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8.1 p.m.

Lord Annan: My Lords, like the noble Lord, Lord Beloff, I was a little disturbed at being unable to rally some noble Lords who have great experience of these matters. I wrote or spoke to some 25 noble Lords and received replies much like those in the parable in the gospel of St. Luke, where the host sent his servants to bid many to come to a feast and with one consent they all began to make excuse. Indeed, one noble Lord made the reply that is in the parable; that he was taking to himself a wife! Therefore, I was most disappointed.

However, having listened to the debate, I can say that it was absolutely splendid. I was grateful in particular to the noble Baroness, Lady Park of Monmouth, and the noble Lord, Lord Gillmore, who spoke in the gap and materially enhanced our deliberations. I conclude by thanking all noble Lords who took part, and in particular the noble Minister, who has earned his salary in no less than two debates today. I beg leave to withdraw my Motion for Papers.

Motion for Papers, by leave, withdrawn.

Chronically Sick and Disabled Persons (Amendment) Bill [H.L.]

8.3 p.m.

Lord Ashley of Stoke: My Lords, I beg to move that the Bill be now read a second time. The Bill seeks to reverse a recent decision of the Law Lords which will have a devastating effect on the lives of disabled people. It is a decision as perverse as it is damaging; a decision which undermines the law as we have all known and understood it for 27 years. It is a decision which will force many disabled people to surrender their cherished independence at home and spend their days in institutions of residential care, in some cases at greater expense to the local authority.

The word "devastating" is not mine--although I agree with it--but that of the Royal Association of Disability and Rehabilitation. Its deep concern is shared by some 30 voluntary organisations in a consortium called "Needs Must". It has undertaken splendid work on this issue. Its concern reflects that of millions of disabled people who now face a life of disappointment, doubt and anxiety.

I have met disabled people who are deeply distressed at the withdrawal or reduction of services. The voluntary organisations are sending me many examples. The extent of the damage already caused, and even more the damage to be caused, by the ruling is not yet generally understood by the public or, indeed, by Ministers.

The ruling creates an Alice in Wonderland world where, with resources affecting assessment of need, it becomes theoretically possible for a paraplegic to have no needs--and you cannot get more bizarre than that! If a local authority states that it has no money--and some have done so--when it is assessing a person's needs it can conclude that there are no needs. That is the logic of it.

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The ruling also means that unmet need is suddenly obliterated. It has been magicked away by redefining "need". The only words which the Law Lords in their infinite wisdom forgot were--and, according to my grandchildren, they are used for magicking anything--"abracadabra" or, alternatively, "izzy whizzy, let's get busy". One way or another they magicked away an unmet need. I believe that that is scandalous because it means that if the need is unmet and unknown no one knows the extent of the unmet need and no one knows whose needs are not being met. That hiding and masking of the problem is a terrible consequence of the ruling.

There is a serious risk of the unhealthy situation of no one knowing the real needs of disabled people and the extent to which those needs are met. The ruling takes us back 30 years to the days when the problems of disabled people were hidden behind net curtains. I cannot believe that in 1997 that is progress of any kind, even by a stretch of the Law Lords' imagination.

This saga began in 1970 when, skilfully piloted by Alf Morris, the Chronically Sick and Disabled Persons Act went on the statute book. Among other things it aimed to end the scandalous lottery that meant that disabled people received help in the home, not according to their needs, but according to where they lived. That was the lottery in 1969 and previously.

Those of us who sponsored the Bill and worked on it with great intensity knew what we wanted because we knew what disabled people needed. We were in touch with those disabled people--in fact, they visited the House of Commons and the House of Lords. In Section 2 of the Act we provided that local authorities should provide such things as practical assistance in the home, alterations and adaptions, special equipment, and meals on wheels. Once a local authority had assessed the needs of a disabled person it had to make arrangements to provide the services required. Those objectives were endorsed by Parliament. The great legislative step forward was widely welcomed throughout Britain and envied in other countries. It has been accepted without demur for all these years and has enriched the lives of countless disabled people.

Although we know that some local authorities were careless in carrying out the law and did not do their duty by disabled people, the Act was a potent force benefiting disabled people. However, in a distressing turn of events, which has become known as the "Gloucestershire judgment", the whole basis of the law has been seriously undermined. Mr. Michael Barry is 82 years old. He had a stroke and several heart attacks, he is visually impaired and he uses a zimmer frame. He had been assessed as needing services from the Gloucestershire council. It provided him with a home carer twice a week for shopping, collecting his pension, laundry and cleaning, with meals on wheels four days a week.

He was informed by the council that the resources allocated by the Government were inadequate and services must therefore be reduced. Mr. Barry sought a judicial review in the High Court which granted a declaration that the council had acted unlawfully. The Court of Appeal agreed with the High Court and also held that the council was not entitled to take account of its resources when assessing need and providing for it.

