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Baroness Cumberlege: The noble Baroness is right, in that we believe that the amendment is not necessary. It seeks to give the Secretary of State the power to issue guidance on the operation of direct payments. Clause 3(3) already gives him this power by adding direct payments to the list of social services functions in Schedule 1 to the Local Authority Social Services Act 1970. Sections 7 and 7A of that Act authorise the Secretary of State to issue guidance and directions in relation to local authorities' exercise of their social services functions. It is normal practice to consult interested parties in the preparation of community care guidance, and we intend to consult on the proposed guidance on the Bill. We do not support the amendment.

Baroness Hollis of Heigham: Is the Minister saying that the Government will be issuing such guidance as opposed to saying that the power to issue such guidance is unnecessary?

Baroness Cumberlege: We believe it to be unnecessary because we believe that already there are powers that the Secretary of State can use within the Local Authority Social Services Act.

Baroness Hollis of Heigham: I am sorry to come back. I understand that the Secretary of State does not need powers to issue guidance. The question is: does the Secretary of State intend to issue such guidance?

Baroness Cumberlege: We understood that the amendment would require the Secretary of State to consult on guidance. At the moment, it is normal practice to consult but, with regard to the Government issuing guidance under Section 7, the answer is in the affirmative. Perhaps I may write to the noble Baroness on that matter.

Baroness Hollis of Heigham: I would be grateful if the Minister would write to me in order to clear up the matter. In the light of that, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Clause 1 agreed to.

[Amendment No. 38 not moved.]

Clause 2 [Relationship with other functions]:

Baroness Hamwee moved Amendment No. 39:

Page 2, line 22, leave out ("they are satisfied that").

The noble Baroness said: In moving Amendment No. 39, I shall speak also to Amendment No. 40. I fear that amendments which looked fairly sensible in the light of day when drafted may appear to be nitpicking at this hour of the night. I shall deal with them quickly.

Clause 2 deals with a local authority's obligations, or relief from obligations, to provide community care in respect of services for which payments are made. I wondered whether the words "they are satisfied that" in subsection (2) gave a more subjective slant than was satisfactory. In other words, is there a sufficient degree of objectivity in the local authority's consideration as to whether or not the service is required? How reasonable are they to be in judging their own satisfaction?

The second amendment seeks to replace the words "will be met by virtue of", simply because I am slightly uncomfortable about seeing those words in legislation. It is possible that "by" is better. I was perhaps over-energetic in the Christmas break and came up with the words "has been agreed to be acquired by". I impertinently question the terminology of the clause. I beg to move.

Baroness Cumberlege: Clause 2 is in the Bill to ensure that a local authority does not have to pay twice to meet the same needs, once by direct payments and again by providing services. Subsection (2) ensures that where someone receives direct payments but their needs are not met, for whatever reason, the local authority has a responsibility to step in and arrange the relevant services. This provision ensures that no-one is left without the services that the authority has said that they should have. These amendments remove that safety net. If the recipient has agreed to use the payments to acquire the service that he or she has been assessed as needing, the local authority is no longer under any obligation with regard to those needs. So, if that person is unable to acquire those services, for whatever reason, whether or not they bear any responsibility for that fact, the local authority will no longer have any responsibility to help out.

The noble Baroness, Lady Hamwee, has expressed concern about people who fail to use their direct payments properly, leaving the local authority to pay twice. Individuals should make reasonable arrangements to ensure that their needs are met using direct payments, and that they have adequate back-up in emergencies, such as when a personal assistant falls sick. But if their needs are not met, under the Bill as drafted the local authority will have a responsibility to step in. If the local authority is asked to step in it may well decide to look again at whether the individual can manage the direct payments scheme and consider discontinuing direct payments. The situation that the noble Baroness fears should not continue for long. Either the authority will discontinue payments or the crisis will pass. If the

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reason why the user's needs are not met is that he or she has misspent the payments the local authority will have the power to recover that money, so the local authority will not be paying twice. If that is not the case, in rare circumstances the local authority may indeed find itself paying twice for the same service. For example, the payments recipient's personal assistant may fall sick, and the agency which they have contracted to provide cover is unable to provide someone. The local authority will have to step in, but that may happen equally where one of its own staff falls sick and the local authority has to pay someone to cover for them.

Clause 2 as it stands is essential to make direct payments work. To change it to address this one small risk opens up the much greater and more serious risk of leaving people with no way of securing the services they need. Therefore, we do not support this amendment.

Baroness Hamwee: I am not sure whether the Minister has answered the first amendment, but I will read her response. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 40 and 41 not moved.]

Clause 2 agreed to.

Clause 3 [Consequential amendments]:

Baroness Hollis of Heigham moved Amendment No. 42:

Page 2, line 40, at end insert--
("( ) Section 29(6)(a) of the National Assistance Act 1948 shall be repealed.").

