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My noble friend Lord Morris of Manchester, who I know was struggling to be able to stay for the whole of this debate, spoke with authority as usual. I acknowledge his expertise and welcome the benefit of his wisdom in the weeks and months ahead. He spoke, as others did, about employer resistance, which is a hugely important factor. He did say that sanctions do not work and asked why we needed them, as not many people have sanctions imposed on them. It is entirely right that, in return for our offer of pathways-style help and support, we ask customers to engage with us. Research with pathways customers found that sanctions are an important factor for some in maintaining their attendance at work-focused interviews. The success of this approach is demonstrated by the fact that only 1 per cent of customers in pathways pilots have had sanctions imposed on them.

The noble Baroness, Lady Thomas, asked whether personal advisers have discretion if someone with a mental health condition misses a work-focused interview. Yes, they will have that discretion. We have introduced a series of safeguards to ensure that no sanction is imposed in cases where someone has a mental health condition until a face-to-face discussion has been held with the customer to ensure that they understand the requirements. The noble Baroness also asked about the participation of GPs and whether they are effective. Procedures are in place to identify doctors who do not provide reports when asked. I can provide more information in Committee or otherwise if the noble Baroness so wishes.

A question was asked about investing more in mental health services. In 1999, the Department of Health published a national service framework that set out our vision for mental health care. Between 2001-02 and 2005-06, the NHS and local-authority planned expenditure on mental health services has increased in real terms by 25 per cent, and there are 50 per cent more consultant psychiatrists, 75 per cent more clinical psychologists and at least 20 per cent more mental health nurses than there were in 1997.

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A question was also asked about the backdating of claims. We have decided that additional support should be provided at the end of the assessment phase. For many customers, this is an increase compared with the existing system in which customers must wait for up to a year before receiving the higher rates of benefits. We must strike a balance between the needs of our customers and the need to simplify the system.

Several questions were asked about the computer system for the PCA, and whether it would be flexible enough to take non-standard answers. Yes, it will. The LiMA system is there to support healthcare professionals carrying out the PCA assessment, and a healthcare professional remains in full control and can override the system wherever appropriate.

The noble Baroness, Lady Thomas, and the noble Lord, Lord Low, asked whether there was a conflict of interest in the work-focused health-related assessment being carried out at the same time as the PCA. We do not believe that there will be. The work-focused health-related assessment is an integral part of the revised PCA. It is a forward-looking assessment of health interventions that will help to break down the barriers to entering or returning to work. However, we will pilot the work-focused health-related assessment later in the year, and will then review its timing.

The noble Lord, Lord Low of Dalston, reminded us quite powerfully of the scale of the challenges that we face if we are to stimulate and facilitate the aspirations particularly of people with mental health problems. He also asked whether the PCA should reflect socio-economic factors in deciding limited capability for work. Of course these factors have an impact on the rehabilitation of people with a disability and on their confidence and ability to enter or return to employment. Entitlement to benefit must be defined in a way that applies nationally and consistently, not in a way that is dependent on local conditions such as the availability of transport or the attitude of prospective employers.

The noble Lord asked how we will ensure that contracts do not encourage providers to help only those people with fewer support needs. That theme was picked up by others, including my noble friend Lady Hollis. The bids for Pathways to Work contracts for potential providers should include details of the skills and experience that they have that enable them to address the specific needs of all customers and the barriers against them, and the bids will be assessed against that information. Contracts do specify that a provider should not discriminate against anyone on the basis of their disability. If providers ignore those with complex or longer-term needs, they will clearly breach this requirement and will have to remedy the situation, or ultimately their contract may be terminated.

The noble Lord, Lord Kirkwood, asked about the “work first, benefits second” approaches which my noble colleague the Minister of State referred to in a speech. This does not represent a change in direction from the current agenda in welfare reform. The concept of promoting work over benefits has been at the heart of the Government’s agenda since 1997. The

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Minister of State discussed this matter at the first seminar of a series of seminars on the future of welfare in the next decade. The seminars are about exploring and discussing ideas for the future of welfare, rather than about representing specific policy proposals. The noble Lord referred specifically to the benefit process in Galashiels. Perhaps I should write to him separately on that matter.

The noble Lord also talked about the use of Section 82 and how it did not work satisfactorily before. I hope that the lessons have been learnt from that. It is very important that the resources are in place so that we get the IT systems fully up and running and tested before we press the button. There is a long lead time to that, which is why we need to go through these processes.

My noble friend Lady Hollis, in a typically thorough analysis, asked whether providers will ignore those who are harder to help: will they cherry pick under the contract facility? In any programme based on results, we can never entirely eliminate the risk that providers will cherry pick. Therefore, as part of contract management, we will need to monitor outcomes and regularly review providers' performance to ensure that any problems are dealt with early. She asked whether we can help former employers re-employ disabled people. We do not believe that that is financially viable. Our approach is about working with employers so that they understand the benefits of employing disabled people and ensuring that people are incentivised to go into work.

The noble Lord, Lord Kirkwood, asked about the details of the IT and BPRP situation. Perhaps I can cover that in correspondence in due course.

