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Earl Russell: My Lords, after this afternoon it has been a real pleasure to return to discussing a subject about which we merely disagree. We do disagree quite considerably, mostly about questions which are reducible to evidence and therefore about questions we can usefully go on discussing. I did promise myself this afternoon that if the Minister were once again to invoke the interests of the taxpayer--this mythical single being--I would tell him the story of Mrs. Clare Booth Luce and the Pope. Mrs. Clare Booth Luce, as one or two of your Lordships may remember, was a very doughty figure, a daughter of the American Revolution, U.S. ambassador to the Vatican under President Eisenhower, and a person with whom it was not generally wise to argue. She had an audience with the Pope at 11 o'clock. Another audience was fixed for 12. The next person was there at 12, but there was no sign of the Pope. At 12.15 the secretary knocked. There was no answer. At 12.30 the secretary knocked very loudly indeed. There was no answer. At a quarter to one the

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secretary took his courage in both hands and went in--and found the Pope cowering in the corner saying, "But my dear Mrs. Luce, I am a Catholic". I am a taxpayer--and I hope that the Minister will not again forget it.

When the noble Lord, Lord Northbourne, says that two parents are generally better than one, I give him instant and total consent. If he had left out the word "generally", it would have been quite another matter.

The Minister suggested that I give advice to young girls. I advise him that I am not in the business of preaching ways of life to young girls. I think that a lot of them are better qualified to make decisions on that than I am. I agree with John Stuart Mill that if the behaviour complained of is as detrimental as alleged, the example must be rather a salutary warning than otherwise.

I shall not again go into the whole question of the costs on single parents. It seems to me that the Minister is on weak ground there and that most people's ordinary experience, as well as the bulk of research, is against him. Commonsense is not something conclusive on which to rely, but where commonsense and research both say the same thing, I am at least tempted to believe them and I want some fairly good evidence before I do anything else.

The Minister admits that the basic intention is to narrow the gap. I grant him that Parliament may discuss things, but discussing and controlling are not the same thing. Ministers listen with a certain care when they expect votes which they do not always bring to every occasion. However, everybody is human, so I say no more. I have no moral objection to what the Minister said about the other parent, but I think that he should study Professor Bradshaw's findings in all his 20 countries that that arrangement simply does not yield results. It does not in any sufficient quantity bring in the bacon. That may be a pity, but it appears to be a fact. Attempts in this country to change it have not yet led to any success.

I was extremely interested in what the noble Baroness, Lady Hollis, said about the figures on disability. On her point about age, yes, Professor Bradshaw did say that it was a significant point and that it accounted for part of the differential. He also said that it did not account for all of it. I imagine that there is no argument between us on that.

I was also extremely interested in what the noble Baroness said about Section 145 of the 1992 Act. The possibility of a challenge by the courts is interesting, but I also listened carefully to her noble friend Lord Irvine of Lairg on 5th June and I have read the article on his public lecture on the relationship between the Executive and the judges. The noble Lord argued that a great deal of the tension between the Executive and the judiciary is because of a defect of democratic control; because we are leaving things to be done by the judges which we ought to be doing ourselves. I agree. This is the second such example in one day's parliamentary business. We are leaving too much to the judges.

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I heard what the noble Baroness said about another place. One must, of course, give due weight to the will of another place, but I do not feel such entire reverence towards it as the elected Chamber as the noble Baroness appears to feel. That is because I am by no means convinced that another place represents the people any better than we do--

Baroness Hollis of Heigham: Oh!

Earl Russell: My Lords, that is not just a matter for our own party. It is also because the other place contains no Cross Benches--and a place that contains no Cross Benches cannot represent the people adequately. The noble Lord, Lord Clark of Kempston, shakes his head. I should be most eager to give way to him if he could explain why he does so. I am quite prepared to listen. I do not have an iconoclastic reverence for another place.

