Clause 31

– in a Public Bill Committee at 1:15 pm on 26th February 2009.

Alert me about debates like this

Power to make provision enabling exercise of greater choice and control

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I beg to move amendment 79, in clause 31, page 38, line 21, at end insert

‘including, in particular, making arrangements with voluntary organisations to provide disabled persons with assistance in connection with direct payments.’.

The clause gives Ministers the power to make provision enabling the exercise of greater choice and control, so it is one of the excellent clauses that relates to the very thick book containing all the regulation-making powers that was produced by the Minister for Employment and Welfare during Tuesday’s sitting. The amendment responds to the concern that has been expressed about people receiving direct payment to spend themselves, and whether they are receiving appropriate advice and support on how to manage that money correctly. That concern was expressed by Liz Sayce, the chief executive of the Royal Association for Disability and Rehabilitation, during an evidence sitting, and by RADAR in its brief to the Committee.

The Government have recognised the need for peer support and advice on managing direct payments, and there are other options if people do not want to receive their individual budgets as direct payments. The report of the Prime Minister’s strategy unit, “Improving the life chances of disabled people”, included a commitment to having a user-led organisation in every local area by 2010. I understand that we are quite a long way off that target and, given that 2010 is not a long time away, it might help if the Under-Secretary of State for Scotland, the hon. Member for Glasgow, North, updated us on progress towards getting those user-led organisations in every local area. The Department of Health has carried out some capacity-building programmes, but it would be very helpful if the Minister gave us an idea of how many local authorities have a good user-led organisation that people can access for advice on how to use their direct payments.

I understand from the briefing material supplied by RADAR that the availability of support and information can make a huge difference in the take-up of direct payments. There is a direct correlation between take-up and the availability of support.

As Ministers have suggested, people who have not used an individual budget and a direct payment before may have many questions about how to spend the money, and whether they really want to take on the responsibility, perhaps of employing people directly. Actually, learning from people who have done that successfully about creativity and the different solutions that one can come up with is helpful. As RADAR has stated:

“Being able to access quality support services—be they to broker services or manage payroll—will in many cases make the difference between someone feeling able to take a direct payment and just feeling it could all be too much hassle.”

Will the Under-Secretary outline where we are in respect of user-led organisations in local areas? What further steps will the Government take to roll out such services, specifically as part of the pilot, and will Ministers ensure that peer support and advice are there to help people to make the best use of their individual budget and direct payments? If she could reassure the Committee on those issues, it would be helpful.

Photo of Paul Rowen Paul Rowen Shadow Work and Pensions Minister

I support the amendment. We have talked a great deal about the provision of quality services and how some things are not appropriate for everyone, which will always remain the case. However, pilots provide the Government with a unique opportunity to trial various models of operation, which, in our view, might include some independent support to enable the transition. I very much hope that the Government will look at different models when they design the pilots.

There is an officer in Rochdale who is employed by Manchester and Rochdale councils jointly. His job is to get direct payments out to people, and he spends a great deal of his time advising and supporting individuals. An alternative appropriate model might involve voluntary organisations. In some towns, there are many groups that might take on such work collectively. If something like that could be included in the pilots, it would go a long way towards ensuring that this initiative will be the success that we all want it to be.

Photo of Ann McKechin Ann McKechin The Parliamentary Under-Secretary of State for Scotland

I welcome the debate on the amendment, which has raised important points about engagement with the voluntary organisations that have been central to moving the right-to-control agenda forward over the past few years.

Clause 31 contains powers that will deliver real choice and control for disabled people. It enables regulations to be brought forward that will allow disabled people to require an assessment of the amount used to provide a service, and to require that the authority consults them on how that money is used. This is intended to deliver our White Paper commitment to increase choice and control for disabled people in decisions about how public money is spent to meet their needs and aspirations.

The commitment was informed by responses to consultation and by advice received from disabled people and their associated voluntary organisations, which made it clear that the right to take a direct payment, which currently exists for those eligible for adult social care services in England, is not, by itself, sufficient to give people more choice and control.

