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Lord Dean of Harptree: I support the amendment. As the noble Baroness, Lady Hollis, reminded the Committee, married women in these circumstances can be worse off than widows or indeed divorced women. That seems, on the face of it, to be an unfair situation in which to be placed. I do not wish to repeat the arguments that have been used but I make one point to which I am indebted to the Alzheimer's Disease Society. The society states:

I am informed by the Alzheimer's Disease Society that it knows few cases where such discretion has been used. It appears that the Government are wholly sympathetic to the points made in the amendment. I hope we shall receive a sympathetic response from my noble friend the Minister.

Lord Swinfen: As my name is attached to this amendment I also wish to support it. The arguments have been made and well made. If my noble friend feels that he cannot accept the amendment because of the wording perhaps he will indicate to the Committee that he intends to bring back a more suitable amendment to achieve the same ends at Report stage.

Lord Mackay of Ardbrecknish: This is a difficult and complex issue. If I take a few minutes to explain what the situation is currently, we can then see our way through the issue and to the amendment. Currently local authorities are required to allow residents to retain part of their income as a personal expenses allowance and they have discretion to vary the amount of the allowance in special circumstances so as to leave the resident with a larger sum. Local authorities may use this discretion to allow the resident to retain sufficient money to enable him or her to support his or her spouse remaining at home where the resident receives the major part of the couple's income and the spouse has little or no income or capital of his or her own on which to live.

I have in my hand a local authority circular from the Department of Health dated January 1994 in which paragraphs 6 and 7 deal with the treatment of couples. I do not wish to read it all out but I hope that with some judicious pruning I can convey the main parts of it. It states that,

    "the way in which the charging assessment rules apply is less clear-cut where the resident is one of a couple who had sufficient joint resources before admission to remove the need to claim Income Support. Most often these are couples, now retired, where one of the couple has a significant occupational pension. Concern has been

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    expressed that, where the resident is the main recipient of the couple's income, (eg the occupational pension), the charging rules can take all the resident's income into account and as a consequence the income remaining for the spouse at home is considerably reduced".

That encapsulates the problem the Committee has raised with me. The circular continues:

    "In such cases local authorities should bear in mind that it may be appropriate for them to use the discretion available to them under section 22(4) of the National Assistance Act 1948 to increase the resident's personal expenses allowance (PEA) in special circumstances in order to enable him/her to continue to support the spouse at home. The use of this discretion is for the local authority to consider in the light of the individual circumstances of each case. The Department considers it reasonable to take into account factors such as the usual standard of living of the spouse at home, and if the spouse has higher than average outgoings for whatever reason".

That is the position at the moment. The circular continues:

    "If a local authority is satisfied that special circumstances exist which make it appropriate for them to vary the PEA—"

that is, the personal expenses allowance—

    "they should negotiate a reasonable figure which addresses the specific difficulties which give rise to these special circumstances".

The circular then points out:

    "These points are covered in the annexed CRAG amendment pages".

That is a clear circular to local authorities from the Department of Health giving them the outline of how they should exercise the discretion. Perhaps I can go a little—

Baroness Hollis of Heigham: Perhaps I may ask the Minister a question. Can he tell us from his knowledge how many local authorities are doing as his noble friend Lord Dean said and making these allowances? What is the current state of practice?

Lord Mackay of Ardbrecknish: I was going to turn the question round the other way because clearly that sort of information—like so much information as regards local authorities—is not collected. It would be expensive to collect it. It is not collected and therefore we do not know the answer. As I said, I was going to turn the question round and say that we have little evidence that local authorities are not exercising the discretion as we intend them to. The noble Baroness, Lady Hollis, mentioned Mrs. F. I do not want to discuss—

Lord Swinfen: May I interrupt?

Lord Mackay of Ardbrecknish: May I answer this point?

Lord Swinfen: My comment is specifically on this point. If my noble friend has little evidence one way, has he any evidence the other way because he gave the indication that he had not?

Lord Mackay of Ardbrecknish: I believe I indicated that. If my noble friend will be patient, I shall explain that what I said was that we do not collect the kind of statistics that would allow us to assess whether local authorities carry out this measure. The noble Baroness, Lady Hollis, mentioned Mrs. F. I always feel that it is wrong for us to bandy particular cases across the Dispatch Box. However, we would be interested in

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receiving the details of Mrs. F and indeed of any other cases. If my noble friend Lord Swinfen has any specific cases which suggest that local authorities are not obeying the letter and spirit of the circular I read out, we would be interested to hear about those cases.

The amendment before the Committee is not required because if regulations made under the National Assistance Act 1948 were changed we would arrive at the same position. To that extent the amendment is unnecessary as the powers already exist through regulations made under the 1948 Act. However, the sort of change the amendment seeks to achieve could cause problems. The change would not necessarily benefit everyone. Take the case where the remaining spouse receives a means-tested benefit, most commonly income support. All means-tested benefits have to take occupational pensions fully into account. In such cases therefore the spouse at home would benefit only if the share of pension he or she received was substantial enough to lift him or her entirely above the level of benefit.

At the other end of the scale, the spouse at home might have substantial resources, for example large savings. If people in this situation were allowed to retain a half-share of their spouse's occupational pension, while the spouse in residential care was having to be supported by the local authority, I am not sure that that ought to command a high priority in the use of any additional public funds which could be made available. Therefore, we have to consider the matter very carefully. We also have to take into account the legal liability of husbands and wives to maintain each other. The legislation which provides for local authorities to place people in residential accommodation is the National Assistance Act 1948 Section 42 of which makes each spouse liable to maintain the other. The implications of that provision for the amendment we are considering would, to say the least, be complicated. There might be potential costs to local authorities.

As I have admitted, we have not been able to quantify the extent of the problem and it is difficult to provide any hard information in respect of the questions as to how many are involved and how much it would cost. Given all the demands on government and on local authorities, we have to be careful before we set off down a road involving more expenditure, and we have to be sure that we target that expenditure.

As the Committee will have deduced, I cannot commend the amendment to the Committee. However, it raises difficult and complex issues. I shall be grateful if any noble Lords care to draw particular cases to our attention. My right honourable friend the Secretary of State for Health is fully aware of the discussion about the problem and is sympathetic to the concerns which underlie it, as I am. That is why I shall be grateful for details of particular cases.

It is important to provide proper support for spouses and for other carers in the circumstances we are discussing. My right honourable friend the Secretary of State for Health keeps under regular review the whole question of the charging system for residential care. I can assure the Committee that this particular issue is one which will be considered as part of that process. I shall

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certainly draw the attention of my right honourable friend to the discussion we have had today and to any letters which any Member of the Committee cares to send me after the debate.

I hope that with those words the noble Baroness will feel able to withdraw her amendment.

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