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Baroness Hollis of Heigham moved Amendment No. 7:


Page 1, line 15, at end insert--
("( ) An authority shall not unreasonably refuse a disabled person access to direct payments from a scheme for the making of such payments to which subsection (1) above refers.").

The noble Baroness said: The purpose of the amendment is that anyone seeking a direct payment should be certain that their application for a direct payment will be approved if they fall within the stated requirements of any scheme established by the local authority. In other words, the amendment seeks to tread the line between the rights of the disabled person and the duties, powers and responsibilities of the local authority. Just as we argued earlier that there should be no categorical refusal by the Secretary of State as to who should be eligible for direct payments, we equally accept that there should be no categorical entitlement

15 Jan 1996 : Column 392

for an individual disabled person as of right. Individual clients must be assessed and professional judgment exercised. I do not believe that there is any dispute between us on that point. Local authorities must retain their discretion, but that discretion should not be unqualified.

With the amendment, there is a presumption in favour of the client. If the client comes within the category group, then the local authority's consent to direct payments should not be unreasonably refused. It means that local authorities retain their discretion but that that discretion must be professionally exercised and capable of being reviewed against a test of reasonableness in the appeals procedures, going through to the ombudsman.

It is not a phrase, a new consideration or a new test for local authorities. It is well established in practice. Local authorities have long worked with users and carers to establish criteria of eligibility for services under the Chronically Sick and Disabled Persons Act 1970, the Disabled Persons (Services, Consultation and Representation) Act 1986 and the National Health Service and Community Care Act 1990 within a framework of policy guidance from central government, financial controls of the district auditor, the professional standards and inspection of the social services inspectorate as well as the defence of individual rights within the network of complaints systems leading to the ombudsman. In other words, local authorities expect, act, and want to act within a web of accountability, probity, transparency and controls.

We want the same considerations to apply in this Bill to direct payments. A decision should not be, or appear to be, whimsical. It should not be made behind closed doors. Social workers and social service departments should be held accountable for their decisions. The amendment provides a simple, clearly understood and well established test. If a client meets the criteria for eligibility, then consent should not be unreasonably withheld. An individual's claim to direct payments cannot be an automatic right. There may be occasional good reason--fear of a grasping relative, or whatever--that direct services may be regarded as more appropriate. Nonetheless we believe that the amendment is the next best thing consistent with local authority professional judgment and discretion that consent should not be unreasonably withheld. I beg to move.

Lord Addington: As the noble Baroness says, the procedure should be accountable. It is essential to ensure that a complaints procedure, to which are applied a set of rules, works properly. It provides a bench-mark by which to ensure that the system works. The amendment is designed to bring the system into line with existing community care procedures. Without the provision, or a similar provision, one will take away the guarantee that the system works better, and is seen to work better. There will be a bench-mark against which to measure success or failure.

Baroness Darcy (de Knayth): I support the amendment which I believe will be very useful indeed.

Baroness Cumberlege: We believe that the amendment is unnecessary. Local authorities are already

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required to act reasonably in the exercise of their functions and of their discretions. It would, therefore, be illegal for a local authority to act in an arbitrary or unreasonable fashion.

In addition, there are already several checks and balances within the legal framework in which local authorities operate which give protection to individuals who are affected by local authority decisions. If someone believes that a local authority has acted in an unreasonable or arbitrary way, he can seek redress through the local authority's complaints procedure, the local government ombudsman, or judicial review, or a combination of those as appropriate. Therefore I urge Members of the Committee not to accept the amendment.

Lord Swinfen: Before my noble friend sits down, perhaps I may say that the Bill is an enabling Bill. It states that,


    "the authority may, if the person consents, pay to him".

What happens if the local authority does not set up a scheme for direct cash payments and a disabled person then wants a direct cash payment? If there is no such scheme, would it not be reasonable to refuse? Therefore surely the amendment is useful.

Baroness Cumberlege: We believe that the amendment has no legal effect because local authorities cannot act unreasonably in the exercise of their functions or of their discretions. Therefore we believe it inappropriate to have an amendment which has no legal effect.

Baroness Hollis of Heigham: I am a little puzzled by the Minister's argument. She seems to suggest that the amendment is superfluous because it is already the case that local authorities may not act unreasonably.

Our difficulty is that if the government discretion operates in the way in which the Minister outlined, there will be only certain categories of people entitled to have direct payments. Within those categories, local authorities will exercise their professional discretion, professional judgment, based on social work assessment. I do not believe that there is any dispute between us. If someone falls within that category, however generous and inclusive, as we should like it, or however narrowly drawn the Government make it, we seek to establish that the disabled person can reasonably expect to receive direct payment if he applies. There is no weighting in the Bill as drafted in favour of the disabled person as against the local authority. The local authority could decide to refuse direct payments on grounds which are not made public. We seek to weight the matter in favour of the disabled client.

The words may be better expressed elsewhere by regulation or guidance. I do not dispute that. However, we seek to ensure that there is a level playing field: that like clients are handled in like ways. Without such protection there is a risk that whimsical judgments could be made--judgments which are not fully accountable as they should be. We all know the protection that local authorities need in sensitive areas as regards their judgment. We believe that that could operate

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occasionally to the disadvantage of disabled people. That is why we seek an amendment which clarifies that the presumption of rights is on the side of the disabled person provided that he meets the criteria of the scheme.

If the provision is redundant, that is splendid. However, I would rather have the words in the Bill which secure those rights than leave it to the test of courts or tribunals.

Baroness Cumberlege: The noble Baroness suggested that some people might feel that "whimsical judgments" (I think those were her words) had been exercised by local authorities. That is fully covered already through the appeal system. We believe that the amendment is unnecessary. It is, of course, up to local authorities to use their discretion as to whether or not they want to have a direct payment scheme. However, that is part and parcel of the Bill. It seeks to give local authorities as much discretion as possible once we have agreed the eligibility criteria.

Baroness Hollis of Heigham: We shall have to return to the matter at Report stage. We are not satisfied that the Minister accepts the need to protect disabled people in this way. However, with the leave of the Committee, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 8:


Page 1, line 15, at end insert--
("( ) The relevant complaints procedure applicable to a person receiving community care shall be applicable to a person in receipt of payments under subsection (1) above.").

The noble Baroness said: We are at a disadvantage because we received the consultation document long after the amendments were tabled. I realise now that the amendment may not be necessary because I believe that our concerns are addressed in the consultation document. However, it might be helpful if I give the brief purport of the amendment in about three sentences. Then perhaps the Minister may be able to reassure the Committee.

There already exist at least three separate complaints mechanisms within local authorities. Those are the community care complaints procedure, a separate complaints procedure under the Children Act 1989, and a general complaints procedure for other areas of social work. We seek from the Minister a reassurance that any complaints under the Bill will be incorporated within the existing community care complaints procedure: that local authorities will not be required to set up, establish and run a fourth complaints procedure. I believe that that is the intention in the consultative document. However, we have been disadvantaged in this as in so many of our other amendments by not having received that document earlier. I beg to move.


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