The noble Baroness said: Amendment No. 42 is a probing amendment to discover why the Government have not taken the opportunity under this Bill to repeal Section 29 of the National Assistance Act 1948 which up until now has made direct payments illegal. The Disabled Persons Services Bill, which was introduced in 1993 by the noble Lord, Lord McColl (whom we are delighted to see is here) sought to repeal this part of the 1948 Act in its first clause.

Subsequent clauses of this Bill refer back to the National Health Service and Community Care Act 1990 and the Chronically Sick and Disabled Persons Act 1970, but the definitions that they employ are founded on Section 29 of the 1948 Act. As one of the organisations has said, all roads lead back to that section. Why have the Government not unambiguously repealed it? We worry that perhaps a power may remain to make an assessment of needs and definitions contestable and therefore leave a local authority at risk of legal action. Perhaps the Minister can allay our fears. I beg to move.

Baroness Cumberlege: Section 29(6)(a) of the National Assistance Act 1948 does not conflict with this Bill. It is neither necessary or desirable for it to be repealed. Section 29(6)(a) would not prevent direct payments under this Bill being used to fulfil the duties created in Section 29. Section 29(6)(a) merely states that the earlier parts of Section 29 do not authorise or require the payment of money. That authorisation will be given, in certain circumstances, by this Bill.

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To repeal Section 29(6)(a) will open the way for local authorities to pay money to people in much wider circumstances than are envisaged by this Bill. Indeed, it would allow money to be paid out in any circumstances, provided the purpose was to promote the welfare of someone covered by Section 29. The money would not need to be linked to the provision of any service. The purpose of direct payments is not to give people handouts. We must retain Section 29(6)(a) so that money can be paid out only in the circumstances and with the safeguards specified in the Bill. Therefore, we do not support this amendment.

Baroness Hollis of Heigham: The more the Minister spoke, the more I thought what a good idea it was to repeal this section of the 1948 Act and increase the discretion of local authorities overnight. But I understand the force of the Government's argument. Unless I am advised to the contrary, we would not wish to return to this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Clause 3 agreed to.

Lord Carter moved Amendment No. 43:

After Clause 3, insert the following new clause--

Regulation of independent domiciliary services

(" . Where--
(a) a person in receipt of direct payments under section 1(1) above has chosen to purchase independent domiciliary care; and
(b) the Secretary of State has consulted with such persons as appear to him to be concerned,
he shall by order introduce a scheme for the regulation of the provision of such services.").

The noble Lord said: This amendment is an attempt to insure against the exploitation of disabled people by unscrupulous agencies which provide care, and to maintain general high standards of care. I believe we can all agree there is a strong possibility that service users who opt for the direct provision of service will require independent care providers, although we know that a number will choose to find their paid help by a variety of other means. The domiciliary care industry is at present small and is expanding rapidly. There is no requirement for independent care providers to register with local authority social services departments, nor do local authorities have the right to inspect such services. However, it is in everyone's interest, particularly those of the users of the service, that there be care standards for all such providers. To have a basic standard of registration assists new providers who wish to enter the market and will protect the users of the service.

We anticipate that direct payments may generate many new entrants to the market. This means that these new organisations will need the same regulation as that for which there has been a call for some time, as the Minister will know. We believe that this protection is vital. Authorities will find it hard to expand the operation of direct payment schemes unless something similar to what is proposed in the amendment is in place.

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We know that the independent sector could gain by voluntarily registering with a local authority, but we do not feel that that is enough, especially where a single purchaser of a service has to rely on advertisement, word of mouth or canvassing for trade. We believe that there should be a requirement to ensure a basic minimum standard for all suppliers; that is, those to local authorities and those to private households. That would ensure that they were capable of providing a reasonable service and that the suppliers throughout the range were fit for the purpose.

We all want the Bill to succeed. Indeed, the worst that could happen is for a number of scandals to arise in the independent sector. The proposed amendment is perhaps not the best or perfect way to achieve that aim, but it is a probing amendment to elicit the views of the Government and to ascertain whether they would like to reconsider the matter and perhaps return at a later stage with their own amendment. I beg to move.

9 p.m.

Baroness Seear: I want to give the strongest support to the amendment. Of course, the issue has been raised before, but surely the case is greatly strengthened with the introduction of the Bill. I say that because the individuals making the purchases for themselves are at the mercy of the market and many of them will not have great opportunities to explore the details of the organisations with which they propose to deal. Such people are particularly vulnerable in that position; indeed, they can easily be taken for a ride and may find it very difficult to deal with irregularities which may arise in certain cases.

I should declare an interest in the matter as President of the Institute of Domiciliary Carers. I know that for a number of years now members of that organisation have been extremely anxious that there should be proper regulation. The good enterprises--and there are many of them in the private sector--on which we shall rely very heavily for making the scheme work also want to see regulation and registration so that the cowboys can be excluded.

As the noble Lord, Lord Carter, said, we only need a few really bad scandals--and there will be some rotten apples in this particular barrel, as in the case of all other barrels--for the whole scheme to be discredited. This is the time for the Government to think again about their determination, as in the past, to rely solely upon voluntary registration. They should consider introducing a proper scheme.

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