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The Earl of Mar and Kellie: I should like to express my support for Amendment No. 31 tabled in the name of the noble Lord, Lord Pearson of Rannoch. I hope that Members of the Committee will tolerate my speaking to Amendment No. 46 which, in fact, builds upon what the noble Lord mentioned as being the content of Amendment No. 31.

Amendment No. 46 is aimed at allowing direct payments to be made to people who may be unable to administer their own financial affairs due to mental disorder. That is a particular concern of the Scottish Association for Mental Health. We are discussing an amendment to the Scottish part of the Bill, but I accept that it could be implemented across the entire United Kingdom. It has been tabled because the Bill seems to be aimed only at someone who can make his own arrangements and administer his own payments. The amendment would allow a simple procedure whereby a local authority would be able to appoint someone, who had volunteered, to administer the arrangements on behalf of the recipient.

The amendment is needed in Scotland, and probably in the United Kingdom, because the laws regarding decision-making for adults with mental disability, are, sadly, out of date. For a few, arrangements have been made through a Curator Bonis, a tutor dative or by power of attorney, but that is rare. At present, there are unimplemented proposals to improve the situation from the Scottish and English Law Commissions.

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I can see that there is an argument that a person who cannot administer his own affairs would not benefit from direct payments. However, in response, I would say that such an argument misunderstands the situation of many people with dementia or learning difficulties. Although they may lack sophisticated financial understanding, they, their carers and their families may well be able to indicate what kind of help they would like and who they would wish to supply it. Through their carer or independent advocate, arrangements could be made for care which would be more in line with the person's needs and wishes than the local authority may be able to offer. There would need to be safeguards as, indeed, there would be in the case of anyone who was legally capable. The local authority would monitor the situation to confirm that direct payments were being used correctly.

Amendment No. 46 creates the opportunity for dignity to be accorded to the individual, his family and carers. It is a tragedy that the person has learning difficulties or dementia. Let us try to restrict the tragedy to that factor alone.

Baroness Cumberlege: Perhaps I may, first, deal with Amendments Nos. 22 to 24 and then address my comments to Amendment No. 31. I understand that the noble Earl would wish me to reply only to Amendment No. 31 and not to Amendment No. 46, but perhaps he would care to clarify the position?

The Earl of Mar and Kellie: I did in fact speak to Amendment No. 46 simply because it has been grouped with Amendment No. 31.

Baroness Cumberlege: In that case, and with the leave of the Committee, I shall be most happy to address those two amendments.

Amendments Nos. 22, 23 and 24 would remove the Secretary of State's ability to set a limit to the period of residential accommodation. I have explained previously that the provision is intended to exclude the use of direct payments to pay for long-term residential care but to leave open the possibility that they may be used for temporary care for respite. I do not believe that any benefit from allowing direct payments to be used to purchase permanent residential care would outweigh the extra bureaucracy involved for the local authority and for the individual in making direct payments. Suitable arrangements already exist to provide users with a choice of residential care in the statutory direction on choice.

This is an area where we consider that it is desirable to lay down national parameters because this is a new and untried development. The regulations will be adjusted to keep them sensibly aligned with social security regulations.

My noble friend Lord Pearson of Rannoch raised the issue of village communities. I agree with my noble friend Lady Flather and the noble Lord, Lord Carter, that that goes somewhat wide of the Bill that we are discussing today. However, perhaps I may say that we intend to use the regulation-making power in Clause 1(4) to exclude the use of direct payments to pay for permanent residential care. Suitable arrangements to

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provide choice in permanent residential care are already in place and to make direct payments available for that purpose would simply add to the bureaucracy. We believe that that is the same for all client groups.

I know that my noble friend is frustrated that village communities are perhaps not being selected as a first choice for many severely handicapped and disabled people. I am afraid that my noble friend knows my answers very well in relation to the direction of choice and the complaints process which can be used to seek redress. He is also very much aware of the review that is taking place at the moment, which includes his informative booklet, Made to Care, which will be very useful. That review will be completed within six months.

Perhaps I may now turn to Amendments Nos. 31 and 46.

Lord Carter: Before the noble Baroness leaves Amendments Nos. 22 to 24, is there not another argument? Are they not outside the scope of the Long Title of the Bill which is:


    "for community care services to make payments to persons in respect of their securing the provision of such services"?.

I do not believe that the amendments are within the Long Title.

Baroness Cumberlege: I suspect that that is right.

I turn now to Amendments Nos. 31 and 46. The provision in Clause 1 that a local authority may make payments to a person in lieu of services he has been assessed as needing does not preclude that person nominating an agent to receive the payment and act on his behalf so long as the user retains ultimate responsibility. No amendment is therefore necessary to enable individuals to receive assistance from a third party.

The crucial difference is that the Bill as drafted places the responsibility for managing payments with the individual who needs community care services. Direct payments are intended to give the user more control over the way in which his care needs are met. He may well get help from his family or others in managing direct payments, but if they have the final say and not the user himself then direct payments will not achieve the goals of increasing the user's independence and control.

The amendments move away from responsibility lying solely with the individual concerned. They remove the need for the individual to consent that payments should be made to a third party.

As the Bill is intended to increase the power of individuals to make their own decisions, we feel that the amendments are inappropriate. The Bill does not rule out individuals having support to make those decisions, but we do not feel that we should dilute the principle that the decisions are for the individual to make.

I hope that the amendments will not be pressed.

Lord Swinfen: Before my noble friend sits down, can she say, in the case of a mentally handicapped person having a legal guardian to undertake all his business for

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him, what would be the position of the legal guardian? Would the legal guardian be able to obtain a direct grant on behalf of the person for whom he is guardian?

Baroness Cumberlege: At this stage we do not suggest that people with a learning disability would qualify for direct payments.

6.45 p.m.

Lord Pearson of Rannoch: I am grateful to all Members of the Committee who have spoken, and particularly to the noble Earl, Lord Mar and Kellie, for his support and for what he had to say about his amendment, Amendment No. 46, which fits very closely with what I propose in Amendment No. 31.

I confess to the noble Lord, Lord Carter, and other Members of the Committee that I am indeed trying to widen the scope of the Bill. As I said earlier, I believe that it is rather a waste of time for your Lordships to go through the long process of passing a Bill of this kind, blocking off avenues which we may well come to need in a year or two but which we shall not be able to facilitate because primary legislation will then be required.

I am grateful to the noble Lord, Lord Carter, for his sympathy. I hope that I may take him up on his offer that perhaps we may join in a more specific debate on village communities another day.

As for what my noble friend Lady Cumberlege had to say, I am afraid that I remain unconvinced about the extra bureaucratic costs which my amendments would cause. I do not believe that that statement can be justified.

In response to my noble friend's statement that suitable arrangements are in place for choice in the areas I talked about, I have to tell her again that they are not in place. That is why I am moving the amendments. In her winding-up speech at Second Reading, and again this evening, she mentioned the complaints process which is supposed to satisfy the hundreds of people who complain to RESCARE about not being given sufficient choice. As I asked in my letter of 8th December, I should be grateful if she would explain to us, in as public a way as possible, exactly what those complaints procedures are, who is using them and with what success, because I am told that they do not work at all.

As to the review which my noble friend mentioned, it is extremely frustrating that the review was announced last April, and only because we have put as much pressure as we can on her department are we now told that its first part will be ready in six months. That will be too late for many of the institutions that are being closed in the meantime. I urge my noble friend to go back to her department and see whether something cannot be done more speedily to avoid the disastrous effects which I fear will be visited on thousands of our most unfortunate people.

Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Amendments Nos. 23 to 25 not moved.]


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