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8.25 p.m.

Lord Addington: My Lords, the Bill is only a one-page document, but its effects, if it were to be rejected, would be incredibly wide for one simple reason: virtually all the legislation in the field is based around the fact that there are needs and so there is a demand to be met, and not around the fact that there is a limited supply of resources to meet the demand. That is something which runs through every single type of support legislation for people with special needs and learning disabilities; indeed--you name it--it is a theme which runs through. It is something which has been apparent in every debate that we have had. Individual needs--and this is a strong point as stated originally by the noble Lord--are the most important aspect.

We are talking about people who are separate units and none of them is the same. Without the type of legislation that states that you cannot say that because you have problems balancing your budget you can cut something away, every single gain in the field is under threat. The current Government have joined with me and many others speaking in tonight's debate time and time again to state quite clearly that this was good; indeed, that has happened on numerous Bills. Moreover, the principle underlines other legislation.

The code of practice for special educational needs is specifically designed to say that certain needs shall be met; it does not mention a budget. If the Bill is rejected on grounds that resources dictate whether attention will be paid to a person's needs, what will happen when the education department ultimately says, "We haven't got enough money"? I shall understand if the Minister says that that proposition is outside her brief. Nevertheless, I give her my assurance that the question will not disappear because I shall personally return to it.

Every time you say, "We can't do this because it costs money", you actually undermine the value of someone's individual rights. If the Government are about to say that they cannot accept it because there are insufficient resources available, I should point out that the noble Lord, Lord Ashley, dealt with that response clearly in his introduction. Indeed, he stated that we are not asking for new money; we are asking for money that has been used before. That aspect is something to which I and my colleagues drew attention during the last election but, there again, we were not listened to quite well enough.

Unless you underline the fact that this type of legislation is designed for people's needs, you will actually take away most that is good about it. I say that because unless you are determined to treat individuals on an individual basis, you are removing virtually every consideration. If the Government have that intention, I ask them now at least to give notice as to when they will be announcing whether these restrictions will be included in other pieces of legislation. If that is to be the case, I can assure them that they will be hearing a lot more about the subject from these Benches. I hope that the Government are prepared to accept the Bill and state quite clearly that they are returning to the aim of meeting the individual needs of individual people with certain problems.

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8.30 p.m.

Lord McColl of Dulwich: My Lords, I, too, add my congratulations to the noble Lord for introducing this Bill. This is one of many proposals with which he has been associated, all designed to improve the quality of life of disabled people.

The problem we are discussing this evening follows the withdrawal of services from many elderly and disabled people in Gloucestershire because of an overspend in its budget, not because there has been any change in the needs of the disabled people. There is also an apparent inconsistency in provision of these services throughout the country due to a lack of agreed national standards.

One of the first questions which we must surely ask is, if the money is not available in some areas but is in others, what is the money being spent on? In other words, how are local authorities deciding on their priorities? In helping them to determine priorities, what guidelines will the Government give them and how will the Government monitor their performance?

It is quite clear that the vulnerable group that we are discussing this evening need the provision for which they have been carefully assessed. However, there is another reason for providing for their needs. Quite simply--this has been mentioned already--if one provides fully for their needs in one sphere, that may make them more independent and possibly reduce their needs in other areas. On the other hand if the needs of incontinent people, for instance, are not met, in the long run the total bill may be much higher than it would otherwise have been.

We ought to discuss another aspect of the whole subject of available resources. The pessimist always describes this as a lack of resources, whereas the optimist prefers to use the phrase "finite" resources. We should not neglect the great stimulus that finite resources have in compelling people to think and to work out the best way of using those finite resources in supplying the best service they can not only for disabled people but for patients suffering acute disease or injury. A good illustration of this is seen in hospital practice.

Some years ago in some parts of the country a hospital would see only one patient a month with a stab wound of the abdomen. As your Lordships can imagine, it is difficult to assess exactly how much damage has been done inside, not knowing how far the knife has been put in or what damage it has done. Therefore these patients have to undergo a major operation to have their abdomens opened up and carefully inspected to assess the damage and correct the injury.

However, in some parts of Africa it is possible to see 100 patients with stab wounds of the abdomen in an evening, especially a Friday evening. Clearly it is impossible to carry out 100 major operations in an evening. Therefore those who look after these people are compelled by finite resources to find the best way of dealing with the situation. They work out a way of detecting which of the stabbed patients needs a major operation and they become skilled at doing so. That policy results in only a few people having a major operation and therefore one avoids doing perhaps

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90 major operations in an evening. Therefore one is doing much less damage and the overall results are better. At the end of the day one ends up with a much better deal and a much better standard of care. By having tight budgetary controls the mind is concentrated to give the best service and the best service is often a cheaper service. Perhaps that is what the Labour Government had in mind in the 1970s when they introduced cash limits into the National Health Service.

The hospital service relies heavily on ward sisters, for whom I have always had the greatest respect. They are ideal managers and they dispense the milk of human kindness. They constantly have to assess the daily or even hourly needs of their patients, for example how often their blood pressure and pulse have to be taken and how many dressings have to be applied. If, however, the sister is short of nurses on a ward on a particular day for one reason or another, perhaps because of illness or a flu epidemic, she has to adapt and reduce the amount of work that is done on some patients. Her assessment of their needs is separate from the resources but inevitably, as she is assessing the needs, that merges imperceptibly into her decision of how to deploy her resources most effectively.

On a similar theme, there is an interesting situation in the National Health Service now in that some purchasing authorities have issued a statement that they are no longer prepared to treat on the NHS patients with conditions such as varicose veins, lumps of fat--which we politely call lipomas--and various lumps and bumps. That is a significant departure. It will compel those patients to seek those operations in the private sector. It would be helpful to hear the Government's reaction to that and whether they agree with that policy, which has been determined at local rather than national level. There are many problems which we have to discuss in this difficult area. I look forward to hearing the Minister's reply.