Although the amendment is permissive, it would signal a firm intention to make such regulations with regard to voluntary organisations. We believe that the right to control should be widely accessible, and, as has been mentioned in Committee, that means that there has to be the provision of adequate advice and brokerage services. That will be an important consideration during the trailblazer project. Such services are also an important part of the implementation of Putting People First, our policy in England, and that will support the transformation of adult social care.

I understand the important role that the voluntary sector can play. The report, “Improving the life chances of disabled people”, which was published in 2005, clearly recommended improving the availability of advice and advocacy services, and it put an emphasis on the role of organisations that are led and controlled by disabled people.

I can confirm that the report set out a commitment that, by 2010, there should be a user-led organisation in every locality in England—locality being defined as an area covered by a council with social services responsibility. My understanding is that that timetable remains in place

User-led organisations are key both to delivering personalisation and achieving independent living. The Health Department in England is investing £1.65 million in ULO development funds to support the development of up to 25 action and learning sites. Such sites will share best practice with organisations interested in becoming a ULO, or in supporting the development of one in another local authority area.

The action and learning sites will focus on developing ways of becoming organisations that meet the life chances recommendation, and they will share that learning with other groups across the country.

The hon. Member for Rochdale made the important point that it is not a case of one size fits all, and that it is important to consider different models. Moreover, we have to remember that disabled people will not always wish to look to a voluntary organisation to support their use of direct payments. In the evaluation of the Department of Health-led individual budgets, it was found that many participants took the opportunity to involve their family and friends in deciding how to spend their budget to meet their outcomes. As we develop the personal health budgets pilots, we are placing an emphasis on avoiding prescription with regard to how information and support service are provided. We will be following that model for these particular provisions.

Key principles in developing the right to control are consultation and co-production. We want public authorities to take the initiative in provision. We want to engage with local expertise to apply as much of that as possible to the provision of advice and information that we give. That is why I am keen for legislation to avoid setting out prescription.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 1:30 pm, 26th February 2009

Before the Minister concludes her speech, may I take her back to the point from the Prime Minister’s strategy unit report? She mentioned that the timetable to have a user-led organisation in each area, which she clarified as one that is served by a council with a social services function, is still on course to achieve its target of 2010. I did not hear the update on how many areas there are and how many have user-led organisations. How many milestones have we passed on the way to 2010? Alternatively, will everything happen at the back end of the process?

Photo of Ann McKechin Ann McKechin The Parliamentary Under-Secretary of State for Scotland

I will provide the hon. Gentleman with an update on that before the end of the Bill’s consideration in Committee. I do not have the information with me today, but I will make arrangements to ensure that we can provide it for him.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the Minister for that assurance. It would be very acceptable to receive the information before the Committee rises.

I am very happy with what I heard. Part of the reason for tabling this amendment was to get a sense of how Ministers envisaged voluntary organisations providing such advice and support. The Minister said that the Government believed that voluntary organisations had a clear role, but she said that there should not be a prescription that people should have to use them. I just wanted to ensure that the provision was in place. As she said—and I know that this has been the case with a number of people to whom I have spoken—some people decide things for themselves, some talk to friends and family, some take advice from the local authority, some use voluntary organisations, and some have used all those sources to put together a package. We must ensure that such flexibility remains. None the less, if people want to take advantage of advice, there should be an organisation in place to provide it. Given the Minister’s assurances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I beg to move amendment 80, in clause 31, page 38, line 23, leave out from ‘with’ to end of line 33 and insert

‘requiring a relevant authority that is or may be obliged, or has decided, to provide a relevant service to, or to arrange the provision of a relevant service for, a disabled person (P) in prescribed circumstances to do the following—

(a) to support P to assess his own needs;

(b) to support P to draw up a plan (his “support plan”) setting out how he wishes those needs to be met;

(c) to support P to review and revise his support plan;

(d) to assess the value of any relevant services to which P is entitled;

(e) to notify P of the value of these services (his “individual budget”) and of his right to choose how his individual budget is managed;

(f) to comply with P’s decision about whether he wishes to receive his individual budget in the form of—

(i) a payment to him (a direct payment);

(ii) a payment to any prescribed person for that person to manage on his behalf and in accordance with his support plan;

(iii) in the form of the provision of services by the relevant authorities which accord with his support plan; or

(iv) any combination of (i), (ii) and (iii).’.

