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Lord Addington: My Lords, that is an answer I have become used to hearing. "Yes, we agree with you in principle, but not here", is the sub-text. I would rather have the provision on the face of the Bill but it is not worth dividing the House now, although I may change my mind. The Minister's answer should be studied. There is one remaining stage of the Bill and considering the hour and the number of Divisions that have already taken place, it is appropriate that the matter should be taken away and considered. However, I give no guarantee that I shall not bring it back on Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

7 p.m.

Baroness Cumberlege moved Amendment No. 11:


Page 2, leave out lines 1 to 4 and insert--
("(5) If the authority by whom a payment under subsection (1) above is made are not satisfied, in relation to the whole or any part of the payment--
(a) that it has been used to secure the provision of the service to which it relates, or
(b) that the condition imposed by subsection (3) above, or any condition properly imposed by them, has been met in relation to its use,
they may require the payment or, as the case may be, the part of the payment to be repaid.").

The noble Baroness said: My Lords, in moving Amendment No. 11, I wish also to speak to Amendment No. 16. In Committee I gave a commitment to bring forward an amendment to give effect to the Delegated Powers Scrutiny Committee's recommendation. The scrutiny committee wanted the provision for local authorities to require direct payments to be repaid written on the face of the Bill instead of taking a regulatory power. Amendment No. 11 fulfils that commitment and Amendment No. 16 is a similar amendment to the Scottish provisions.

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The amendments give local authorities the power to recover mis-spent funds; there is no duty placed on them to do so. As I explained in Committee, the Government do not believe that local authorities should have a duty to recover money which is mis-spent. To impose such a duty could force authorities to pursue trivial sums which could well be less than the cost of recovery. Giving them a power rather than a duty also gives authorities discretion to take into account hardship considerations when deciding whether to seek repayment. Local authorities' existing duties to ensure that they manage their resources with due regard for propriety and value for money are sufficient to ensure that they will seek recovery of funds in appropriate cases.

The amendments provide that local authorities may require all or part of a direct payment to be repaid where they are not satisfied that it has been used for the purpose for which it was intended or that the conditions properly imposed on its use have been met. A local authority will only make direct payments on the basis of someone's assessed needs, and it must be able to recover money which is not used to secure services to meet those needs. We intend to encourage local authorities to use their discretion to allow individuals as much flexibility as possible over how they use their direct payments but ultimately the authority must be satisfied that the money is appropriately spent. Local authorities have a duty to ensure that public funds are not mis-spent and so the final judgment on what is appropriate must remain with local authorities. They must be satisfied that the money is spent for the purpose for which it was intended.

The amendments also provide for direct payments to be recovered where the conditions on their use have not been met. This part of the subsection is needed to recover funds if payments are used to employ someone who is excluded by regulations under Clause 1(3) or the related Section 7 guidance we propose.

The amendments place the onus of proving that direct payments have been spent properly with the recipient rather than requiring the local authority to satisfy itself that the money has been mis-spent. That will ensure that local authorities can lay down the monitoring arrangements with which they expect people who receive direct payments to comply. Our guidance will emphasise the importance of local authorities making clear to people--before they start to receive direct payments--what the money may or may not be spent on, and what information on expenditure the authority will require for audit purposes.

The wording of the amendments ensures that local authorities can recover only that part of a direct payment which they are not satisfied has been spent properly to ensure that there is sufficient flexibility to deal with whatever circumstances arise. I beg to move.

Lord Campbell of Croy: My Lords, I thank my noble friend for explaining the reasons for the amendment. I moved amendments in Committee to enable discussion to take place on two suggestions

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by the Delegated Powers Scrutiny Committee. The Government then announced that they intended to adopt one of the options which was to include a general provision to give a power to local authorities and to do so in the Bill in the primary legislation. These amendments carry out that proposal out and I welcome them. The scrutiny committee had suggested that if that did not happen, then the regulations under subsection (5) should be subject to the affirmative resolution procedure in the first instance. That is not now necessary. However, I note that in Amendment No. 19 the noble Baroness, Lady Hamwee, proposes that all regulations under the Bill should be subject to affirmative resolution in the first instance. I shall keep my comments on that until we reach the amendment.

I welcome Amendment No. 16, the Scottish equivalent of the one being discussed. As a former member of the scrutiny committee--a new committee which is only three years old--I am glad to witness yet another case in which the Government have moved to adopt one of the committee's suggestions.

Baroness Masham of Ilton: My Lords, with all the problems of employing people which we have been discussing, can the Minister say what happens if someone who receives direct payments gets into debt?

Baroness Cumberlege: My Lords, I thank my noble friend for his support for the amendments. As regards the noble Baroness's question, the social services department would clearly wish to try to help the individual concerned if it felt that it was not a wilful debt but was incurred through lack of knowledge or something similar. Ultimately the social services department could decide that that person was unable to manage direct payments. In that case it would want to discuss the matter with the person concerned and possibly provide services instead of direct payments. However, it would be for the local authority to keep an eye on such situations and use its discretion.

On Question, amendment agreed to.

[Amendment No. 12 not moved.]

[Amendment No. 13 not moved.]

Baroness Faithfull moved Amendment No. 14:


After Clause 3, insert the following new clause--

Regulation of individual independent carers

(". After consulting all persons who appear to him to be interested, the Secretary of State shall establish a body for the regulation of individual providers of home care to recipients of payments under section 1(1) above.").

The noble Baroness said: My Lords, the purpose of this amendment is to establish a regulatory body to ensure that all providers of direct payments to recipients work to a satisfactory and uniform standard of conduct and practice. In that way, recipients of direct payments, and the local authorities responsible for those payments, would be assured of a high standard of care.

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The regulatory body would be along the lines of a general social work council. The membership of such a body would be an important factor. It would be fair to all concerned that it should have representatives from among users, local authorities, professionals, voluntary and statutory bodies and other interested parties. It would regulate powers of competence, which would effectively mean the power to issue a licence to practise that in the event of incompetence could be withdrawn.

In 1970, Professor Parker of Bristol University carried out a study that made a compelling case for the setting up of a general social services council. At that time local authorities were entirely responsible for the work of their department. It was felt that it would be duplicating their responsibilities.

Times have changed. Local government increasingly assumes the role of enabler of services. We now have a purchaser-provider system involving the public, the private sector and the voluntary sector. Thus, it is necessary to ensure a uniform service of high quality, both within the local authority and throughout the country. The setting up of a general social work council would ensure that the recommendations made in this Bill would be carried out effectively; and, as I said earlier, would ensure uniform standards of conduct and practice, not only within the local authority but throughout the country. The medical and nursing professions, with whom social services work closely, have such a council. The time has come to set up a general social work council to monitor and help in the implementation of this Bill. I beg to move.

Lord Addington: My Lords, my Amendment No. 15 is grouped with this one. Although it takes a slightly different approach, the idea is the same. Those who provide care that can be purchased directly should be regulated in some way. Bad care, cowboy operators, or call them what you will, are apparent in most walks of life. It would be tragic beyond belief if people who do not know what they are doing enter this service and, for instance, advertise at cheaper rates. The capacity for a series of very unpleasant little tragedies is immense. Surely, some form of regulation should be in place. It does not matter which of these amendments--the one aimed at services or that aimed at individuals--is accepted. There must be some form of regulation. If the Minister can prove that there is already some form of legal framework to provide that, all well and good. But there must be protection. Without it, we tread extremely dangerous ground. Without regulation, we almost guarantee that at some point there will be a total abuse of this new system.


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