8.36 p.m.

Baroness Gould of Potternewton: My Lords, I too pay tribute to the work of the noble Lord, Lord Ashley, in bringing forward this Bill. I have listened with great interest to his views and to those of the other noble Lords who have spoken in this short but interesting debate. I welcome the chance to set out the Government's position on the Bill.

This Government are determined to improve the position of disabled people. Our manifesto made that clear. We want to improve community care services for disabled people, for other service users, and for carers. We want to improve those services, whether they are provided by the NHS, by social services, or indeed by any other agency. With that in mind, the manifesto confirmed our intention of developing a charter on long-term care services which we see as a way of ensuring people get the basic standards they can expect to lead a dignified life. We are developing our ideas on this. Our manifesto also made clear our intention to examine provisions for long-term care for elderly people. We shall make further announcements on these matters in due course. I shall be happy to pass the views

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expressed by your Lordships to my honourable friend the Parliamentary Under-Secretary of State for Health. However, in the interim we must stress that local authorities' obligations to disabled people under Section 2 do not change.

The Government believe strongly that work is the best form of welfare. We are committed to giving opportunities to work for sick and disabled people who have some capacity to do so, in the same way as we are doing for lone mothers. Over the coming months we will be looking to see what changes are necessary to ensure that the particular needs of people who have disabilities are provided for.

The Government clearly demonstrated their commitment to promoting the principles of equality of opportunity and defending the rights of all its citizens at the Intergovernmental Conference. Despite the short time the Government have been in office, they supported a new treaty Article 6a designed to combat discrimination based on sex, racial or ethnic origin, religion and belief, disability, age or sexual orientation. Just as importantly, the UK sponsored a declaration to be appended to the treaty in respect of Article 100a, one of the articles which governs the harmonisation of the EU single market. The declaration requires the institutions of the Community to take account of the needs of disabled people when drawing up measures under Article 100a. Together, these changes represent an important advance in ensuring that the interests and needs of disabled people are taken into account across all the member states of the European Union.

The Government have considerable sympathy for the aim of strengthening social services for disabled people which so clearly underlies this Bill. However, we do not believe that the route which the Bill proposes to take to achieve that aim is the right one.

To explain why this is so, I need to rehearse some of the history behind the Bill. I hope that your Lordships will forgive me for going over ground which has been covered by previous speakers.

Section 2 of the Chronically Sick and Disabled Persons Act 1970 places social services authorities under a duty to arrange certain services for individual disabled people where they are satisfied that that is necessary to meet their needs. The services concerned include practical assistance in the home; provision of recreational facilities; assistance in arranging adaptations to the home, or the provision of additional facilities designed to secure greater safety, comfort or convenience; holidays; meals; and the provision of a telephone and any special equipment necessary to enable the disabled person to use it.

The Act has long been recognised as a milestone in legislation affecting disabled people, and I would wish to pay tribute to those--including my noble friend Lord Ashley--who were instrumental in achieving its successful passage through Parliament. I know that many of your Lordships took part in the celebrations of the Act's 25th anniversary in 1995.

I took particular note of the points made by the noble Baroness, Lady Darcy (de Knayth), and my noble friend Lord Ashley of Stoke, in respect of the interpretation

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of the Act. It has been the understanding of successive governments that local authorities are able to take their resources into account in assessing a person's need for the services listed in Section 2 of the Chronically Sick and Disabled Persons Act and deciding what services to arrange. It is important to note that the circular issued shortly before the Act came into force in August 1970 stated,


    "Criteria of need are matters for the authorities to determine in the light of resources."

The thrust of this debate has been the judicial review case brought against Gloucestershire social services in 1995, fully detailed by my noble friend Lord Ashley. Last year the challenge was upheld in the Court of Appeal. However, noble and learned Lords in this House, I appreciate by three to two, overturned the Court of Appeal's interpretation of the law in a judgment given on 20th March of this year. That is to say, the legal position has been confirmed to be that which the Department of Health, since 1970, has believed to apply: that authorities may take their resources into account in assessing the needs of a disabled person and deciding what services to arrange.

However, it is important to emphasise that the judgment does not give authorities a licence to stop providing services. But resources are only one of the things that should be taken into account. They must still take into account all other relevant factors. They cannot use pressures on resources as an excuse for taking an arbitrary or unreasonable decision.

Nor does the judgment mean that local authorities are no longer under any duty towards disabled people. Once a local authority has decided that it is necessary, in order to meet the needs of a disabled person, to arrange a service listed in Section 2, then it is under a duty to arrange it. That has not changed.

The noble Lord, Lord Swinfen, expressed concern that the Gloucestershire judgment would affect carers' rights under the Carers (Recognition and Services) Act 1995, and that they will not be able to obtain assessments. That is not the case. The Carers (Recognition and Services) Act gives carers who provide regular and substantial care the right to ask for an assessment of their ability to carry on caring when the person for whom they care is being assessed. The authority must take the results of the carer's assessment into account when deciding whether or what services are provided to the user. That is not changed by the Gloucestershire judgment.

The Bill introduced by my noble friend Lord Ashley seeks to reverse the effect of the ruling of the noble and learned Lords in the Gloucestershire case. If enacted, it would prevent authorities from taking account of resource considerations in assessing needs and deciding what services to arrange. They would be able to take resources into account only when deciding how to arrange services to meet the needs they have identified. Unfortunately we do not live in a world where resources can be ignored. In recognising that fact, the Government have embarked on a far-reaching review of spending priorities. Now is not the time to

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require authorities to ignore resources. Nor, I believe, would it generally be seen as fair to single out one particular group of people for this treatment.


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