I believe that the Motion to Resolve is a very sensible compromise. But it takes two to compromise. The noble Baroness and her party have chosen on this occasion not to join in this compromise, so the Motion to Resolve does not serve its declared purpose. I am not prepared to leave the whole work of challenging regulations to the judiciary. We have spent a good deal of today dealing with the mess that that creates. I believe that Parliament ought to shoulder its own responsibilities. I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

Child Benefit, Child Support and Social Security (Miscellaneous Amendments) Regulations 1996

10.15 p.m.

Lord Mackay of Ardbrecknish rose to move, That the draft regulations laid before the House on 5th June be approved [22nd Report from the Joint Committee].

The noble Lord said: My Lords, I have already spoken to these regulations. I beg to move.

Moved, That the draft regulations laid before the House on 5th June be approved [22nd Report from the Joint Committee].--(Lord Mackay of Ardbrecknish.)

10.16 p.m.

On Question, Whether the said Motion shall be agreed to?

Their Lordships divided: Contents, 48; Not-Contents, 10.

Division No. 4


Balfour, E.
Blatch, B.
Burnham, L.
Carnegy of Lour, B.
Chalker of Wallasey, B.
Chesham, L. [Teller.]
Clark of Kempston, L.
Courtown, E.
Cumberlege, B.
Denton of Wakefield, B.
Dixon-Smith, L.
Downshire, M.
Dundonald, E.
Elliott of Morpeth, L.
Elton, L.
Gardner of Parkes, B.
Gisborough, L.
Goschen, V.
Harmar-Nicholls, L.
Henley, L.
Hogg, B.
Howe, E.
Kenilworth, L.
Kingsland, L.
Lindsay, E.
Lucas, L.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [Lord Chancellor.]
Mackay of Drumadoon, L.
Mancroft, L.
Massereene and Ferrard, V.
Miller of Hendon, B.
Montgomery of Alamein, V.
Mountevans, L.
Munster, E.
Northbourne, L.
Northesk, E.
Pilkington of Oxenford, L.
Rankeillour, L.
Reay, L.
Renton, L.
Renwick, L.
Seccombe, B.
Skelmersdale, L.
Thomas of Gwydir, L.
Trumpington, B. [Teller.]
Wilcox, B.
Wynford, L.


Broadbridge, L.
Carlisle, E.
Elis-Thomas, L.
Holme of Cheltenham, L.
Howie of Troon, L.
Mackie of Benshie, L. [Teller.]
Ogmore, L.
Redesdale, L.
Russell, E. [Teller.]
Williams of Crosby, B.

Resolved in the affirmative, and Motion agreed to accordingly.

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Jobseeker's Allowance (Pilot Scheme) (Amendment) Regulations 1996

10.25 p.m.

Lord Mackay of Ardbrecknish rose to move, That the draft regulations laid before the House on 10th June be approved [22nd Report from the Joint Committee].

The noble Lord said: My Lords, I have spoken to this regulation. I beg to move.

Moved, That the draft regulations laid before the House on 10th June be approved [22nd Report from the Joint Committee].--(Lord Mackay of Ardbrecknish.)

On Question, Motion agreed to.

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

10.26 p.m.

Baroness Miller of Hendon: My Lords, I beg to move that the Commons amendments be now considered.

Moved, That the Commons amendments be now considered.--(Baroness Miller of Hendon.)

On Question, Motion agreed to.

[The page and line refer to Bill (64) as first printed by the Commons.]


Clause 1, page 1, line 13 , leave out 'pay' and insert 'make'.

Baroness Miller of Hendon: My Lords, I beg to

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move that the House do agree with the Commons in their Amendment No. 1. I shall speak also to Amendments Nos. 2 to 8.

While there has not always been complete agreement on all the detail, this Bill has in general had the support of both sides of your Lordships' House. One issue on which we are of one mind is that local authorities should not treat people who receive direct payments differently than they would treat them under their charging policies if they were receiving the equivalent services. These amendments bring us even closer together on that point, and I hope that your Lordships will welcome them.

The point of disagreement when your Lordships first considered this Bill was over how to achieve the level playing field which everyone wanted. The Government never intended that local authorities should be required to seek a financial contribution from people to whom they make direct payments, nor that they should be required to means test. We do not believe that the Bill as originally drafted had either of those effects. However, there were some in this House who felt that it would be better to mirror more closely the wording in existing legislation on charging for non-residential services. The noble Baronesses, Lady Hollis and Lady Darcy (de Knayth), both tabled amendments seeking to ensure that the tests which apply to charging for services would also be applied in the case of direct payments.