Photo of Sir David Amess Sir David Amess Conservative, Southend West

With this it will be convenient to discuss the following: amendment 26, in clause 31, page 38, line 23, after ‘person’, insert

‘, including a person with a disability caused by mental health problems,’.

Amendment 27, in clause 31, page 38, line 23, leave out ‘in prescribed circumstances’.

Amendment 81, in clause 31, page 38, line 39, leave out paragraph (c).

Amendment 45, in clause 31, page 39, line 12, at end insert—

‘(c) require a relevant authority to co-operate with one or more relevant authorities in connection with the provision of relevant services for disabled people.’.

Amendment 82, in clause 32, page 39, line 21, leave out subsection (2).

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

One or two of the amendments in the group are on separate subjects, but amendment 80 is the one on which I want to focus. The amendment effectively rewrites a provision of clause 31, and I give credit to RADAR for providing the wording. This probing amendment was tabled to enable us to have a useful discussion about the thinking of Ministers in the Bill, as compared with in the White Paper. The amendment would turn around the measures setting out what an authority will provide for a disabled person so that the disabled person would be in control and the organisations would be effectively serving the disabled person’s needs, rather than the other way around.

The reason behind tabling the amendment is that the policy intention in the White Paper was very much a system of individual budgets, based on self-directed support, with which the disabled person would have options for exercising greater choice and control, including, but not limited to, the receipt of direct payments. I concur with RADAR that clauses 31 and 32 more closely resemble a request just to get a direct payment and do not go towards providing self-directed support. Clause 31(2)(a) states that the local authority will “carry out an assessment” of the disabled person’s needs, which suggests that the old model will be followed in which the professionals will tell the disabled person what their needs are, rather than the disabled person carrying out their own assessment and saying what they need. The White Paper said that the intention of the right to control was to reflect that the disabled person was the expert in their life, so surely clause 31 should reflect that intention. The purpose of the amendment is therefore to turn around the power so that the assumption is that the disabled person is at the centre, that they will assess what they need and that the authority’s job will be to help them in doing that—that would be very much putting the disabled person at the centre.

The White Paper also said that disabled people would be told their resource allocation—either the resources available to be paid to them directly, or the resources spent on providing services to them—up front, but the measures in the Bill simply enable the disabled person to require authorities to provide that information. In my view, the disabled person should not have to do anything to trigger notification, and the authority should provide that information as a matter of course. The amendment is important because clause 31 will be used to set out the pilots—when we get to the pilot section of the Bill, we will see that this framework will be used to run those pilots. If we are to learn as much as possible from the pilots, it is important that they should be set up as we want the system to work, and as the White Paper said that it should, which is to put the disabled person at the heart of the arrangement, rather than having local authorities deciding what is going on.

Apropos the discussion that we have had about making sure that these things happen and that more people use the service, the benefit of amending the clause would be to tell the disabled person that they have the right to decide what they need and to make their own assessment, and that the relevant organisations have to support them. That would put pressure in the system, from the bottom up, enabling disabled people to say, “I can organise things better myself,” and to pull local authorities with them. With sensible direction from the Government above—the Minister has laid out the direction of travel—as well as such pressure from below, the amendment would make the Bill better able to help disabled people who want to control services to do so, and we would move further and faster, which would be welcome.

For today’s purposes, amendment 80 and the two consequential amendments are probing, so I do not intend to press them to a Division, but I would like the Under-Secretary to think about what the White Paper said about disabled people being at the centre. I would also like her to think about whether the clause does that and whether the Government should move an amendment on Report to make that change.

Amendment 26 refers specifically to

“a person with a disability caused by mental health problems”.

