§ 8.45 p.m.
§ House again in Committee on Clause 53.
Lord Carmichael of Kelvingrove moved Amendment No. 113ZAA:
Page 56, leave out lines 33 to 40 and insert:
("registered with the local authority under this Act for the provision of accommodation in those premises.
(2)(A) before registering any establishment under this Act
where nursing is provided, a local authority shall consult the Health Board in whose area the establishment is situated.").
§ The noble Lord said: The purpose of the clause is to establish a unified system of registration for nursing and residential homes. The amendment provides that nursing homes should be registered by the new local authority inspection units in the same way as will happen for all types of residential homes. Nursing homes are currently registered by health boards under the Nursing Homes Registration Act 1983. However, the Secretary of State has the power to exempt certain homes from that requirement by regulation.
§ Local authorities are to be responsible for the funding of both residential and nursing homes. Therefore, it is important that they register both types of establishment in order to ensure consistency of standards and quality. Given the pressures on local authority time, it is unlikely that contractual conditions with nursing home providers will be enforced sufficiently strictly to provide by themselves a check on standards. There are already examples that the system of dual registration enables homes to avoid providing high quality service. Some establishments that would have been refused registration as residential homes by local authorities because they failed to meet current standards have succeeded in being registered as nursing homes.
§ Apart from the worrying implications for quality of care, that illustrates the fact that the distinction between nursing and residental homes is to some extent historical and of limited relevance today. Health boards are experts in nursing care. Therefore, it will be important for the local authority to consult them in the same way as local authorities consult fire and building authorities and other organisations about their areas of expertise. I hope that the Minister will see that the amendment is worthwhile and at least take it away for consideration. I beg to move.1325
§ Lord Taylor of Gryfe
Like other Members of the Committee, I received the same brief as that provided to my noble friend Lord Carmichael. I do not propose to read it again but I wish to give additional authority. The amendment has been prepared by the Care in the Community Scottish Working Group to which I am reasonably close. It is largely a voluntary organisation concerned with care in Scotland. I can vouch for the fact that it is deeply concerned about the matter and has no political axe to grind. I am chairman of the Scottish action group on dementia which is associated with Alzheimer's disease in Scotland and deeply involved in mental health care. On reading the brief provided, the case appears to be self-evident. I hope that the Minister will respond to the concern.
§ Lord Sanderson of Bowden
I understand the object of the noble Lord's amendment. It is an attempt to transfer from health boards to local authorities the responsibility for the registration of establishments when nursing care is provided. Other considerations apart. I believe that it is defective and does not spell out how registration is to be administered; nor does it alter health boards' present statutory responsibilities for both registration and inspection of nursing homes.
It would not be helpful to give local authorities that responsibility because it involves separating responsibility from expertise which go together under the present health board arrangements that we have in Scotland. It is true that local authorities register residential care homes; but although the registration of nursing homes is similar, the nursing care is provided by health care professions and the standards of care which they provide are health care standards. In that sphere, health boards are the experts. Local authorities have no function in the clinical health field. The fact that the Bill will give them power to arrange accommodation in private nursing homes does not alter that position.
The proposal in the amendment seems to place local authorities in the very difficult position of having to decide on matters which are in the camp of another agency. I believe that it would be a recipe for friction both at professional level and between agencies. I note what the noble Lord, Lord Carmichael, said about that, but it cuts both ways. In Scotland we have examples of a health board upholding something to which a local authority has objected and vice versa. If local authorities were to equip themselves with clinical expertise there would be wasteful duplication of effort and professional skills.
It may be argued—and here we come to the remarks of the noble Lord, Lord Taylor of Gryfe—that since in future local authorities will be able to make arrangements for persons who need institutional care to be accommodated in nursing homes, they should have the power to register and inspect such homes. I fully accept that they should be concerned about the standard of nursing or residential homes which they may seek to use in this way. That is beyond dispute. If they do not wish to rely on the assurances of the registering health board, they can examine such homes for themselves as part 1326 of the deal with the home. We fully accept that they should be free to reach their own conclusions, but they do not need to register homes themselves for that purpose.
I hope that, with that explanation and in view of the need to achieve the right balance, the noble Lord, Lord Carmichael, will understand why I wish to see the continuation of the present arrangements.
§ Lord Taylor of Gryfe
The noble Lord, Lord Carmichael, made a very telling point when he said that there are already examples of the system of dual registration enabling homes to avoid providing high quality services. Some establishments which would have been refused registration by the local authority as residential homes because they failed to meet current standards have succeeded in being registered as nursing homes. That is one of the problems which the noble Lord, Lord Carmichael, was anxious to emphasise. I wonder whether the Minister's reply really touched that problem.
§ Lord Sanderson of Bowden
I can give an example. The Argyll/Bute health board is being accused of being far too tough as regards the regulations that it wishes to impose for the establishment of a nursing home. Therefore, I was saying that there are problems on both sides. However, I believe that the professional skills of those involved in nursing care on health boards should not be overlooked, though at the end of the day the local authority has the right to say that it does not wish to use a particular home for the reasons that I stated in my earlier remarks.
§ Lord Carmichael of Kelvingrove
I am only too willing to accept that it is very difficult to try to check on nursing and residential homes. However, I am anxious that we should all become aware that there are undoubtedly nursing and residential homes which are, to say the least, dubious. That is particularly the case as regards private homes, not those run by voluntary organisations. I know a number of homes in the Argyll area which are extremely expensive and conditions are not very good. On the other hand, I know of others run by voluntary organisations—for example, the Church of Scotland—which are extremely good. In fact, they are excellent.
How can we maintain that standard? Old people do not complain. Their relatives are always reluctant to complain because of the difficulty of finding alternative accommodation, as there is a shortage. I believe that the Minister finds the problem as difficult as I do. I do not believe that dual registration is the solution. I shall read what the Minister has said and take advice on it. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Carmichael of Kelvingrove moved Amendment No. 113AA:
Page 56, line 45, leave out from beginning to end of line 8 on page 57.
§ The noble Lord said: This is a probing amendment to ask what is the purpose of this subsection. I believe that it was added to the Bill at a very late stage. It appears to make local authorities responsible for 1327 health board functions. If that is the case, there will need to be a means of recompensing the local authority for what could be an extremely costly duty. Will the health board behave as a client of the local authority in those circumstances or will the Scottish Office increase the care allowance to each local authority? As I say, I do not quite understand what is meant by these words, I was asked if I could try to interpret them. I tried to do so and then wondered why I should do that when there is an excellent Minister who can do it for me. I beg to move.
§ Lord Sanderson of Bowden
Neither the noble Lord nor I were about when the provisions in the 1947 Act were brought in. We have to go back to that Act to find the meaning of this part of the Bill.
