Local Transport Act 2008 (Traffic Commissioners) (Consequential Amendments) Order 2013
Grand Committee
Lord Popat
That the Grand Committee do report to the House that it has considered the Local Transport Act 2008 (Traffic Commissioners) (Consequential Amendments) Order 2013.
Relevant documents: 23rd Report from the Joint Committee on Statutory Instruments, Session 2012-13.
Lord Popat
My Lords, the order before us today will allow for greater flexibility in the deployment of traffic commissioners across Great Britain. Traffic commissioners are appointed by the Secretary of State for Transport as independent regulators of the heavy goods and public service vehicle industries in Great Britain. Traffic commissioners’ statutory functions can be found in numerous pieces of primary and secondary legislation but two key Acts set the regulatory framework. The Public Passenger Vehicles Act 1981 establishes traffic commissioners, traffic areas and the general regulatory framework around licensing of road passenger transport operators, while the Goods Vehicles (Licensing of Operators) Act 1995 establishes the road haulage operator licensing system.
Most operators of lorries, coaches and buses in Great Britain must hold an operator’s licence to operate legally. Traffic commissioners’ key regulatory functions are to licence the operators of lorries, buses and coaches and to consider and take, as necessary, disciplinary action against operators who have not observed the conditions of their licences. To grant an operator’s licence, a traffic commissioner must be satisfied that the applicant has sufficient funding, is of good repute and has arrangements in place to be able to operate in a suitably professional manner.
Although the majority of traffic commissioners’ work is focused on operator licensing, they also have a number of other key functions. These include registering local bus services and matters relating to the granting of vocational driving licences or taking action against the holders of such licences. The work of traffic commissioners is funded by fees paid by the industries that they regulate.
The Local Transport Act 2008 contained a number of reform measures to the structure of traffic commissioners. One of the key reasons provision was made in that Act for this restructuring was in recognition of traffic commissioners’ strengthened role resulting from that Act—for example, in relation to bus punctuality where the Act allowed traffic commissioners to issue a broader range of penalties to bus operators. Another reason for these measures was to respond to concerns raised by the industry about different standards or processes being applied in different parts of the country.
For these reasons, the traffic commissioner reforms attracted cross-party support during the Bill phase of the Local Transport Act and were designed to strengthen the independence of the regime, with the post of senior traffic commissioner becoming statutory rather than administrative. The first statutory senior traffic commissioner was appointed in March 2009. The legislation before us will provide that officeholder with more flexibility with regard to how resources are allocated by removing, except in Scotland, the statutory link between an individual traffic commissioner and their appointed regional traffic area of responsibility.
Given the degree of devolution of their functions, in Scotland a traffic commissioner will be retained who will be referred to as the Scottish traffic commissioner. However, the Scottish commissioner would be able to act on reserved functions in England and Wales and vice versa to provide further flexibility, and the legislation before us reflects that flexibility.
It is important to note that the legislation before us, and the associated commencement order, will not directly result in any changes to how traffic commissioners are deployed across Great Britain. Any changes to how traffic commissioners are deployed is, under the Local Transport Act, a matter that must be detailed in the senior traffic commissioner’s guidance and directions, on which the senior traffic commissioner must consult as set out in the Local Transport Act. This arrangement ensures that the independence of traffic commissioners in fulfilling their regulatory functions is maintained. However, any redeployment of traffic commissioners will help ensure that the fees paid by the haulage and passenger transport industries for the traffic commissioner system are kept as low as possible, which of course is particularly welcome given the financial pressures many in the industry are experiencing.
The changes before noble Lords are intended to assist the traffic commissioner system by removing current legislative restrictions to allow traffic commissioners to operate as flexibly as possible while retaining their statutory independence. I therefore commend the order to the Committee.
Lord Bradshaw
My Lords, I thank the Minister for introducing the debate. I am well aware of what was intended in the 2008 Act and have no comments to make on it. However, in the past week the Parliamentary Under-Secretary of State announced in the Commons that he was proposing a review of the transport commissioners’ duties. Apparently it is a quinquennial arrangement and the duties must be reviewed on that basis. I will draw two or three matters to the Minister’s attention, with a view to him raising with the Department for Transport certain issues that should be included in the review.
The first concerns the management of highways. This Act also elevated the position of local authorities in the management of the highways. The Minister will recall the use of the words,
“broaden a lot of the penalties”.
The traffic commissioners have a duty to bring before a traffic commissioner’s court the bus operators whose vehicles either do not keep time or run erratically. That is perfectly reasonable, but in a number of cases the operators concerned find it almost impossible to run a regular and reliable service because the highway is obstructed. It may be obstructed by roadworks, which are often carried out in a very undisciplined fashion, or by inconsiderate parking. These are matters over which the local authority and not the bus operator has control.
What I am asking in the first place is that, where a bus service is shown to be unreliable, if the traffic commissioner believes that the highway authority is not discharging its duty to provide a highway along which a reasonable bus service may be operated, they should have the ability to summon the director of highways, or whoever in a local authority is responsible, to give an explanation of the way they are contributing to the operation of a decent bus service. This is not meant to be divisive, but we are moving into an era of partnership working between local authorities and bus operators, and it is reasonable that a balance should be made, and that where a local authority is not playing by the rules, it should be answerable to the traffic commissioner.
The second matter that I will raise—again, I would like it to be addressed in the upcoming review—is the question of goods vehicle operating centres. Traffic commissioners have the duty of approving premises where goods vehicle operators are based. That includes the facilities for maintaining and stabling the vehicles, and having access to the highway. However, the traffic commissioner is not allowed to take his consideration any further than the gates of the depot. Sometimes—this is happening more and more as farms become heavy haulage depots—you will find that heavy lorries are making their way on to totally unsuitable roads. I am suggesting that the traffic commissioner’s discretion should extend to the point where the lorry will meet a main road, and that we should not let our lanes be devastated by heavy lorries that not only destroy the road surface and are dangerous but make for unfair competition.
That brings me to my third issue: the question of the competition authorities. As the Minister said in opening, the traffic commissioner licenses new local bus services but has no discretion whatever about what a local bus service should be. For example, if the noble Lord, Lord Davies, runs a bus service that runs on the hour and the half hour, I can come along and register a service at 57 and 27 minutes past the hour so that I run my bus three minutes in front of his and take all his passengers. I am asking that there should be an element of discretion in the traffic commissioner agreeing to a licence. Where the people who are trying to register a new bus service can be shown to be acting in a predatory way, which is not difficult to judge, the traffic commissioner should insist that journeys are spaced out evenly so that the public get a better service and we do not engage in the thoroughly wasteful bus wars that have been going on since 1985 and still flare up in some areas.
I am quite pleased with the order being laid before us because it makes more efficient use of traffic commissioners’ time, and I hope they will be run better. However, some small additions to their duties ought to be considered in the review that is to take place.
Lord Davies of Oldham
My Lords, I, too, am grateful to the Minister for his introduction to this statutory instrument. I indicate from the beginning that I thoroughly endorse the principal objective of the instrument—namely, that the link between a traffic commissioner and a geographical area should end and that we should have the degree of flexibility that the SI envisages for the operation of the traffic commissioners and, particularly, the head of the service.
It was suggested yesterday that in the question I asked in the House, which I thought was suitably penetrating, I was in fact too kind to the Minister, so the Minister today will not expect me to be too kind to Ministers on consecutive days. I therefore have one or two points that are slightly more abrasive than my general introduction, in which I just said that I support the thrust of the SI, not least because it builds on legislation that was passed by the previous Administration in 2008 with regard to the commissioners.
I am not quite as constructive as the noble Lord, Lord Bradshaw, has been with his questions about the traffic commissioners. I am having difficulty in understanding the timing of this SI. Why are we doing this when the Minister announced earlier this week that he was reviewing the whole question of traffic commissioners? It seems odd to have a statutory instrument recasting the position of traffic commissioners that is predicated on the assumption that there will be a review of the whole situation in the very near future. It looks to me as if that is back to front, and I should like an explanation from the Minister for why the SI has been tabled at this particular moment, although it has merit.
I appreciate the points that the noble Lord, Lord Bradshaw, made. There is no doubt at all that the Minister will appreciate that the punctuality of services is absolutely critical to their use by the public. This is particularly so in rural areas, where people often have very limited cover when they are waiting at bus stops. Therefore, I very much appreciate the point made by the noble Lord, Lord Bradshaw. If competition is introduced and two bus companies provide a service, it is better that the commissioner regulates those services to the benefit of the public rather than allow the free wind of competition to enable one bus company to pre-empt the other by running the service just in advance of its competitor. I hope and expect that the traffic commissioners will attend to that issue. The noble Lord, Lord Bradshaw, is to be commended for having raised it and I hope that the Minister will respond to that point.
Lord Popat
My Lords, both the noble Lords, Lord Bradshaw and Lord Davies, have pointed to a number of issues raised by the order. The order will allow the senior traffic commissioner the flexibility to determine what individual traffic commissioners work on and how their duties are broken down to different regions. The chances are that the traffic commissioners will become more specialised in different regions. For example, one traffic commissioner may specialise in issuing licences for buses; another may specialise in licensing the haulage industry. The order will create the consistency that we require. Currently, there is no consistency between the eight regions. I am sure that the senior traffic commissioner will give the necessary direction to traffic commissioners to create this consistency.
The noble Lord, Lord Bradshaw, spoke about competition among local bus services. This will obviously be determined by the transport commissioner for an area to make sure that competition does not make things difficult for people who use bus services and that journeys are well spaced out.
The noble Lord, Lord Davies, endorsed the order as being long overdue, which I welcomed. Whether to introduce a quality contract scheme is entirely a local decision and, like any decision, it must be made in the public interest. Central government has no role in such decisions; the Government are focused on improved joint working between local authorities and bus operators. We have seen the benefits of that approach in Nottingham, Sheffield and Liverpool.
I am sure that the consistency introduced by these changes will solve the problem of the poor regulation of bus services mentioned by the noble Lord, Lord Davies. Local traffic commissioners will be empowered by senior traffic commissioners, who will in turn take guidance and instruction from the Department for Transport.
I cannot say much about the £2 billion subsidy that we provide for buses. That has been going on for a quite a number of years and I have no figures to substantiate how the subsidy is used.
Lord Bradshaw
Before the noble Lord sits down, the £2 billion subsidy to the bus industry is a rather fanciful figure. A lot of it is actually a subsidy to the passengers. For example, old-age pensioners’ bus passes are paid for by the Government so that people may travel free. The bus industry did not wish them on itself. On the industry making extraordinary profits, I commend having a look at the results of FirstGroup, which were published this morning. They are really terrible and it is losing a lot of money. That is as maybe and it is up to FirstGroup, but a lot of this talk about subsidy means subsidy to passengers; it is not to running bus services which, in a commercial market, the companies would not run anyway.
Lord Popat
My Lords, the noble Lord, Lord Bradshaw, raises an important issue. I am glad the taxpayer is not subsidising the transport operators, whereas the taxpayer is subsidising or making free bus passes available to people aged over 60. So I am glad that the £2 billion is not going to the transport industry directly but is for the benefit of the people who use public transport.
Lord Davies of Oldham
I understand the point. It does not go directly as a subsidy to the buses. However, the noble Lord, Lord Bradshaw, is indicating that it is not an advantage to the industry that there is a guarantee from the public purse that certain people will have their fares paid for by the Government and be able to travel free—a position that we all endorse and are in favour of. If he does not think that that subsidy is an advantage to the industry, I wonder which world he is living in.
Lord Bradshaw
If I may reply to that, the bus companies are not reimbursed for the fare; they are reimbursed for a percentage of the fare, which, on average, is about 40% of what people would pay anyway. So it is not a question of handing over sacks of money to the bus companies. They have to provide more capacity to carry the extra people.
Lord Popat
My Lords, I take the points that both noble Lords have made. One of the questions that was raised in our discussions was why we are doing this now. Others were about some of the announcements made about the changes taking place. The traffic commissioner will be reviewed as part of the triennial review of all non-departmental public bodies. That review will be undertaken this financial year. The nature and scale of the review is yet to be determined and there are no current plans for any further substantial changes. It is for the senior traffic commissioners to take matters forward now.
I hope I have mostly addressed the key issues raised today and that noble Lords will agree that the consequential amendment order will allow the flexibilities in the traffic commissioner system, as envisaged by the Members of the House when approving the Local Transport Act.
Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013
(10 years, 12 months ago)
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Lord Taylor of Holbeach
That the Grand Committee do report to the House that it has considered the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2013.
Relevant documents: 23rd Report from the Joint Committee on Statutory Instruments, Session 2012-13.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, in moving for the Grand Committee’s consideration of this first order, I shall speak also to the subsequent order, as they operate jointly in addressing a common issue.
The Court of Appeal recently held that the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 are incompatible with Article 8 of the European Convention on Human Rights in that they provide for the disclosure to employers of, and allow employers to ask about and take into account, all cautions and convictions on a blanket basis. The court held that this regime, in so far as it relates to historic and minor cautions and convictions, is disproportionate. While the Government is seeking leave to appeal this judgment because we believe that the Court of Appeal went too far in its judgment and did not give sufficient weight to the views of Parliament on these matters, it is vital that we ensure that the legislation reflects the judgment of the Court of Appeal while it remains in place and that the Disclosure and Barring Service can continue to disclose spent cautions and convictions, and that employers can take these into account, where it is necessary and proportionate to do so to protect vulnerable groups, including children. That is the purpose of the orders that I am presenting today.
The orders amend the exceptions order to the Rehabilitation of Offenders Act and the Police Act so that, while maintaining important safeguards for public protection and national security, certain spent cautions and convictions will be filtered from, and no longer be automatically included on, a criminal record certificate issued by the Disclosure and Barring Service. Employers will not be able to take such filtered matters into account.