I am not going to press that amendment to a Division either, because its purpose is to elicit from Ministers an explicit undertaking that when we talk about disabled people, we do mean not only those with a physical disability, but those with a mental health problem and those with a learning disability, whom the hon. Member for Sheffield, Heeley and others have mentioned. We should be explicit and encompass everyone with a disability so that it is clear to disabled people themselves and to the various authorities that we mean the measure to apply to everybody. Interestingly, the move towards individual budgets and direct payments was started as a result of parents of children with learning disabilities feeling that the provision of services was not up to scratch. I know that the hon. Member for Sheffield, Heeley has been championing the cause of those with learning disabilities throughout our proceedings but, in fact, it was the parents of children with learning disabilities who kicked a lot of this off. It would therefore be welcome if we made sure that there was an explicit commitment from Ministers that people with learning disabilities and those with mental health concerns were explicitly included in this process.

The only other matter to which I wish to draw attention is the one that we briefly touched on earlier. Amendment 45, which, if I may say, is elegantly drafted, is better placed in this group. It would ensure that relevant authorities and services had a duty to co-operate. I know that the Under-Secretary of State for Work and Pensions, the hon. Member for Chatham and Aylesford, is keen for that to take place. In the evidence session, he said in that local authorities were at different stages. He also set out the direction of travel and said that the Government wanted local authorities to work together. The amendment would make it explicit that the duty to co-operate was there. Again, I do not intend to press the amendment to a Division, but the Under-Secretary of State for Scotland, the hon. Member for Glasgow, North, needs to say whether she thinks that the powers already in the Bill put sufficient pressure on local authorities and primary care trusts, which the hon. Member for  Rochdale mentioned, to ensure that they work together to try to deliver a seamless provision. It would be most welcome if the Minister could reassure the Committee about that.

Photo of Paul Rowen Paul Rowen Shadow Work and Pensions Minister

Again, I support the sentiments of the hon. Member for Forest of Dean. In many respects, there is all-party agreement on this aspect of the Bill, and we all want to see it work. I particularly want to focus on amendment 26 because mental health and learning disability issues are important. It is acknowledged that people suffering from mental health problems suffer, and feel that they suffer, discrimination, perhaps in terms of getting a job and so on. The Bill is designed to do something to help to alleviate that.

When developing the powers for direct payments, it is important that the needs of that particular group and those individuals are not forgotten, although I am sure that that will not happen. However, when we consider the pilots, perhaps certain individuals and organisations could be worked with to ensure that a pilot specifically targets children with learning difficulties, or people with mental health problems, so that we can see how the measures will work out, because their needs are different from those of people with a physical disability.

Photo of Ann McKechin Ann McKechin The Parliamentary Under-Secretary of State for Scotland

I welcome the debate, which raises important issues about how we think that the provisions on right to control will operate.

First, I will deal with amendments 80 to 82, which would substantially restructure the aspect of clause 31 dealing with the powers to give greater choice and control and remove particular powers relating to direct payments. The amended version of the clauses would actually set out a more rigid structure for the right to control than that in the Bill. Amendment 80 would make clause 31 less flexible. The amendment assumes that the disabled person, in all cases, could be proactive, whereas clause 31 allows for other circumstances.

It has always been our intention that a disabled person accessing the right will be at the centre of the process and that they will have a range of options for how support is delivered. We recognise that disabled people are experts in their own needs and how they are best met. Self-assessment and self-directed support are therefore essential to the right of control. We believe that we need to take a bottom-up approach, and to work closely with disabled people, public authorities and other stakeholders to achieve that. We certainly do not see this as a top-down process.

The amendments do not capture some of the vital aspects of right to control. They would not allow the outcomes of the service to be agreed, in partnership, between the authority and the individual. That partnership is important, because it means that the individual has choice and control over support, but that resources are available to meet a set of agreed outcomes. The local authority remains ultimately responsible for the statutory outcome and can provide further assistance or security if required. We certainly do not see local authorities making the primary direction—this is about them working with disabled people.

We believe that the amendments would remove many of the powers that make the framework for direct payments. Without clause 32(2), we would have no express power to specify in regulations how and when direct payments should be made. We would also not have an express power to make regulations about when a request for a direct payment should be complied with. I think that it is important to be up front about the fact that circumstances will be prescribed.

