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Community Care (Direct Payments) Bill [H.L.]

House again in Committee on Clause 1.

Baroness Hamwee moved Amendment No. 28:

Page 1, line 27, at end insert--
("( ) Provision shall be made for local authorities to include schemes established for the purpose of making payments under subsection (1) above in their existing annual community care services report.").

The noble Baroness said: This amendment continues the debate which took place just before the break with regard to reporting on progress made in direct payments schemes. The amendment suggests that reports are made in the context of community care as a whole within each local authority; in other words, within its own community care services reports. As the noble Baroness, Lady Hollis, reminded the Committee, the scheme is permissive and therefore there is an important public interest in each community being informed of the extent of the scheme as well as on how the scheme is working.

Community care reports will go to social services committees. They act as a focus for monitoring and can be the subject of discussion among users and carers as to the service development to which the Minister referred before the break. Rather than a separate report on the matter, as was proposed in Amendment No. 26, it is important to see payments as part of the whole provision of community care. That is why I have suggested in the amendment that the community care services report should be the vehicle for reporting on the progress of payments. I beg to move.

Lord Carter: This seems to be a sensible proposal. The only point that occurs to me is that in the minority of authorities which do not have a direct payments scheme--there may be a few--the omission will become glaringly obvious because they will not be able to report on it.

Baroness Cumberlege: There is very little I want to add that I did not mention in the previous debate on this matter. On the generality of monitoring what social services departments are doing, the voluntary organisations are very good at that in an informal way. But I understand the issue concerning accountability and the formal mechanisms that are required. We expect social services departments to report to the Department of Health. We monitor them carefully and, as our recent taskforce has shown, we keep a close eye on community care. But we do not think that anything further needs to be put on the face of the Bill.

Baroness Hamwee: I shall reread what the Minister had to say in the earlier debate. In moving the amendment, I should have said that in paragraph 32 of the consultation document the department says that it would expect local authorities to include information on the schemes in their community care plans and in local community care charters. It is perhaps a matter for seeing what is the response to the consultation on that point. Even if the Bill does not provide for regulations, the Government may decide that it would be a good

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thing to provide for such regulations in response to that consultation. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Campbell of Croy moved Amendment No. 29:

Page 2, line 1, leave out subsection (5) and insert--
("( ) An authority by whom a payment under subsection (1) above is made shall recover that payment if the person to whom it is made has not spent it on securing the provision of community care services which the authority has decided he needs.").

The noble Lord said: In moving this amendment, I suggest that at the same time my Amendments Nos. 33 and 36 be discussed. These amendments are intended to enable the Committee to consider a matter which was brought to our attention by the Scrutiny Committee on Delegated Powers in its first report of the current Session. I retired from that committee at the end of last Session, having been a member of it since it was created, so I did not scrutinise this Bill or participate in drawing up the report. Since the committee came into existence some three years ago the Government have given serious consideration to its recommendations and taken action on many of them. Since arriving from northern Scotland this afternoon I have seen the Government's memorandum from the Department of Health and I am glad to note that the Government are proposing to move amendments on this subject. This is the first opportunity to consider the report as it had not been issued at the time of Second Reading in December. That is the normal sequence. The scrutiny committee examines a Bill after First Reading but does not expect to be able to report by Second Reading. This Committee stage is therefore the earliest suitable time and in our Committee procedure discussion is normally based on amendments. My amendments are in that spirit probing.

The Bill leaves a great deal to be decided and carried out by regulations--in Clauses 1 and 4 for England and Wales and Scotland respectively. As the Bill is now formulated, the statutory instruments would all be subject to the negative resolution procedure. Noting that the system for payments is to be introduced step by step, the scrutiny committee was satisfied with the delegated powers proposed. However, the committee has suggested more thought on subsection (5), in which the aim is to recover money which has been misspent. Alternatives are proposed and the reasons are given in the following passage:

    "The delegated power in subsection (5) is potentially very wide, and does not appear to be limited to the recovery of money which has been misused. Given the width of the power and the absence of any hint of limits on its use, there is a case for subjecting the delegated power in subsection (5) to affirmative resolution procedure in the first instance, and only thereafter to negative procedure".

That proposal for affirmative resolution procedure for the first statutory instrument and negative thereafter has been advocated by the scrutiny committee as a new and suitable process in certain circumstances. The Government have already adopted this procedure in at least one other Bill in the recent past. I personally have been attracted by it, especially where the provisions are in a new field. Once the

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pattern has been set and accepted by Parliament, it should not be necessary for every subsequent instrument in that field to come automatically to the Floor of each House. The negative procedure should then suffice. I note that Amendment No. 47, in the name of the noble Baroness, Lady Hamwee, is also on that point.

My amendments are for England and Wales in the first part of the Bill. But, as I said earlier today, if the principle is accepted, further amendments for Scotland would be in order. The scrutiny committee also wonders whether the whole matter of misspent money should be dealt with in the Bill, in primary legislation, and sees the case for that; namely, that the clear principle that local authorities have a duty to recover the money should replace the present subsection (5). That is the purpose of my first amendment. It would be a change of some substance. I am sure that the Government will have considered this proposal for removing one of the delegated powers in the Bill.

My other two amendments provide for the alternative which has already been outlined by me: the affirmative resolution in the first instance. The welcome information in the Government's memorandum indicates that the Government have accepted that recommendation to include the provisions on this subject in the primary legislation--that is the second alternative suggested by the scrutiny committee--and that a government amendment will come forward, I presume, at Report stage. That would appear to meet the object of my amendment. I look forward to hearing from my noble friend this evening and also to examining the Government's amendment in due course. I beg to move.

Baroness Hollis of Heigham: I am in a little difficulty: I had originally grouped the subsequent Amendments Nos. 30 and 41 with Amendment No. 29 because I was concerned about the issue raised as regards the repayment of misspent moneys, as opposed to regulation. As the noble Lord, Lord Campbell of Croy, developed his argument, it may be better if my noble friend Lord Carter responds to the issue of regulation and I shall flag up now and deal substantively with the next amendment, No. 30.

I was unhappy with the noble Lord's amendment. Although I am no great defender of regulation, nonetheless when one comes to the overpayment or misappropriation of moneys where it is not clear whether that is due to abuse, negligence, culpability or mismanagement, that is precisely the sort of area that should be left to local authority discretion informed by central government guidance, whether in the form of regulation or guidance. It seems to me that this amendment is far too rigid to be placed on the face of the Bill and it is simply inappropriate. If this were a substantive amendment and not a probing one, I would simply oppose it.

There are many circumstances, such as financial hardship, inexperience and others, where it would be quite wrong for the local authority to seek to recover those moneys. This is precisely the area where regulation and/or guidance is appropriate. Perhaps I may deal with the substantive issue in a moment and my

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noble friend Lord Carter pick up and pursue some of the otherwise very well judged and helpful comments about regulation made by the noble Lord, Lord Campbell of Croy.

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