The noble Baroness, Lady Greengross, asked about permitted work for those who will never move to full-time work. We recognise the importance of part-time work to well-being and to developing self-worth and are looking at the best ways to continue to enable people who are currently far away from being able to work full-time to take part in work or work-related activity. People in the support group will still be able to undertake permitted work.

Are we going to increase the £85 limit at which deductions from the contributory allowance for pension payments start? No, we keep the figure under continual review but have no plans to increase it because we think that that is an appropriate level. The treatment of occupational pension payments is one of the most generous income disregards in the benefits system.

The noble Lord, Lord Best, asked how many claimants have a shortfall between rent and benefit in the local housing allowance pathfinders. In the pathfinders, about 39 per cent of claimants have a shortfall under the LHA, the average shortfall being about £17 a week. He referred to a switch in the average from mean to median rents. The median rent basically takes the point in the middle and therefore should address unrepresentative low or high rents at either end of the scale. Perhaps we can pick up the outcome of that when we return to the matter in Committee. On the shortfalls under the local housing allowance shared room rate, in the pathfinder areas,

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the average shortfall for those assessed under the single room rate has fallen from £30 per week before the LHA was introduced to its current level of £27 per week.

My noble friend Lord Morris of Handsworth spoke about the importance of the legislation and said that he was in favour of welfare, not workfare and it is certainly not about workfare. He asserts that the Bill should get full scrutiny and I am sure that that is right.

The noble Baroness, Lady Murphy, asked whether we would continue to monitor how the revised PCAs are implemented. The answer is yes. The Minister for Welfare Reform has given an undertaking that we will continue to monitor the revised PCA for the first years after its introduction. She asked about health care professionals carrying out the PCA and whether they will receive training in assessing mental health. The answer to that is yes. I am sure that we will return to that in Committee.

I was asked about access to LiMA software and why we cannot scrutinise it. LiMA software is the commercial property of Atos Origin, so it is exempt from disclosure.

The noble Countess, Lady Mar, referred to sufferers from CFS/ME. We fully recognise that CFS/ME is a genuine condition that can be very disabling. Each individual will be assessed on the functional limitation that he or she experiences as a result of their condition. She raised issues about the personal capability assessment. The personal advisers carrying out work-focused interviews will be able to defer an interview if the person is unable, on account of their condition, to attend on the appointed date. She raised a series of other questions which we shall have a chance to pick up in Committee—specifically on the detail of the regulation.

My noble friend Lord Young of Norwood Green referred to the demise of the term incapacity benefit. That encapsulates the change in ethos that the provisions are intended to introduce. I agree that this is a positive piece of legislation.

The noble Baroness, Lady Meacher, asked about linking rules. We intend to bring forward the current rules that apply to incapacity benefit to contributory ESA, including the more generous two-year linking rule for work and training that came into force in October 2006. We are seeking to bring the short-term linking rule for income-related ESA into line with the rule that applies to income-related JSA and income support; that is, a 12-week provision rather than eight weeks.

It has been suggested that we are rolling out the Pathways to Work programme on the cheap. I think I have dealt with the point: we are certainly not. It needs to be effectively resourced if it is to achieve its objective. The noble Baroness also asked about further evidence and whether the GP is always the best person. We fully intend that further medical evidence will be sought from the most appropriate source, which might well be someone other than the GP.

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The noble Lord, Lord Addington, raised a range of issues about the practicalities, including questions about whether the resources are going to be in place, and if proper training will be available. The provisions in the regulations will help in some of that, but no doubt we will return to these points in Committee.

In 1997 we set out on a journey. Throughout that journey our values have underpinned our reforms and driven our agenda, but there is still more to do. Where discrimination still exists and where the right to work is still not truly open to all, we have to rise to the challenge and be radical to stay on track to deliver. That is why this Bill is so important. It is absolutely fundamental to our agenda. It promotes opportunity, it breaks down barriers to work, and it will deliver another blow in our fight against poverty and social exclusion. It will take us another step along the road of creating a welfare state which rather than foster dependency will facilitate aspiration. It is founded on a positive can-do attitude as opposed to the defeatist mentality that nothing can be done.

On Question, Bill read a second time.

Mental Health Bill [HL]

8.37 pm

The Minister of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Gould of Potternewton) in the Chair.]

Schedule 6 [Mental Capacity Act 2005: new Schedule A1]:

Baroness Murphy moved Amendment No. 62:

The noble Baroness said: I do not look like either my noble friend Lord Rix or my noble friend Lord Adebowale, but I understand that it is in order for any noble Lord to move an amendment that has been tabled. This amendment concerns authorisations under the Bournewood proposals.

One of the problems that, I think, we all have with Bournewood is that we do not know how many people are going to be subject to them. We have had several guesstimates of how many there might be and the characteristics of patients that will make them subject to an authorisation. So far as I can see, it could be any number of people, anything from 3,000 or 4,000 up to 400,000 depending on the characteristics of the individuals concerned.