Full disclosure of cautions and convictions will continue to be required in respect of some employment decisions, such as police recruitment or posts relating to safeguarding national security. Further, all cautions and convictions for serious violent and sexual offences and for certain other offences specified in the orders, such as those directly relevant to the safeguarding of vulnerable groups, including children, will continue to be disclosed, as will all convictions resulting in a custodial sentence.
We are also changing the position in relation to service personnel and former service personnel. Currently, service personnel or former service personnel applying for any position covered by the exceptions order to the Rehabilitation of Offenders Act would have to disclose previous convictions for all service offences, including those that have no civilian equivalent, such as being absent without leave. We are changing the position so that, once spent, these non-recordable disciplinary offences will no longer need to be disclosed.
For all other offences, the orders provide for the following filtering rules to be applied: cautions, and equivalents, administered to a young offender will not be disclosed after a period of two years; adult cautions will not be disclosed after a period of six years; a conviction received as a young offender resulting in a non-custodial sentence will not be disclosed after a period of five and a half years; and an adult conviction resulting in a non-custodial sentence will not be disclosed after a period of 11 years; but all convictions will continue to be disclosed where an individual has more than one conviction recorded.
The Disclosure and Barring Service will continue to see all cautions and convictions, whether spent or not, for the purpose of making barring decisions. Individuals who have been barred from working with children or vulnerable adults must not be offered such employment.
Following the Court of Appeal’s judgment, these changes will ensure that the disclosure of criminal records information remains proportionate and that, while avoiding unnecessary intrusion into people’s lives, public protection arrangements remain robust. I commend the orders to the Grand Committee for consideration.
Lord Beecham
My Lords, in principle, I certainly welcome the changes that these orders make. It is sensible to narrow the scope of the obligation to disclose convictions, particularly where they are of a less serious nature. However, there remain some issues on which I should be glad to have clarification. In particular, paragraph 7.4 of the Explanatory Memorandum states, as the Minister pointed out, that,
“no conviction resulting in a custodial sentence will be filtered”.
Does that include a suspended custodial sentence? I think that there is a nod from the Box—although it is not quite a Box—so I will take it that that is the case and I am grateful for the clarification.
The Minister identified the various periods of time after which disclosure need not be made. My honourable friend Jenny Chapman, in dealing with this statutory instrument yesterday, questioned the basis of the periods of time given. They are rather curious, ranging from, for example, 11 years for an adult conviction resulting in a non-custodial sentence to five and a half years for a young offender. Obviously, in the case of a young offender it should be a shorter period, but I just wonder why this rather odd figure of 11, on which the other figure is presumably based, was chosen.
My honourable friend also asked whether harassment or stalking offences should be disclosed if a perpetrator seeks to enter a profession in which they will work closely with vulnerable people. I understand that such offences will not be exempt from disclosure but perhaps the Minister can confirm that. She also raised a question about a conviction for online sexual offences—for example, downloading indecent images of children and the like. Again, I assume, but would welcome confirmation, that that also is a conviction that would have to be disclosed. It would certainly make sense if that were the case.
On the other hand—my honourable friend referred to this matter as well—in the run-up to the police commissioner elections we had a rather ridiculous set of circumstances arising where very old convictions for very minor offences served to disqualify people from being a candidate for that position. Because they were not custodial sentences, I do not know the extent to which these provisions would now change that rather absurd outcome. I hope that they would but, if not, perhaps the Minister will undertake that a review will be made of the provisions that affect the nomination and qualifications for the position of police commissioner—if that is not already in hand as a result of several people having been disqualified in the rather absurd circumstances that arose last year.
The Minister in the other place said that the matter would be kept under review—that is, how the exceptions and so on are working out and whether the list requires change at all. Perhaps the Minister could indicate how and when such a review might take place. It might take place in two or thee years’ time. Will it be conducted within the department or be subject to wider consultation?
Having said that, as I said, we certainly support the principle and, subject to answers on these rather detailed points, are happy to support the two orders, the second being consequential on the first. My honourable friends in the Commons voted against it yesterday because at that point the Minister was unable to give assurances around certain of these matters, in particular in relation to harassment and sexual offences having to be disclosed. If I am right in thinking that that has now been confirmed, of course we would accept that position. If not, we would ask the Government to think again about those categories of offence.
Lord Taylor of Holbeach
I thank the noble Lord, Lord Beecham, for his welcome for these proposals. They are a rational response to the court’s decision. We have had an interesting exchange of views. I hope that I will be able to satisfy the noble Lord on all the points that he raised. To the extent that I do not, I hope that he will allow me to drop him a line on the matter.
The point that he made and that I would like to emphasise is that notwithstanding the changes, public protection, particularly of children and adults in vulnerable circumstances, is of paramount importance to the Government. In the Chamber earlier today I had to give some horrendous figures which gave us all a chance to reflect on these things. It is also right that we should acknowledge individuals’ wishes to put their past behind them, and to allow that to happen in circumstances where we can be fairly confident that public protection will not be compromised.
The Rehabilitation of Offenders Act aims to aid the employment and resettlement of ex-offenders who put their criminal past behind them. It does this by declaring certain convictions to be spent after a specified time has elapsed after the conviction. A spent conviction is deemed for most purposes never to have existed, and an ex-offender will not have to reveal it in many circumstances, including when applying for most jobs. The rehabilitation periods are determined according to the sentence imposed, in order to reflect the severity of the offence. Currently, a conviction resulting in a custodial sentence of more than 30 months can never be spent.
There must be a balance to ensure that members of the public, especially those groups at greatest risk of harm, such as children and adults in vulnerable circumstances, are adequately protected. The exceptions order of the Rehabilitation of Offenders Act seeks to achieve this balance by excluding certain employment positions, bodies and proceedings from the general application of the Act. This means that where an individual applies for a specified job or role, such as working with vulnerable groups, including children, their spent convictions must be made available to the employer and may be taken into account.
Linked to this, the Police Act requires that all cautions and convictions, whether spent or not and regardless of how old or minor they may be, are disclosed on criminal record certificates issued by the Disclosure and Barring Service. It is this regime that the Court of Appeal has found to be incompatible, and which the orders we have debated seek to address.
I will go through some of the points made by the noble Lord, Lord Beecham. Perhaps I may begin by explaining that the orders introduce a mechanism to ensure that certain old and minor spent cautions and convictions no longer need to be disclosed and are no longer automatically included on criminal record certificates issued by the DBS. The introduction of such a filtering mechanism is a significant modification of the current public protection arrangements, and it is important that we approach the proposed changes with care. With that in mind, I am grateful for the contribution of the noble Lord, Lord Beecham, to the debate today.
The noble Lord asked about what was a conviction and what was a custodial sentence. A conviction, which is any determination of guilt by a court, regardless of the sentence imposed, and a conditional and absolute discharge are both sentences following a conviction. A custodial sentence includes any sentence of imprisonment, including a suspended sentence. I hope that that helps the noble Lord in that respect and confirms the nod that he may have seen from my officials behind me.
Lord Beecham
I am grateful. There is one matter that I ought to have raised before: the provision is in relation to the dispensation from disclosure only if there is no other conviction on the individual’s record. Does that mean a conviction of any kind, or would the conviction have to be of a category that would otherwise create the obligation to disclose? If it is the former, then for a long time a very minor offence could require the disclosure, which would otherwise not necessarily be the case.
Lord Taylor of Holbeach
I agree with the noble Lord but, in fact, any conviction subsequent to a previous conviction will bring that particular element into play. I suspect that we will consider this area when we see how the new regime works. Is there not an enormous incentive for people who have a conviction not to get another? This is one of the real drivers of why these changes, which have been forced upon us by the Court of Appeal, may be welcomed for giving people an opportunity to rebuild their lives in such a positive way.
Therefore, I hope that the measures being proposed strike a balance between enabling offenders to put their past behind them while ensuring that public protection is not compromised. With that, I commend them to the Committee.
Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013
(10 years, 12 months ago)
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Lord Taylor of Holbeach
That the Grand Committee do report to the House that it has considered the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013.
Relevant documents: 23rd Report from the Joint Committee on Statutory Instruments, Session 2012-13.
Railways: High Speed 2
(10 years, 12 months ago)
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Viscount Astor
To ask Her Majesty’s Government what assessment they have made of alternative routes for HS2, and compensation terms for those affected by it.
Viscount Astor
My Lords, the Government have so far rejected the opportunity to pause and wait until the Davies report on airport capacity in the south of England is published in 2015 and are pressing ahead with HS2. Therefore, we may have a new railway line on the right side of the country but, equally, we could have a railway line on the wrong side of the country. Who knows? However, HS2 is going ahead. What we do know is that the department has rejected a route stopping at Heathrow and so far has rejected a spur that would connect to Heathrow Aiport, so we are faced with the possibility that Heathrow may end up with the worst rail connections of any major airport in Europe.
In its recent report, the House of Commons Transport Select Committee called for a third runway at Heathrow, rejected the idea of a new airport in the Thames estuary and called for HS2 to serve Heathrow directly. What is the Minister’s response to this report? I imagine that the Government will want to wait until the Davies report has been published.
Today, we have to deal with the route for HS2 proposed by the Government. If it cannot cross the Chilterns at their narrowest point, it must be tunnelled where possible or mitigating measures must be put in place to give maximum environmental protection. If the Government would accept just one principle, which they accepted for HS1—that for any areas of outstanding natural beauty the route should be tunnelled—opposition to HS2 in the Chilterns would largely disappear. Another help would be to add an intermediate station, perhaps at Bicester, so that at least those living in the area could benefit from HS2.
It is worth repeating what made HS1 acceptable—what became known as the Kent principles: any route should be tunnelled or engineered with cuttings and sound barriers to minimise sound intrusion; it must follow the shortest route for areas of outstanding natural beauty; there must be an advantage for locals in intermediate stations, such as Ashford, which was created for HS1; and, where possible, any route should follow noisy transport corridors such as existing motorways. HS2 achieves none of these for one very simple reason—speed. I will come back to that in a moment.
The urgent issue that really concerns me is compensation. The judicial review judgment found that the Government must review their proposals. If you live within 60 metres of the line, you are automatically entitled to compensation. However, perhaps your Lordships can imagine HS2 crossing the middle of the Prince’s Chamber. If your house is on the first Cross Bench, you get compensation, but if your house is on the third Cross Bench, you get nothing. I would submit that there is not a large difference between them.
We know of at least one house 450 metres away from the proposed line that has been valued as worthless by the local building society. Many with homes just outside the planned route have found that their value has plummeted and that they cannot sell at any price. The mortgage company is demanding repayment due to the loan falling below the value of the house, and of course the banks are not interested in helping.
I will give one example. A couple in their late 70s live a few metres beyond the 60-metre limit. Their house was worth well over £200,000; now, it is virtually worthless. They cannot afford to sell but they cannot afford to stay. They want to move into a care home but they cannot. Theoretically they would have to pay because their assets are worth more than £70,000, but they do not have the money and they do not have a way out. They do not meet the definition of hardship and will be able to make an application for compensation to the Lands Tribunal only after 15 years, based on physical nuisance under complex rules. If they have not been gathered by then, they certainly will not be able to afford the costs of the case. They are suffering in a terrible vicious circle, and this is an issue that the Government ought to consider.
So far, three-quarters of those who have applied to sell their homes to HS2 have been turned down under the Government’s exceptional hardship scheme. I believe that they should review the terms of the scheme. A property bond has been proposed that would allow home owners to apply to the Government for an undertaking to purchase the property at a future date if a buyer cannot be found at the unblighted price. The bond would be transferable with the property to give confidence and security to any future purchaser or mortgage lender. This is not a new scheme. This type of scheme has been operated by Central Railway Ltd as well as by the British Airports Authority, which has a similar scheme, and mortgage lenders have successfully worked with the scheme.
The Government should remember that we are considering not just the effect of the trains once the line is completed but the many years of construction: the noise, the dust in summer and the hundreds of heavy lorries using country lanes. Local businesses, too, will be affected, and under the scheme they will have to prove loss of business—but only after some years. It would be depressing to see the value of your business decline in front of you and be unable to do anything about it until it was too late. We know that HS2 will cost more than £32 billion for the track, and another £8 billion for the trains: more than £40 billion in all. Can we have a little fairness for those who suffer real hardship? Will the Government consider a property bond? I gave the Minister notice that I would ask this question.
As I said earlier, the issue comes back to speed. The faster you go, the straighter the track has to be: no corners, so no flexibility. The Government have designed the track so that trains can run at 400 kph, which would make them some of the fastest in Europe. The plan is that they will start at 360 kph and work up to achieve an average speed from London to Birmingham of 330 kph. HS1’s maximum operating speed is 225 kph, with an average speed from London to the Channel Tunnel of 211 kph. The average speed of the HS2 service shows that it will have to operate at much slower speeds through tunnels and urban areas. Of the 225 kilometres of HS2’s route from London to Birmingham, less than half—109 kilometres—will be capable of allowing the planned 400 kph speed, due to various constraints.
So why design a track that will enable trains to run at this high speed of 400 kph when we know that it takes time to build up speed and as much time to brake to a slower speed, both of which will use energy and increase CO2 emissions? The problem with a projected speed of this nature is that there can be no corners: the track has to run virtually in a straight line. The minimum radius of curvature for the track increases, I am told—I am no mathematician or expert—from 4.05 kilometres to 7.2 kilometres. What is more, it will then limit the length of tunnels in which the train can travel at speed. Therefore, the line has to be straight. It cannot avoid urban areas or the unspoilt valleys of the Chilterns, or follow the line of the M40, where possible, to Birmingham.
We know from Europe that train speeds are being reduced, not increased, due to the disproportionate effect of very high speeds on train and track maintenance and on energy consumption and efficiency. If the plan was to operate HS2 at the same top speed as HS1, all the main issues could be dealt with, including a station at Bicester linking through to the Midlands, which would attract local support. Following the M40 as closely as possible to minimise environmental impacts would avoid most of the scarring and destruction and the damage to many homes. Many fewer houses would be affected than under the current plan, and that would enable the Government to save money, even though there would then have to be a longer track. It would avoid the loss of ancient monuments and woodlands and the severance of many public rights of way.
