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Baroness Cumberlege: My Lords, the Government intend that neither those receiving direct payments nor those receiving services should be treated more favourably than the other in the question of the financial contribution that they make towards the cost of their care.

As drafted, the Bill gives local authorities the discretion on whether or not to take someone's financial circumstances into account. It also gives them discretion on how to take someone's financial circumstances into account, provided they do not act unreasonably and ask someone to make a greater contribution than they can afford.

I have explained the Government's intention to issue guidance on this matter under Section 7 of the Local Authority Social Services Act 1970. The guidance will stress that local authorities must treat people fairly. The noble Baroness, Lady Hollis, has made clear her wish to see a provision on the face of the Bill which would render the guidance unnecessary.

However, the amendment does not achieve that aim. It would require local authorities to act as if their assessment of how much someone should contribute to the cost of their care were subject to Section 17 of the Health and Social Services and Social Security Adjudications Act 1983. But Section 17 allows local authorities a great deal of discretion over their charging policies. What this amendment does not do is to require authorities to reach the same or similar result as they would if that person had been receiving the equivalent services. So in order to ensure that there is a level playing field, we would still need to issue the guidance I have described. That is the most appropriate and effective way of achieving the effect we all want to see.

The noble Baroness, Lady Hollis, has raised the point on several occasions that although we claim that the amendment does nothing and that the position is the same with the amendment as without it, if it makes no difference, why should we not accept it? The courts may naturally assume that the amendment does something--and that that something may be different from what was intended. That is why I am so reluctant that the House should accept the amendment. If the position were unclear, I would accept the amendment. I would accept the amendment if it would change the law to achieve

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the desired effect. However, the position is clear. The amendment achieves nothing. Therefore, I urge your Lordships to reject it.

7.15 p.m.

Baroness Hollis of Heigham: My Lords, the Minister has made her position clear. At this stage I shall not push the amendment to a vote, but the Opposition will return to this matter in the Commons. However, I repeat that in legislation it is silly to have one set of words affecting the service element of a local authority's provision and a different set of words when the service equivalent becomes direct payments. To suggest two different sets of wording, which is how the Government have ended--one set relating to direct payments and the other to services--suggests that there is not a level playing field between the two and that a different construction can be placed upon them.

The matter is in the Minister's hands. The Minister could have used different words. We have tried to deal with this in different ways to see whether we can meet the Minister's objections. I repeat that the matter is in the Government's hands. They could have put the situation beyond doubt and made the position totally clear by incorporating the same words regarding direct payments as are applied to service provision. The Government chose not to do so. Both local authorities and disability organisations believe that whatever the Minister may intend, it is not what is in the Minister's head that is the issue; the issue is what is stated on the face of the Bill. The Minister has failed to align the wording although she insists that that is what is meant to happen. I do not understand it. It is silly on the Government's part; but at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hollis of Heigham moved Amendment No. 3:


Page 1, line 24, at beginning insert ("Except where the authority is satisfied that the person from whom the services can be secured is suitable,").

The noble Baroness said: My Lords, this amendment addresses the issue of which relative may be employed to meet the needs of somebody in receipt of direct payments. We all accept that direct payments should not replace informal family care with paid formal care. We all accept that we do not want disabled people to be put in a position where they are pressurised by family members to employ someone within the family, whom they cannot subsequently sack, when they would prefer to be independent and to employ somebody from outside the family.

We have no difficulty with the Government's position that any family member living in the same household--by definition, a close relative--should not be eligible to be paid with direct payments. I believe that all noble Lords agree with those principles--that you should not be expected to employ a family member if you do not want to do so, and that you certainly should not be able to employ a family member who lives in the same house because that would turn into formal care that which is currently informal family care.

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However, the Government have gone much further than that. They have gone beyond the practice of the Independent Living Fund and have said that you may not make direct payments to members of the family, often quite distant family members, who may live on the other side of the town or village. In other words, the Government have ruled out remote relatives who do not live in the same household.

The Government have recognised that that is too blanket a ban and have already indicated that they will make some exceptions. They will make exceptions for people in ethnic communities where someone may be able to insist that they employ a person who is a member of their extended family; they will make exceptions in rural areas where there may be few people willing or available to care; they will make exceptions for people with AIDS where only a few people may be willing to take on the care role. So, in other words, the Government accept that they need to be flexible; that they need to be within the area of local authority discretion. The amendment will take that just one step further.

Disabled people should not employ relatives living outside the family home except with the express consent of the local authority. That means that the disabled person would have to obtain the agreement of the local authority to do that, and if it were clear to the social worker that the disabled person was being pressurised by the family, or the local authority was worried that abuse or exploitation might arise, that consent would not be given. The local authority, and not the disabled person, would be taking responsibility for that decision, thus freeing the disabled person from any blame within the family. Why then are we pushing this matter? Why do we believe that it is important to extend the flexibility, the discretion?

First, a "family member" as defined by government comes from an arbitrary group. The definition excludes, for example, the ability to pay someone who is the partner of one's stepson who lives on the other side of the town. It excludes, for example, one's right to employ the partner of one's nephew on the grounds that that person is a member of the family.

I do not know about other Members of your Lordships' House. I have met some of my nephews' partners but there are some partners whom I have never met. Are we saying that someone that I have never met is a member of the family such that I could not employ that person in a direct payment situation? One has only to say that to show that such a definition of "family" is absurd. What happens when a person is employing someone to be the carer and to help with the daily tasks and that person meets one's visiting nephew or stepson and they become partners? Does one then have to sack them? That is the implication of the Government's position.

First, as I say, the notion of family is far too arbitrary and too widely cast. No one objects to restricting the ability to employ on direct payments close relatives living in the family home, but the definition is too widely drawn at the moment.

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Secondly, and this is a different argument, many disabled people prefer the impersonality of employing a stranger. They want that employer/employee relationship. However, other disabled people, especially those who feel vulnerable, may want the opposite; they fear strangers in their home. Many of the tasks they will be asking for help with are intimate. They involve toileting, for example. They feel vulnerable. They want someone whom they can trust and with whom they feel comfortable. That may be the nephew's partner, the niece or the partner of a stepson. It may be someone whom they already know, with whom they can relax, they trust and with whom they would not have to build up a new relationship. Such a distant family member is often much more flexible, more willing and can be called in at odd times and is cheerful about that. They are more committed; they are more constant; they are more reliable.

As I say, some disabled people would want the opposite--an impersonal relationship. But where a disabled person wants someone with whom they are comfortable, whom they can trust and who is not a close member of the family, why should they not have the right to employ that person if the local authority is satisfied that that choice is free and informed?

It is not always easy to employ someone for such intimate work. By disqualifying distant relatives who live outside the home we are narrowing unnecessarily the group from which a disabled person may recruit.

Finally, the amendment would align direct payments of local authorities with the ILF scheme which distinguishes between close relatives living within the home and those who live outside. Accepting the amendment would allow a seamless provision between the local authority tranche of money and the ILF tranche so that different rules about whom one can employ do not apply to the different schemes.

The amendment requires the consent of the local authority. Thus it will prevent any exploitation or abuse. The local authority has to be satisfied that the disabled person wants it and that it is in their best interests. But if it is in their best interests, the disabled person wants it and it is such a distant relative that they are outside the home, why in heaven's name do we not allow it, just as the ILF has done? Over many years it has had no problems with that. I beg to move.


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