As my noble friend Lady Cumberlege said then, we did not think that such amendment was necessary. Without the amendments before us today, the Bill does not require local authorities to treat differently under their charging policies people who receive direct payments and people who receive services.

However, since this Bill was first considered by your Lordships, we have had the benefit of nearly 400 responses to our consultation exercise. Among those, we received the following comment from the Association of County Councils and the Association of Metropolitan authorities:

    "It would appear that charging will require means testing and hence a new layer of bureaucracy".
Further soundings confirmed that there was indeed some uncertainty about the meaning of the Bill on this point.

The Government listened to these concerns, particularly against the background of your Lordships' three debates on this issue. Out of an abundance of caution, we decided to put the matter beyond doubt and gave a commitment in another place to amend the Bill so as to clarify this, as the noble Baroness, Lady Hollis, said at Committee stage, to make it transparently clear that there is a level playing field.

The amendments now before us amend subsections (1), (2) and (3) of Clause 1 to match more closely the wording used in Section 17 of the Health and Social Services and Social Security Adjudications Act 1983. The local authority is not required to means test. If the authority proposes a financial contribution, and the person receiving direct payments satisfies it that he or she cannot reasonably afford that amount, then the authority must reduce the amount to a level which it considers he or she can afford.

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Local authorities may not require people to contribute more than it appears to the authority to be reasonably practicable for them to contribute. That is equivalent to the law in relation to charging for non-residential services. Both leave local authorities discretion over whether and, if so, how much to charge and whether to set a flat rate charge, or a scale of charges. It is important that there is a level playing field. As amended, the wording of this Bill will be similar to that of the existing law on charging, but both allow the local authority discretion. That discretion is subject to similar constraints in both cases. However, there is no guarantee that local authorities will exercise their discretion with respect to people who receive direct payments in the same way as for people who receive services.

We said previously that we would issue firm policy guidance emphasising that local authorities should treat people who receive direct payments and people who receive services fairly and in the same way. We still intend to issue that guidance.

These amendments bring about what the noble Baronesses, Lady Hollis and Lady Darcy (de Knayth), were pressing for on previous occasions. I hope that your Lordships will give these amendments the welcome which they deserve. I commend the amendments to the House.

Moved, That the House do agree with the Commons in their Amendment No. 1.--(Baroness Miller of Hendon.)

10.30 p.m.

Baroness Hollis of Heigham: My Lords, I understand that the Minister was speaking to Amendment No. 1 and all the subsequent amendments. We are happy to see this Bill return to this House and we are even happier that some of the amendments which we initially failed to persuade the Government to accept have now been taken up, reinforced by the formal evidence of the local authority associations which were briefing us at that time.

It is absolutely right--and I am delighted that the Minister has made it clear--that there should be an equivalence between those receiving direct payments and those receiving services and that no means-test should be smuggled in by the back door while, as the Minister was right to say, protecting the discretion of local authorities to ensure that similar cases are treated in similar ways, whether by direct payments or service provision. We are pleased about that.

The Minister will not expect me not to make a few further points. We are very sorry that the amendment for which we fought that direct payments should not be confined to those under 65 was won in Committee in another place and then overturned by the Government on the Floor of the House. We all accept that not all authorities are ready, willing and able to extend their powers in that way. However, it was a useful discretion for those which could and would have welcomed such a provision; in other words, those which have already been running DP schemes and which are ready to take on a broader-based clientele.

2 Jul 1996 : Column 1422

We accept that local authorities which are new to direct payments will wish to phase in their schemes. I believe that the Government have made a profound mistake in that regard and are foolish to believe that the discretion of the Secretary of State should overrule the discretion of the local authorities which know what is the situation on the ground.

The Government are saying that the over-65s are not competent to manage their own affairs. That did not stop a sizeable number of Members of another place and many noble Lords, probably two-thirds of whom are over 65, determining that other 65 year-olds are not able to operate their own affairs.