Therefore, my plea is for the Government to see what can be done. It is not too late. With HS1, we know that right up until the moment it was built there was a debate on where the track should go. It is not impossible to make changes. We know that we have an enabling Bill coming before us in this Session of Parliament, and we know that the Government hope to introduce a full Bill perhaps next year, so it is not too late to review the route and to take in all the matters that affect the route, whether it is speed, the environmental benefits or the environmental impact. I quite understand if the Government are determined to go ahead, and they should do so, but I urge them to look at the effect on those who live along the route and to see what they can do to mitigate the damage and improve the compensation that is available.
Lord Berkeley
My Lords, I congratulate the noble Viscount on securing this debate. It is timely and he has raised some interesting points. Certainly, he made a very good point about compensation. When I worked on the Channel Tunnel, which was an Anglo-French project, we were struck by the difference in the compensation regimes of the two countries. I think that in France people got the valuation of the property plus 10%, plus their moving costs. It was remarkable that very few people complained there, whereas they did in England and they continue to do so. Given the extra time and hassle, and the unfairness that the noble Viscount mentioned, I think that there is a strong argument for improving the package.
The noble Viscount mentioned the link to Heathrow. I believe in a new line to get extra capacity on the railway between London and the West Midlands, the north-west and the north-east. Whether that is via a high-speed passenger line, an ordinary passenger line or a freight line—I declare an interest as the chairman of the Rail Freight Group—more capacity is needed. The traffic is forecast to double in the next 20 years and the existing line certainly cannot cope with that. The Government have chosen the high-speed line.
Personally, I do not have too much of a problem with most of the route. It is interesting that it is still subject to change, as we have seen. I do not think that a spur to Heathrow is particularly sensible. I am sure that passengers going to Heathrow are terribly important, but the volume there compared with the number of passengers going to central London is very small. Probably only one train an hour is justified from, say, Manchester, whereas there will probably be three or four going to central London. They are not going to get to their terminal without changing trains because there are three groups of terminals at Heathrow. Therefore, if they are going to have to change anyway, they might as well change at Old Oak Common—that is my simplistic view on it.
However, what I worry about with the present situation is that we are getting more and more tunnels. We have a new one next to East Midlands Airport, which I think is very good for the logistics industry, we have another one near Ruislip, which I am sure my noble friend Lord Rosser will be pleased about, and we have lots of tunnels or extra lengths through the Chilterns, where there may be more to come or there may not. The extra cost of these tunnels is now probably well over £1 billion, although it may be more than that.
I have two issues to raise relating to the tunnels. The noble Viscount said that they slow down the trains. They do unless you build a tunnel big enough to reduce the air pressure, and that costs more, so there is a balance to be struck there. I do not have a clue what the right balance is but he made some good points.
However, I question whether one needs quite so many tunnels. If you go down and look at the line in Kent, you will see there are not that many tunnels. I spent quite a lot of time working on the side of line when it was being built. There was enormous opposition at the time. I thought that the environmental protection was pretty good—there are some fake tunnels and a real tunnel through the hills. You do not find many people there who now say what a disaster it is. They live with it; they are quite happy with it, and they basically ask what all the fuss was about. Having been brought up in a nice little village called Great Missenden, the one thing that I did not like was the road going through it from Aylesbury and Amersham, which, even 40, 50 or 60 years ago, was a pretty horrible road with lots of traffic. Frankly, building beside it a high-speed railway that was pretty straight, with the right sound barriers, I would have thought was probably just as good or bad as building a long tunnel—but that just happens to be my opinion.
Many noble Lords have talked about, and probably will talk about, the alleged destruction in the Chilterns and elsewhere. I do not know how many houses are going to be affected along the route outside London, but in the Camden area probably 400 houses are going to be affected by the proposed demolition west of Euston station and up at Camden Road. Residents there have just as much right to be considered and looked after as the people who live in leafier areas.
The noble Lord, Lord Bradshaw, and I have come up with an alternative scheme for the London end of High Speed 2 that avoids those two areas of demolition. The idea is instead to construct an underground station linking Euston and St Pancras, next door to where Crossrail 2 might go. That would give a much better passenger throughput to the two stations as well as allowing a proper connection to HS1. It would provide not only for international trains, such as they may be, but for a new east-west Thameslink, which would probably become very popular—new forecasts are coming out quite soon that will support that.
Does the Minister have any views on this “Euston Cross” proposal? We have met representatives of HS2; we have met some Ministers. We have got further work to do, because HS2 Ltd says that it is too expensive—but it would, wouldn’t it?—but if it is going to add £1.5 billion to the budget for tunnels, it should at least look at this scheme. If it is the same price or even a little bit more and has a greater cost-benefit, it should be investigated.
I hope that this scheme goes ahead, with some changes, because if it does not then we will have to start the whole process over again. I hope that HS2 Ltd will engage with more groups and individuals along the route and listen to some of the comments being made, otherwise it will find a very large number of petitions waiting for it when it gets to the Commons and Lords Select Committees, which will cost it a lot of time and a lot of money.
Baroness Seccombe
My Lords, I, like others, congratulate my noble friend on bringing this matter before the House again. Many issues surround this expensive, grandiose and, in my eyes, not needed venture, but perhaps I may first declare my interest, as HS2 slices right through the magnificent farmland and rural communities of the constituency where I live. We are blighted not only by this but also by the threat and horror of wind turbines. The M40 runs through the constituency, so, altogether, we feel that we have been singled out for a battering. This seems to me to be the industrialisation of our beautiful countryside. People’s lives are being ruined as they assess their plight, and I feel particularly concerned for those who would apparently not be compensated because they live very close to HS2 but not close enough to benefit from compensation.
If this venture is to proceed, it seems very strange that the Government did not choose to build the line in the corridor of the M1 and the Birmingham to London railway line. The cost would, I believe, be less, as the blight has already been established, and the links around Birmingham and Birmingham International could be addressed much more simply than the present plans reveal.
The business case for this project seems to be very flimsy, and it is difficult to find reliable figures in support of it. I heard on Radio 4 last week that the benefit/cost ratio has been reduced from 2.4:1 to 1.6:1. It is inconceivable that the £33 billion cost will not increase—all public projects do. We are told that HS2 will deliver 100,000 new jobs some time in the future but, as Margaret Hodge said, the business case is,
“clearly not up to scratch”.
It is very difficult to accept the situation. There seems to be no evidence for the Department for Transport’s claim that HS2 would deliver regional economic growth. It just seems to be an ambitious fantasy pipe dream that would be constructed at an unaffordable cost to the taxpayer.
Since the privatisation of the railways, I have marvelled at the transformation of rail services. My nearest station is Banbury, so I can travel to London on the Chiltern line. We have new trains that are all fitted with wi-fi, enabling passengers to work on their computers in the comfort of carpeted carriages. Travel time is seen not as a waste of time but as quiet time away from phones before the start and hurly-burly of the day. The journey of 55 minutes, arriving at Marylebone on time, is impressive, and it seems to me that we travel at high enough speeds now.
I try not to travel at peak times, but if seats are in short supply, as many others have said, longer platforms to accommodate longer trains would be the answer. This would involve developing our infrastructure, thus bringing much-needed employment to all parts of the country now, not in the years to come. I do not know how many would profit from HS2, but it would be few compared with the many who would benefit from the upgrading of all stations on commuter routes.
There is much work to do on a business plan before the project could be approved and, most importantly, a great deal of research is needed to consider the environmental damage that would be caused. We should never forget that we are the custodians of our precious countryside and so, for the sake of all, we must not destroy our rural communities and the treasured way of life that is our heritage.
Lord Stevenson of Balmacara
My Lords, I declare an interest, as the current preferred route for phase 1 of HS2 goes very close to my home in Little Missenden—close enough to “blight” it, in the words used by the noble Baroness, Lady Seccombe, but certainly not close enough to qualify for any compensation.
I thank the noble Viscount, Lord Astor, for securing this debate and indeed for his valiant work altogether in keeping this issue in the public eye. I agree with everything that he said about the compensation scheme, which I think needs to be completely reworked, perhaps along the lines of the French model mentioned by my noble friend Lord Berkeley. I also thought that the noble Viscount’s points about the way in which the route for HS1 was changed quite late in the day were ones that we might want to keep in our minds as we move towards the paving Bill and then the hybrid Bill.
Like the noble Viscount, I have no objection to HS2 in principle and I support my party’s position on the introduction of this technology. However, taking a fresh look at HS2 may well help the Government, and indeed future Governments, to build in greater connectivity, more sustainability and, importantly, flexibility. It would also help in meeting local concerns without damaging the overall national objectives of the project.
In their announcement of the preferred route for phase 2 of HS2, the Government said that the scheme had been designed to minimise potential impact on settlements and properties as well as on important environment and heritage sites. They said:
“The scheme would avoid any national parks or areas of outstanding natural beauty”,
and registered parks and gardens. Will the Minister, the noble Earl, Lord Atlee, who is also the noble Viscount, Lord Prestwood, say why this approach was not taken for phase 1, which currently destroys the AONB in the Chilterns—including, it should be noted, the village of Prestwood? Indeed, the Chilterns AONB is now the only AONB along the entire HS2 phase 1 and phase 2 routes that is adversely impacted by the proposed project. Although the route is tunnelled from the M25 for approximately 13 kilometres through to Hyde Heath, partially bypassing Little Missenden, the remainder of the route through the AONB to beyond Wendover is on the surface or in cuttings of various depths. This has had a major and unacceptable impact on areas of ancient woodland, a scheduled ancient monument and several rights of way and ancient highways, and damaging impacts on the landscape and tranquillity of a nationally protected area.
Local residents, the county council and local district councils, along with conservation bodies, believe that if the current route has to be retained, the only acceptable solution is a tunnel throughout the AONB, continuing from Little Missenden, under Mantles Wood to Wendover. This would ensure that the villages of Prestwood, Great Missenden, Hyde Heath and Wendover would be given full-tunnel protection, along with the beautiful and unspoilt countryside in which they are located.
I agree with the noble Viscount, Lord Astor, that the Government need to think harder about environmental impacts, and to learn the lessons from what made HS1 acceptable. What he described as the Kent principles should be applied to the Chilterns AONB. In addition to better protecting the environment and unique natural assets, redrawing the preferred phase 1 route would further enable the Government to meet local concerns without damaging the overall objectives of the entire HS2 project.
The HS2 draft environmental statement consultation that was published on 16 May accepts that a tunnel right through the Chilterns AONB would perform better on environmental grounds than the current proposals. It also accepts that the all-through tunnel option is feasible in engineering terms, would reduce operational noise impacts, save landscaping costs and mitigate major surface construction at 10 locations within the AONB, including ancient woodlands and the Grim’s Ditch scheduled ancient monument. The Woodland Trust recognises the potential benefits of using tunnelling through this section of the Chilterns AONB, in particular because it can negate the loss of ancient woodlands.
Perhaps the Minister will explain how he can justify his department’s approach when Defra’s recent forestry policy statement declares:
“England’s 340,000 hectares of ancient woodlands are exceptionally rich in wildlife, including many rare species and habitats. They are an integral part of England’s cultural heritage and act as reservoirs from which wildlife can spread into new woodlands”.
It states categorically:
“Protection of our trees, woods and forests, especially our ancient woodland, is our top priority”.
I repeat: “our top priority”. We understand that the Department for Transport is drawing up a landscape plan for HS2 which proposes the planting of 4 million native trees. Although welcome, these new trees can never compensate for the loss of ancient woodland which, by its nature, is irreplaceable.
The Government need to explain why the HS1 Kent principles are not being applied to HS2 phase 1, and in particular why the preferred route does not follow existing transport corridors, away from the Chilterns AONB. They need to get a better balance between the irretrievable loss of a unique natural landscape and shaving a few minutes off a journey. I would be grateful if the Minister would confirm that a plan to tunnel all through the Chilterns AONB will be included in the final environmental statement report as one of the “main alternatives” that HS2 Ltd has studied, so that the public and in due course Parliament can take this information into account at the hybrid Bill stage.
Redrawing the phase 1 route so that it crosses the Chilterns AONB at a narrower point would help meet local concerns without damaging the overall national objectives of the HS2 project. It would also improve rail access to Heathrow. Given the extent to which this might enable local people to come more readily to accept the HS2 project, it would seem an eminently sensible proposal. It must make sense for the Government to bring as many people along with their plans as they can. If this could be agreed, it would also, as my noble friend said, reduce considerably the time required for scrutiny of the hybrid Bill. I urge the Government to look again at the preferred route for phase 1 of HS2.
Lord Truscott
My Lords, first, I apologise for arriving late. I was given slightly different timings, but clearly the error was mine and I will read Hansard carefully and take note of what has been said. I, too, thank the noble Viscount, Lord Astor, for initiating this short debate. This is the third such debate since last summer, and no doubt there will be many more over the coming years. The compensation scheme still appears shambolic, with many thousands of people losing out by being trapped in homes they may be unable to sell. I hope that the Minister will reassure noble Lords that the Government are finally getting a grip on the situation. Perhaps he could also inform your Lordships if the property bond finds favour with the Government.
Since our last debate in February, there have been further developments. The National Audit Office’s report on HS2 is damning. The case for HS2 is not convincing and the timetable is “challenging”. The NAO said that it was unclear how the project would deliver and rebalance economic growth, particularly in the regions. The Department for Transport had not assessed the value of time-savings correctly and had knowingly used outdated data. There was a £3.3 billion funding gap and the DfT had simply got its cost-benefit ratio figures wrong. The head of the NAO summed it up thus:
“It’s too early in the High Speed 2 programme to conclude on the likelihood of its achieving value for money. Our concern at this point is the lack of clarity around the Department’s objectives”.