Although we would normally expect a request for a direct payment to be granted, there might be certain exceptional circumstances in which a providing authority could reasonably challenge that expectation. We have committed to consulting on what the circumstances will be, but they might include cases where a person has deliberately misused a previous cash payment. Without the express power to make regulations or to issue guidance, we would risk creating confusion about what was intended by the direct payments legislation.

The framework of the right to control is deliberately broad. It is designed to encourage innovation and to reflect our commitment to co-production. We want the right people to design how this will work: disabled people themselves, voluntary organisations, agencies, and authorities that deal with these services every day. I know that the vast majority want to ensure that the system works better for disabled people. Being too prescriptive at this stage would mean that we would fail our commitment to co-production and consultation.

While I do not support the amendments for the reasons I have stated, I am certainly interested to hear suggestions about how the initiative could be taken forward and how the regulation-making powers in the Bill might be put to use.

I now turn to amendments 26, 27 and 45, which would have three key effects, although it is worth pointing out that if amendment 80 were agreed to, amendments 26 and 27 would be redundant. First, the amendments explicitly state that individuals who have a disability caused by a mental health problem would be covered by the right to control. Secondly, they would introduce an explicit power to require authorities to co-operate on delivering the right to control. Finally, they would remove an important clarification that the right to control will be available only in the circumstances prescribed in regulations. I shall briefly address each of those effects in turn.

On mental health, I can confirm that all disabled people who are eligible for the services brought within right to control will be able to exercise the right. We see it as important that people with learning difficulties are included in the trailblazer project. The evidence presented to us by RADAR and others highlighted the transforming difference that choice and control over services can have for people with mental health problems or learning disabilities. We are committed to enabling those people to have the right to control and to ensuring that the right is as widely accessible as possible.

However, the right to control will apply to disabled people who receive specified services, rather than to particular groups of disabled people. The framework of the Bill is therefore inclusive, and I would not wish to single out a particular group of disabled people within the broad framework.

The evidence that we heard from Paul Davies of Oldham borough council emphasised the need for different public authorities to co-operate in providing disabled people with greater choice and control. It is vital that people understand all the different ways in which they can choose to receive support. We certainly expect authorities to provide such information, and we can issue guidance requiring them to make it clear to disabled people what choices they have and the different ways in which they can receive support.

During the trailblazer projects, we will expect public authorities to work closely with each other, as well as with individuals and service providers, to manage the delivery of the right, and we will carefully monitor the effectiveness of the working arrangements.

On amendment 45, we already have mechanisms in the Bill and elsewhere to ensure that authorities work together on specific matters. Local authorities in England and their partners are already under a duty to co-operate in developing and acting on local area agreements that respond to a local area’s priorities. Hon. Members will appreciate that different legislation applies to local authorities in Wales and Scotland.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions) 1:45 pm, 26th February 2009

I just want to press the Under-Secretary a little on the duty to co-operate. She mentioned the evidence that Paul Davies gave us. When the hon. Member for Rochdale asked him,

“Should a duty to co-operate be included in the Bill?”, he gave the clear and specific answer:

“I would say so; yes.”——[Official Report, Welfare Reform Public Bill Committee, 10 February 2009; c. 20, Q22.]

His contention was that what was already in the Bill did not amount to that. I am grateful for the Under-Secretary’s clarification that when the pilots are run, authorities of different sorts will be encouraged to work closely together. However, will she give a commitment that if, during those pilot schemes, it is found that the current arrangements are not satisfactory, the Government will look again at whether the powers need to be strengthened and whether a duty needs to be introduced, albeit with a recognition that, as I suspect, the authorities in the pilot areas will be those that are keenest to make this work? The problems will probably not occur in the pilot schemes, but will become apparent when the Government try to roll out the provision more widely.

Photo of Ann McKechin Ann McKechin The Parliamentary Under-Secretary of State for Scotland

I am grateful for the hon. Gentleman’s comments. We certainly would prefer people to work together in partnership, and voluntarily, because that will give a greater level of service and provision to disabled people. However, he is right that we will be looking closely at the trailblazers to consider whether we need to make further regulations.

