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Baroness Faithfull: My Lords, I did not understand one point in the speech of the noble Baroness, Lady Hollis. She placed responsibility on directors of social services to decide whether or not somebody should have something because he fell into a certain category. Since this a new scheme, is it not rather unfair to place that responsibility on directors of social services?
Baroness Hollis of Heigham: My Lords, with the leave of the House, I should like to respond to the question put by the noble Baroness, Lady Faithfull. Local authorities will be in very different situations under the terms of this Bill. Many local authorities have no experience of direct payments; others have run schemes for up to 14 years for categories of people which are wider than those currently envisaged by the Bill. When directors of social services come to construct schemes for direct payments within the framework of the Bill, they will extend it to such categories as they believe their local authorities are competent to handle. If there are currently third party schemes that give direct payments to people with learning difficulties, or people
Baroness Hamwee: My Lords, just as the noble Baroness, Lady Faithfull, has no wish to disagree with the noble Lord, Lord Rix, I have no wish to disagree with her, but I think I do. Quite rightly, she refers to protecting people from making mistakes. I do not suggest that she says that in any paternalistic fashion. I know that she has the best of intentions to help those individuals to progress. However, at the last stage your Lordships considered whether the provision in Clause 1(1) for local authorities to make payments should be discretionary or mandatory. It is discretionary. The amendments proposed by the noble Lord, Lord Rix, and later by my noble friend Lord Addington, will not affect the discretion of the local authority to judge the individual case. It deals with discrimination against groups of people, to which this amendment is addressed.
The noble Lord, Lord Campbell of Croy, makes an interesting point. If local authorities are able to continue their current payments to individuals who may not fall within the categories that are to be approved, is it not ironic that others who are within those categories cannot be paid, if by their current actions those local authorities have shown that they are capable of dealing with categories of that type?
Baroness Gardner of Parkes: My Lords, can we be assured that anyone who is currently in receipt of a direct payment can continue to receive it? Will that not cover the point raised by the noble Baroness, Lady Hollis? I believe it has been said that these people receive the money from third parties rather than from local authorities. That tends to complicate the issue. I am not sure how that will affect the position. It seems to me that in many situations in life to put in a "no worsening" provision would cover it.
Lord Swinfen: My Lords, when we discussed this clause at Committee stage I suggested that it might be incompatible with the Disability Discrimination Act 1995. I am glad to say that my noble friend the Minister has written to say that expert opinion is that this Bill is compatible with that Act. Despite the legality of it, I have a feeling that the way in which this Bill is proposed to be put into effect is definitely against the spirit of the Disability Discrimination Act 1995. There will be discrimination if the payment of direct grant starts only for a certain category. What of the position of two cousins, one who receives a direct grant because he is just under the age of retirement and the other who will not receive it because he is just over the age of retirement, possibly by only a few days? I understand that once the grant has been agreed it will go on into the old age category.
The Independent Living Fund and the Independent Living (Extension) Fund have operated for a number of years, and have given direct grants. The lessons have been learned and can quite easily be disseminated to local authorities without direct experience. Local authorities talk to each other. Social security directors are in constant touch and talk of different problems and ways to overcome them. They learn lessons from each other and from their authorities. I believe that it would be for the benefit of disabled people and those in receipt of community care as a whole if everyone were to be included at this stage. The Bill is discretionary. It is up to local authorities to decide whether or not to make grants. It is also up to the individual whether or not he or she wishes to accept the grant. I strongly support the amendment.
Baroness Seccombe: My Lords, this is an exciting new scheme. As the noble Lord, Lord Rix, has said, all of us are anxious to get it right. Many authorities have wide experience but others do not. There will be a need for monitoring, which can be very time consuming. Although my heart says that in due course I should go with the noble Lord, Lord Rix, my head tells me that I should support the Government now.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Cumberlege): My Lords, at the risk of boring your Lordships, I reiterate the views expressed by my noble friends today that direct payments are a new and a largely untested development. The Government want to see them introduced on a limited scale so they can see how they work and so local authorities have the best chance to make them a success. We propose to limit the scale by restricting the size of the potential client group. Amendment No. 1 would remove the power to do that.
The noble Baroness, Lady Hollis, said that some local authorities had been operating schemes through which payments were made to individuals and that they would find that experience useful. But the noble Baroness has also said that not all local authorities have that experience. Even those that do may find that the making of direct payments as part of mainstream community care brings new challenges for which they are not prepared. We cannot assume that local authorities are ready to hit the ground running. If we remove the power to limit eligibility, that is what we are asking them to do. I am concerned that by removing the ability to limit the eligible client group we shall actually hinder the implementation of direct payments. Some authorities which would be happy to offer direct payments on a limited scale may not feel ready to offer them to all client groups. They may then decide that they would prefer not to offer direct payments at all in order not to appear discriminatory.
Our aim is to select a group of an appropriate size who are keen to take on this new freedom. Within the eligible group, the discretion over whether direct payments are appropriate for each individual remains with the local authority. Local authorities will be able to get used to direct payments with the limited group and the Government will be able to see clearly how they are working. As the noble Lord, Lord Carter, said in Committee, we are entering something of a minefield. We believe that by starting cautiously we shall build a firm foundation for the long-term future of this important new venture.
We are not suggesting, as I think the noble Lord, Lord Rix, believes, that making direct payments to a limited client group will give local authorities experience of every type of challenge they would face if eligibility were drawn more widely. But there are many aspects of managing direct payments which are the same whatever the particular needs or characteristics of the recipients. For example, local authorities will need to set up monitoring and accounting systems to keep track of the money. Limiting the client group will keep it on a manageable scale while people are getting used to the concept of direct payments.
We do not propose to reach a final decision on the client group before we have considered the responses we receive to the consultation paper. We have already said that we will consider carefully whether all people with learning disabilities should be eligible. Specifying the client group in regulations means that it can be adjusted without the need to amend primary legislation. I have given your Lordships an undertaking that we will keep the position under review once direct payments are available.
The noble Baroness, Lady Hollis, suggested that people on current schemes may lose the direct payments that they receive now. That point was also raised by my noble friend Lord Campbell of Croy and by the noble Baroness, Lady Masham. The Bill will not make existing schemes illegal. Those that are
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