The response of the Secretary of State for Transport in the other place to the NAO report sounds to me as if he is losing the plot. He attacked the NAO as a “bunch of bean counters”. Quite apart from the extraordinary spectacle of a Cabinet Minister attacking a body set up by Parliament to hold government to account, I question why the Secretary of State for Transport has more faith in his own officials, whose planning and implementation to date has not been above reproach—in fact, on occasion it has been quite awful.
There is also the question of the draft environmental statement, which is disappointing. The Government’s own forestry policy statement, referred to by my noble friend Lord Stevenson of Balmacara, states that protection of our trees, woods and forests, and especially our ancient woodland, is “our top priority”. Yet the draft summary of the environmental statement states that,
“at present there are no route-wide significant effects on habitats”.
That is patently not the case. Nor will growing an extra 4 million trees, as has already been mentioned, replace the irreplaceable. That is an environmental sop.
The proposed design speed of HS2, at 400 kph, resulting in a virtually straight line between London and Birmingham, will inflict maximum damage on the environment, including the Chilterns area of outstanding natural beauty. The Chilterns AONB is now the only one along the entire route so affected. A lower design speed following existing transport corridors, as with HS1, would have a far reduced impact, along the lines of the Kent principles referred to by the noble Viscount, Lord Astor, and by my noble friend Lord Stevenson of Balmacara.
In conclusion, I hope that the Government will listen carefully to reasoned opposition on HS2 and not descend to the mindless tactic of attacking the messenger rather than addressing the serious issues raised.
Lord Vinson
I apologise for arriving late, but the overrun rather threw the timetable out.
I am not scheduled to speak, but, as a businessman and having carefully followed the debates on the whole of HS2, it does seem to me to be a folly of the first order. Our country is desperate for new infrastructure development, not only in railways but particularly in roads and elsewhere. This project will not begin to return any money for 15 years, because it cannot until it is running. It has undoubtedly been underestimated already as they have left out the cost of the trains, which are an integral part of the project. It will mean spending £30 billion to £40 billion on something that will yield a negative return, because there is no high-speed train or railway in the world that runs at a profit. It will either have very high fares to try to justify it, or be heavily subsidised.
This country needs that £40 billion spent now over the next 10 years on improving our road bottlenecks, where 95% of our freight will always travel because freight cannot go by high-speed trains; it is a fantasy to think that it can. We have bottlenecks and pinch points on existing railways that could be opened up for a fraction of the money at issue here. I am repeating many of the hugely sensible arguments that have been put up against this vanity project. I hope that it can be delayed in every possible way. I hope that the Treasury will come to the conclusion that it is far too expensive. I hope that sanity will reign so that this money can be deflected to national projects that will give an economic return. Roads, for example, give a huge economic return. It is no good saying, “All people have got to travel by train”. They will travel by car to reach the high-speed trains and there will be massive congestion around the new rail terminals that are going to be put in place.
It is a fantasy project. Nowhere in the world do high-speed trains pay. We have very short distances in this country. For the longer distances—for example, from London to Edinburgh—airlines will always be able to offer fares at one-quarter of the price of train fares for the simple reason that air travel has no highway costs. It has terminal costs, but no highway costs. That is what is makes air travel inherently cheaper over longer distances.
On all these factors, I hope that the Government will reconsider. I hope that they will find a good excuse for dodging their present plans and an admirable reason for postponing, delaying and then cancelling this fantasy project that will bring no economic benefit at all to the British Isles.
Lord Rosser
My Lords, I, too, thank the noble Viscount, Lord Astor, for enabling us to have this debate today. It is probably not an unfair statement to make that most of the speeches have hardly been enthusiastic about HS2, and I shall return to that point shortly.
On the question of alternative routes, I hope that the Minister will be able to say something about the extent to which the current route now proposed is fixed, particularly the extent to which any further changes would involve reopening or extending the consultation process and the impact that this might have on the timetable for the development and construction of the line. Perhaps the Minister could also say whether further decisions to put more of the line in a tunnel or cutting than is presently envisaged would mean further delay as a result.
I ask these questions in the context of a press advertisement this morning from the Department for Transport about public consultation events on the draft environmental statement for phase 1 of HS2. Is the basis of this consultation that the route, including the extent to which it is in tunnel or above ground, has been fixed, or could this consultation lead to changes in the route or the extent to which it is in a tunnel or a cutting?
On compensation terms, I await with interest the Minister’s response to the questions raised and points made in the debate today. Will the amount of money available for compensation be fixed, or are the Government saying that it can be increased if they decide that a case for doing so has been made? What action have they taken in the light of the recent judicial decision on compensation?
Reference has already been made to the recent National Audit Office report on High Speed 2. It is clear that the Government’s inability properly to progress major transport projects continues. Having already announced that they would be incapable of making a decision during the entire five years of this Parliament on airport capacity in the south-east, the Government then showed themselves less than capable of running the rail franchise bidding programme. The west coast main line franchising fiasco has resulted in nearly the whole of the rest of the programme being delayed or deferred and millions of pounds of taxpayers’ money being wasted.
The next display of a deficiency in competence over handling a project is now occurring over the high-speed rail link from London to the West Midlands, Manchester and Leeds. A less than complimentary National Audit Office report has highlighted financial and timetabling problems as well as the Government’s failure to articulate properly the powerful case for HS2.
As a result, the current hostility, which we have seen in part today, of a number of MPs and Peers, primarily Conservative, to the project is continuing. The National Audit Office has damningly said that the Government’s strategic reasons for developing High Speed 2 were not well presented in the business case. Its report also states that the timetable for introducing the hybrid Bill for HS2 phase 1 to Parliament this year has been overambitious and remains challenging. Witheringly for Transport Ministers, the NAO then drew attention to its earlier report on cancelling the intercity west coast franchise procurement, which had highlighted the mistakes that can be made in trying to meet an unrealistic timetable.
Further issues of concern to the NAO are the absence of a government mechanism to agree long-term, in-principle funding for the life of the HS2 programme, and serious doubts over the transport department’s capacity to undertake the HS2 programme to a challenging timetable, bearing in mind its other commitments and the impact of considerable organisational change, driven by the Government, within the department.
The NAO report does not address the environmental case for HS2 for reasons that are, frankly, not clear, but it then calls for an examination of premium fares for HS2 when there is no precedent for it, as the HS1 premium fares apply only to commuter services and no commuter services are planned for HS2.
Our support for HS2, which we first proposed and embarked upon when in government, remains undiminished. It is needed to address serious and mounting capacity problems on our existing rail network and, in particular, the west coast main line. The NAO report spells out far more effectively than this Government have ever done the increasing capacity problems for commuters at Euston in the peak and it goes on to say that a new line—that is, HS2,
“would release capacity for extra commuter services as most intercity services would transfer”.
As we have said before, in the light of the Government’s decision on the route, their dithering and delay on the question of airport capacity in the south-east and the need to progress HS2, we are no longer pressing for our preferred alternative route via Heathrow. We still have serious concerns about the adequacy of the link proposed in London between HS2 and the High Speed 1 route to the Channel Tunnel and Europe, the impact of the Government’s plans on Camden and recent proposals for a scaled-back Euston station. We will, however, be providing cross-party support to secure parliamentary approval for the HS2 project to become a reality while ensuring that it is fully integrated into the existing network, is affordable to use and is not undertaken at the expense of investment in the existing network.
However, HS2 will not progress if the Government again fail to get their act together on this further major transport project. The larger government party has lost control and influence over its Back-Benchers on Europe and gay marriage in both the Commons and the Lords. If a hat trick of Back-Bench rebellions is to be avoided, the Government have to make the case for HS2 with rather more vigour and determination than they have done up to now and also act on the critical NAO report on their failures to date.
Earl Attlee
My Lords, I assure the Committee that I will be supporting and pursuing the HS2 project with great vigour.
I start by thanking my noble friend Lord Astor for securing this debate and I thank other noble Lords for their contributions. A project as significant as HS2 deserves plenty of time for debate, and I am happy to address your Lordships’ questions this evening and, I hope, on future occasions.
There have been some developments. My right honourable friend the Secretary of State for Transport introduced the High Speed Rail (Preparation) Bill, to which my noble friend referred, in the House of Commons on 13 May. It is colloquially known as the paving Bill. We also published the Draft Environmental Statement for phase 1 on 16 May, along with a consultation on the proposed route refinements.
Noble Lords will also be aware of the NAO’s review of HS2. The report is a snapshot from the past and the project has moved on. Economic modelling is just part of the story. If we relied only on modelling, we would not have built the M1, parts of the M25 or the Jubilee line extension to Canary Wharf. We are not building HS2 simply because “the computer says yes”; it is the right thing to do to make Britain a stronger and more prosperous place.
The noble Lord, Lord Rosser, made much of the NAO report. Perhaps I may remind him that the Government are running with a project that his party started, and we are very happy to do so. This is a transformational project that will serve eight out of 10 of the UK’s largest cities, bringing our major cities closer together and two-thirds of people in the north to within two hours of London.
The Government support a direct high-speed connection to Heathrow but it is sensible that further work on a link to Heathrow should await the consideration of the Airports Commission’s recommendations, due in 2015. If it fitted with the commission’s recommendations, we could consult separately later and include the spur in the legislation for phase 2. It could be constructed as part of phase 2 without any impact on the operational railway.
We welcome the outcome of the judicial review, with nine of the 10 challenges being rejected. The one challenge on which the judge found against the Government concerned the 2011 consultation on property compensation rights. The judgment makes clear that it was the process, not the compensation scheme itself, that was flawed. We are giving detailed consideration to the judge’s comments and are planning to reconsult later this year on property compensation schemes.
My noble friend has claimed that properties more than 60 metres from the line would not be eligible for compensation. This is not correct. The exceptional hardship scheme for phase 1 has no defined geographical limit for qualification. However, the EHS is only the start; we will consult later this year on long-term proposals for property schemes that will apply to those outside the 120-metre swathe that my noble friend has described. I have more to say on property compensation.
It is regrettable that the recent judicial review has delayed the introduction of further compensation. However, the Government have been clear that we want to get compensation to those who need it as quickly as possible. While it is inappropriate to speculate on the final package of schemes, I can confirm that the scheme, or rather the consultation, will include a property bond.
The Government are determined to make this an environmentally responsible scheme. We have listened to concerns and worked closely with Natural England and the Environment Agency. However, you cannot build a railway without causing some disruption. The noble Lord, Lord Stevenson of Balmacara, raised the issue of the Chilterns. Following the 2011 consultation, of the 13 miles of route through the Chilterns AONB, less than two miles will be at or above the surface. This is more than a 50% increase in tunnel or green tunnel compared with the original route. It is clearly harder to avoid an AONB near the Home Counties than further north, where there are more possibilities of changing the route.
Mitigation can have its own impacts. A full-bored tunnel through the Chilterns was considered, but would require 10 ventilation shafts as well as an emergency access station. This would be a box constructed within the AONB, around half a mile long, with good road access for emergency services. Only one feasible location for this access station was identified, close to Little Missenden on the A413, requiring the box to be between 40 metres and 50 metres deep, making this a costly and significant engineering challenge, with its own environmental impacts.
Lord Stevenson of Balmacara
I am grateful to the Minister for giving way. I think I detected a somewhat aggressive stance in what he was saying. I am sorry that he says that. Does he not accept that there is in fact an alternative scheme, which I mentioned in my speech, that proposes a relief tunnel, exactly as specified and required under European legislation, at Wendover Dean? That has the support of local residents, which is one of the major reasons why it has been put forward. To say that there is no alternative except in Mantle’s Wood, the very ancient woodland that we are most concerned about, which happens to be near Little Missenden and indeed Great Missenden, is wrong, and we are against that. There is an alternative. It is not the best alternative, but it is disingenuous of the Minister to say that there are no possible alternatives.
Earl Attlee
My Lords, I am extremely sorry to the Committee if I appeared to be aggressive. I have no intention of doing that at all. However, the noble Lord is raising detailed questions about the route, and my duty is to defend the whole scheme. It will be the duty of Parliament to finally approve the route. At the moment, we are consulting about the route, and we need to do that properly. I will of course read Hansard carefully to look at the precise points that the noble Lord has made.
I turn to the issue of train speed, which my noble friend Lord Astor raised. The route has been engineered to allow for train speeds of up to 400 kilometres per hour in future, should there be a commercial justification for doing so. Operation at up to 400 kilometres per hour would require the consideration of whether improved train design enabled services to operate at that higher speed without additional significant adverse environmental effects. Going fast does not disproportionately increase the cost of the infrastructure, but it means that the alignment has to be more or less straight.
I will try to answer as many questions as I can in the time remaining. My noble friend Lord Astor proposed a station at Bicester, but then he went on to point out the difficulties of accelerating and decelerating from stations. My noble friend made further comments on train speeds. While it is true that some European operators are looking at operating at slightly lower speeds, largely due to maintenance issues, we are not aware of any that are planning to go as low as 225 kilometres per hour. The infrastructure is still built for higher speeds so that, when technology allows, they will be able to return to those higher operating speeds.
My noble friend also talked about the spur to Heathrow. It is important to understand that the spur has not been cancelled but has been paused, and it is too early to predict the outcome of the Airports Commission’s work or any of the decisions taken following that. There are no plans to slow down the progress of phase 1. We need to press on quickly with phase 1 so that we can deliver the economic and wider benefits that higher rail speeds can bring. Does pausing the spur mean no third runway at Heathrow? The Government’s position on a third runway at Heathrow remains unchanged, as set out in the coalition agreement. However, the Airports Commission has been tasked with identifying and recommending to the Government options for maintaining the UK’s status as an international hub for aviation.
My noble friend Lord Astor and others have suggested that, where possible, the route should follow noisy transport corridors such as existing motorways. During the course of the scheme development work in 2009, six main corridors, including the M40 and the M1, were considered. The routes were rejected, primarily because of their adverse implications for journey times and economic benefits, which were compounded by their higher costs. Any environmental advantages that these options offered over the proposed scheme were marginal at best, and therefore not decisive in discounting these routes.
