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Lord Swinfen: It is not uncommon that a disabled person receiving community care will not be buying medical or health services at all. A disabled person can be described as quite healthy, despite their disabilities, and will not have a need for health services.

It may be helpful for my noble friend to postpone answering the question on VAT in relation to this amendment and to take a little time to obtain advice. The issue will come up again on Amendment No. 27.

Baroness Cumberlege: I like the government health warning; I shall accept it. Clearly this is an issue that needs further consideration.

A difficulty exists as to whether we draw a distinction between those receiving direct payments and their requirement to pay VAT--or not to pay it, as Members suggest--and those who buy the services through "normal channels". It would be unfair to discriminate between those two groups of people. The matter needs further consideration and perhaps this is one of those issues in which Members of the Committee excel in pointing out that there is something we need to consider further.

Baroness Hollis of Heigham: My delay in rising arises from the fact that we seem to have spent most of the time talking about Amendment No. 19 rather than Amendment No. 11. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Darcy (de Knayth) moved Amendment No. 12:

Page 1, line 19, at end insert ("in an identical manner to that which the local authority would have applied had they themselves provided the service.").

The noble Baroness said: The purpose of Amendment No. 12 is self-explanatory; that is, to ensure that means testing for services and for direct payments are identical. It seeks to do almost exactly what the amendment of the noble Baroness, Lady Hollis, sought to do.

I am a good deal reassured by the Minister's reply to Amendment No. 11. However, I would be happier if she could state categorically that the tests will be identical. We have had a great deal of discussion on other matters

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and I should like to read and reflect on the whole question. I shall be extremely grateful if the Minister will, outside the Chamber if necessary, agree further to discuss the matter. I beg to move.

Baroness Cumberlege: A number of issues have been raised in this Committee stage where a meeting will be extremely valuable to many Members. This amendment is one of those and I suggest we put it on the agenda.

Baroness Darcy (de Knayth): I am grateful to the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Brougham and Vaux): Before calling Amendment No. 13, I should advise the Committee that if Amendment No. 13 is agreed to, I cannot call Amendments Nos. 14 to 17 inclusive.

Lord Carter moved Amendment No. 13:

Page 1, line 20, leave out subsection (3).

The noble Lord said: Amendment No. 13 should really have been grouped with Amendments Nos. 14 to 17. If the Minister and the Committee do not object-- I know that the noble Baroness, Lady Darcy (de Knayth), who tabled Amendment No. 17, does not object--in moving Amendment No. 13 I shall speak also to Amendments Nos. 14 to 17. They all cover the same subject.

The amendments concern the categories of people who may act as personal assistants. The Bill gives the Secretary of State the power to make regulations that describe the categories of people a disabled person may not employ as a personal assistant. The amendment would remove that power completely. This is a probing amendment. I do not intend to divide the Chamber. It is intended to allow discussion on the kinds of people who may or may not be excluded.

We feel that we need some clarification from the Government regarding their intentions as to precisely who is likely to be excluded under the provision. During Second Reading the Minister indicated that informal carers will be excluded as their role is different to that of paid employees who provide care on a formal basis. Direct payments are not intended to replace existing support networks within the families and communities.

We have now received the consultation paper which presumably indicates what will be contained in guidance. At the moment the direct payment schemes tend to operate under a similar definition to that used by the Independent Living Fund; that is, that the payment cannot be made unless the disabled person lives alone or with someone who cannot provide for all their care needs. On first reading of the consultation paper, in paragraphs 24 and 25 the Government appear to be widening the exclusion from that contained in the Independent Living Fund rules. If the Government intend to do that, it would be helpful if the Minister would say so.

Also, the Government picked up the point which I know was made to them in discussion that,

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    "Local authorities will have discretion to make exceptions to the rules set out in this guidance in exceptional circumstances, where they are satisfied that it is not possible to find a suitable person to provide care who does not fall into one of these categories"--

the ones that they have excluded--

    "For example, the recipient may live in a sparsely populated rural area, or may have cultural or religious reasons for needing to employ only people from the same ethnic background. In certain areas, such a person may only be available within the recipient's family".

That is a quote from the consultation document. However, in the "exceptional circumstances" it seems that residence is not mentioned. If there is a need for an exception, perhaps under the examples the Government give--the recipient lives in a sparsely populated rural area or comes from an ethnic community--will the residency exclusion still apply? If the only person who can supply that help is in the recipient's house, will he or she still be excluded?