I had assumed that this was a probing amendment because I guessed that the noble Lord does not wish to remove something inserted by his own government. The new Section 13B provides the local authorities with power to arrange the care and aftercare of ill people. It is a re-enactment of Section 27 of the National Health Service (Scotland) Act 1947, most of which has long since been repealed or re-enacted elsewhere. There is a clear advantage in having the main social work legislation consolidated into one main Act. That greatly assists practitioners in knowing precisely what powers are available to them and what duties they are under. That is why we are now proposing to insert this provision in the Social Work (Scotland) Act 1968.
New Section 13B states that local authorities may arrange care and aftercare of ill people with the Secretary of State's approval but they must do that if the Secretary of State so directs. I am happy to say that on very few occasions since this came into operation has the Secretary of State ever had to direct. Arrangements for medical, dental or nursing care or health visiting are excluded since they are now the responsibility of health boards. In effect, this provision gives the Secretary of State a useful reserve power to ensure that in specific circumstances a local authority can be required to provide the necessary community care for individuals—for example, for people being discharged from long-term hospital care.
The purpose of the new Section 13B is to consolidate existing legislation into one main Act. I have been through this and it may look rather convoluted. However, I assure the noble Lord, having gone through the various ways that that is achieved, that that is the ultimate result. If the noble Lord wishes more details, I am quite happy to explain them to him outside the Chamber because it is quite a difficult jigsaw puzzle to see how we get from the 1947 Act to the current situation. It is a consolidation measure.
§ Lord Carmichael of Kelvingrove
I accept that this is a consolidation measure. The only point I make is that, if there is overcrowding in local authority establishments, a problem arises for the Secretary of State. Perhaps the Secretary of State has used his powers so sparingly because he is aware of that difficulty.
1328 I take the point that this is a consolidation measure. I shall pass on the information to those who asked me about this matter. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 53 agreed to.
§ Clause 41 [Exclusion of powers to provide accommodation in certain cases]:
§ [Amendment No. 113AB had been withdrawn from the Marshalled List.]
§ 9 p.m.
Lord Carter moved Amendment No. 113AC:
Page 48, line 4, after ("to") insert ("such persons for whom residence in relevant premises is no longer appropriate with respect to their needs, or any other").
§ The noble Lord said: This too is a probing amendment. Clause 41 appears to exclude people from assistance of the local authority until they cease to reside in relevant premises, which are defined. The amendment seeks to clarify what will happen to someone whose needs for care change; for example, they may require more intensive nursing than the existing home can provide. Will someone in that position be eligible for assessment and assistance from the local authority?
Clause 41 also exempts local authorities from their duty to arrange accommodation for people who are already resident in private or voluntary residential nursing homes when the clause comes into force unless those people are of a description which is specified in regulations. Subsection (3) of the clause states that,
The Secretary of State may by regulations provide",
and so on. Subsection 4 states that:
The Secretary of State shall by regulations prescribe the circumstances in which persons are to be treated as being ordinarily resident in any premises for the purposes of subsection (1) of this section".
§ Therefore, this amendment is also designed to probe that subsection and the regulation-making power. For example, will a change in care needs be one of the criteria included in such regulations?
§ It is understood that we must have regulations to provide for those people who are ordinarily resident in the type of accommodation listed in the event that the home is unable to care for them any longer; perhaps due to management problems, bankruptcy, or disruption of the home through fire. Equally, the home simply may be unable to care for an individual because that person's condition has deteriorated. In such a situation it is important on health grounds that such a person—or, indeed, his or her advocate—should be able to call on the local authority to provide care that is more appropriate to the individual's changed needs.
§ In order to provide this choice for the individual there is no reason why a person who is resident in such accommodation should be compelled to stay if his or her circumstances change. Clients who are in residential or nursing homes due to dependence on drugs or alcohol frequently need to move to other such homes. It is common practice for residential rehabilitation to be conducted in a number of stages.1329
§ We feel that it is important to establish the criteria which the Secretary of State will use in exercising his powers under Clause 41(3) and (4). Of course, we assume that he will be flexible and responsive to needs in the exercise of those powers.
§ The comprehensive nature of health and social service provision in the UK will be severely undermined if there is no statutory requirement for local authorities to provide or arrange for accommodation in either the independent or public sectors. I hope that the Minister can give a suitable assurance on the points I have raised. I beg to move.
§ Lord Henley
I am grateful to the noble Lord for raising this issue which I am glad to tell him has already been addressed in the clause by other means. The opening words of subsection (1) specify that local authorities are debarred under it from helping people with the provision of accommodation under Sections 21 or 26 of the National Assistance Act 1948. Those sections deal with the provision of accommodation. If a person leaves residential care or a nursing home to live independently he or she will be able to apply for local authority help with day or domiciliary care on the same basis as anyone else. These services are provided under a different legal provision from residential and nursing home care and local authorities are not debarred from providing this help to people with preserved entitlement.
The noble Lord referred to people who, so to speak, go up in their care needs; in other words, those going from residential to nursing home care. Obviously they would automatically qualify for the higher rate of nursing home care and their entitlement would be preserved.
The noble Lord also asked how my right honourable friend intends to use his regulation-making powers. We have always said that these powers will be used to exempt other groups of people if necessary. I hope that with those assurances the noble Lord will feel able to withdraw his amendment.
§ Lord Carter
I am extremely grateful to the Minister. I will read with care what he said because I wish to be absolutely sure that the clause covers the people brought to our attention who, through drugs or whatever, are in these stages of rehabilitation. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 41 agreed to.
§ Clause 54 [Exclusion of powers to provide accommodation in certain cases) :
§ On Question, Whether Clause 54 shall stand part of the Bill?
§ Lord Carmichael of Kelvingrove
In opposing this clause I am probing the Government's intentions. The clause as it stands provides no duty to provide accommodation in certain circumstances. In fact, if the person concerned meets the criteria which involve having been resident in certain defined 1330 premises immediately before the day appointed for the coming into force of the clause concerned, accommodation may still not be provided.
I am not clear what is to be achieved by virtue of this clause. My interpretation of the clause as drafted is that if a person is resident in a registered establishment under Section 62 of the Social Work (Scotland) Act 1968, in a registered nursing home. or a private hospital registered under the Mental Health (Scotland) Act, or any other premises which the Secretary of State may by regulation prescribe, the effect is that, by virtue of that residence on the day before this clause comes into force, the local authority may not provide accommodation to that person at any stage in the future.
What would happen if a person currently registered in a nursing home left the home for two years, for whatever reason, even for a short period of time? That person continues to be in need of accommodation. There is no fundamental change in his circumstances but, by virtue of his residence at a certain point in 1990, that accommodation could not be provided. That appears to impose a life-long disqualification for no apparent good reason and in a quite arbitrary fashion which surely cannot be the intention of the clause. I would welcome some clarification of this complicated clause.