I turn to the issue of compensation. We are clear that we need to have a very good compensation scheme. Most infrastructure projects compensate property owners only at a much later stage of development, when statutory measures apply. For the HS2 project, however, an exceptional hardship scheme has already been introduced while the route is being considered. Subject to consultation later this year, the Government have already stated that we hope to introduce subsequent schemes that go even further than the law requires in order to ensure fair compensation for those directly affected by HS2.
Perhaps it would be helpful if I gave a case study for what we are doing with the EHS, remembering that it is inappropriate for me to comment on specific individual cases. Take a lady living 350 metres from the proposed HS2 route who suffered from an illness that meant she was unable to safely climb the stairs in her home. The lady therefore needed to sell her home to purchase a bungalow but, because of the proximity of HS2, she was unable to achieve a sale at the required price. The lady and her husband applied to the EHS, providing documentary evidence that they met the criteria for the scheme, including that the lady was suffering exceptional hardship. A majority independent panel considered the evidence and recommended that the lady’s home should be purchased from her. This recommendation was reviewed and agreed by a senior civil servant at the DfT. Some 12 weeks later, we exchanged contracts on the lady’s home for the full, unblighted value. So far we have brought 81 properties on to the scheme, spending just under £50 million, and have offered to buy a further 32.
Viscount Astor
I am grateful to my noble friend for giving way. He kindly said that the Government have the intention of introducing a property bond. I realise that there will not be time for him to go into the details today but I would be grateful, when he has had a chance to consider what it might be, if he would perhaps write to those who have spoken in this debate with any details that he has.
Earl Attlee
My Lords, I very nearly slipped up in what I said. I nearly said that we would be introducing a property bond, but I corrected myself and said that we would be consulting on a property bond, which is rather different.
My noble friend gave us an amusing analogy about the Palace of Westminster, where the Cross Benches are and so on. This claim reflects neither the current strategy provisions nor the discretionary proposals put forth by the Government. Property owners may be entitled to Part 1 compensation under the Land Compensation Act 1973. This is paid if the property loses value due to the impact of physical factors arising from the use of new infrastructure, such as noise, dust and vibration. It is available for owner-occupiers of residential properties, small businesses and agriculture units. Owners can put in claims once the railway line has been open for a year. This allows the actual impact of the infrastructure to be understood.
I have completely run out of time. I will have to write on all the other issues, apart from the suggestion from the noble Lord, Lord Berkeley, of a below-ground station at Euston. I read the noble Lord’s proposal very carefully but I am afraid that it has been rejected. In order to avoid Underground lines and the proposed Crossrail 2 and Thameslink station at Kings Cross, the station would need to be very deep—50 metres or more. The significant additional cost and complexity of constructing such a station, and the significant safety issues that it would present in respect of evacuation, mean that this option is not viable. I have discussed this with the engineer, and will happily discuss it further with the noble Lord if that would help. I would also be very happy to have separate meetings with Members of the Committee on each individual issue, as I have only 12 minutes to respond today and it is very difficult for me to do justice to noble Lords’ points.
I reassure the Committee that the Government will continue to listen to concerns about the impact of HS2. The consultation on the draft environmental statement and route refinement will be an opportunity for people to respond with their views on what is needed. HS2 is about helping Britain to thrive and prosper.
Lord Rosser
Before the Minister sits down, in the light of what he said at the end about the consultation on the environmental statement, I am still not clear, and would therefore like him to confirm whether the outcome of that consultation could lead to the route that has been determined so far being changed, and whether it could lead to the extent to which a line is in a tunnel, in a cutting or on the surface also being changed—or is that all fixed now?
Earl Attlee
My Lords, at the end of the day, nothing is fixed until Parliament has determined what the route will be. The role of the Government is to propose to Parliament what the route should be, using the appropriate procedures, and then Parliament will agree what the route will be.
House of Lords
UN Arms Trade Treaty
(10 years, 12 months ago)
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Lord Hannay of Chiswick
To ask Her Majesty’s Government what arrangements they are making for the signature, ratification and implementation of the new United Nations Arms Trade Treaty.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, the United Kingdom welcomes the adoption of the arms trade treaty on 2 April. We spent seven years working for this treaty. Its adoption is a victory for government, Parliament, civil society and industry. The treaty opens for signature on 3 June. The United Kingdom will sign and ratify it as a matter of urgency. We will also encourage other states to sign and ratify to ensure that the treaty enters into force as soon as possible.
Lord Hannay of Chiswick
My Lords, I trust that it will be in order to ask that congratulations be passed to Alistair Burt and his team at the Foreign and Commonwealth Office for their skill and perseverance in achieving a more robust treaty than might at one time have been anticipated, and to the Foreign Secretaries, from Jack Straw onwards, who gave them their full support. Can the Minister say who is going to sign on behalf of the UK on 3 June? It is surely important that the signature be at a level that indicates the importance that we attach to it. Can she also say what consideration will be given in future, when granting an arms export licence, to the status of the importing country under the arms trade treaty—whether it has signed and ratified and is implementing the treaty? Would not that be a more effective way of encouraging the widest possible acceptance of its terms?
Baroness Warsi
I think the noble Lord asked three questions. Yes, I can absolutely add my support and congratulations to all the Foreign Secretaries, and indeed all Ministers, many from the Opposition, who have worked over seven years to make this happen. Of course, my congratulations go to my right honourable friend Mr Burt, who handled this towards the end, and to Alan Duncan. Negotiations went on long into the evenings to make sure that it happened—and, of course, it has been a huge success.
The treaty will be signed as soon as possible. We are hoping that it can be done by the Foreign Secretary, and we are looking at opportunities for how that will happen. It is really a matter of getting a balance to make sure that it is as near to 3 June as possible as well as at the highest level.
I missed most of the noble Lord’s third question, but I think it was in relation to getting the broadest support from member states. Of course, this treaty will come into force only once 50 states have signed it and 90 days thereafter have passed. So we will do all we can to encourage that.
Lord Palmer of Childs Hill
My Lords, the United Nations press release says that the treaty makes it,
“harder for human rights abusers, criminals and arms traffickers to obtain weapons”.
How does that fit in with the UK defence industry and the sales of arms, equipment and aircraft to other states?
Baroness Warsi
As the noble Lord is aware, the UK already has one of the most robust and effective export control systems in the world. I regularly see documentation on the countries for which I have responsibility. We have extensive criteria against which we assess any sales. We feel that this arms trade treaty sets an international benchmark, but we do not think that primary legislation will be required to enable us to implement it.
Lord Browne of Ladyton
My Lords, of the 150 countries that adopted this treaty, a significant proportion do not have the capacity to implement it. What plans do our Government have to build that capacity in countries that are key to the implementation of the treaty as it is in our interests that they are able to do so?
Baroness Warsi
I can inform the noble Lord that resource has been set aside to make sure that we work with those countries which do not have the developed, sophisticated arms control systems that we have. The treaty will be effective only when 50 countries join; thereafter, it comes into force. We will, of course, use the network—as the noble Lord is aware, the Foreign and Commonwealth Office has one of the most extensive networks—to make sure that we work with our partners to ensure that countries which need the support get the support.
Lord Harries of Pentregarth
What changes, if any, will be necessary in the UK arms controls guidelines on exported arms?
Baroness Warsi
We think that we may have to implement some secondary legislation. Once the treaty has been signed, it will be laid before both Houses, I think for 21 sitting days. We hope and anticipate that we will be able to ratify before the end of the year. We think that there may be some amendments to secondary legislation, but that will take place before the end of the year.
Lord Dubs
My Lords, I have had discussions with various people who were closely involved with this. It is, after all, a really good news story. However, I have been advised that the signing ceremony will be particularly important. If the United Kingdom is not present, that could send a signal that our commitment is not as high as it should be. I urge the Government to consider that we should be represented in New York on 3 June at the most senior level possible to show how committed we are to this treaty.
Baroness Warsi
Exactly those kinds of discussions are happening to make sure that we send out that very strong signal. Your Lordships will also be aware that we can make an intent declaration when we sign. We will make sure that that is very robust and clear. Much work has gone into this and we have led on much of it. I absolutely assure the noble Lord and this House that we will continue to show our support.
Lord Elton
My Lords, which countries are currently the most prolific exporters of arms to undesirable recipients who have not signed up to the treaty and are not proposing to ratify it? What plans are there to try to persuade them to sign up to it?
Baroness Warsi
I do not know whether I can tell my noble friend which countries are sending arms to undesirables. However, I can say that there are countries heavily involved in arms exports—for example, the US, Russia, China and India. The US will, of course, sign the treaty. Russia, China and India abstained but they made positive statements and we are hopeful that they will move in the right direction.
Lord Triesman
My Lords, I join in congratulating the Government and former Foreign Secretaries on this achievement. Indeed, I have written to Alistair Burt personally to say how much I admire and respect the work that he did in achieving this outcome. I return to the final point made by the noble Lord, Lord Hannay. There will be those, like us, who have signed the treaty. There will be others who do not sign the treaty. How do the Government envisage ensuring that the people who have signed the treaty do not export arms to those who will not abide by these international standards?
Baroness Warsi
The treaty sets out an international benchmark and even for those countries which do not sign the treaty initially, and are not supportive of it fully at this stage, political pressure will build off the back of this saying this is what the international community sees as the standard—you may not have signed up to it but it is how we expect you to conduct yourselves. That will be an important lever in trying to move those countries in the right direction.
EU: UK Trading Deficit
Lord Vinson
To ask Her Majesty’s Government what steps they are taking to reduce, and raise public awareness of, the United Kingdom’s £46 billion annual trading deficit with the European Union, as set out in the Treasury Pink Book.
Lord Popat
My Lords, the UK’s current trade balance with the rest of the EU reflects a range of factors. The recent rise in the deficit reflects the shrinking EU market, not a loss of UK market share. The UK is pursuing a range of policies—supporting measures to stabilise and revitalise the EU as well as encouraging firms to internationalise—which will boost UK trade with the EU.
Lord Vinson
I thank the Minister for his very considered reply. Indeed, we must all try harder to export. Does he agree that our relationship with the EU is changing and that the strength of our trading position would be a key factor in any future negotiations? Should it not be widely known that while 3 million of our jobs are reciprocal with our trade with the EU, the continuing £46 billion a year trade imbalance means that overall 4 million of its jobs rely on us? We are indeed its biggest customer. Is this not likely to lead to sensible bilateral trading arrangements similar to those that we have with the rest of the world, as it needs us rather more than we need it?
Lord Popat
My Lords, our trade with the European Union, and the deficit of £46 billion, is counterbalanced by our surplus on invisible trade. Our membership of the EU is still in the best interests of the UK. It provides tariff-free access to a market that is worth around £11 trillion and has half a billion customers, and its trade with the UK enables 3.6 million employers in this country.
Lord Bilimoria
My Lords, the EU trade deficit is all very well, but do the Government agree that to tackle our overall trade deficit we should be encouraging exports to countries such as India? I despair to this day that when I ask businesses in this country if they export to India, only a handful of hands go up in an audience of 300. Will the Government consider rolling out the GREAT Britain campaign, which is doing an excellent job in promoting Britain abroad, here in the UK to give our businesses confidence to export to countries such as India?
Lord Popat
My Lords, for the long-term economic health of the UK we need to develop further our economic relations with fast-growing, emerging markets, including India, which the noble Lord mentioned. This is why the Prime Minister has been leading trade missions to these countries. We are doing everything possible to support our trade with emerging markets, including India, but we are also supporting a large number of UK companies, through UKTI, to help them to internationalise and to do more trade with those emerging markets.
Lord Tomlinson
My Lords, are we not missing the main point in this Question? Europe largely has the euro, which has devalued by 30% against the pound sterling since it was created. Why, with that level of devaluation, have we not had the competitive advantage in our trade relationships with Europe? Should not the answer to this Question really be a critique of British industry and British commerce for not taking advantage of the competitive devaluation?
Lord Popat
My Lords, part of the reason for the devaluation of the euro is the crisis the euro is going through. This Government are committed to creating a competitive economy that is fit for purpose in the 21st century.
Lord Razzall
My Lords, I am sure the Minister will agree that the argument the noble Lord, Lord Vinson, has made is the one that people from his Benches make who advocate us coming out of the European Union. I am sure he would accept, and perhaps he can confirm, that one of the answers to the noble Lord, Lord Vinson, ought to be to think what would happen to our exports to the European Union were we to come out of it, let alone what would happen to our inward investment.
Lord Popat
My Lords, just under half our exporting is to the European Union. We are working to continue our trade relations with the European Union, and we really need to ensure that we reform it to make it more competitive and accountable. It is crucial that we continue to trade with it and that we increase our trade with it: hence, we have 27 UKTI offices in those countries.
Lord Mitchell
My Lords, these answers hardly fill one with confidence, do they? UK Export Finance was set up specifically to help all businesses to export more, but let us look at the results. Over one year—2011-12—the number of small and medium-sized companies receiving help from UKEF has been the magnificent total of 21. Cannot we do better than that?
Lord Popat
My Lords, this time last year I asked for an ad-hoc cross-party committee, chaired by my noble friend Lord Cope, to be set up. We had a report in the early part of this year, and received a response from business this week on what we can do to help our SMEs to export more, including how the UK Export Finance scheme can work more effectively for those who export in those countries.
Lord Tebbit
My Lords, can my noble friend tell me whether there is any other trading bloc in the world with which we have a similar sized trading deficit, and which on top of that charges us money for the privilege of being part of it?
Lord Popat
My Lords, I expected that question from my noble friend. There is no other country in the world with which we have such a huge trade deficit. We have it with the European Union, but we have a large number of benefits as well. The £7 billion contribution that we pay to it gives us the benefit of free trade and a free market to other parts of the world. However, some of the huge deficit that we are talking about is offset by the invisible trade that we do with it. Most importantly, 20% of the goods that we import from Europe become part of the raw material that we export elsewhere.
