Mrs Angela Browning (Tiverton & Honiton, Conservative)

I beg to move amendment No. 107, in

clause 7, page 4, line 27, leave out 'must' and insert

'should, with consideration to his means'.

I am mentioning this amendment just so that the Minister can clarify something. It was tabled by the Liberal Democrats, and would mean that payment for necessary goods and services should be made

''with consideration to his means''

by the person who lacks capacity to whom they are supplied. Will the Minister comment on that? A wide scope of goods and services is covered by the clause, and normally many of them would be subject to some form of means test to establish whether they should be provided by social services, with or without a contribution from the person. Will the Minister clarify the intention and say whether he feels that advocacy services, which might be needed, come within the scope of ''payment'' under the clause?

Mr Tim Boswell (Shadow Minister, Home Affairs; Daventry, Conservative)

To save my having to make a point on clause stand part, I shall say now that there is a difficulty in the amendment, which is why I did not rush to move it. It creates an interesting principle whereby goods and services, whether or not they are necessities, would be charged for differentially according to the means of the person. We all know people who are relatively poorly off, and I am sure that they would like to get their milk at half price, but unless there is a specific provision—by way of tokens, vouchers or some other system—that is not how the market works. I am not sure whether the Liberal Democrats had that in mind when they tabled the amendment. Charges should be reasonable, but they should not be stepped by reference to means.

There is another separate problem with persons who may not be at arm's length from each other. If the milkman was providing the service and happened to know the family, they could—and sometimes would—charge more, rather than less, and seek to get some advantage from the situation. The common law principle probably avoids that difficulty, so that nobody would be able to rip others off in that way. Perhaps the Minister will reassure me and make me feel a bit happier about that.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

The amendment would mean that the person lacking capacity would not have to pay a reasonable price for necessary goods and services, but only a price that he could afford; the contractor would need to take his means into account when setting the price. I appreciate that the hon. Gentlemen who tabled the amendment wanted to ensure that when a person who lacked capacity entered into a contract for necessary goods and services, his ability for them should be taken into account. However, the clause also protects individuals and organisations supplying goods or providing services, including businesses and tradesman, who are entitled to receive a reasonable price when they provide the necessary goods or services to someone who lacks capacity.

I see no need for a contractor to expect to set prices differently for a person who lacks capacity. Just because someone lacks capacity, that does not mean that they should pay less for goods and services. That would be contrary in presumption and feel to the way in which we generally handle things in common law. That does not mean, however, that if someone enters into a contract that they did not understand, it would be voidable under English law. There is a distinction for necessaries, which is the category into which such a contract would fall.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

We are talking about people who lack capacity, and one assumes that the contract and purchase are made by a third party on their behalf, because they would not be contracting directly with people. My interpretation of the clause is that the third party is making the contract or purchase for P. For example, if D were looking at a range of wheelchairs for P, and there were certain categories of wheelchair that they would get assistance to purchase, it would be inappropriate for D to contract on P's behalf for something that was outside their means. In addition, however, where, because of means-tested benefits, it was applicable for them to have support in purchasing such a thing, that would need to be taken into account. I am not making myself clear, Mr. Cran, and I am sorry about that—and I can see that you are trying to encourage me to wind up. It would not be acceptable for D to purchase a super-duper catalogue wheelchair well in excess of the needs, because P's means would not cover it, and something lesser might do.

Mr David Lammy (Parliamentary Under-Secretary, Department for Constitutional Affairs; Tottenham, Labour)

No, the Bill does not allow a third party to contract without formal authority—and we shall go on to discuss that, in terms of becoming an attorney or deputy. Clause 7 allows a contract to continue with the person who lacks capacity, but in fact, the third party can pay for that contract under clause 8. For the reasons that I have set out, and given our earlier discussion about fluctuating capacity and other matters, it is not right that someone who enters into a contract for necessary goods should have to pay less than the rest of us.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

That has clarified things. Thank you.

Mr James Cran (Beverley & Holderness, Conservative)

Is the hon. Lady withdrawing the amendment that she moved?

Mrs Angela Browning (Tiverton & Honiton, Conservative)

I did not mean to move the amendment; it was simply a probing, clarification exercise. However, if I need to do withdraw it I shall.

Mr James Cran (Beverley & Holderness, Conservative)

You did indeed move the amendment.

Mrs Angela Browning (Tiverton & Honiton, Conservative)

Then I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.