§ Lord Sanderson of Bowden
I want to look closely at what the noble Lord has discovered about this clause. I shall try to explain to him how I see the position. The clause prevents local authorities from taking responsibility except in prescribed circumstances—I shall come back to that—for providing accommodation to people who are in residential or nursing home care on the day before the new community care provisions are due to come into force.
The intention is that people who are receiving residential care or nursing home allowances under income support before 1st April 1991 will continue to receive such support as they need, and are entitled to, from the Department of Social Security and that they should not be able to call on local authorities for this purpose.
The Government's intentions are two-fold. This was the subject of considerable discussion in the other place. First, we wish to avoid the possibility of confusion whether in the minds of people seeking accommodation as to where they should look for support or in the minds of local authorities as to where their responsibilities lie. Under Clause 54 it will be quite clear that those currently receiving support from the DSS will continue to do so, while those going into care after 1st April 1991 will look to the local authority.
Secondly, we do not wish local authorities to find themselves suddenly burdened on 1st April 1991 with requests for financial assistance from thousands of people who previously had looked for support entirely from the DSS. That would produce administrative as well as financial difficulties for them of a very considerable order. In our view it is far better for local authorities to be responsible only for new cases seeking support after 1st April 1991, which will grow steadily in number as people come 1331 into the new system. That will give local authorities the opportunity to adapt properly to their new responsibilities.
A great deal of concern has been expressed during the passage of the Bill about the adequacy of the level of income support for those who will remain the responsibility of the DSS. My right honourable friend the Secretary of State for Social Security has considered these concerns carefully. As a result, he amended the Social Security Bill in another place to enable him to take account of the levels of payment made by local authorities under their community care responsibilities in the calculation of the relevant limits for income support.
Clearly that is a difficult matter and responsible government have to tread a very careful line between providing adequate support on the one hand and writing a blank cheque for residential and nursing care on the other. As I have already mentioned, Clause 54(3) allows my right honourable friend to prescribe special cases in which local authorities will be able to take some financial responsibility for people already in care on 31st March 1991. I suggest that the noble Lord looks at that particular subsection of the clause.
Very careful consideration is being given to what the special cases should be but no decisions have yet been made. Possibilities include persons already receiving topping-up from local authorities, people under pensionable age, those residents who do not satisfy the DSS adjudication test and those who face genuine hardship or who are being made homeless. Whatever the financial arrangements are one matter is clear: the whole thrust of the community care measures is to improve services and afford proper protection for vulnerable clients.
It is no part of our policy that people should find themselves turned out of residential or nursing home care for financial reasons. I wish to read what the noble Lord said about people in this category who might leave home and wish to come back. The removal of this provision from the Bill would produce considerable difficulties and possible confusion for local authorities and claimants alike. It would risk upsetting the close alignment of responsibility and financial resources both for the DSS and local authorities which we have secured under Clause 54.
It would also create uncertainty about where to seek support, which could extend to clients who are already frail or confused. It would tend to produce unhelpful complications where clarity and simplicity are required. I urge the noble Lord to consider very carefully what my right honourable friend said and did about this matter in the Social Security Bill, which will shortly come before this House.
It is a difficult balancing act to get this absolutely right. However, because of the changes that we have made during the course of this Bill through another place we believe that we have got pretty near to what the noble Lord is seeking.
§ Baroness Carnegy of Lour
I have listened very carefully to what my noble friend has said about this 1332 very important matter. It is clearly understandable that the existing way of funding individuals should continue; otherwise a sudden change would mean everything moving onto the budget of the local authority.
The clause is expressed in terms of premises. My noble friend's answer dealt with funding. Did he answer the noble Lord, Lord Carmichael, as regards a person who has to move from his existing home for some reason? Will the funding remain the same even though it may be at a different level in connection with the new home? It is very important to be clear about this. It will be very helpful if he can answer that point.
§ Lord Sanderson of Bowden
I wish to look very carefully at that particular circumstance. I believe that the funding arrangement for someone who falls into that category will follow that person. It will be the responsibility of the DSS to ensure that such a vulnerable client does not fall between two stools. However, I want to have another look at the matter because we have not made that particularly clear at this stage. If it is necessary to make alterations to the Bill, we shall do so.
§ Lord Carmichael of Kelvingrove
After listening to the noble Lord's answer, I am even more certain that I was correct in opposing the Motion. He has shown that it was necessary to oppose the Motion in order to raise points about which he himself was in doubt. As he said, his answer was very complicated. I shall certainly look at it and take advice.
§ Clause 54 agreed to.
§ 9.15 p.m.
§ Clause 42 [Charges for accommodation provided by local authorities]:
Lord Ennals moved Amendment No. 113AD:
Page 48. line 30, at end insert:
(" ( ) Persons who are provided with accommodation under Part Hi of that Act in premises managed by a person other than a local authority or a landlord who is a registered housing association shall be eligible for housing benefit and the Secretary of State shall prescribe that the amount of housing benefit payable shall be calculated based on the average eligible rent and eligible service charges for residential care homes and nursing homes (excluding homes where the landlord is a registered housing association) in the relevant area.
( ) Persons who are provided with accommodation under Part II! of that Act in premises where the landlord is a registered housing association shall be eligible for housing benefit on the eligible rent and eligible service charges calculated on the same basis as for any other claimant in private rented accommodation.
( ) "registered housing association" has the meaning set out in the Housing Associations Act 1985; "eligible rent" and eligible service charges" have the meanings set out in the Housing Benefit Regulations.").
§ The noble Lord said: The amendment seeks to clarify the basis on which housing benefit will be paid to people placed in private and voluntary homes by the local authority. The Government have proposed that, rather than calculating housing benefit for each case, the local authority would establish a notional rent figure payable to all residents in all types of home. The Department 1333 of Health has consulted bodies representing local authorities, housing associations and other voluntary sector bodies, including organisations representing the disabled, on how the notional rent should be based on the average of actual rents and eligible service charges. However, many of those organisations have rejected the idea of a low notional rent that is not based on the real charges made by the providers of special needs housing and care. This was made clear in those discussions but so far the department does not seem to have responded with any new proposals.
Subsection (2A)(i) provides that where the landlord is not the local authority or a housing association, the Secretary of State shall take an average of the eligible rent and eligible service charges for an area and that this figure would form the amount of housing benefit payable. That is in some conflict both with what I should have thought are the facts and with what is stated in paragraph 8.18 of the White Paper:
Those sources of income from the benefit system will remain the same when a person enters or leaves a private or voluntary residential setting. This is the approach that has already been adopted for people in board and lodging hostel accommodation … Most significantly, it allows housing benefit payments to be determined in the light of local conditions".
§ I do not see that it actually does that.