Lord Harrison
My Lords, what prospect do we have of securing a successful EU/USA trade deal in the future if we are to absent ourselves from the negotiations with our EU partners? Has the Minister yet made contact with the successor to Pascal Lamy of the World Trade Organisation, Mr Azevedo, to secure the UK’s position in the WTO?
Lord Popat
My Lords, in fact, we are working with the European Union to negotiate a reformed European Union. We have moved on because in a global race we need to ensure that Europe is more competitive with respect to trade.
G8 Meeting
(10 years, 12 months ago)
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Baroness Tonge
To ask Her Majesty’s Government what are their priorities for the G8 meeting on 17 June.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi)
My Lords, the priorities for the G8 are pushing for practical action to achieve fairer taxes, greater transparency and freer trade. Those are actions that are essential in shaping the rules characterising a fair and open global economy, and ensure that both developed and developing countries benefit. G8 leaders will discuss topical foreign policy and global economic issues, as well as terrorism and security in weak and ungoverned spaces, especially the Sahel and north-west Africa.
Baroness Tonge
My Lords, is the Minister aware that at the pre-G8 parliamentarians conference held at Westminster last week, to which more than 100 parliamentarians from all over the world came, it was once again affirmed that voluntary family planning and maternal health are cost-effective ways of promoting economic development by stabilising population growth and enabling women to access education and join the workforce? Will our Government, therefore, press their commitment to family planning and maternal health at the G8 meeting?
Baroness Warsi
I cannot assure my noble friend whether that will be on the agenda, but I will certainly take her views back. She will be aware that a huge amount of work is done by the Foreign Office and the Department for International Development both in projects on the ground and in creating the right climate for these matters to be discussed. Sometimes G8 summits are seen as places where western nations can point the finger at developing countries, but this meeting is also about the G8 countries getting their house in order.
Lord McConnell of Glenscorrodale
My Lords, is it not an absolute disgrace that multinational companies, such as Associated British Foods, can actually pay less tax in countries such as Zambia than small single market traders based in the same communities, as shown by ActionAid and others? In putting their proposals to the G8, will the Government ensure that the actions of corporate multinationals and the capacity of individual governments to ensure efficient tax systems are tackled?
Baroness Warsi
The noble Lord raises a very important point. It is why transparency in tax will be a key priority at the G8 discussions. It is important that we get political support for ensuring that global tax rules are fit for the 21st century. It cannot be acceptable that companies can create these shadow shell companies offshore, which effectively means that both developed and developing countries do not get the benefits from revenue that should come from their profits.
Lord Hylton
Does the noble Baroness agree that Syria should be high on the G8 agenda, because of both the huge loss of life and the impact on all the neighbouring states? Would this topic not include violence against women in particular, such as mothers who have been forced to leave their homes in Syria?
Baroness Warsi
The noble Lord can be assured that Syria will be on the agenda. He may be aware that I repeated a Statement in this House yesterday. It is clear that this is one of our biggest foreign policy priorities. In terms of violence against women, the noble Lord may be aware of the Preventing Sexual Violence initiative, which the Foreign Secretary has been leading on. The G8 meeting of Foreign Ministers put out a robust and extensive statement on action taken to prevent sexual violence in conflict, and I am sure that this will be reaffirmed at the G8 meeting.
Lord Triesman
My Lords, the list the Minister started with contains security, but I confess that I was a little disappointed that action against nuclear proliferation was not included. There are at least two nations—and arguably very many more because of those two—where the nuclear arms race could well take hold. That must be a fundamental issue to our security and to security more generally. How will the Government ensure that that is discussed at the G8 meeting?
Baroness Warsi
The noble Lord will agree that a whole series of important issues could be put on the G8 agenda. We feel that what is important is to discuss the political and economic challenges of the day—as they always are. However, it is also important for the G8 to look at ways in which it can get its house in order and agree on those things that would make a real difference to developing countries—such as tax, transparency and trade. This allows developing nations to have much more transparent, open systems, so that countries know when developed nations go into their country, what they are paying for those contracts, what those governments are receiving and what the real benefits will be for the people of those nations.
Lord Teverson
My Lords, I very much welcome the Government’s decision to concentrate on west Africa. It is an area where drug and human trafficking are a great problem. What do the Government intend to do in terms of stabilising democracy in some of these nations, for instance in Mali, Niger and Guinea-Bissau, to stop the problems escalating in future?
Baroness Warsi
The recent tragic events earlier this year in Algeria and Mali showed that different nations have different expertise that they can bring to the table. It is obvious that wherever there are ungoverned spaces, that is where the threat of extremism starts to rise. We have seen that in Mali. The discussions at this G8 will be about how we can harness that expertise from different nations and bring it together to be able to come forward with solutions for these areas which are proving to be extremely challenging.
Baroness Farrington of Ribbleton
Would the Minister care to give an assurance about movement towards the principle of paying a living, fair and minimum wage in those countries which they intend to assist with inward development? Will she tell her colleagues that some of us despair about the way the Government are tackling the results of many major companies—this has been referred to today—which fail to pay a living wage to their employees and the governments cut the benefits? There are companies that do not pay their tax and the benefits of their employees are being cut by the government, but in fact the fault lies with the multinational companies.
Baroness Warsi
I repeat to the noble Baroness the point I made at the outset. If these companies are not paying tax off the back of their profits, it means that developed nations and developing nations cannot provide the public services and support that is needed. It will be a key part of what we are doing at the G8 to say to companies, “You have to be transparent about who owns you, about where you are owned and about the tax you are paying”, because it cannot be right. I do not know whether noble Lords saw the fantastic article in Prospect, but apparently Jersey is now the world’s largest exporter of bananas. We know that that is not true and we need to get behind that.
Sexual Offences: Investigation and Prosecution
(10 years, 12 months ago)
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Lord Morris of Aberavon
To ask Her Majesty’s Government whether they will invite the inspectorates of the constabulary and the Crown Prosecution Service, together with the social services agencies, to conduct an inquiry into all aspects of the investigation and prosecution of large scale sexual offences.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)
My Lords, sexual abuse in whatever shape or form is abhorrent and we rightly expect all agencies to learn the lessons from the horrendous cases that we have seen recently. Nationally, a joint inspection programme is being planned by Her Majesty’s Crown Prosecution Service Inspectorate and the constabulary that will look at child sexual abuse and exploitation and this will address how agencies interact to protect children and ensure that offenders are brought to justice.
Lord Morris of Aberavon
My Lords, I welcome very much the Minister's reply. Is it collective amnesia that has blinded us to the underlying circumstances whereby at least 27 police forces are investigating 54 alleged child grooming gangs? Why has investigating and prosecuting in so many different parts of the country taken so much time? Is it a fear of racialism or is it that many of these vulnerable girls come from care homes? I hope that what the Minister has told us will result in speedier co-operation between all the agencies.
Lord Taylor of Holbeach
The noble and learned Lord makes a very powerful case for working together across government. I think that noble Lords will know that bodies are already in place and that we already have a very considerable focus on child protection in this country. However, there has been a failure, and a failure to recognise the reality that many of these young people have experienced. That has been exposed in recent court cases. The Government are determined that the system should work. The system needs to work to protect these very vulnerable children.
Lord Elystan-Morgan
My Lords, does the Minister accept that since it would appear that in only a minority of these cases—a small minority—is there a direct victim complaint, no real progress can be made until the law enforcement agencies are prepared to adopt more robust tactics, including infiltration and surveillance? Otherwise, we will only be dusting over this disgraceful practice.
Lord Taylor of Holbeach
I think that all agencies are now very much on the alert. However, we are in effect looking back and trying to recover a situation that should never have got to this point. The intention of government should be to ensure that this does not happen again. Anyone whose job involves the protection of children should be alert to this fact. That includes local authorities, the police and those who are responsible for care homes, health agencies, schools, the probation service and housing. All these elements must come together. We have a statutory body—the local safeguarding children boards—in every local authority in this country. What are they doing if not seeking to protect the young children who are their responsibility? The Government are very alert to this and I hope that I am reassuring the House that we are determined that the system should protect the very people it was designed for.
Lord Grade of Yarmouth
My Lords, does my noble friend agree that one of the themes that underpins the reporting of the child abuse scandals of the past is that the victims have failed to come forward because they did not think that they would be believed? There is plenty of evidence that the authorities charged with looking after these children did not believe the accusations when they came forward. What steps can be taken to improve the situation by ensuring that those victims coming forward—who have the courage to come forward—are going to be believed and listened to and that their complaints will be investigated?
Lord Taylor of Holbeach
My Lords, my right honourable friend the Minister for Policing and Criminal Justice, Damian Green, has set up a group designed to ensure that this is the case and that the police forces themselves are aware of the difficulties and the need to lend a positive ear to complaints from young children. My noble friend makes a very good point—that the point of failure in the system is that these allegations have not been listened to or taken seriously by the authorities in the past.
Baroness Smith of Basildon
My Lords, the scale and type of sexual abuse has shocked the nation. Perhaps I may refer back to the Question from my noble and learned friend Lord Morris. Can the Minister confirm the number of serious, larger-scale sex abuse cases involving groups and gangs that have been investigated? My noble and learned friend suggested that there are about 54 such cases. The number is clearly over 30, which could mean that hundreds if not thousands of young people are suffering abuse at this moment. I listened carefully to the Minister’s answer and he was absolutely right about co-ordination. However, is he really confident that the Government have now got to grips with the matter and that the co-ordinated strategy which he spoke of deals with all aspects of these wicked crimes, including the reporting of them and the court proceedings?
Lord Taylor of Holbeach
My Lords, I have in fact got a figure and it is a dramatic one: 2,409 children and young people were confirmed victims of sexual exploitation by either gangs or groups during the 14-month period from August 2010 to October 2011. Those figures speak for themselves and to the scale of what is being dealt with. I assure noble Lords that this Government are focusing their attention on the issue as much as any Government have done.
Cash Ratio Deposits (Value Bands and Ratios) Order 2013
(10 years, 12 months ago)
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Lord Newby
That the draft order laid before the House on 26 March be approved.
Relevant document: 23rd Report from the Joint Committee on Statutory Instruments, Session 2012-13, considered in Grand Committee on 20 May.
NHS: GP Services
(10 years, 12 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I shall now repeat, as a Statement, the Answer given in another place to an Urgent Question earlier today by my right honourable friend the Secretary of State for Health. The Statement is as follows:
“I have been clear that we have not been satisfied with the performance of A&E over the winter period. On 13 May, I announced to Parliament my intention to launch a new plan for vulnerable older people and publish this in the autumn. As I said in that announcement, there is short-term work under way to address the issues in A&E. However, the plan will look at all aspects of the way we look after those older people most in need of support from the NHS and social care system. In many cases, we could be offering better alternatives outside of hospital. The Primary Care Foundation has estimated that 10% to 30% of A&E cases could be treated elsewhere. The plan is being developed jointly by NHS England and my department, and we will be looking to engage with patient and professional groups over the summer so that the plan can be informed by their views”.
My Lords, that concludes the Statement.
Lord Hunt of Kings Heath
My Lords, first, I refer noble Lords to my health interests as set out in the register. The noble Earl is certainly right about one thing: that the health and social care system is under huge pressure. Hospitals are full to bursting, discharge is becoming ever more difficult, and social care and the voluntary sector are struggling to fulfil the demands being placed upon them. However, from the Statement made by the Secretary of State in the other place, it seems that the Government are seeking to blame everyone but themselves.
For instance, we have heard a lot about the GP contract, but can the noble Earl say why it has taken nine years for that contract to impact on A&E services? These are the very same GPs to whom, only a year ago, the noble Earl was saying we should hand over £80 billion for them to commission services without expertise, experience or inclination. Does he agree that the real causes of the crisis are the government-induced collapse of adult social care, the reduction in nurses, the closure of walk-in centres and ministerial pressure to introduce the NHS 111 service way too soon? Does he accept that all that has happened on the watch of the noble Earl and his ministerial colleagues?
Earl Howe
My Lords, we know that A&E departments are under pressure, and the noble Lord is absolutely right to emphasise that. Over 1 million more people are visiting A&E departments compared with three years ago. However, we also know that, on the whole, the NHS is performing well. The latest weekly figures for emergency services show that 96.3% of patients visiting A&E are being seen within four hours and that people are waiting, on average, 55 minutes for treatment. That is a testament to the hard work of many staff throughout the health and care system.
It is not just about the GP contract; it is about making sure that we have a much more joined-up system in which hospitals communicate better with care homes and GP surgeries so that information about a patient’s needs is shared between the professionals who need it. GPs have an important role to play in this, which is why changes were made to the 2013-14 GP contract as a first step. Any future changes to general practice and the contract will of course be made in negotiation with GPs, and it is too early for me to go into detail on what those proposals might be. As regards NHS 111, I do not agree with the noble Lord. I am sure that he will be aware that the pilots we conducted on the NHS 111 service were extremely encouraging and showed a high rate of patient satisfaction.
Baroness Williams of Crosby
My Lords, I am sure that the noble Lord, Lord Hunt, would not disagree that the GP contract, although it was some time ago now, was a factor in what has gone wrong with A&E. Does the Minister believe that we can move towards a situation where the responsibility for out-of-hours medicine once again becomes part of what GPs accept as their CCG responsibility? Can he also say whether steps might be taken in the short term to ease the situation in A&E, while in the long term we move towards a more satisfactory answer involving the reintegration of GPs into the care of patients going into A&E situations?
Earl Howe
My Lords, I think that the GP contract is but one element of a more complicated picture. It is not the only issue or, indeed, is it the only solution. It is true that access to out-of-hours care in some parts of England is simply not good enough. We are not saying that family doctors should necessarily go back to being on call in the evenings and at weekends. They work hard and have families, and they need a life too, but we must take a serious look at how out-of-hours NHS care is provided. My right honourable friend the Secretary of State will be talking to GP leaders about how we can do that over the coming weeks.
