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The Earl of Mar and Kellie: I thank the noble and learned Lord for that answer. I certainly thank him for the assurance that these aspects will be covered in guidance. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Fraser of Carmyllie moved Amendment No. 68:


Page 17, line 18, leave out subsection (4).

The noble and learned Lord said: I spoke to Amendment No. 68 when speaking to Amendment No. 51. I beg to move.

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

Lord Fraser of Carmyllie moved Amendment No. 69:


After Clause 21, insert the following new Clause:

Assessment of ability of carers to provide care for disabled children.

(" .—(1) Subject to subsection (2) below, in any case where—
(a) a local authority carry out under section 21(3) of this Act an assessment to determine the needs of a disabled child and
(b) a person (in this section referred to as the "carer") provides or intends to provide a substantial amount of care on a regular basis for that child,
the carer may request the local authority, before they make a decision as to the discharge of any duty they may have under section 2(1) of the Chronically Sick and Disabled Persons Act 1970 or under section 20(1) of this Act as respects the child, to carry out an assessment of the carer's ability to continue to provide, or as the case may be to provide, care for that child; and if the carer makes such a request, the local authority shall carry out such an assessment and shall have regard to the results of it in making any such decision.
(2) No request may be made under subsection (1) above by a person who provides or will provide the care in question—
(a) under or by virtue of a contract of employment or other contract;
or
(b) as a volunteer for a voluntary organisation.
(3) Where an assessment of a carer's ability to continue to provide, or as the case may be to provide, care for a child is carried

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out under subsection (1) above, there shall, as respects the child, be no requirement under section 8 of the Disabled Persons (Services, Consultation and Representation) Act 1986 (carer's ability to continue to provide care to be considered in any decision as respects provision of certain services for disabled persons) to have regard to that ability.
(4) In this section "person" means a natural person.").

The noble and learned Lord said: Your Lordships will be aware that the Carers (Recognition and Services) Bill contains a provision dealing with the assessment of the ability of carers in England and Wales to care for, or to continue to care for, children with disabilities. Because of certain differences in the legislation in Scotland, it was not thought appropriate for that important provision to be extended to Scotland in that Bill.

During the earlier stages of that Bill in another place the Government agreed to amend this Bill to provide a corresponding provision dealing with the assessment of carers of disabled children in Scotland. At that time we said that it was our intention to achieve the maximum consistency with the reform south of the Border on this issue. The amendment now tabled honours that commitment. I beg to move.

The Earl of Balfour: May I ask the noble and learned Lord to explain subsection (2) of his new clause? Is it to cover people such as nannies who are employed, or something like that? I feel that it is surprisingly restrictive.

Lady Saltoun of Abernethy: There are two things that worry me about the new clause. There is no word of support for the carers in caring. You may get a disabled mother caring for a child. There is no word about support in doing that. The other worry is that the carer must ask for an assessment.

I would be happier if the assessment were offered without having to be asked for, which no doubt will mean filling in forms by somebody who is already very busy overworked.

Finally, may I ask the noble and learned Lord a question? Subsection (4) of the new clause says:


"In this section 'person' means a natural person."
I am very ignorant but may I ask the noble and learned Lord what an unnatural person is because I would like to know?

Lord Fraser of Carmyllie: There are in law persons other than natural persons and there might, for example, be a partnership in Scotland which I think the noble Lady appreciates is a separate legal persona.

I respond to the noble Earl, Lord Balfour, by saying that no assessment of the carer will be made where the carer provides the care under, or by virtue of, a contract for employment or other contract or as a volunteer for a voluntary organisation. The type of person it is intended to cover is the sort of person I think he would appreciate. It is perhaps the parents or grandparents of the child.

The Earl of Balfour: Thank you.

Lady Saltoun of Abernethy: I commented that I did not see any word about the support for the carer and also I was not very happy that the carer had to ask for

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the assessment.

Lord Fraser of Carmyllie: I will look into the matter, but it seems to me that it would be quite difficult to ensure that everyone who might need assessing was already known to the local authority. It might be a virtually impossible task for them to identify without some request being made to them for such an assessment to be carried out.

I apologise to the noble Lady for not answering her question. All I can say about this provision is that we are not dealing here with issues of support. It is just the narrow point of providing assessment in the context of the Scottish provisions to mirror as best as can be achieved those provisions which are found south of the Border in the Carers (Recognition and Services) Bill which I believe is about to complete its passage through both Houses.

On Question, amendment agreed to.

Clause 22 [Provision of accommodation for children, etc.]:

[Amendments Nos. 70 to 82 not moved.]

Clause 22 agreed to.

Clause 23 [Manner of provision of accommodation to child looked after by local authority]:

[Amendments Nos. 83 and 84 not moved.]

Clause 23 agreed to.

Lord Fraser of Carmyllie moved Amendment No. 85:


After Clause 23, insert the following new Clause:

Day care for pre-school and other children.

(" .—(1) Each local authority shall provide such day care for children in need within their area who—
(a) are aged five or under; and
(b) have not yet commenced attendance at a school,
as is appropriate, and they may provide such day care for children within their area who satisfy the conditions mentioned in paragraphs (a) and (b) but are not in need.
(2) A local authority may provide facilities (including training, advice, guidance and counselling) for those—
(a) caring for children in day care; or
(b) who at any time accompany such children while they are in day care.
(3) Each local authority shall provide for children in need within their area who are in attendance at a school such care—
(a) outside school hours; or
(b) during school holidays,
as is appropriate; and they may provide such care for children within their area who are in such attendance but are not in need.
(4) In this section—
"day care" means any form of care provided for children during the day, whether or not it is provided on a regular basis; and "school" has the meaning given by section 135(1) of the Education (Scotland) Act 1980.").

The noble and learned Lord said: I have tabled this new clause to provide a clear statutory authority relating to the provision of day care services for pre-school and other children and of facilities for those who care for them or accompany them in day care. Such services for children as well as services for adults are presently provided under Section 12 of the 1968 Act, but given

6 Jun 1995 : Column CWH64

the opportunity of the new legislation in relation to children only, and the proposed amendments as a consequence to remove references in Section 12 to services for children, we wish to make specific statutory provision in relation to day care services. I am sure this will be welcomed, and I commend it to the Committee. I beg to move.

Baroness Faithfull: Under Amendments Nos. 60 and 61 I made points which I had meant to make under Amendment No. 85. I am a little worried. I think Amendment No. 85 is a very good amendment, but should we not consider the community as a whole? If we just look at children in need we will stigmatise children in the community. I can understand perhaps if we had nurseries just for children in need, but should we not look at what are the needs of the community, first, so that we do not stigmatise the children in need, and, secondly, because if we then have the services applying to the whole community we are carrying out a preventative measure. Having made this point earlier, I apologise for repeating it.

Lord Fraser of Carmyllie: I understand what my noble friend is saying. This new clause allows that each local authority shall provide such day care for children in need who are aged five or under and have not yet started school and gives local authorities a power to provide day care for children who satisfy these conditions but are not in need. It is necessary to have some degree of restriction on the duty to provide day care. I recognise that my noble friend would like to see that duty extended on a broader basis, but I am sure that she appreciates that that is as far as I can take it at this time.


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