§ I have had representations from Sense, an organisation referred to by my noble friend with which I have had long and admiring relations. It is clear to Sense that many people who are both deaf and blind must be extremely vulnerable in their day-to-day lives. Residential establishments must have a complement of staff to allow residents opportunities to be independent and to lead fulfilling lives. In turn, large numbers of staff mean that the revenue costs of such a residential scheme must be high, and social services departments must already provide considerable sums—possibly £300 to £400—to top up the existing DSS board and lodging limit of £210. As my noble friend has said, those who are both deaf and blind are so disabled as to require an enormous amount of support at very great cost. I know this from the evidence of my son who worked for several years on the staff of Sense.
§ When the system of funding of residential care changes. Sense believes that it will be essential to maximise income for all sources to avoid unnecessarily burdening social service departments, which will be responsible for funding costs over and above housing benefit and income support. Sense fully supports this amendment which will allow accommodation costs for residents to be calculated as for tenants of privately rented accommodation for housing benefit purposes. This will mean that the housing benefit claimed will reflect a realistic rent and service charge for each residential care home developed by a housing association, rather than a notional rent which is likely to be too low.
§ The amendment more accurately accords with the intention of the White Paper to ensure that support for people in residential accommodation matches as closely as possible the support available in the community and reflects local conditions. It is our view that it is appropriate for consumers and 1334 organisations providing care that housing costs should be accurately reflected in the funding formula.
§ As the proposals are currently framed, the local authority will place an individual in residential care and pay the full cost of the placement to the organisation or proprietor running the scheme. The authority will then carry out a means test on the individual and recover a proportion of the cost. Such an assessment would take into account the resident's income support and housing benefit. The Department of Health has proposed that the housing benefit is calculated on a notional basis by taking the cost of one-bedded and two-bedded properties in an area and averaging the figure out. That notional element would then be taken to be the housing benefit entitlement for the resident and would be taken into account when the means test of resources was carried out.
I have also received evidence from the Spastics Society, which says:
It is essential for us to be able to ensure that the Housing element of our costs are covered from the resident's housing benefit entitlement. Where large capital costs of conversion or building are involved we need to know that we can cover the investment through the fee structure. If we arrange a complete package that leaves us with the risk of having to cover a large deficit if the local authority do not agree the final fee. In our recent experience SSDs are going to be reluctant and in many cases will refuse to cover housing costs accounted for in fee packages. This is especially true if the housing costs reflect the capital costs of developing new schemes. A low notional rent that does not reflect real cost will not do this".
§ Although the figure arrived at as a result of the amendment would still be notional to the extent that it reflected an average for special needs housing in the area, it would far more accurately reflect the cost of housing for disabled people in the community. Therefore, it would provide a sound basis for the future development of care in the community schemes and encourage the participation of the voluntary sector, which could be better assured of meeting development costs within the housing element. It would also ensure a fairer system for disabled people, who would be less reliant upon discretionary payments for part of their needs.
§ Finally, subsection (2A), paragraphs (ii) and (iii) ensure that housing associations are separated from the structure proposed for voluntary organisations and the private but not the profit sector. It is important for housing associations that they should be able to function under the normal regime for housing benefit that is in existence for private tenants. The amendment thus makes sure that they are not included in the arrangement for notional rents. I beg to move.
§ Lord Allen of Abbeydale: This is not an area of the Bill upon which I speak with any great confidence. However, I should like to say a few words in support of what is proposed, which was so clearly explained by the noble Lord, Lord Ennals. In my view it is a good idea to have a notional rent rather than having to calculate housing benefit in each individual case ad hoc.
§ As housing benefit will be making a significant contribution to the funding of residential care and nursing home placements in the future, it seems to 1335 me that there is a good argument for including a provision on the face of the Bill that the notional rent should be calculated on the basis of actual rents and services in residential care homes and nursing homes in the area rather than on an average of rents for all types of accommodation, taking into account bedsitters, flats with no services and so on.
§ For those briefly put reasons, I support the amendment. I also underline the point that housing association homes should be taken out of the scheme because social services will be paying only the care element.
The Earl of Balfour
I hope that I can take this opportunity to ask a question. More than one amendment has been tabled to Clause 42. Therefore, this may be as convenient a time as any to refer to it. One of the matters that always concerns me when reading legislation is whether it applies to Scotland. Clause 63 provides:Part III of this Act, other than subsection (3) of section 40, subsections (1) to (3) of section 42 and section 43, does not apply to Scotland".I understand that that (3) should be (6). In other words, does the whole of Clause 42, with the exception of subsection (7), apply to Scotland?
§ Lord Henley
The purpose of the amendment is to prescribe the way in which housing benefit should be calculated in cases where a person is provided by his or her local authority with a place in a private or voluntary residential care or nursing home. That involves consideration of detailed aspects of the rules affecting social security benefits. The Committee may therefore find it helpful if I start by outlining the way in which the social security system will provide help to people needing this type of care after April 1991.
At present, people who live in residential care or nursing homes can get help with their fees through special rates of income support. From April next year, those special rules will be abolished for new residents of those types of accommodation, though anyone actually living in a registered home on 1st April next year will retain their right to benefit under the old scheme. For new residents, the same range of social security benefits will be available as to people living in other sorts of accommodation. Thus, income support will be paid at the normal rates, including premiums where appropriate, to meet day-to-day living expenses. Housing benefit will be available to help with accommodation costs. Finally, where a person has been provided with a place in a residential home by a local authority, following an assessment of his or her care needs, additional help may be provided from the local authority's care budget.
Those proposals mirror other changes made in April and October of last year to remove the special rates of income support paid to people in board and lodging accommodation and hostels. Residents of residential care and nursing homes represent the last major category of people for whom the benefit system makes that type of special provision. The situation is anomalous and goes against the main 1336 thrust of the 1988 social security reforms. Income support is not an appropriate vehicle for meeting care and accommodation costs. It is right that all claimants, whatever type of accommodation they live in, should look to the same sources for financial assistance. In the context of community care, it is especially important that the benefit system should not embody perverse incentives towards residential care or inhibit the development of initiatives for looking after people in their own homes. I believe that the special rates of income support paid to people in residential care and nursing homes can provide just that sort of perverse incentive.
I turn now to the proposals in the amendment. They are concerned with the way in which housing benefit should be calculated for people who are provided with residential care or nursing home places by their local authority. Housing benefit is intended to help people meet their reasonable housing costs. Broadly, that means rent and any eligible services. Eligible services are defined in the housing benefit regulations and are intended to cover compulsory charges which are clearly related to the provision of accommodation rather than personal services. Examples would be charges for the use of furniture or for cleaning and maintaining any communal areas. If any items which are not eligible for housing benefit, such as meals, fuel or personal care, are included in the rent, their value must be deducted to work out how much benefit is payable.
