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Baroness Hollis of Heigham: Am I not right in thinking that we are running together two significant issues which perhaps would be more helpfully explored separately? The issue raised by my noble friend Lord Carter was whether the disabled person could employ a relative as a personal carer and that personal carer could then be paid as though he or she were any other person employed from an agency. The concern expressed by my noble friend was that the Government are now making it illegal, we understand, for people who could be paid under the ILF scheme to be paid under the local authority direct payments scheme. Local authorities will retain a discretion in exceptional circumstances--rural areas, ethnic minorities and possibly the HIV or AIDS cases--but nevertheless the presumption is that a whole raft of people who currently could be employed and paid will not now be so. That was the issue raised by my noble friend Lord Carter and others.
The second and equally important issue was the one addressed by the noble Baroness, Lady Seear, and the noble Lord, Lord Jenkin of Roding, as to whether someone in the household--a close relative--could act as manager of the money. The money would be paid to them and they in turn would go on to employ a third party. As I understand it, that has always been the case under the Bill. I do not think that that is particularly problematic. The local authority can make payments either to the disabled person or to an appropriate carer who can then go on to employ other people to do the caring.
Therefore, I believe that the concerns raised by the noble Lord, Lord Jenkin, and the noble Baroness, Lady Seear, are, as I understand it, rightly covered in the Bill, but those raised by my noble friend Lord Carter are not. We would especially welcome the Minister's help on that.
Baroness Darcy (de Knayth): Amendment No. 17 is in my name so perhaps I should speak to it now. I support the other amendments in the name of the noble Lord, Lord Carter, and the noble Baroness, Lady Hollis. The noble Lord, Lord Carter, speaks very eloquently and he also speaks very fast. On paper it may seem that I am repeating all that he said. I have also tried to precis so I apologise if I make no sense now, but I shall do my best.
I shall deal with the second part of my amendment first because we have been discussing families, including a family member whether or not he or she resides with the person in receipt of the payment and whether or not the direct payment can be received. I understand the difficulties and the pitfalls in accepting that. I understand what the noble Lord, Lord Jenkin of Roding, has said, but I ask the Minister to consider it carefully, particularly if the relative is not living with the person he or she is helping. I support what the noble Baroness, Lady Seear, has said about the carer.
As regards the non-relative residing with the person in receipt of the payment, I would not like to see a disabled person unable to employ a lodger to look after him or her or to offer accommodation to a carer whether on payment of a rent or otherwise. It would rule out a great many genuine helpers. I know of a number of very severely disabled people who employ people to look after them and, as part of the deal, provide them with accommodation. Indeed, I know of one person who, on becoming disabled, moved into a larger house precisely in order to be able to offer accommodation to a series of helpers. Many severely disabled people are looked after by community service volunteers and they allow the volunteers to live in their homes. Indeed, accommodating the CSVs is an essential part of the service. When considering severely disabled people, I guess that the majority who are not looked after by a spouse will be looked after by someone living with them. It is very important that that should not preclude a direct payment being made because it is precisely for that type of person, particularly the young disabled, that many of us have argued for so long for direct payments to be allowed. I look forward to hearing the Minister's reply. I note at Second Reading that the Minister said:
Baroness Cumberlege: Direct payments will be an alternative to community care services, which would otherwise be arranged by the local authority. They are not intended to replace existing support networks within families and communities. The relationship which someone has with family or friends who provide care is very different from the relationship someone has with a person whom they are employing to provide care. The
If there were no restrictions, there is a risk that payments recipients might come under pressure to employ family members when that is not what they really want to do. Conversely, a parent or spouse who did not want to give up their employment might find it difficult to resist pressure to give up their job and take on full-time care if there would be no loss of income.
The Government recognise that there is a balance to be drawn between, on the one hand, preventing the formalisation of informal care, as I have described, and, on the other hand, not prohibiting sensible and appropriate arrangements. In particular, the Government have no intention of preventing people from being able to employ live-in personal care assistants.
We therefore propose to make regulations under this provision which will prohibit payments recipients from paying their spouse, partner or a close relative living in the same household to provide a service. In this context we intend to define a close relative as a parent, parent-in-law, aunt, uncle, grandparent, son, daughter, son-in-law, daughter-in-law, stepson or daughter, brother, sister or the spouse or partner of any of these.
In addition, we intend to issue guidance to say that local authorities should not make direct payments where the recipient intends to employ or contract with close relatives who live elsewhere, or other people living in the same household, unless the latter are people who have been specifically recruited to be live-in personal assistants. Local authorities would have the power to make exceptions to this guidance in exceptional cases--I suspect that AIDS and HIV may well be one of those--where they were satisfied that there was no other way to find a suitable person to provide care.
