asked about the lower age limit. It is 18 years because direct payments replace community care services, and those services are for adults. Under the age of 18 the Children Act applies. We shall consider very carefully the responses we receive to all our consultations, alongside your Lordships comments, before deciding on the definition of eligibility to be used.

The amendments tabled by the noble Lord, Lord Rix, and the noble Baroness, Lady Darcy (de Knayth), seek to avoid any restriction on the basis of age or nature of disability. I am sympathetic to their reasons for tabling these amendments, but I do not see that there is any fairer way of restricting the size of the client group. We feel that that is important, as my noble friend Lord Jenkin has said. When we are starting a new scheme like this, it is important that we phase it in. We want this new concept to be a real success. We know that some local authorities are finding it difficult at the moment even to implement the community care Act. It is difficult for them to see a national picture. This Government, through their various task forces and the work of the department officials, can get a total picture of what is happening in the country.

The noble Lord, Lord Addington, asked about people with learning disabilities who are currently supported from the ILF. Our reason for proposing to exclude people with learning difficulties in the first instance is not based on the belief that no one with such disabilities would be able to manage the provision. We are simply trying to restrict the size of the client group, as I have already said, while local authorities gain experience of administering the direct payments. There are lessons that they will need to learn, although they will not be specific to the people who receive them.

There were also questions about the current schemes. As we know, some local authorities are currently operating independent living schemes. It is for them to ensure that these schemes are operating within existing legislation. I know that some of those schemes have some clients with learning disabilities. I am sure that they will find that experience useful. But many local authorities do not have that experience and direct payments have never before been a part of the mainstream provision. That is why we feel that in the first instance we need to tread very carefully.

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