Lord Laming
My Lords, the noble Earl has indicated that there is a need to look again at the availability of community-based services. Hospital-based services are available seven days a week but community ones for much less, and that includes social care services. While not wanting staff to work all hours, is it not possible to move towards a situation where the services will be available at all hours while we protect staff working time?
Earl Howe
The noble Lord, Lord Laming, has summed up the situation extremely well. I am sure he knows that Sir Bruce Keogh, the NHS medical director, is currently looking at how NHS services across the piece can be provided seven days a week in a much fuller way than they are at the moment. Access to GPs out of hours is part of that wider consideration and NHS England is working with the royal colleges and professional organisations to develop a set of standards that will apply to seven-day services. Some trusts are already thinking about treating patients at weekends for non-urgent operations and procedures. We want to encourage that trend.
Lord Reid of Cardowan
My Lords, can I correct a serious misrepresentation and misconception that is constantly made regarding the GPs’ contract, and which has been made in the past few moments? The GPs’ contract for 2003-04 did not remove the requirement of a doctor to work out of hours. That was removed a decade earlier under the previous Conservative Government; indeed, by 2000 a huge percentage of doctors had already opted out. The GPs’ contract was to try to make sure that GPs were not spending part of their normal day bureaucratically chasing up a replacement doctor to take their place. It removed that bureaucratic imperative but it did not remove the right of a doctor to refuse to work out of hours. That was the case with some 70% to 80% by the end of the previous Conservative Government, before the GPs’ contract. That is a very important distinction.
Earl Howe
My Lords, I certainly did not mean to mislead the House and if I have done so in any way I apologise. The summary given by the noble Lord is broadly right. Under the old general medical services contract, GPs had a 24-hour responsibility for their patients, although most GPs delegated responsibility to GP co-operatives or commercial providers. At the beginning of 2004, as I recall, only a small proportion of GPs actually provided out-of-hours services themselves. However, 24-hour responsibility continued to be unpopular with GPs as they felt it was discriminatory, which is why the contract was renegotiated at that time. It has brought about a growth in GP co-ops, with more use of telephone triage and more patients offered emergency consultation with a primary care centre. But that has resulted in fewer home visits and I think that point in particular is one that is exercising many people.
Lord Mawhinney
My Lords, does my noble friend understand that while he is telling the truth in saying that the contract is only one of a number of aspects that have to be addressed, the problem is that Ministers have said that so frequently from this Dispatch Box and the one in the other Chamber that it is now in danger of being understood as a reason why Ministers will not tackle contract issues? If my noble friend and his colleagues would start by addressing the contract issues, they would be doing us all a great favour. He would thereby be creating a lot more credibility when the other issues, which have to be addressed simultaneously, are turned to.
Earl Howe
My Lords, my noble friend makes an extremely important point. He may know that my right honourable friend the Secretary of State is very concerned to look carefully at the current contract to make sure that it does not include too many perverse incentives to tie GPs’ time up too much. If we can work towards a contract with the agreement of the profession that enables GPs to take a more holistic look at their patients’ health and adopt a more preventative approach, which I think everybody agrees is desirable, that is thoroughly to be wished for. However, this is work in progress.
Care Bill [HL]
(10 years, 12 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, it is a privilege to open this debate. Care and support are things that everyone will experience at some point in their lives, whether they need it themselves, know a family member or a friend who does, or provide care themselves. Yet today’s care and support system often fails to live up to the expectations of those who rely on it. While many have good experiences, the system can often be confusing, disempowering and not flexible enough to fit around individuals’ lives.
The Bill represents the most significant reform of care and support legislation in more than 60 years. The foundations of social law are based on principles that are no longer relevant in today’s society. This long-awaited Bill implements the recommendations of the Law Commission’s excellent three-year review, begun under the previous Administration, to pull together over a dozen different Acts into a single, modern framework.
The Care Bill also takes forward our commitments to reform social care. Through the Bill, we are clarifying entitlements to care and support to give people a better understanding of what is available, help them to plan for the future and ensure that they know where to go for help when they need it. The Bill will make a reality our vision for a system that promotes people’s well-being and focuses on the person, not the service. It makes preventing and reducing needs a priority, and empowers people to take control over their care and support. It introduces national eligibility criteria, bringing greater consistency and transparency of access to care across the country.
The Bill includes historic reforms to strengthen the rights for carers to access support, putting them on the same legal footing as those they care for. It emphasises the importance of integration and co-operation between care and support and other services, providing the flexibility for local authorities and care professionals to innovate and achieve better outcomes for people.
A new adult safeguarding framework will ensure that arrangements are in place to protect people from abuse and neglect. There are new guarantees for people receiving care whereby if they move from one area to another they will not go without the care they need. For the first time, the Bill clearly sets out that local authorities are responsible for the care and support of people in prison.
I am pleased that public consultation and pre-legislative scrutiny have demonstrated widespread support for the principles and approach to law reform in adult care and support. Indeed, I am very grateful to those present who have already provided helpful and detailed scrutiny in draft through a Joint Committee of both Houses. The Government have accepted the majority of the recommendations of the Joint Committee on the draft Care and Support Bill. The Bill now reflects the importance of financial advice as part of the care and support information service; there is a stronger focus on prevention in assessments and care planning; and we have extended the powers to assess children for transition before the age of 18.
We have accepted the recommendations of the Commission on the Funding of Care and Support, chaired by Andrew Dilnot. The current care and support system offers little financial protection for the cost of care, which for one in 10 people will be in excess of £100,000. Critically, the Bill will reform care and support funding by creating a cap on care costs, giving people peace of mind by protecting them from catastrophic costs. By introducing universal deferred payments, it will also ensure that people do not have to sell their home in their lifetime to pay for residential care. Following the failure of Southern Cross, the Bill clarifies local authorities’ duties to protect people’s interest in the event of the failure of a provider, and creates a new regime for financial oversight of larger care providers.
In the debate on the gracious Speech, a number of noble Lords expressed concern about levels of funding for care and support. This is of course a very important matter. As a nation we are living longer, which I am sure all noble Lords welcome. Managing the fiscal consequences of this will be a key challenge in the coming years.
We must recognise that for the foreseeable future government spending will be constrained. However, we are also aware that in many areas local authorities are finding new and innovative ways of spending their available funding to secure better outcomes. The Bill will help to ensure that the care and support system works as effectively as possible to make best use of the resources available. To draw an analogy, the legislation changes not the amount of fuel available but rather the efficiency of the engine. I look forward to hearing noble Lords’ views about how the framework set out in the Bill can do this even more successfully.
The report of the Mid Staffordshire NHS Foundation Trust public inquiry, led by Robert Francis QC, identified inexcusable failures in care that must never happen again. Between 2005 and 2009 many patients received appalling care, and the wider health system failed to identify and act on the warning signs. The Government’s initial response set out our commitment to ensuring that patients are,
“the first and foremost consideration of the system and everyone who works in it”.
It set out a five-point plan to ensure safe, compassionate care.
Most of the steps we need to take are about increasing cohesion and bringing about a change in culture across health and care. This is not about fundamental changes to the structure of our healthcare system. However, there are a number of limited but significant changes we need to make which require primary legislation. These are changes primarily to the way health and social care information is used to assess performance, and to the way poor performance is tackled.
Through the Care Bill we will introduce a ratings system for hospitals and care homes to give a single version of performance so that organisations and the services they provide can be compared like for like in a way that is meaningful to patients and the wider public. For while there is considerable information available on organisations providing health and care in England, there is currently no consolidated summary of how well they are doing. Aggregated ratings will help people choose the right services, and encourage organisations purchasing or providing services to improve them.
We will create powers so that the new Chief Inspector of Hospitals can instigate a single failure regime. A key finding of the Francis report was that the focus at Mid Staffordshire was on financial and organisational issues rather than the protection of patients and ensuring quality of care. A new failure regime, in which quality of care is as important as financial performance, will ensure that where quality of care is below an acceptable standard, firm action is taken to resolve it properly and promptly.
Robert Francis made a number of recommendations to promote openness in the health system. We will improve transparency and accountability by making it a criminal offence for providers of NHS secondary care to supply or publish false or misleading information about their own performance and outcomes. This will ensure that regulators, commissioners and the public have an accurate picture of the organisation’s performance, and enable the Care Quality Commission to detect quickly any signs of poor quality or safety and trigger the appropriate interventions.
The Care Bill also closes a loophole in the regulatory powers of the CQC. At the moment, if the CQC finds that a care home that is part of a large provider is not complying with registration requirements, the provider could close down the care home voluntarily in order to evade enforcement action by the CQC. In order to guarantee transparency of the regulatory system, the Bill will address this gap in the law to ensure that large providers operating a non-compliant service cannot avoid a record of poor care in this way.
These measures make limited but important adjustments to facilitate our response to the Francis inquiry. Together with changes we are making that do not require primary legislation, they will help bring about a revolution in the care that patients experience, rooting out unacceptable care, tackling failure promptly and effectively, and ensuring that the inspectorate and ratings framework inspires all hospitals to drive for continuous improvement.
Health Education England provides national leadership for the education and training of healthcare professionals. It supports a network of local education and training boards to enable local healthcare providers and professionals to take responsibility for planning and commissioning education and training in their area. The Health Research Authority was formed to protect and promote the interests of patients and the public in health research, and to streamline the regulation of research. The Care Bill establishes both HEE and the HRA as statutory bodies independent of the Department of Health, giving them the impartiality and stability they need to carry out their vital roles free from political interference.
I am grateful to noble Lords from all parties for their support for this Bill in the debates on the gracious Speech. I look forward to debates about the detail of the measures it introduces, and I am sure that improvements can be made. Fundamentally, the Bill delivers much needed and long overdue reforms that can and should be widely supported. The Care Bill demonstrates the Government’s commitment to ensuring a compassionate, integrated and sustainable system of health and care, built around the needs of individuals and the outcomes they want to see, for now and the years to come. I commend it to the House. I beg to move.
Baroness Wheeler
I thank the Minister for his very thorough and comprehensive introduction to the Bill. When the Care Bill was discussed last week in our debates on the Queen’s Speech, there were six overarching themes in the contributions from noble Lords.
First, there was a general welcome for the reform and consolidation of social care law, which we on these Benches initiated and strongly support in so far as it achieves a fairer, simpler and more sustainable system—three factors against which we will be closely testing the Bill through scrutiny and amendment.
Secondly, there was deep concern that this would be at best a partial solution unless a new legal framework is introduced in the context of addressing current and future social care funding needs. Given the scale of this Government’s cuts to local authority budgets, the Bill’s measures put forward in this context risk raising expectations that cannot possibly be met.
Thirdly, the Government’s proposals in the Bill on social care funding do not meet the Dilnot commission’s fairness criteria. Many in care homes will die before the cap at this level is reached; houses will still need to be sold; the cap will not in fact limit the costs that elderly people actually pay for their residential care; and the Bill will not mean that pensioners get their care for free if they have income or assets worth up to £123,000. The squeezed middle—those pensioners on average incomes who have worked hard, proudly invested in a home and tried to save for their older age—risk missing out.
Fourthly, the Bill offers only a partial response to the recommendations of the Francis report to address failures in hospital and care support. What happened at Stafford Hospital was terrible and lessons must be learnt. Last week Jeremy Hunt referred to Part 2 of the Bill as,
“a vital element of our response to the Francis report”.—[Official Report, Commons, 13/5/13; col. 350.]
But in reality the Government have been disappointingly limited in their response to those vital issues identified by Francis. Where is the Government’s response to his concerns over safe staffing levels and the risks to safety and care? Where are Francis’s full proposals on the statutory duty of candour? Where is the regulation of healthcare assistants?
Fifthly, there were concerns that once again, like the Health and Social Care Act, this Bill will not in practice lead to better integration of health and social care. How will the Bill translate this into practice? How will the work of the Government’s consultation on integrated care, launched last week, inform our consideration of the Bill? Will it report in time for any legislative steps to be adopted? How will the institutions of the Health and Social Care Act—the health and well-being boards and Healthwatch England—link in with the care requirements placed local authorities? How will the marketisation and fragmentation of that Act align with any integrating intention in this Bill?
Sixthly, there was deep concern and dismay across the House that the Government have backtracked on vital commitments on public health, particularly on standardised packaging for cigarettes. The care crisis facing this country is not simply one of an ageing population but also one of co-morbidities and many more people living with long-term health needs. Public health plays an essential part in our response to those demographic changes, and is hugely relevant to issues dealt with under Clause 2 and to maintaining well-being.
So, the good news: the Bill is welcomed by Labour as an important first step towards providing a consolidated legislative framework for our social care system based on the excellent report of the Law Commission inquiry set up by Labour in 2009 to streamline and unify social care law. It implements 66 of the commission’s 76 recommendations, refocusing care and support on more patient-centred services better suited to people’s lives and needs, improving access to information and advice, strengthening the legal rights of carers, standardising eligibility criteria and establishing well-being as the guiding principle.
We strongly support that. It takes our work on patient choice and control forward. It builds on the progress that Labour made on key areas such as prevention, personalisation of services and carer recognition and support in our landmark National Carers Strategy. It also addresses much of the unfinished business in our pre-election White Paper on a national care service.
Like other noble Lords, I commend the pre-legislative scrutiny work of the Joint Committee. The Bill enjoys support among patient and carer organisations, staff, and service users and providers, but with the proviso that key improvements are needed to address what the committee itself identified as gaps and risks of unintended consequences. For completeness, we also welcome the proposals on Health Education England and the Health Research Authority, albeit with some significant issues to explore as we progress the Bill.