Housing Benefit is administered and paid on behalf of the Government by local authorities, which are reimbursed up to 97 per cent. of their housing benefit expenditure by central government. There are arrangements to ensure that local authorities administer housing benefit prudently. In particular there are provisions for the referral of housing benefit claims for deregulated tenancies—that is, all tenancies created since January last year—to the independent rent officers. They determine whether the rent charged is at a reasonable market rate, and local authorities are not generally reimbursed if they pay housing benefit on rent above the market rate. This is a slightly simplified description of what can sometimes seem to be a very complex benefit, but I hope that the Committee will find it helpful.
The Government made a commitment in the White Paper, Caring for People, to consult the local authority associations on the way in which housing benefit should be calculated for this new category of cases which they would have to deal with from April next year. Those consultations have started and are still under way. As some Members of the Committee may be aware, one of the proposals on which we are consulting is that housing benefit for people in residential care and nursing homes should be calculated using a notional rent. By that I mean that maximum housing benefit in all such cases would be a fixed sum, perhaps based on the average cost of rented accommodation in the area. There would be considerable administrative advantages in such an approach. The amendment before the Committee in effect prescribes a method of producing a notional rent to apply to residential care homes not run by a housing association. For housing associations the normal rules would apply.
1337 I appreciate the concerns that have motivated this amendment. Housing associations are anxious about the effect of any discrepancy between the basis on which housing benefit is awarded to their tenants, and their actual rent costs, as identified for the purposes of grant funding arrangements. We are aware of these concerns and intend to address them in our final decisions on this subject.
The proposal put forward for assessing housing benefit in other residential care and nursing homes is interesting. It proposes a notional rent based on the average eligible rent and services for all residential care and nursing homes in the area. I think this approach would have serious disadvantages in practice. To calculate the average local authorities would have to make a large number of housing benefit assessments in respect of tenancies for which there was no actual claim for benefit. This is something they have no legal power to do and such inquiries might well be resented by homes with no residents claiming housing benefit. The method of calculating the average would have to be set out in detail in regulations. It would, for example, be necessary to work out how the figures should be weighted to take account of large and small homes. But, once again, I appreciate the concern that lies behind the amendment, that the housing benefit paid to people in residential care and nursing homes should reflect their actual rent levels.
The Department of Social Security is currently considering all these issues as part of the process of consultation with the local authority associations. I therefore feel that this amendment is inappropriate at this stage. Nevertheless I am grateful for the views of the noble Lords, Lord Ennals and Lord Allen, who made them known in a constructive manner. We shall take them into account in our consultations.
Lastly, perhaps I may turn to the question asked by my noble friend Lord Balfour. It appears that in Clause 42, subsections (1) to (6) should apply to Scotland. I shall, however, take the point away, seek legal advice and bring forward a government amendment if required. With those assurances that we shall continue the process of consultation with local authority associations, I hope that the noble Lord will feel able to withdraw his amendment.
§ 9.30 p.m.
§ Lord Ennals
I am grateful to the noble Lord for his helpful and detailed reply. I wish to press him a little further. He thinks that the proposals in the amendment are inappropriate, but for that matter I think that the proposals in the Bill without the amendment are inappropriate. They are so because there is an enormous range of differences in the residential costs. I know that the noble Lord said "without services", but often one cannot provide housing without services. The range of charges for a youngster who is placed in a Sense residence or in a Spastics Society residence, with all the costs that that involves, will be enormously different from the charges for those who are in no way disabled. I do not see how a satisfactory arrangement will be arrived 1338 at when no consideration has been given to those particular costs. The amendment refers to the costs that are incurred in residential care homes to produce a figure that is more relevant to the kind of cases I have referred to. How does the reply given by the Minister relate to organisations such as Sense and the Spastics Society?
I know that consultations will go on. I welcome that, but what is the timescale involved? Will we be able to add something on Report which reflects the results of the consultations, or will everything be left to regulations? As I said at the beginning, I think the formula that is proposed by the Government is as unsatisfactory and inappropriate as the Minister considers my formula to be. It is not satisfactory to say that we shall deal with this matter when the Bill has been completed. These are problems that concern organisations that deal with seriously disabled people.
§ Lord Henley
The noble Lord presses me to go further. The noble Lord said that I said his amendment was inappropriate. I did not say it was inappropriate but rather that it was inappropriate at this stage. I shall continue with my conciliatory remarks. I also described the proposal as interesting. However, I then went on to say that it had serious disadvantages. I honestly do not think that I can or would like to go any further tonight other than to say that the Department of Social Security is considering these matters. We shall continue the process of consultations with local authorities. This has been a useful debate and we shall certainly take on board in our consultations and consideration the views expressed by the noble Lord tonight.
§ Lord Ennals
Will the Minister give me any hope that we shall get some feedback so that we can deal with this matter in a realistic way on Report? After all, there are only a few weeks between now and Report. Does the Minister anticipate that we shall be able to agree on a measure across the Floor of the Chamber by then?
§ Lord Henley
Obviously I cannot promise that. However, as the noble Lord knows, the Whitsun break will come between now and Report and therefore we have quite a while before we reach another stage of the Bill. I make absolutely no promises other than to say that we shall continue our consultations with local authorities in our consideration of these matters.
§ Lord Ennals
What the Minister says is very interesting, helpful and kind. In that spirit I shall beg leave to withdraw the amendment. However, I hope that we can consider the matter carefully before we come to the Report stage. I hope that the Minister and representatives from this side of the Chamber will be able to confer with organisations. I hope that the noble Lord, Lord Allen, who is so aware of the problems of organisations which are concerned with accommodation for disabled people, will also be able to take part. I do not know whether the noble Earl, Lord Balfour, wanted me to give way.
§ Lord Henley
If the noble Lord, with the noble Lord, Lord Allen, wishes to have a meeting with me or with my officials, I am sure that that can be arranged between now and another stage.
The Earl of Balfour
All I wanted to say is that I am grateful to my noble friend Lord Henley for his information on whether Clause 42(1) to (6) applies to Scotland. Normally numbers are not changed in a Bill, but as this is a point that obviously does or does not affect Scotland, I hope that that point will be confirmed when we reach Clause 63. That is all I require. I did no mean to interrupt the noble Lord, Lord Ennals.
§ Lord Henley
I am sure that we can deal with the matter when we reach Clause 63. If this relates to Scotland, I am sure that my noble friend Lord Sanderson will be able to deal with my noble friend's point.
§ Amendment, by leave, withdrawn.
Lord Carter moved Amendment No. 113AE:
Page 48, line 35, at end insert:
("(3A) Persons who are provided with accommodation under Part III of that Act in premises managed by the authority or by another local authority shall, where they meet the financial criteria prescribed by the Secretary of State, be eligible for Income Support and Housing Benefit on the same basis as if accommodated under Part III of that Act in premises managed by a person other than a local authority.").
