‘(1D) In determining the suitability of a person under subsection (1C) the responsible authority shall undertake such investigations into the making of direct payments as the Secretary of State shall by regulation define.’.
I warmly welcome clause 134 as a whole, as it extends direct payments to include people who lack capacity. We strongly agree with the choice and flexibility that it will give the system. It is an important and possibly overlooked part of the Bill. The Minister will also be aware that the provision has been welcomed by many of the relevant organisations, including Age Concern, Carers UK, the Parkinson’s Disease Society, the Local Government Association and the Commission for Social Care Inspection. However, some organisations have expressed the concern that although it is excellent in principle, and that it is right in practice, they want to be reassured that adequate support is offered for the service user and the carer—and the nominated representative or agent.
The amendments are about creating safeguards to ensure that there is sufficient protection for recipients of direct payments. Together, they would mean that a designated person must be determined by investigations to be undertaken by the responsible local authority. They would bring in arrangements that would allow direct payments to be made to the agents of someone lacking capacity, interlined with current good practice as established under the Mental Health Act 2007, in order to determine who is or is not suitable to act as agent.
The amendments would place a clear duty on local authorities to make such checks when agreeing to make payments to an agent or nominated person. The suggestion is simply that such checks would be prudent to ensure the safety of vulnerable people who lack capacity. The amendments would also ensure that public funds were appropriately spent and not passed on to anyone with an unsuitable financial background, which would make such payments a matter of concern. It might be that the Minister can assure the Committee that the amendments are not necessary, but I am sure that he agrees that the sentiment is a sensible one. I look forward to his comments.
I do not want to add much, except to welcome this move with direct payments. I would just like to caution the Minister again that I might want to say something briefly in the clause stand part debate—he did not raise his eyes, but he looked a bit tense for a second. I will be very brief.
The issue of the proper person can fall two ways. I was involved with a case in which an over-zealous social services department was utterly convinced that the guardian of an elderly lady was abusing his position. It took more than five years to resolve the matter. This issue is very difficult, and it arises in child protection and any case when responsibility has been given to a third party to look after somebody. We need to ensure that there are safeguards in place in both directions: to protect the vulnerable person; and to protect genuine carers from over-zealous social services departments.
I ask the Minister for clarification. If a person is regularly taken into day care on a regular basis, a local authority may provide direct payments. Some local authorities, I understand, will give a direct payment for the individual, but then refuse to allow them to go into public authority day care so that they must buy that provision in the public sector. Is the Minister’s intention to clarify that if a place is provided by a public authority, the people with the direct payments should have the opportunity to purchase that requirement from that authority?
I reassure the hon. Member for Leeds, North-West, who tabled the amendment, that we all agree that we should take steps to reduce the likelihood that a suitable person may mismanage a direct payment or abuse their position of trust. Anyone who cares for a person who lacks capacity under the Mental Capacity Act 2005 and wilfully neglects or ill-treats that person can be found guilty of a criminal offence that is punishable by up to five years in prison, a fine, or both.
I do not think that the amendments are necessary because the safeguards that they would introduce are already present under new subsection (1A) and amended subsection (3). Direct payments will be made under the new scheme through a multi-step process. If someone is considered to be a suitable person who could potentially manage a direct payment on behalf of somebody else, that does not automatically mean that the direct payment will be made to them.
We have taken the powers in new subsection (1A) and amended subsection (3) to enable regulations to be made that impose conditions that must be met before the responsible authority decides to make the payments. Only if certain steps have been taken, or conditions have been satisfied, can payments be made to a suitable person. An example of a condition that we envisage being in the regulations is the requirement that the local authority must, when appropriate, consult family members or friends already involved in the care of the person who lacks capacity before deciding to make a direct payment to a suitable person. Furthermore, regulations may specify that if the suitable person is not a family member or a friend of the person lacking capacity, local authorities may be required to carry out vetting and a barring check under the Safeguarding Vulnerable Groups Act 2006 before making the direct payment.
I should perhaps add that the draft regulations on these matters will be subject to full consultation with local authorities, the Office of the Public Guardian and other interested stakeholders. In the light of those comments, I hope that the hon. Gentleman will feel able to withdraw the amendment.
In response to the question from my hon. Friend the Member for Tamworth about whether direct payments can be received even though somebody has been assessed as eligible for continuing care funding, my understanding is that it is not currently possible for somebody in receipt of continuing care funding to receive a direct payment as well.
I want to raise the question of what direct payments buy, and I have some figures from an article that appeared in one of the papers. We have already talked about our welcome for direct payments, and there is no doubt that empowering people and having them feel in control of the services that they receive is useful for not only the individual concerned, but service providers. However, the effect of individuals’ purchasing power can be quite profound, and the help that people will be buying will be in the form of a personal assistant or a home carer. It is very important that these changes do not have unintended consequences. The job of being a personal assistant or home carer must be kept viably attractive.
The danger is that cost cutting is turning the personal assistant or home carer role into that of a poorly paid dogsbody, and a job that not enough people are willing to do. We have seen this in the tourism industry. For some reason, we have a dislike of unskilled labour in service industries in this country. I do not remember the precise figures, but in central London there is unemployment of about 8 per cent. We are importing labour from eastern Europe and British people will not work in service industries here because it seems demeaning.
These direct payments must be sufficient to employ people of a sufficient calibre to give the care. The danger, particularly in any sort of work that involves going into people’s homes, is that if the status of that work is not high, not enough people are recruited and we get second-class care. While it is important that people are empowered and feel that they have ownership of the care that they receive, we do not want them to feel that they can receive only the very worst possible care that is available.