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Baroness Darcy (de Knayth): My Lords, I added my name to the amendment because I felt that it would be useful to have this message spelt out on the face of the Bill. As the noble Baroness, Lady Hollis, reminded us, in Committee the Minister said that an aggrieved person would be able to seek redress from the local authorities' complaints procedure, the ombudsman, judicial review or a combination of all three. But none of that is well known to the public at large.

I am sure that none of us, including the Minister, wants disabled people to go through such lengthy and difficult procedures. Therefore, while there may not be a strict legal requirement to repeat the need for reasonableness on the face of the Bill, there are good reasons for doing so. It will remind local authorities of their obligations in respect of direct payments and inform disabled people of their right to be treated reasonably. It will also remove any doubt that may arise in future, through some legalistic quirk of fate, that local authorities may not unreasonably withhold direct payments from an otherwise qualified person. I hope therefore that the Minister feels able either to accept the amendment or to table something similar to go on to the face of the Bill.

Lord Addington: My Lords, if we are to state that people who are qualified to receive direct payments should receive them if they so choose, and there is a legal requirement for them so to do, why not say it as loudly and clearly as possible? The best way of doing that is to include the requirement on the face of the Bill. If it does not change anything, it will at least ensure that the message is unambiguous. I support the amendment.

Lord Campbell of Croy: My Lords, Amendment No. 3 is word for word the same as an amendment moved at Committee stage. I do not believe that much has changed since then. At that time my noble friend Lady Cumberlege convincingly pointed out that the amendment was not necessary. Why, therefore, is it suddenly felt to be necessary?

I do not believe that while Bills are progressing through Parliament one should keep inserting statements that local authorities or other bodies should not act

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unreasonably. As my noble friend said at the last stage, it would be illegal for a local authority to act unreasonably, and nothing has changed since then.

Baroness Cumberlege: My Lords, local authorities already have a responsibility to act reasonably. No amendment to the Bill is needed to prevent local authorities from exercising their discretion unreasonably. In any case, local authorities should not make whimsical decisions. They should consider whether direct payments are appropriate for someone who wishes to receive them, taking into account all relevant matters. That includes a person's wishes and ability to benefit from direct payment, as well as other considerations. We would normally expect that to mean that like clients are treated in like ways. Local authorities should not treat clients with similar needs and a similar ability to manage direct payments differently unless they have good reason to do so. If there is a good reason, we should not legislate to prevent them from taking it into account. They cannot treat like clients differently unless it is reasonable to do so.

My noble friend Lord Campbell of Croy said that a similar amendment was moved at Committee stage. That is correct. In her speech at that stage the noble Baroness, Lady Hollis, said that the exercise of a local authority's discretion must be capable of being reviewed against a test of reasonableness in the appeals procedure. That is already the case without this amendment, since local authorities must exercise their discretion reasonably. As the noble Baroness said, people can use the complaints procedure to challenge the local authority's decision not to offer them direct payments. They can expect to be told the reasons for the local authority's decision. If anyone is dissatisfied with the outcome, he or she may ask the local government ombudsman to investigate or apply to the courts for judicial review.

To go any further would effectively limit local authorities' discretion to decide whether direct payments are appropriate in each individual case. Local authorities must have discretion to base their decisions on the wider interests of the local population--for instance, taxpayers and other service users--and not just on the interests of the particular individual concerned. They have a responsibility to obtain value for money and to use their resources to meet the needs of all people in need of assistance in their locality, not just one individual.

Local authorities must act reasonably. It would not be appropriate to restrict their discretion further. I urge your Lordships not to support the amendment.

5.30 p.m.

Baroness Hollis of Heigham: My Lords, the noble Lord, Lord Campbell of Croy, and the Minister have basically said the same thing--that the amendment is unnecessary because local authorities already have to act reasonably. When moving the amendment, I tried to say, although obviously I was unclear, that the current test of reasonableness embedded in local authorities' procedures is a high standard of proof--that only if no reasonable authority could have acted in such a way would a test of unreasonableness be upheld. That is

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quite tough compared with what the wording in the amendment would ensure. It requires that local authorities may not unreasonably withhold their consent.

However, the Minister's words are in Hansard and they do enlarge on the issue. Given the time and the discussion we have had, I have no wish to press the House for a view on the matter. With the leave of the House, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 4:


Page 1, line 18, leave out from ("authority") to end of line 19 and insert ("shall, in determining how much to pay a person under that subsection, not require him to contribute more than it appears to the authority that it is reasonably practicable for him to contribute").

The noble Baroness said: My Lords, Amendment No. 4 also visits an issue which we discussed in Committee. I was not entirely happy with the answer we received at that time and we hope that the Minister may have thought again. One of the reasons for bringing back on Report amendments which were discussed at Committee stage is in the hope that the Minister will have taken further opinions on the issue, reflected further and decided to move a little beyond the Government's position in Committee.

The amendment seeks to provide for a more equitable basis for levying charges. The basis for local authority charging for social services--for example, for home helps--is founded in the 1983 Act. It says that an individual may be charged where the local authority is satisfied that it is,


    "reasonably practicable for him to pay".
Where local authorities provide a free service, the individual will receive the service free; where his means are very modest he may contribute little or nothing for a service for which a charge must be made. What the amendment seeks to do is to bring the same wording, "reasonably practicable", of the 1983 Act which applies to charging policies for services into the charging policy effectively for direct payments. There will then be a level playing field between the two so that the assumptions about charging which apply to services will apply to direct payments in which an income will be offset against the money received.

The words of the Bill do not do that. Instead, the Government use the phrase,


    "have regard to his financial circumstances".
That is a much harsher test than that of the 1983 Act, which uses the words "reasonably practicable". What this appears to presume is a means test, even though, where services are concerned, no means test is involved--the service is free.

If the Minister is anxious to ensure, as I believe she is, that there is a level playing field and that there should be no difference between the two, the best way of doing so is to have the same wording in the Bill. If we want local authorities to approach the charging claw-back on direct payments in the same way as they charge for services, we should have the same words. If the Minister wants them to do it in the same way, she should use the same words. If she does not want them to do it in the

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same way and there are different words, that will suggest different practices. The Minister has suggested to us that she does not want that to remain. We want the situation to be unambiguous.

In Committee the Minister said that she would issue Section 7 guidance to clarify the wording. But why issue guidance to clarify the wording of the Bill when one can clarify the wording by amendment of the Bill? Why seek to tidy up ambiguity by guidance and regulation when one can tidy up ambiguity on the face of the Bill itself? Yet, by conceding that, the Minister agreed that there could be cause for concern and that local authorities might need to have further regulation or guidance. Why go for clarifying it by regulation or guidance when one can do it on the face of the Bill? I very much hope that the Minister will accept that the simplest and cleanest way to ensure a level playing field is to have the wording of the 1983 Act applying to services applying also to the claw-back mechanisms of direct payments. If there is any difference in the wording, local authorities can be forgiven for thinking that the Government do not expect them to behave in like ways in like circumstances.

I have one final point. Will the Minister may it clear that in assessing charging local authorities should be asked to take into account any extra expenditure that may be incurred because of the service user's disability or frailty? It would be helpful to have the Minister's views on that point. I beg to move.


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