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That was the nub of the problem. When the case was referred to the House of Lords, the Law Lords had to decide whether a local authority could take into account its own resources when assessing a disabled person's needs for those services listed in the 1970 Act which I mentioned.

The crucial word was "need". The Court of Appeal had held that "need" was an ordinary word, the meaning of which could not be affected by the level of resources. The Court of Appeal held that local authorities could not take resources into account when assessing need. Nevertheless, the Law Lords thought differently and overturned the ruling by three to two--a highly controversial decision. For me, one of the dissenting Law Lords, the noble and learned Lord, Lord Lloyd of Berwick, put it in a nutshell. He said:


    "Every child needs a new pair of shoes from time to time. The need is not the less because his parents cannot afford them".

Likewise, the need of disabled people cannot be wished away by the poverty of local authorities. The requirements of the 1970 Act are clearly that such needs should be met and it is for the local authority to meet them.

Providing for disabled people in the community has been on a par with other statutory requirements of local authorities: it has to be done. I note that there is no mention of taking resources into account with other duties, so why should that be so in the case of disability? Is it the case that disabled people are now to be pushed to the back of the queue, as usual?

The 1970 Act removed the lottery of people receiving different services according to where they lived. The effect of the Law Lords' ruling is to restore that lottery and again provision will depend on where disabled people live and the relative wealth of their local authority. But, as the noble and learned Lord, Lord Berwick, said:


    "Parliament cannot have intended that the standards and expectations for measuring the needs of the disabled in Bermondsey should differ from those in Belgrave Square".

In my view, there is no doubt about what Parliament intended, nor any doubt about disabled people's needs. Those needs were precisely the same the day after the Law Lords' judgment as they were the day before. There was no difference in the needs of those disabled people on 19th March and on 21st March.

The day before the judgment on 20th March those needs were met by the local authority, as they have been met for nearly 27 years. Therefore, there can be no question of extra new costs if the Bill before the House is passed. We simply revert to the position as everyone has known and understood it for all those years. That is a crucial part of the argument. We simply revert to the position on 19th March 1997. I hope that no one will suggest to the House that there are massive extra costs involved in the passage of the Bill: there are not. We merely seek to restore the law to what it was on 19th March, one day before the judgment.

From where would any extra costs stem? There are none. Anyone who wishes to argue about extra new costs should produce evidence of them as the situation

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was on 19th March. I await evidence from anyone who is opposed to, or even lukewarm about, the Bill. The argument about costs is absolutely bogus.

I commend the Bill which specifies that a local authority's resources cannot be taken into account either in making an assessment of need or in making arrangements to meet need. That is the position that has worked satisfactorily for 27 years. The passage of the Bill will ensure that local authorities observe the spirit as well as the letter of the 1970 Chronically Sick and Disabled Persons Act. The Bill will ensure that disabled people have restored to them the right to essential services on which they rely so heavily. I commend the Bill to the House.

Moved, That the Bill be now read a second time.--(Lord Ashley of Stoke.)

8.16 p.m.

Lord Swinfen: My Lords, I am delighted to support the noble Lord, Lord Ashley of Stoke, in this Bill. As the House knows well, he has a long and distinguished career both here and in another place in working for people with disabilities.

I hope also that the party now in power will give him the help which it gave to me over the past 15 years when I have tried to improve the lot of disabled people. The noble Lord deserves its help more than I deserved the help which it so richly gave to me over the past 15 years. I should be very disappointed if his party is not prepared to help him now.

The complex and confused state of the law relating to community care makes it extremely difficult to give appropriate and accurate advice to disabled and elderly people. While the decision a few weeks ago in the Gloucestershire case may have clarified the position for local authorities, it has exacerbated the anxieties and uncertainties faced by people with disabilities.

The decision of your Lordships' Judicial Committee was by a majority of three to two. Even the most distinguished lawyers in the land are divided as to the correct interpretation of the law. Therefore, we should all be most grateful to the noble Lord, Lord Ashley of Stoke, for bringing forward this Bill which will clarify the position. It will make it clear that a local authority's resources have no relevance to the assessment of a disabled or elderly person's need for community care services.

One of the principal aims of community care is to meet the needs of people with disabilities rather than fitting those people into existing services. That cannot be achieved without proper individual assessment of need, without taking into account any extraneous factors. I am convinced that Parliament did not intend that the standard and expectations for measuring needs should differ in various parts of the United Kingdom. The passing of the Chronically Sick and Disabled Persons Act in 1970 was a noble aspiration. Having willed the end, Parliament must provide the means. This Bill gives us that opportunity.

Without this Bill being passed into law, the working of the Carers (Recognition and Services) Act 1995 will be under threat. Already I am advised that many carers

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are being prevented or dissuaded from having an assessment of their needs. If the eligibility criteria are tightened, fewer carers will be entitled to ask for an assessment and the situation will be exacerbated.

