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Baroness Faithfull: My Lords, the noble Baroness puts forward a persuasive case, but I am worried about various aspects on a human level. I am worried about the employer-employee relationship. Elderly people needing help from a relative outside the home are not always objective. They will say things such as, "This is my niece. I am very fond of her. I do not think that she does the job awfully well, but she is my niece and she is out of work, so I would like her to have the job."
To provide good help for the disabled person there needs to be a proper, businesslike arrangement between employer and employee. I understand the points made by the noble Baroness. But if a disabled person has care from someone outside who is not a relative, that brings in another stream of interest.
Baroness Darcy (de Knayth): My Lords, I put my name to the amendment, because, although I agree broadly with the proposal not to allow relatives to be paid as a helper--I listened to what the noble Baroness, Lady Faithfull, said--I have reservations. I believe, incidentally, that a relative is defined in the consultation document. I believe that it should be possible to employ a close relative living elsewhere without treating the case as exceptional. As the noble Baroness, Lady Hollis, said, the practice of employing a family member not living in the same household has worked well with the ILF. Why should it not work with direct payments?
Another important point relates to the Government's requirement, set down in the consultation paper at paragraph 33, that disabled people will be expected to make sensible arrangements so that they have adequate cover in an emergency. For example, if one of the usual assistants is taken ill I should have thought that it would be normal to ask a relative to stand by in case of emergencies. The current proposal would preclude payment to a relative in those circumstances. Is that reasonable or sensible? Perhaps the Minister will comment.
I come now to the question of the lodger and other persons living in, which the amendment does not cover. It is a point I raised in Committee. Paragraph 24 of the consultative paper and the Minister in Committee, at col. 411, say that such people cannot be paid unless they are people who have been specifically recruited to be live-in personal assistants. That means that a disabled person who has someone other than a close relative living in the household (a lodger or a friend) would be precluded from arranging for that person to become the helper unless the person came into the household after the disabled person had decided on direct payment.
The wording suggests that the person would have to be hired as a helper and then be given accommodation. That is too restrictive. It would rule out direct payments to people taking lodgers whom they subsequently decide to hire as helpers. There is surely nothing wrong with such a situation. It should be allowed. Under the ILF a lodger already in the house would be allowed. That is something we can perhaps clear up. I urge the Minister to think seriously about the question of the lodger or the friend; it is an important point. The amendment does not deal with it and, as I said, we may have to return to the point on Third Reading if the Minister cannot give us any words of comfort. Meanwhile, I support the amendment warmly.
Lord Campbell of Croy: My Lords, I shall say just a few words on what the noble Baroness has just said. She is right. For the purposes of consultation there is a definition in paragraph 24 of the consultation paper. It is clear, except for one point that I believe arises a great deal nowadays. At the end it says, "sister, or spouse, or
Lord Swinfen: My Lords, I hope that my noble friend will take the matter away for study. There is the question of the position in rural areas and the difficulty of finding carers who are acceptable in certain ethnic groups, particularly certain strict religious sects. It would be useful to look at the matter and make certain that we have sensible provisions on the face of the Bill by the time that it becomes law.
Baroness Seccombe: My Lords, I feel that the employer/employee relationship would change the views of the family. Very often members of a family are only too glad that someone is coming in to help. Family members will give help willingly and voluntarily and through love. I feel that the exceptional circumstances about which we have heard provide the necessary flexibility and I could not support the amendment.
Baroness Cumberlege: My Lords, direct payments will be an alternative to community care services which would otherwise be arranged by the local authority. They are not intended to replace existing support networks within families and communities. As my noble friends Lady Faithfull and Lady Seccombe said, the relationship which someone has with family or friends who provide care is very different from the relationship someone has with a person who they are employing to provide care. The reason for the provision in Clause 1(3) is to avoid creating pressure for informal care to be put on a formal contractual basis.
We agree that there is a balance to be drawn between, on the one hand, preventing the formalisation of informal care and, on the other hand, not prohibiting sensible and appropriate arrangements. I can see that this amendment is also designed to find this balance.
In our consultation document we have set out our proposals for setting limits on who may be paid to provide care using a direct payment. As the noble Baroness, Lady Hollis of Heigham, said, we propose to make regulations under this provision which will prohibit people who get direct payments from paying their spouse, partner or a close relative living in the same household. In addition, we intend to issue guidance to say that it is not appropriate to use direct payments to employ or contract with close relatives who live elsewhere, or other people living in the same household, unless the latter are people who have been specifically recruited to be live-in personal assistants. Local authorities would have the power to make exceptions to this guidance in exceptional cases, where they were satisfied that there was no other way to find a suitable person to provide care. We are consulting on these proposals for regulations and guidance, and will take account of the consultation responses, and the comments of this House, before making our final decision.
The noble Baroness, Lady Hollis, and the noble Baroness, Lady Darcy (de Knayth), referred to the Independent Living Fund. We are seeking to draw a balance between, on the one hand, preventing formalisation of care, as I have said, and, on the other hand, prohibiting sensible and appropriate arrangements. We believe that the ILF is a useful model and we propose to use the same restrictions in regulations as applied to the ILF. But there is no reason why that should be a blueprint. There are similarities between direct payments and the ILF but there are also differences. Direct payments will be part of mainstream provision and will potentially be available to a much wider range of people to pay for a wider range of services. They will also involve potentially much larger sums of money. We are seeking to provide the best framework for those circumstances. As I said, we are consulting on the restrictions that we propose to make in regulations and guidance.
The noble Baroness, Lady Darcy (de Knayth), asked how people would manage in an emergency when it may be sensible to use a relative. We are consulting on the restrictions and we shall consider very carefully whether that should be an issue which should be brought into final guidance.
The noble Baroness asked also about lodgers who live in the home. Again, we would expect local authorities to judge whether it is appropriate to make an exception to the guidance in those cases--I suppose so long as the lodger is not a partner, in which case we enter different territory.
The noble Baroness, Lady Hollis, said that relatives might offer more flexible hours than non-related employees. We have been told that one of the advantages of the direct payments scheme is that it allows a disabled person more flexibility. Disabled people can dictate the hours that should be worked and as far as we are aware they have not found it difficult to find people who are prepared to work flexible hours. Our proposals allow for exceptions as and when local authorities feel that that is appropriate.
We believe that our proposals are sensible and appropriate. They allow for some flexibility in order not to prohibit sensible arrangements and they are fair because they apply the same rules to everyone. Therefore, I urge your Lordships not to support the amendment.
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