§ The noble Lord said: In moving Amendment No. 113AE, with the leave of the Committee, I should also like to speak to Amendment No. 113AG. I must apologise because on reaching the end of what has been a good day I am not sure that in discussing this group of amendments and the following amendment we shall experience the same sweet reason and light as on the previous amendment.
§ The amendments deal with what many people regard as a major flaw in the proposed care structure. They seek to extend to residents of local authority homes the same rights to benefit as apply to residents of homes in the private sector. We know that the private sector is subsidised by social security payments to approximately half the weekly cost, whereas the local authority sector will have to bear the full cost of residential care. To be fair, the Government's intentions were clearly set out in the White Paper Caring for People. On page 28 it said:
§ "The arrangements for paying social security benefits to people in local authority homes will not change as a result of the new proposals. The Government wishes to ensure that local authorities have every incentive to make use of the independent sector when placing people in residential settings. The local authorities will therefore continue to meet the full cost of maintaining people in authorities' own homes, including the costs of accommodation and food. All authorities will need to review the extent to which they need to maintain homes of their own in those circumstances. Some rationalisation is likely to be required".
§ Those last two sentences are significant.
§ We believe that the Government propose in effect a compulsory transfer to the private sector, with virtually no consultation with residents. I have some questions for the Minister on the subject. What 1340 evidence is there that those proposals will lead to a better standard of care? What will happen to the many associated activities in many local authority homes—the old people's clubs, the meetings and the day centres, which provide very valuable respite care? What about the training of the staff who work in the homes in the private sector? Will the private sector be as keen as the public sector to ensure that proper standards of training are achieved? Crucially, what evidence is there that this system will not result in higher rather than lower costs?
§ The director of social services for Tayside regional council produced a report which compared the public and private sector charges in Tayside. The director discovered that the highest cost in the private sector was £300 and the highest local authority cost was £211. The average cost in the private sector was £175 and the average local authority cost was £160. The lowest cost in the public sector is also lower than that in the private sector. Even if the issue is considered on the basis of cost, the local authorities which provide a higher quality of care while dealing with clients who are frequently more demanding seem to do so more cheaply.
§ Whatever happened to choice? Why can people not choose whether they are cared for in the public or the private sector? It seems to us that the government proposals will destroy choice. They seem to be based more on ideology than on genuine care. The amendments seek to correct that situation.
§ We know, because the Government have said, that they intend that the social security system should have a neutral effect on decisions about whether people are supported in their own homes or go into residential care. However, the principle of the level playing field about which we have heard so much should apply within as well as between types of care. Under the Government's proposals residents of local authority run homes will be excluded from housing benefit, unlike those in a private or voluntary home. They will also be paid a lower rate of income support. Local authorities will thus find it cheaper to place people in private or voluntary homes than in the homes which they run because they will be able to reclaim a larger contribution towards the cost of care. As a consequence, they will be discouraged from providing residential accommodation.
§ We believe that it is essential that local authorities remain in the residential accommodation market in order to ensure that there is as much variety and choice of accommodation as possible. Secondly, it will fall to the local authority to meet the needs of those in the private and voluntary sectors they cannot accommodate. It is in the interests of those residents that the local authority is not the provider of last resort. If it is discouraged from catering for a variety of needs, standards in the residual accommodation it provides are likely to be low because it may be difficult to recruit staff of the right calibre who are willing to work in what may come to be seen as "sink" institutions in a low-status branch of local authority activity. The amendment seeks to ensure that, in a mixed economy of care, the various providers of residential accommodation, including the local authority, compete on equal terms.1341
§ I cannot help feeling that the Government's level playing field is rather like the pitches which England met in the West Indies. This is an important matter. If the Government accepted the amendment, or something like it, it would result in a more economic use of resources in community care. Sadly, we are now accustomed to the knee-jerk argument, which may be summed up as public bad, private good. That is not a proper basis for organising this crucial aspect of community care. I beg to move.
§ 9.45 p.m.
§ Lord Allen of Abbeydale
I should like to say a few words in support to the amendment, which seems to be of considerable importance.
We keep being bedevilled by bits of jargon. I believe that this area has been described as a level playing field. Anything less level would be hard to imagine. As I understand it, if you find the social services department putting someone in a residential care or nursing home within the private or voluntary sector, the social services department will normally pay the proprietor. It will then recover as much of the cost as possible from the client and it will receive the whole of the housing benefit. If the client is placed in a local authority home, the social services department receives no housing benefit and recovers a sum equal to only a proportion of the basic retirement pension. The difference between the two can be quite considerable.
Perhaps I may ask the Government two questions. Is it simply their desire to kill off the local authority residential care sector? That seems to be the only interpretation that one can put on it. If that is the intention, what about the last-resort cases with which the independent sector cannot cope? What about the local authorities having some experience of running those places so that they can carry out their duties of advice and inspection? What about the choice of the individual? It seems to me, on the knowledge that I have and until I hear the Government's explanation, that the present provisions simply will not work satisfactorily. I hope that we can be given some indication that, if the amendments cannot be accepted, some change to the Bill will be considered.
§ Baroness Carnegy of Lour
The noble Lord, Lord Carter, quoted an example from Tayside, where I live. Although I am not familiar with all the homes which relate to his comments, I was interested in the figures that he gave. Does he know the extent to which the local authority concerned, Tayside Regional Council, uses the private homes in Dundee, which is where the homes that he mentioned are located?
The object of the Bill is to exert a downward pressure on the costs of homes. My information is that they are little used by the local authorities. If they were more used and were properly in competition with the lower cost homes of Tayside Regional Council, it might have a good effect on the cost. Does the noble Lord have any figures about that or is he simply quoting different levels of the costs of both the private and public sector in Tayside?
§ Lord Carter
I can deal with that point immediately. This was a report prepared by the director of social services in Tayside. The extract that I have does not mention the proportion of use, for which the noble Baroness asked. If the government proposals are accepted, the ludicrous result will be that Tayside will receive such a large subsidy to put its clients into private care that it will be cheaper for Tayside to put them into the more expensive sector.
§ Baroness Carnegy of Lour
My concern is to have the best for the people of Tayside. At the moment some very good homes, which I think I am right in saying might be used by the local authority, are not being used. I hoped that there might be some inducement so that a wider variety of homes could be used in that area. I was not so worried about that point. I just wondered whether the noble Lord knew to what extent the local authority uses private homes now.
§ Lord Henley
We are dealing here with what I consider to be two rather different amendments. I hope that I can persuade the noble Lord to withdraw the first one and convince him that the second will be unnecessary.
It may be helpful if I explain how residential care in homes under local authority management will be funded under the new community care arrangements. Basically this will be in the same way as at present. The local authority will be responsible for the costs of providing the care and will charge residents what they can afford. In that respect it is on the same lines as the system now proposed for public support in independent homes. Residents will be allowed to keep a sum, to be specified in regulations, for their personal expenses. That figure will be the same for all comparable types of accommodation, which means that the allowance for people in local authority homes will be brought up to the level for people in independent homes at a cost of £10 million a year.
