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Lord Rix: In that case, it will clearly be difficult for us to press amendments, but I suppose that we shall have to think about that at Report stage, if it happens before 23rd February. Although we recognise the need to phase in direct payments, as I said in my opening remarks, it is vital that people with learning disabilities are seen as having totally different problems from those with physical disabilities. Unless local authorities are able to experience what is required by people with learning disabilities, that is another learning stage that will take place months--maybe years--ahead and that is totally unsatisfactory.

Paragraph 14 of the consultation paper states:

    I think that that responds partially to the remarks of the noble Lord, Lord Pearson of Rannoch--

    "should be eligible".

    I can only say that we at MENCAP have, through what I have said, given that response this afternoon to Amendment No. 38. I know that I am supported in that by my noble friend Lord Allen of Abbeydale, the president of MENCAP, who is sitting on my right hand which is, I believe, the wrong way round. It is important that the question of making direct payments to people with learning disabilities (with help where necessary) should be addressed in the early stages of the consultation about the way in which the payments are to be made.

If I could have an assurance in that respect I should not press my amendment. In view of the doubts which seem to exist, I have no alternative but to seek a Division--

Baroness Hollis of Heigham: No, withdraw it.

Lord Rix: I beg the Committee's pardon. In view of the advice that I have received from the Opposition Front Bench, I shall return to my natural instinct and beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 and 3 not moved.]

Baroness Darcy (de Knayth) moved Amendment No. 4:

Page 1, line 13, leave out from ("whole") to first ("of") in line 14.

The noble Baroness said: In moving Amendment No. 4, I wish to speak also to Amendment No. 5. Before doing so, perhaps I may thank the noble Lord, Lord Campbell of Croy, and the noble Baroness the Minister for their kind words and congratulations on my becoming a Dame. The first joy is to see how pleased

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everyone else is about it. It is a great honour for me and I believe that it is also a tribute to the work done by your Lordships' House and by the Cross-Benches.

The amendments are a pair and their purpose is to ensure that direct payment covers the whole cost of a person's needs. Unless the words,

    "or such part as they think fit",

are deleted, a local authority could, in theory, pay a person far less than it might have to pay if it provided the service itself. Amendment No. 5, which would add the words "all or any part", would ensure that the whole cost of a person's needs was covered, whether by direct payment or by a mixture of direct payment and service provision.

I accept utterly that it is for a local authority to decide whether to provide a direct payment, but the present wording would appear to allow a local authority unfairly to influence a decision that a disabled person makes. Depending on its proclivities, a local authority could push a disabled person towards accepting a service rather than a direct payment or vice versa. For example, leaving aside any contribution from the disabled person, if the local authority assessed him as needing £X-worth of service, it could encourage the disabled person to choose the service by offering him half of the cost of £X in direct payment or to choose the direct payment by offering twice £X as a direct payment. That is to say, depending on the predilection, the local authority can favour its own in-house services or outside commercial services. I would not have thought that such behaviour, if it were to be allowed, would be in the best interests of disabled people. I feel sure that the Government will agree with that. Indeed, on Second Reading the Minister said:

    "The local authority will not be able to set direct payments at a level which is insufficient to meet her needs".--[Official Report, 7/12/95; col. 1051.]

The Minister may say that this amendment will preclude a local authority from imposing a means test. I stress that that is not the intention of the amendment. I hope that if the Government's legal advice is that the amendment will preclude a means test, we can find a more suitable wording that will achieve the same aim. I beg to move.

Lord Addington: Both the amendments are welcome and will help the Bill. They will guarantee that a disabled person can purchase the service about which we are talking. Such a provision should be included because it will guarantee that real choice is available to disabled people.

4.15 p.m.

Lord Carter: We are pleased to support the amendment. Perhaps I may refer to the contretemps that took place at the end of the debate on Amendment No. 1. It is the first time that I remember the Opposition Front Bench trying to rescue the Government from embarrassment by having an amendment withdrawn.

There is an important point to be made because paragraph 7 of the consultation document states:

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    "The Bill does not require local authorities to offer direct payments. Instead they will be able to decide whether to offer direct payments, or whether it would be more appropriate to continue to arrange services for the person concerned."

It then states in paragraph 8 that the person concerned must consent. The object of the amendment is to make sure that local authorities will not play box-and-cox and decide that if they can save money one way or another that will be the criteria rather than the needs of the person concerned.