However, the Government have agreed to review the situation after a year. There is no doubt that we all wish to see local authority schemes which are as broadly-based as possible. However, we are arguing about the speed at which that should progress. I should like confirmation or a reaffirmation from the Minister that the scheme will be reviewed after a year, not just for those with learning difficulties, who have been included, but also as to whether those local authorities which wish to do so should be able to include in the scheme those aged over 65.

In the meantime--and there was a trace of this in the debate in another place although the Government's position on it was somewhat equivocal--will the Government consider pilot schemes to encourage the existing voluntary schemes or the laundered schemes through third-party trusts, which is the experience of many local authorities?

The second point that I should like to make is that we are very sorry that another amendment which was pursued in this House has not been followed through by the Government; that is, to whom direct payments may be paid. The Government accept that they may be able to include the over-65s in the scheme in due course. Nobody on this side of the House has any wish to turn existing informal family care into a paid employer/employee relationship and we accept that, if all relatives could be turned into employees, there could be pressures on either side in that direction which we wish to avoid. It may be that a reluctant relative is press-ganged by a disabled person or a disabled person would prefer the formality of a more distant relationship and not wish to feel beholden to an immediate member of the family.

However, to avoid that lesser evil--namely, where both parties may be pressed into a situation that they do not want--the Government are committing a much greater evil. In my view, they are arbitrarily excluding relatives who are not especially close, and not necessarily living in the same household, from becoming employed. Indeed, that suggests that even someone who moves into the same household as a lodger and who strikes up a friendship with the person needing care cannot be employed to attend to that person's personal care needs because that would still be forbidden under the Bill or under Section 7 guidance. It is extremely unwise of the Government.

The Government have accepted that in rural areas and in extraordinary circumstances where there may be a scarcity of suitable people to provide care or where there

2 Jul 1996 : Column 1423

may be, say, an HIV situation, discretion may be exercised. However, the Government would have been wise to accept an amendment that we pressed--or, indeed, introduce such an amendment in the other place--whereby if a social worker is satisfied that the employment of a relative is appropriate under the circumstances, that would be sufficient. Again, we do not need the Secretary of State double guessing local authorities and professionally trained social workers in the kind of delicate and sensitive jobs that they undertake all the time. Many disabled people, especially those requiring help with quite intimate, physical bodily functions, would much prefer the care of a relative to the uncaring, casual and sometimes off-hand and unreliable care that comes from a paid agency employee. I believe that the Government are also being stupid in that respect.

There is a middle course; namely, to require that social workers satisfy themselves on a professional basis that what is suggested is the right way forward. I would back the judgment of a professionally trained social worker who is accustomed to abuse cases and similar situations over that of the Secretary of State--and, indeed, of his staff--at any time. However, the regulation-making powers are there. I am confident that they will be extended by the next Minister for the disabled to cover that category of need.

Much of the effectiveness of the Bill will depend on guidance issued by the department, especially as regards support arrangements for managing direct payments by individuals in their new role as employers. Much of that guidance, in turn, will be informed by the technical advisory group which I know has been of great help to the Minister. Will the Minister be retaining that group as an expert body to examine progress on direct payments and to inform future guidance?

I welcome the amendment that we originally put forward which has been belatedly accepted. I regret that the Government are not progressing faster towards improving the situation of those over 65 years of age, especially as regards allowing local authority discretion. I also sincerely regret--and I believe this to be both perverse and very silly--that social workers will not be allowed to assess the propriety of a relative such as, for example, a niece or the partner of a nephew, to be employed in a caring relationship. Finally, we would like some information about the future of the technical advisory group.

Having said that, we welcome the Bill. It enshrines the principle that the disabled person is at the centre of his care network and not merely a dependant upon it. The disabled person is the one best placed to determine how his care needs are to be met, by whom and in what ways. We sincerely hope that the Bill will bring freedom, spontaneity and independence to disabled people so as to allow them to live their lives as they see fit and not as we judge fit for them. I very much hope that local authorities will be encouraged by the Minister to adopt such schemes.

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