Thus, so far as the amount residents are allowed to keep for their personal expenses goes, there will be no difference between residents in local authority homes and those in independent homes. Where the difference comes is in the amount that the local authority may be able to charge a resident. Residents in local authority homes will not be able to claim housing benefit and will only be able to claim income support at a special low rate equivalent to the standard rate of retirement pension. Thus, the amount that a resident who qualifies for income support will be able to pay will be much less at a local authority home compared with an independent home.
As we said in the White Paper, Caring for People, which the noble Lord, Lord Carter, correctly quoted, that is a deliberate choice. We want to give local authorities every incentive to use independent sector provision to improve choice for potential residents and their carers. But clearly as a result there will be a need for local authorities to review their residential accommodation. However, we do not expect there to be any rush to privatise homes. Authorities will 1343 need to proceed slowly, considering how they can strike the best balance between residential provision (of all types) in their areas and other forms of community care and avoid the creation of local monopolies. It will also be important to take into account the views of residents and their families and, for that matter, the local communities—the electorate.
The noble Lord, Lord Carter, also asked what evidence there was that this would lead to better care. It will be for the local authorities to negotiate fees with the private and voluntary homes through contracts. They will be able to determine the services that they want the home to provide and to what standard they should be. These requirements will also be taken into account when the fee is agreed. We expect that local authorities will be able to use their extensive purchasing power to secure the best value that they can for the resources that they invest.
Turning to Amendment No. 113AG, although in form this is very similar to Amendment No. 113AE, in fact it is not required. Paragraph (b) of the new Section (4A) of Section 29 of the National Assistance Act 1948 as set out in Clause 42(7) of the Bill provides that when a person attending a workshop is placed by a local authority in a hostel run by a private or voluntary body, the appropriate parts of Section 26 of the 1948 Act will apply to him.
These sections provide that the local authority will negotiate the cost of the place with the providers of the accommodation and pay the full cost to them. The authority will then charge the person what he can afford to pay and the person is required to pay over this amount subject to an allowance for personal expenses, prescribed in regulations. That is in fact the same system as will apply to all independent residential care and nursing homes. The important change is being made in the corresponding social security and housing benefit regulations. This will enable people in such accommodation to claim housing benefit and to receive income support based on the standard applicable amount and any premiums for which they are qualified. It will apply to people in hostels under Section 29 as well and 1344 they will accordingly be in exactly the same position in any event as other people in independent sector homes. There is therefore no need for Amendment No. 113AG. I hope that the noble Lord will feel able to withdraw the amendment. I hope that he will also feel able to withdraw his earlier amendment for the reasons that I gave earlier.
§ Lord Carter
I am extremely grateful to the Minister although I felt that we would not agree. I shall withdraw the amendment at this stage of the Bill. However, I shall give the Minister an example. Perhaps he will place the reply where all Members of the Committee can see it. I have referred to the example where the cost of accommodation is £200 a week. In the private or voluntary sector, with the various allowances and benefits, the income available is £123 a week. The local authority therefore has to meet the difference of £77. If the client is at income support level, in a local authority home the various allowances and benefits available add up to £36. The local authority has to meet the difference of £164 compared with £77 in the private voluntary sector. The extra cost to a local authority of placing a client in one of its own homes, on the assumptions stated, is therefore £87 a week, or in excess of £4,500 a year.
I do not wish to bore the Committee with the details. It is a point that worries many people. A very substantial financial incentive will be exercised on local authorities to persuade them to use not local authority homes but the private sector. It is important that the point is dealt with. I shall read with care what the Minister has said.
§ Lord Henley
The noble Lord will not expect me to respond to that example, which depends on various assumptions and details. I shall certainly write to him when I have read the exact point that he has made.
§ Amendment, by leave, withdrawn.1345
§ 10 p.m.
Lord Peston moved Amendment No. 113AF:
Page 48, line 41, at end insert:
("( ) After subsection (5) (dealing with treatment of income and capital when assessing ability to pay) there shall be inserted—
(5A) In assessing a person's ability to pay, the local authority shall disregard from a resident's capital, any dweling occupied in whole or part by a person—
- (a) whose sole or main residence is that dwelling; and
- (b) who was providing a substantial amount of care on a regular basis to the resident (and who was not employed to provide such care by any body in the exercise of its functions under any enactment) prior to the resident's admission to residential care.
(5B) Where a person has been provided with accommodation under Part III of that Act in premises managed by a local authority or a person other than a local authority, but the local authority considers that he may at some future date be able to return to his previous home, in assessing his ability to pay, the local authority may disregard any or all of the following—
- (a) the capital value of that previous home;
- (b) a sum of income equivalent to such charges as are necessary for the retention of that previous home, as the authority considers appropriate;
- (c) a sum of income equivalent to any proportion of a personal or standard community charge which remains payable by that person after all community charge benefits and any exemptions from payment have been obtained for such period as the local authority deems appropriate.
(5C) In assessing a person's ability to pay, in taking into account any earnings or other payments, the local authority may disregard their value in whole or in part if it appears to the authority that to take such earnings or payments into account as resources would be contrary to the authority's philosophy of care or detrimental to the objectives of the care programme.").
§ The noble Lord said: This is the last amendment before the Committee this evening. It stands in the name of my noble friend Lord Carter, but it is my job to speak to it.
§ The problems that arise with regard to the amendment are connected with the amendments that we have just discussed. They arise from the question of how much residents should be charged, what they can afford and how we assess all those factors. The problems that arise from the means testing that emerge here are not specific to this case or this Bill. They are the standard problems that arise whenever means testing occurs. In endeavouring to introduce—I hate the expression as much as anyone but it has become part of the terminology of this system—a level playing field, the Government have produced perverse effects. The reason is well known to economists; namely, that, in levelling this playing field, one unfortunately ignores the fact that the rest of the world is not flat. Therefore the distortion that one thinks one is removing adds new distortions. Members of the Committee will be well aware of that problem. It is a commonplace proposition in contemporary economics. I wish to mention some of the distortions which arise and to which the amendment is directed. I shall work backwards through the three subsections, dealing first with income.
§ The most commonplace proposition is that, if you take income into account, it acts as a disincentive 1346 to earn. Therefore, in cases where you feel that it is a good idea for those concerned to earn income you will have exactly the opposite effect to that which you want. A good example is given in the briefing by the Spastics Society which all Members have seen. The society strongly encourages people with cerebral palsy living in residential care homes to try to take paid employment. It does so not because there is a monetary need per se but because it has a therapeutic value. I assume that the therapeutic value occurs in the psychological dimension as well as in other ways. However, if such people find that over and above any minimal amount they earn they are subject to 100 per cent. tax rate—which would be the effect of the Bill as it stands—they will not take the work.