The Bill gives us the power to provide for regulations requiring authorities to work together on specific matters so that they share information or vary conditions attached to financial assistance for the purposes of the right to control under clauses 31(4) and 31(5)(b). Clause 31(6) also contains a power to require authorities to have regard to guidance, which will allow us to take account of the experiences of users and authorities in the trailblazing phase and set out further ways in which authorities should co-operate, both in general and in particular.

Amendment 27 would remove the phrase “in prescribed circumstances” from clause 31, thereby removing an important clarification from the Bill. It is important for people to understand that the primary legislation is a framework and that secondary legislation will set out how the right should work in practice, including by clearly defining any boundaries to the right to control. It is important that these boundaries are referenced in the primary legislation to avoid misleading people. I therefore have serious reservations about an amendment that implies that we are making the right available without limit and in all circumstances. It is not difficult to conceive of circumstances when the right to control may not be appropriate, such as when a service is universally available.

We intend to consult fully on the regulations so that disabled people and their organisations, providers and authorities can tell us how they want to manage these issues. Their advice will be crucial to how we take this matter forward. The consultations will allow us to work together to deliver a strong, inclusive and supportive regulatory structure. Given what I have said, I urge the hon. Gentleman to withdraw the amendment.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

As I said, the purpose of amendment 80 was just to test the Government’s intention and see whether they felt that the Bill properly carried out the intention in the White Paper. I am pleased with the hon. Lady’s assurances about the Government’s intention. I welcome her suggestion about working together on how the regulations are drafted. Perhaps a useful step forward, as we move towards Report, might be for us to have a little more flesh on the bones in respect of the regulations that will be made under the powers in the clause than we have in the document that the Minister for Employment and Welfare Reform gave us earlier in the week. I should like a little more detail about how the regulations are going to be framed. If we had that, we would be a lot clearer about the Government’s intention when we reached Report.

Photo of Ann McKechin Ann McKechin The Parliamentary Under-Secretary of State for Scotland

We will see whether that is possible. However, the regulations also apply to Scotland and Wales, and there is a different position with regard to local authorities, particularly in Scotland. The powers are given to the Scottish Government and if they want to mirror this type of trailblazer project in Scotland, they can do so. However, it is not our intention that the Bill should prescribe to local authorities in Scotland and Wales—that is a matter for the devolved Administrations.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

Given devolution, we will clearly see different arrangements emerging in the different parts of the United Kingdom. That is not necessarily a bad thing, because one public policy advantage of devolved Administrations is that they give us the opportunity to try different policies in different parts of the country, much as in the United States, where some states are able to try out policies to see what works. Effectively, we are being given a pilot scheme in a particular part of the United Kingdom, and although there are many downsides to devolution, that is at least one positive point. Of course, everything will depend on the extent to which the Scottish Government grasp the opportunities in the Bill, but I should like them, and the Welsh Assembly  Government and the Administration in Northern Ireland, to do so and to use these opportunities to the greatest possible extent.

Photo of Ann McKechin Ann McKechin The Parliamentary Under-Secretary of State for Scotland

I am pleased to confirm that we are working closely with the devolved Administrations and that we have an agreement in principle on this matter. Obviously, they are advancing at different times, but the point of devolution is that we learn from different experiences, and, as I said, we will leave the door open to those Administrations to have similar pilots in their areas. However, I am pleased to confirm that, on the general principles, we have consent from all the devolved Administrations.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

That is very gratifying news, because disabled people throughout the United Kingdom will want to see how the pilots work. It will be advantageous to see if there are different lessons to learn from areas with different arrangements for delivering such local services.

On the point that the Under-Secretary raised about our conversation on mental health problems and learning disabilities, I must say that the reason why we tabled amendment 26 was to probe Ministers so that they were explicit about the measure. There was no intention to press the amendment. Indeed, it would have been an example of undue specificity, as the Minister for Employment and Welfare Reform is fond of saying—we do not want too much specificity in the Bill.

On amendment 45, I was reassured by what the Under-Secretary said about how the Government intend to proceed during the pilot, and, as I said, we would welcome a look at how it works in practice to see whether more prescription will be required in the regulations. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 ordered to stand part of the Bill.