Carers and their disabled or ill relatives will be placed at increased risk in the community without support. Carers already save the state an estimated £34 billion per year. If, as a result of the judgment in the Gloucestershire case, support is reduced to disabled people and their carers, that will probably be very costly to the health and well-being of both people with disabilities and those who care for them; and, ultimately, very expensive to the public purse. I strongly support the Bill.

8.20 p.m.

Baroness Darcy (de Knayth): My Lords, I should like to add my enthusiastic support to this small Bill which, strictly speaking, is and should remain unnecessary. It makes clear beyond reasonable doubt the duty of the local authority under Section 2 of the Chronically Sick and Disabled Persons Act 1970. The noble Lord, Lord Ashley of Stoke, was an eloquent supporter of that legislation during its passage through the other place in 1970. In his comprehensive and masterly introduction of his amendment Bill tonight, the noble Lord showed that he was very clear as to the meaning of Section 2 of that Act.

The noble Lord quoted the eloquent yet practical dissenting speech made by the noble and learned Lord, Lord Lloyd of Berwick. The noble and learned Lord was also very clear that it could not have been Parliament's intention that a local authority could say, "Because we don't have enough resources, we are going to reduce your needs". The needs remain exactly the same. Nor could Parliament have intended, to repeat the words of the noble Lord, Lord Ashley, that these needs were gauged differently in Bermondsey or Belgrave Square.

Indeed, the architect of the Chronically Sick and Disabled Persons Act, Alf Morris, showed that he was very clear as to the intention of Section 2 when in an article in The Times of 26th May he referred to a,


    "perverse ... ruling by the Law Lords which allows local authorities to circumvent the statutory duty to provide home care appropriate to the individual needs of disabled people".

I made my maiden speech on the Second Reading of the Chronically Sick and Disabled Persons Bill in this House. I can assure your Lordships that, so far as I am aware, none of us at any time during the passage of the legislation intended that the duty to provide appropriate care could depend upon the availability of resources.

The Second Reading of that Bill in this House was on 9th April 1970. The noble Earl, Lord Longford, in his comprehensive explanation of the Bill, referred (at col. 241 of Hansard) to Clause 2, now Section 2, as being, "mandatory beyond dubiety". So we have the interpretation of Section 2 very clearly expressed in Hansard.

The noble Lord, Lord Ashley of Stoke, portrayed very graphically the concern felt by disabled people and disability organisations. It is bad enough that the Law

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Lords' ruling has allowed local authorities to use the argument about the lack of resources to determine a disabled person's need; it is surely intolerable to go further and remove help from the disabled person after his or her needs have been recognised and have been met and after those needs have been reassessed and found to have remained unchanged. That is what happened in the case of Mr. Barry.

There is grave concern that the duty imposed by Parliament in relation to giving disabled people the support that they need to remain living outside institutions is being degraded into a mere power to help if there are sufficient spare resources. The fact that local authorities have a general duty to act reasonably does not, I think, provide much of a safeguard. All that this seems to do is to make a hotch-potch--a witches' brew--out of needs and resources: if there were no resources, could it not be argued, as the noble Lord, Lord Ashley, indicated, that it was reasonable for a local authority not to meet any need however great?

I find this particularly worrying because, in general, neither the funds collected through the council tax nor the funds provided by central government are earmarked for particular purposes. Local authorities are thus free to place a high priority on, for example, environmental conservation and the very lowest priority on helping disabled people. I am in no way knocking environmental conservation, but, let us face it, there is nothing particularly sexy about community care. Indeed, much more excitement is created by the threat to fell a beautiful tree than by the announcement of a cut in the supply of incontinence pads. As a paraplegic of 30 years' experience, I know that you cannot become more continent simply because the local authority is strapped for cash.

I return for the last time to the submission made by the noble and learned Lord, Lord Lloyd, who acknowledged that the decision by a majority of only three to two, as has been said, had allowed Gloucestershire and other local authorities to escape from an impossible position--the position of being given a statutory duty but not the wherewithal to perform it. The noble and learned Lord said that he could not help wondering, however, whether local authorities would come to regret the decision as much as Mr. Barry did. He said that the solution lay with the Government.

As the noble Lord, Lord Swinfen, said, the passing of the Chronically Sick and Disabled Persons Act 1970 was a noble aspiration. Having willed the end, Parliament must be asked to provide the means. That is what the Bill seeks to achieve. As the noble Lord, Lord Ashley, said, it would restore the status quo to what Parliament clearly intended in 1970 and what was in effect the position until the Law Lords' judgment of 20th March of this year. I hope that the Minister will bear that very much in mind when she comes to reply. I also hope that she will be able to respond, if not with enthusiasm, at any rate in a positive and constructive manner.

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