§ That is one example of the problems that can arise and I am sure that Members of the Committee can produce many others. It is the reason why subsection (5C) gives the local authority some chance to disregard earnings and payments. It can do so if it believes that that will help its philosophy of care or that not to do so will be detrimental to the objectives of the care programme. I particularly emphasise the latter because, in so far as the care programme is helped by people going out to work to a limited degree and earning income, it would be perverse to include that income in any assessment of charges.
§ In the second example, subsection (5B), a similar set of considerations arise. The capital value of the home owned by the person in care is an asset. No one doubts that. Unless you think about such things carefully, you may say, "It is an asset and you must take it into account in considering ability to pay". However, homes are a special kind of asset. They belong to you as part of your life as well as part of your financial assets. Therefore, the charging system could cause you to realise the value of that asset. On common sense grounds that is sensible; it is an asset and you should realise it in order to pay for your residential care. However, it would mean that you would not be able to return to your home.
§ Again, to someone as ignorant of such matters as I, let alone to experts, that appears to be detrimental to the person taken into care. If a person has gone into a nursing home or some other form of residential care, the notion that they are somehow obliged to cut off their retreat on capital assessment grounds (in this case) is perverse to say the least. As an economist I can see how the Government found themselves in that mess—they are keen to assess resources as accurately as possible—but it has perverse disincentive effects.
§ One could wax even more strongly on many other aspects of the Bill. However, I wish to emphasise one other in particular; it is the role of carers. We believe, and I certainly believe, that carers play an important role in our society. The duty of care applies to all of us. Many Members of the Committee have been involved with care, and as we grow older many of us may be either cared for or have to do some of the caring. I do not believe that the institutional approach is correct. So far as possible, one would prefer to see the caring done within the family. However, if the person who is being cared 1347 for goes into residential care, and the carer will then be expelled from the home because it does not belong to him, the disincentive to caring becomes somewhat stronger.
§ That seems to me to be a case worth considering for disregarding that particular part of the person's resources. I do not go to the other extreme, and nor does my noble friend Lord Carter, where one says that all ability to pay should be ignored. One is simply pointing out that the moment one becomes involved in this ability to pay game, all sorts of unattractive results follow.
§ The amendment is tabled in order for us to hear how the Government will argue their case. Clearly, we do not intend to divide on the issue this evening. However, the matter is serious enough for us to return to it on Report with more specific amendments which we may press on the Government. At present we wish to hear whether the Government can produce a logical and persuasive argument. I beg to move.
§ Lord Henley
The principle behind the charging arrangements for residential and nursing home care set out in Section 22 of the National Assistance Act 1948, as amended by this clause in the Bill, is that residents should pay as much of the cost of their place in the home as they can afford, subject to their being allowed to retain an amount, prescribed in regulations, for their personal expenses. The same rules for working out what residents can afford to pay will apply to homes in all sectors and we shall bring people in local authority homes into line with those in the private and voluntary sector at a cost of £20 million a year.
As the noble Lord points out, our major difficulty with this approach concerns the treatment of property owned by residents. I make it clear straightaway that at present local authorities have no power to require the sale of any property, nor will they have in future. What they can do, and will still be able to do, is to count the value of the property as part of the resident's capital assets, and charge them accordingly. If the resident does not wish to sell the property, it is open to him to seek to pay the charge by some other means. Alternatively, he may agree to a legal charge being placed on the property so that any charges outstanding can be paid from the proceeds when the property is sold.
Under Section 21 of the Health and Social Services and Social Security Adjudications Act 1983 (which we intend to bring into effect when the changes in Clause 43 of the Bill have been made) the local authority will if necessary be able to place a charge on the property without the resident's consent. But clearly as the noble Lord suggests, there will be occasions when it would be appropriate for the value of the property to be disregarded altogether, either because someone else still makes their home there, or because the admission to residential or nursing home care may not be permanent. In the former 1348 case, since it is our intention to align the local authority and income support schemes, our regulations will be modelled on similar provisions for income support. These provide for the value of property to be disregarded if the resident's spouse continues to live in it, and in other cases permits it to be disregarded if it is not reasonable to expect the person living there to find alternative accommodation because of age or infirmity. I should also add that when the resident is only part owner of the property in question, only his share of the value will be counted as his resource.
As the notes on the Section 22(5) regulations annexed to the Notes on Clauses make clear, the local authorities will also have power to disregard the value of property so long as it has not been decided that the person's admission to residential or nursing home care is permanent.
I now turn to the noble Lord's third point—which was his first point, as the noble Lord went backwards—for which I was most grateful as we were not entirely clear on the point that the noble Lord was making, and we wanted to hear what he had to say. The treatment of earnings will be covered by the charging regulations; that is, regulations under Section 22(5) of the 1948 Act. I have much sympathy with what the noble Lord said, and I can assure him that we shall bear that very much in mind as we prepare the regulations.
I remind the Committee that the regulations will receive scrutiny in another place. Therefore, I hope that the noble Lord will agree that complex matters such as these are best left to regulations which, as I said, require the agreement of another place before they can become law. Bearing that in mind, I hope the noble Lord will withdraw his amendment.
§ Lord Peston
I thank the noble Lord for his reply which I shall read with care. I found some parts of it most reassuring, but others rather horrifying; and perhaps when the noble Lord reads his reply, he will reach the same conclusion.
I do not entirely agree with his remarks on the regulations. I agree with him generally on regulations but the principles on which regulations are based should be laid down both in this place and the other place. The complexities can subsequently be worked out. One particular matter which concerned me, to which I shall return after reading precisely what the noble Lord said, is whether the possibility of disregard on a person's home would apply, for example, to a daughter. There is the typical case of a rather old person going into care and the daughter herself is in her late 60s. It was not obvious from the noble Lord's reply that the family home could be disregarded so that the daughter could continue to live there.
§ Lord Henley
I said that it would not be reasonable for such a person to find alternative accommodation where age or infirmity was a factor. However, I will 1349 write to the noble Lord if he wants me to expand on the position before the next stage of the Bill.
§ Lord Peston
I thank the noble Lord. I heard him say "age and infirmity" and it is precisely because there might be no great age and no infirmity—
§ Lord Peston
Even so, I would welcome—and I am sure other noble Lords would welcome—rather more clarification.
I am not desperately seeking to criticise the Government. I appreciate the difficulties that arise. There is a difficult set of problems to solve. However, I believe we should come back to these problems rather than leave them for regulations which we shall one day moan about. However, having said that and thanked the noble Lord, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 113AG not moved.]
§ Clause 42 agreed to.
§ Clause 43 agreed to.
§ Baroness Blatch
I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.