It is possible that, on many occasions, there will be no need for the period of authorisation to last for longer than a few weeks. That is my hope—I see that the Minister is nodding, so I am hopeful that that is correct—but I can also see that there may well be a rather larger number than we think of people, particularly the elderly with dementia, who will need

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a longer authorisation period. Some elderly people regularly go “sundowning”, which is what we call it when they wander around inside a residential care home trying to get out, looking to go home, back to work or, as one of my patients used to say, “I’ve got to get out to get me husband’s tea”. They constantly rattle the door. It is a very common scenario.

Many such people will be subject to the Bournewood provisions when people understand the benefits that they could have for their overall care and security for staff. So there could be occasions when the period will extend beyond a year and possibly go up to two or two and a half years. The amendment would offer the same kind of protection in terms of assessment and the period of authorisation as is provided under the treatment clauses in Section 3 of the Mental Health Act. It is to give an equivalent protection in the time period for an assessment before the renewal of an authorisation. I beg to move.

Baroness Barker: In the absence of the noble Lords, Lord Rix and Lord Adebowale, I wish to speak to the amendment for three reasons. First, we began to discuss the Bournewood provisions two weeks ago. Since then, at the end of last week, there has been a court case in which there was a finding against Surrey County Council that may turn out to be very important. I am sure that the Minister will decline my invitation to pass an opinion on it, but I think that there is already fairly widespread agreement that it amounts to a significant change in the definition of “deprivation of liberty”. In view of that judgment, will the Minister’s department consider issuing new guidance on the matter of deprivation of liberty? If so, it is entirely valid that we should discuss the amendment moved by the noble Baroness.

Secondly, how did the department come to its figure of one year? How long is the average stay in a residential home of someone who is likely to come under the provisions? I accept that people who are likely to be deprived of their liberty in residential homes often have significantly different characteristics from those detained under the Mental Health Act in that many of them have Alzheimer’s and many of them are very frail.

I hesitate to say this in the presence of someone as eminent as the noble Baroness, Lady Murphy, but it is not unknown—in fact it is fairly frequent—for older people’s cognitive abilities to be impaired for simple physical reasons. They may get infections, for example, and become confused, but these are only temporary states of confusion and can change. In that circumstance, a maximum period of a year, which could easily become a default if there were not the resources to go round, is too long. In replying to these points, can the Minister give an assurance that people who are likely to be in a temporary state of incapacity are not being unduly detained for long periods?

Earl Howe: I support the amendment. The Minister will know that there are many opportunities for review of an authorisation. It can be instigated by a carer, a care home or a hospital where a change in

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someone’s situation is noticed, and that, I take it, is why an automatic review at 12 months is considered by the Government to be a kind of long-stop measure that will affect relatively few people.

I note the kind of examples that have been quoted, particularly the one just mentioned by the noble Baroness, Lady Barker, but there will also be cases where an individual or their carer may not have the confidence or the knowledge of the system to feel able to instigate a review of their authorisation, and for those people as well 12 months seems far too long to wait for a review of their situation, if one presupposes that it is not in the best interests of the person concerned to be deprived of liberty.

8.45 pm

My understanding is that the Government justify the length of authorisation on two grounds. First, they have said that the automatic review at six months would be over-burdensome on services that are already stretched. Secondly, they say that authorisations would generally be for shorter periods and that therefore the provision would affect relatively few people. As I have just said, the automatic review at 12 months is just a long stop to prevent indefinite detention.

If I have got the Government’s position right, their two arguments are mutually exclusive. If it is true that relatively few people would be affected, reducing the maximum length of an authorisation could not be over-burdensome. I hope that the Minister will agree to look again at this modification.

The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): I say to the noble Earl, “Very good”. I thank the noble Baroness, Lady Murphy, for moving the amendment. On behalf of everyone in the Committee, I say how much we miss the noble Lord, Lord Rix, this evening. As I understand it, he is still in hospital.

Baroness Murphy: The noble Lord, Lord Rix, has been discharged from hospital and is now resting at home. He hopes to return after Recess.

Baroness Ashton of Upholland: I am extremely pleased to hear that. I hope he is therefore able to make his speech tomorrow night, as I have to replace him if he is not. I fear he will not, though. We wish him well in any event, and I am grateful to the noble Baroness.

Important issues have been raised. The noble Baroness began with her concern about the number of people who may be deprived of their liberty. I do not have to remind the Committee of the importance of the Mental Capacity Act 2005 or of these provisions. Noble Lords know well the provisions’ history and that the purpose of the Act is to make sure that we enhance the quality of care and support for individuals. Included in that is a recognition that, in certain circumstances, what we have described as “deprivation of liberty” may be appropriate in order to keep them safe, enhance their care and look after them effectively and properly. It is on that basis that we have to address these provisions.

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Regarding the numbers, we have talked to psychiatrists who care for people with learning disabilities or dementia and to lawyers who are working in the field. We think that there would be about 1,000 to 5,000 authorisation cases each year. In the first year, we estimate, about 21,000 people will be assessed and about 5,000-plus authorisations will follow from that. That is an estimate by economists in the Department of Health, and it is based on the number of people who lack capacity and who need special protection. We have also looked at figures in one local authority to see how many of their clients may need an assessment.

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