Paragraph 8 of the consultation document states:

    "If they are offered direct payments and do not want to take on the responsibility of managing their own care at that time, that should not exclude the possibility of their being offered direct payments at a later date."
What criteria will the local authorities use to decide whether to offer the payments later? Will there be any pressure on cost if it is decided that it would be cheaper to offer direct services? If the person concerned does not want those services, can the authority bring some pressure to bear on him to accept them?

Baroness Masham of Ilton: I wish to ask the Minister to clarify one matter for me because my noble friend Lady Darcy is not clear about it either. Who is eligible for help and who is not?

Baroness Cumberlege: Perhaps I may pick up that point first. We are suggesting that those eligible for help should be limited to those between the ages of 18 and 65 who are physically disabled. That is the position at the moment and that is what we are consulting on.

Baroness Masham of Ilton: Will there be a restriction on how they receive help? If they can afford their own help, will they receive help from the local authority? I know some very severely disabled people who receive no help at all.

Baroness Cumberlege: It all starts with the assessment and the wish of the disabled person to have direct payments instead of services. It is up to the local authority then to assess the needs of that person. The two have to work together. We can easily envisage a situation in which a disabled person will be receiving direct payments and services from the local authority and will also have his own income. In that case, perhaps he may wish to use that income in order to support himself. It can be a mixture of various means of care.

We understand the concern which prompted the tabling of this pair of amendments. It is an issue of great importance to the people who may wish to receive direct payments. The reasons that we intend to allow authorities to pay part or all of the cost of the services as they see fit are, first, to enable them to require the individual to make a financial contribution to the cost of his care--I understand what the noble Baroness said about that not being the purpose of her amendment--and, secondly, so that local authorities are free to set the amount at the level which they consider will enable the disabled person to purchase the appropriate services. It prevents local authorities from being forced to pay more simply because the disabled person wishes to have what is seen as a luxury service when there is a more basic

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but certainly adequate service which would do perfectly well. Of course, there is a duty on local authorities to ensure that public money is well used.

As we intend to make clear in the guidance, the Bill allows for local authorities to pay the whole or part of the cost of a service. That does not mean that the authority can arbitrarily decide to make inadequate payments. Authorities are under a power to act reasonably, and that will apply to the way in which they exercise their functions under the Bill. There are also some specific protections for individuals. Under the provisions of Clause 2, if someone is unable to secure the services for which the direct payments are given, it will be the responsibility of the local authority to arrange those services.

Direct payments can be given only with the person's consent. Therefore, a person need not agree to accept a direct payment if he believes that the amount offered will not enable him to meet his needs. Furthermore, those who are receiving direct payments, and those who turned them down because they believed that the sum offered was too small, will have the right to use the local authority complaints procedure to challenge the level of funding which the authority has offered.

We know that there is a real concern here--we understand and share it--that those receiving direct payments should not be treated more or less favourably with regard to the financial contribution that they are expected to make. The Bill gives local authorities discretion as to whether or not to take into account someone's financial circumstances. It does not require them to do so. It also gives local authorities discretion as to how that is to be done. That is intended to mirror the situation which exists currently in relation to non-residential care, where local authorities may decide whether or not, or indeed how much, to charge.

The Government aim to rule out perverse financial incentives so that a disabled person has a genuine choice. It is our intention to issue Section 7 guidance on this issue. The guidance will stress that local authorities must treat people fairly and should treat both service users and direct payment recipients in an equivalent manner. Therefore, when considering the financial contribution which a direct payment recipient should make towards the cost of his care, the authority should treat him in the same way as he would have been treated under the charging policy had the individual been receiving equivalent services. That maintains the local authority's discretion over its charging policy.

I believe that I was asked about the criteria used when direct payments may be offered in future, at a later date. It will be for local authorities to decide the criteria other than those which we are suggesting in our consultation paper. As we all know, many of us change our minds from time to time. Therefore, it is important that the issue is kept open so that people can decide in future whether they wish no longer to receive the services supplied but instead to have direct payments.

The Government believe that the Bill contains adequate protection for individuals and that issuing guidance as I have described is the most appropriate

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way to achieve our aim of ensuring fair and equivalent treatment. Therefore, I urge the Committee to reject the amendment.

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