Baroness Seear: I am still confused about this matter. The noble Lord, Lord Jenkin, referred to the wife who has given up work to look after the husband and was able to have some local authority help under the existing scheme. As the noble Lord postulated, if she then decided to go back to work, but in order to do so, thought it better to have the money and employ someone rather than use the local authority services, she would be unable to do so. Is that what the Minister is saying?
Baroness Cumberlege: No. We are trying to put direct payments on the same footing as the community care which is provided through services. It depends on the initial assessment. For the schemes that I have seen that is the situation. People who were formerly carers have gone back to work and they are employing someone through direct payment because they qualify for community care services. They have been given that option. Our whole intention is not to make this scheme
Baroness Hollis of Heigham: I am sorry to interrupt the Minister again. The Minister is making a distinction between regulation and guidance. From what she has said, am I right in understanding that under regulation close relatives who live in the same household will not be able to be employed and receive direct payment from the disabled person, but for close relatives who do not live in the same household but on, say, the other side of town, the guidance will say that they should not be employed, but that the local authority will have complete discretion to waive those conditions where they judge the circumstances to be exceptional? Am I also correct in understanding that there will be no limitation by the Government on the exercise of local authority discretion because, clearly, we cannot anticipate all such exceptional circumstances?
Baroness Cumberlege: The noble Baroness has put it very succinctly and that is how I understand the position. If there is any change to that, then perhaps it is another issue that we can discuss when we meet.
Baroness Hamwee: I apologise to the Committee for prolonging this point. The noble Baroness, Lady Hollis, put the matter in a different way to the Minister and the consultation document, which refers to exceptional circumstances being where the local authority is satisfied that it is not possible to find a suitable person to provide care. That is not necessarily the same as some of the exceptions to which Members of the Committee have alluded, taking it from the point of view of the person to be cared for who will have views as to who might be best, for very personal reasons, to provide that care. In other words, that relates to the receiving end rather than the providing end. It seems to me that the consultation document deals only with one of those ends. Can the Minister take that distinction on board as part of the further consideration?
Baroness Cumberlege: To some extent that is reflected in the community care Act. Clearly, we are not trying to draw a distinction, but to start with the same form of assessment which is made through the community care Act. As I said, this may be a matter which the Committee would prefer to have further clarified and I am very happy to do that.
Perhaps I may now address the issues raised by the noble Lord, Lord Carter, in Amendments Nos. 14, 15, 16 and 17. Direct payments will be an alternative to community care services which would otherwise be arranged by the local authority. The relationship which someone has with family or friends who provide care is, as I have already said, very different from the relationship that someone has with a person whom they are employing to provide care. The reason for the provision in Clause 1(3) is to avoid the pressure for informal care to be put on a formal, contractual basis. If there were no restrictions, there is a risk that payment recipients might come under pressure to employ family
The Government recognise that a balance needs to be struck. We are trying to be careful to prevent the formalisation of informal care and are trying not to prohibit sensible and appropriate arrangements. We have no intention of preventing people from being able to employ living-in personal care assistants.
The noble Lord, Lord Carter, made a most interesting suggestion with regard to people living alone or with another person who is unable to meet their care needs. I can see that, like us, the noble Lord is seeking to achieve a balance. The Government propose to make regulations to prohibit payment recipients from paying a spouse, partner or close relative living in the same household for providing a service. As your Lordships are aware, we have set out the relationships that we think appropriate in this context.
The noble Lord, Lord Carter, asked about the ILF rules and whether the definition of "close relative" is wider in this context than that provided by the ILF. The noble Lord asked whether we are now making illegal what is legal under the ILF scheme. I can reassure him that the proposed regulations adopt the same rules as the ILF. The proposals for guidance go further but allow exceptions. As I have said, it is a question of trying to strike a balance.
The noble Lord, Lord Carter, and the noble Baroness, Lady Seear, asked whether the exclusions would apply where the only person available lives with the recipient. Yes, in those exceptional circumstances local authorities will have the discretion to make payments where the recipient intends to employ or contract someone living in the same household. The consultation paper gives a couple of examples, but it is up to local authorities to decide when it is appropriate to make exceptions to the guidance.
The noble Lord also asked whether informal carers will be able to receive and manage payments on behalf of a disabled person. As I have already explained, there is nothing in the Bill to prevent someone asking a third party to receive and manage direct payments on their behalf. That third party may well be a member of the family, but the person needing care must consent to the arrangement and will retain ultimate responsibility for the money. This is an area in which we need more explanation and clarity. As I have said, I am willing to discuss this when we meet.
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