The widening of the exclusions, which we feel has happened in the consultation paper, could undermine the objective of direct payments in promoting independent living. We all know of the tasks of personal assistants. They may be involved in personal and intimate matters such as dressing, bathing and toileting. The popularity of direct payment schemes is rooted in the greater opportunity for the disabled person to choose exactly who is to do these tasks and to ensure that they are undertaken in such a way as a disabled person desires. The choice of person is therefore integral to independent living. We are not trying to widen the idea to formalise the present informal arrangements, but we need to know a little more about the way in which the Government will look at the exclusions policy and about whom in fact they intend to exclude.

Some research was conducted on the Independent Living Fund by the Policy Studies Institute which found, not surprisingly, that family helpers scored highly on appropriateness and reliability although less highly on control and empowerment. However, the overall score for family help on the choice score was 47 compared with 20 for direct employees and 38 for agency staff.

I turn to Amendments Nos. 14 to 17. A point has been made by the Alzheimer's Disease Society about the position of people with dementia. That is a special situation. We need to clarify whether the Government plan to enable direct payments to be paid to a relative or to a partner of a person who is mentally incapacitated, and, if so, under what arrangements. That point has been specifically raised by the Alzheimer's Disease Society. We all know that dementia is a progressive and degenerative condition and that circumstances can change. Do the Government intend that direct payments could be paid to a carer who was caring for someone who had Alzheimer's on a degenerating basis? Because they are excluded at the beginning of the scheme, we do not feel that that should continue. There is also the position with regard to HIV or AIDS. With regard to the small numbers of people with HIV or AIDS who feel safe only when their personal care is given by immediate family members, is that one of the exceptional circumstances which the Government will recognise?

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I have mentioned the problem of rural areas, with which I am familiar. How do the Government intend to define "living in the same household"? For example, will someone who is living in a so-called granny flat be allowed to pay his relatives in the home? We now have the definition of "close relatives" for which we were going to ask. That is in the consultation paper. It seems to be wider than the rules under the Independent Living Fund. Altogether I feel that the Government have to be a little clearer than they have been in consultation and in previous discussions on the Bill. I beg to move.

Baroness Seear: I do not expect to succeed in trying to persuade the Minister to think again about the position of the informal carer living in the house of the person needing care. The Alzheimer's disease case has already been quoted. It is an obvious one but there are others. If a person who needs the care is incapable of handling the money himself--in a case such as Alzheimer's, which progresses, that is undoubtedly true--and he has in the house a daughter who has given up her job in order to look after this person, what could be more suitable than that the money which would be available to the person needing care or the services which he would have received from the local authority under the old scheme could be passed to the informal carer who could then go and buy the care from outside?

That is the most obvious and practical way of alleviating what is the incredibly difficult position of the single person living in a house, someone with a deteriorating mental condition, who needs to buy outside help, who would have received the outside help from the local authority. I suppose one could say that in those circumstances the person would take the local authority help. But why should he be forced to do that if he can have the money and make an arrangement by employing someone from outside who can relieve the position of both the person needing care and the extremely tense and deteriorating position of the person--usually a woman--who is trying to give that care in very difficult circumstances? Can the Government not think again about this?

5.45 p.m.

Lord Jenkin of Roding: The rules are intended to be the same as to whether the local authority is providing the service direct or whether the local authority is making a direct payment to the beneficiary. Perhaps I must postulate a case slightly different from that given by the noble Baroness, Lady Seear. I read her remarks at Second Reading with some interest. Let us say that a wife has given up employment in order to look after her husband because the local authority has said that it can provide a local authority service. The wife says that she would like to look after her husband herself rather than have social workers coming in who are strangers. In those circumstances, it is always open to the wife to say, "We are going to have to have more support in our retirement. I really have to get back to work. I have to increase the family earnings. We shall therefore ask, although it is a second best, the local authority to provide the service". As I understand the matter, in those circumstances the local authority cannot refuse if the service is of a kind which it would provide.

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If my noble friend can tell me that exactly the same provision applies in a case where a family member wants to go back to work and there is a direct payment, I will feel that much of the difficulty that has been aired about this provision may disappear. If, on the other hand, as seems to be implied in the speeches made in support of the amendment, it will somehow be more restrictive if there are direct payments and that under no circumstances could the payments be made in the circumstances I have described, I shall have some anxiety. However, as I have understood the position, I do not think that is the case. Provided that the rules are exactly the same, that will be fair between those who are able to get direct payments and those who are not. The family member who has been looking after the person will be able to go back to work and earn and in those circumstances the direct payment can be made and the service can be bought instead of the family member looking after the relative.

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