Now for the not-so-good news. On its own, the Bill will not go anywhere near far enough to tackle the crisis that is engulfing health and social care today. In addition to the crisis in A&E, now acknowledged by the Secretary of State, we have hospitals full to bursting, the discharging of patients becoming ever more difficult, handovers to social care services slower and subject to more disputes and a social care sector struggling to fulfil the demands placed on it. On the front line, thousands of nursing posts have been lost and many services are under pressure. In social care, the recent report of the Association of Directors of Adult Social Services lays bare the scale and severity of the financial squeeze on councils, who, by the end of this spending round, will have been stripped of £2.7 billion from their adult social care services, equivalent to 20% of their care budgets, as demand for services increases.
New rights to services and support risk being meaningless as council budgets are cut to the bone and people are faced with spiralling charges. Will the noble Earl tell the House whether the resources for local authorities to deal with the additional responsibilities placed on them by the Bill, including carrying out the extra assessments of the estimated 450,000 self-funders, will be made available, and whether it will be new money? Is it accounted for in the impact assessment? Is he confident that councils will have the trained staff to complete those assessments on time?
We welcome the delayed consideration of Part 1 until completion of the spending review, but can the Minister reassure the House today that his department has shared with the Treasury the representations of the Care and Support Alliance, which has stressed that,
“without appropriate funding for the social care system … the aspirations of the Bill will not be reached”?
Can he also give a commitment to the House that the regulations associated with Part 1 will be available in draft by the time of our consideration? Without them, our scrutiny of vital issues such as eligibility criteria will be severely hampered.
On Dilnot, it is disappointing that the Government have watered down the commission’s proposals, proposals which Labour believes represent an important step forward in beginning to address social care funding. When he announced the Government’s response to Dilnot, the Secretary of State made great play and emphasis that the plans were “radical” and would,
“transform the funding of care and support in England—bringing a new degree of certainty, fairness and peace of mind to the costs of old age”.—[Official Report, Commons, 11/2/13; col. 592.]
He matched that with a promise that that would guard against someone’s property being sold and their savings wiped out. However, a £72,000 cap—£140,000 for a couple— will not be enough to stop many people with modest properties, especially in the north of England, selling their homes to pay for care. Under the deferred payment scheme, councils loan people money to cover their care costs, which now has to be paid back with interest, most likely by selling the family home after the elderly person has died. Nor will the Bill cap the costs that elderly people actually pay for social care unless differing local authority care charges are addressed, which could make a difference to care now. The cap introduced by this Bill will be based on the standard rate that local councils pay for residential care, which on average is £480 a week; but 125,000 self-funders face weekly bills that on average are £50 to £140 more than this average council rate and in some areas far higher. This extra amount will still have to be paid and not count towards the cap.
The Bill will not mean that pensioners get care for free if they have income or assets worth up to £123,000. People will still get free care only if they have income or assets under the lower means-tested limit that is not being increased and will still be £17,500 in 2017. Those with incomes or assets between this figure and £123,000 will get a sliding scale of support from councils as they do now. Can the Minister confirm that this is the case?
On these Benches we remain to be convinced that the Government can provide answers on these fundamental aspects. Can the Minister not recognise that the Government are overselling what the impact of the Bill’s current provisions will be, particularly bearing in mind that nobody will be benefiting at all until 2020 at the earliest?
Finally, I turn to the some of the other questions that noble Lords will no doubt raise during the Bill’s passage, and I look forward to the Minister’s response to them. Will the change in the legal language around the continuing care and social care boundary of the NHS, shifted by the Bill, result in the possibility of more people having to be means tested for residential care? What are the Minister’s estimates of the number of people who will fall out of the system and become ineligible for support under these proposals? Have the Government assessed the overall impact on disabled users of social care also hit by cuts in their benefit entitlement and support? What consultation have the Government had with the insurance industry and pension providers about the likelihood of markets developing to help self-funders bridge the gap up to the £72,000 cap?
We welcome the introduction of well-being as the guiding principle but should this duty not also be placed on the Secretary of State? On integration and prevention, why does housing still get only limited consideration and mention throughout the Bill? On young carers, when will the Government make their position clear in addressing via this Bill the gap in the law? His colleagues have resisted attempts to amend the Children and Families Bill to this effect. Why have the Government reintroduced the issue of after-care services for people with mental health problems leaving hospital after a period of detention? We thought that this issue was settled under the last health Bill, but it seems not.
Lurking in the background as we speak today is the reality of a social care system on the edge of collapse. Social care is being left to decline. Labour supports the principle of capping care costs, but we stress that a bigger and bolder response is needed by Government to meet the challenges of our ageing population. Whole-person care is our vision for a 21st-century health and care system that brings together physical and mental health, and social care, into a single service to meet all of a person’s care needs. Our independent commission has already started its work on looking at how health and social care services budgets can be brought together. “Integrated services” means not just a series of area or service specific initiatives, but a way of working for a whole service.
We have a major task ahead of us to improve this Bill and we on these Benches will work hard to meet this challenge, and ensure that older and disabled people, and their carers and families, get the best possible deal.
Baroness Jolly
My Lords, I thank my noble friend Lord Howe for explaining the parts of the Bill so clearly in his introduction to this debate. I also thank the government Care Ministers—the previous one, my right honourable friend Paul Burstow; and the current one, Norman Lamb—for championing the Care Bill and the work of the Dilnot commission.
As the Minister has already explained, this Bill brings all previous legislation together for the first time, and is based on the well-being principle but also on the funding cap to protect those from catastrophic costs, the higher means test, the inclusion of rights for carers assessments, the portability of care and the mechanism to protect the care market.
The decision to manage this Bill differently from the Health and Social Care Bill was wise. Not only was there extensive consultation on the White Paper, but the Bill was based on the Law Commission report that itself had consulted widely. It is worth mentioning that we on the scrutiny committee looked at Part 1 so that the new Part 2 and the sections added to Part 1 should get close scrutiny in Committee.
The committee had members who are hugely experienced in the world of care, and was chaired by the previous Care Minister, my right honourable friend Paul Burstow. We took evidence from a wide range of stakeholders, and without exception they were full of admiration for the work of the Bill. However, as noble Lords would expect, they had areas in their own field that necessitated extra work. When we looked at what the report should say, we had a strong evidence base and deliberated long and hard about any deletions, omissions or just plain amendments to the draft Bill. Those recommendations, which were included in the report that was published, were to make a good draft Bill better. I therefore really welcome the Bill, but there are some areas where more work needs to be done. There are some unintended consequences, and some minority groups need assurance that the Bill will meet their needs.
This is not the time for detail, but areas that have received full coverage and early attention are young carers, adults caring for children, and the transition in service provision. The Law Commission felt that this Bill is the vehicle to place legislation for the assessment and meeting of their needs, but in winding up on the third day of debate on the humble Address the Minister was very clear that there is no place in this Bill for young people: that it is an adult Bill. Will he explain how the Government intend to meet this real need? If he does not have the information at the moment, will he please write to me and place a copy of the letter in the Library?
A third of the adult population who receive care are of working age. Many are in work or mobile, and many aspire to work. I would be grateful if, before we get to the parts of Part 1 about funding, the Minister will meet me to look at areas where the sector is anxious that their needs will not be met, resulting in failure to cope, leaving employment and subsequent isolation and depression. This was articulated most clearly in the report released last week by the All-Party Parliamentary Local Government Group and the All-Party Parliamentary Disability Group, entitled Promoting Independence, Preventing Crisis.
There are other sizeable but hidden populations who feel that the provisions of the Bill do not meet their needs. Before Easter, there were two all-party group commissions: one on dementia and autism and the other on BAME communities in old age. As I have said before, details are for Committee, and I am sure that my noble friend Lady Browning, whose expertise in autism is far greater than that of many noble Lords, will follow this up.
One of the scrutiny committee recommendations was about free care at end of life. Marie Curie Cancer Care has done a financial assessment of this policy, and the cost works out at £32.2 million a year. This will support the families of some 40,000 people who have care needs and are on the register, and will be just over £800 per individual. I note that the Government think that this has merit and that it can be implemented without a change to legislation. Will the Minister confirm that discussions are in hand on this and give some indication of a timescale, or has the proposal found the long grass already?
The intention of this Bill is to rationalise a confusing morass of Bills and measures to give clarity to local authorities, providers and, most importantly, those in need of care and their carers. In Part 1, the main thrust is the individual, not the system. It is based around the well-being principle in Clause 1 and the cap on funding to give assurance about catastrophic care costs. Both the cared-for and the carer will be entitled to an assessment and a care plan, whether they are a self-funder or not, and there will be a requirement to provide information about care options.
Part 2 was added to redress some of the problems that arose from the Mid Staffordshire Hospital scandal, to ensure that information is available in a readable and usable way to detect failure earlier, and to clarify actions in the event of failure. I am sure there is room for debate on this in Committee, too, but on balance we welcome the clause in Part 2 and hope that the further information referred to in yesterday’s deposited Statement on the joint Monitor/CQC approach to their new role and the development of ratings will be in time for the Committee debates on this part. Can the Minister assure the House that that will be the case?
Additionally, Part 3, on Health Education England and its Health Research Authority, is now hugely improved on the formulation in the Health and Social Care Bill, and is welcomed by the sector.
Of course, the economic situation in which we find ourselves is not the easiest, and I welcome the proposed delay—or perhaps I should say the pause—in Committee so that we can address the issues in Part 1 in the light of the spending review. I am sure none of your Lordships needs telling that the higher the level for eligibility for social care, the more will fall on the NHS. Let us hope that the Chancellor understands that point, too.
This will need modelling carefully, and I hope we will see some of that detail. Of course, it is worth knowing that were the CCGs and their health and well-being boards to work together as hoped integrating services, prevention would be increased, gaming would be reduced, and care would be delivered in an appropriate way by the appropriate body.
However, the Bill gives a sustainable and coherent framework for care in the future, some level of security about the cap for those with high care costs, and a method of dealing with hospital failure, including an early warning system. It comes with a warm welcome from these Benches.
Baroness Campbell of Surbiton
My Lords, in welcoming this Bill I first declare an interest as someone who benefits from a whole range of care services, without which I would not be in your Lordships’ House. I hope that my professional knowledge, combined with my personal experience, will give added value to the debate over the coming weeks.
This Bill is the culmination of five years’ complex and challenging work to modernise the legal framework for adult social care. Much work has been done by the Law Commission, but the Government have also understood that they needed expertise that can come only from those who use care and support services. They conducted a lengthy and broad consultation. I have been impressed by the Department of Health’s efforts to get this right. Much credit for this must go to the fine leadership of its former director-general, David Behan. He recently left to take the helm of the CQC, which is very lucky. The Bill also benefits from the experience of Members of this House. A number of your Lordships served on the Joint Committee that considered the draft Bill and recommended improvements to it. The Government have listened, and the Bill is better for it.
Equally, the Bill is the culmination of more than 25 years’ work by the Independent Living Movement of disabled people. I consider myself very privileged to have played an active part in this social movement to radically change the way that care and support are designed and delivered. Since the mid-1980s we have fought to ensure that disabled people of all ages have the same opportunities that everyone else takes for granted. This has involved challenging entrenched professional attitudes, political assumptions and public misconceptions about what disabled people can and cannot do. The struggle continues today. Many people believe, as I do, that disabled people have lost ground recently. As someone once observed, “The price of liberty is eternal vigilance”.
However, this Bill shows how far we have come since the passing of the Community Care (Direct Payments) Act 1996—in my view, the most emancipatory care and support legislation in my lifetime. That Act was passed because a group of disabled people was able to persuade the Government of the day that they could be trusted to take control of the cash needed to pay for their personal care support. That was my first memorable experience of the House of Lords. Twenty years ago, I sat in awe behind the Bar, as the noble Lord, Lord McColl, introduced his disabled persons Bill.
Three years later, in another place, the then Parliamentary Under-Secretary of State at the Department of Health, John Bowis, took over the Bill. His powerful speech at Second Reading would be just as relevant in today’s debate. He said:
“I have heard from people who have a disability, but also hold down a job or voluntary work and whose working lives are obstructed by the rigidity of a council service rota; or people who do not like to complain, but would really like a different range”,
of home help support,
“or people who have responsible jobs, but are treated by the care workers as if they were rather tiresome and untidy children. They have no real independence, no real choice and no real dignity”.—[Official Report, Commons, 6/3/96; col. 372.]
What became the Community Care (Direct Payments) Act 1996 was a bold step on the then Government’s part to empower disabled service users. Local authorities were required to deliver services differently. They could not just decide what was best for us anymore. That Act transformed many people’s lives, including my own.
As your Lordships will be aware, there has been much progress since that landmark statute. Further legislation has widened access to direct payments. Personalisation policies have developed other ways for people to have more say and control over their support and care. Personal budgets offer another way for people to decide how funds should be used to support them. Even the NHS has caught on, by introducing personal health budgets for people with long-term conditions, so they, too, can have more say over their healthcare. A process that started among working-age disabled people has broadened out to benefit other groups: people with learning disabilities, older people and people with mental health problems. They are all using direct payments and personal budgets—and so, too, are parents of disabled children, giving them both more control and allowing enough flexibility for many to pursue their dreams. Policy guidance has encouraged local authorities to work with people and their families as equal partners. By working together, many are coming up with solutions that best fit their individual circumstances, using public services to complement their own resources, personal assets and community links.
All these positive trends, many of them with roots in the user and carer movements, come together in Part 1 of the Bill. It represents a sea change in the values and attitudes embodied in the legislative framework for adult social care. It treats people requiring support as citizens first and foremost, with rights and entitlements stemming not only from this Bill but from the Human Rights Act, the Equality Act, and international agreements, such as the UN Convention on the Rights of Persons with Disabilities.
However, your Lordships would not expect me to tell them that this Bill is perfect. It sets out many of the right goals, but we will need to question the Government very closely on some of the means by which they intend to achieve them. For instance, we are promised first sight of the regulations on assessment and eligibility towards the end of June. This will coincide with announcements about the public spending review, so we can assume that resources will impact heavily on the qualifying criteria for public support. Much also depends on how local authorities choose to implement their responsibilities and powers under this legislation. There is a great danger that this Bill could be ignored as being fine words but without teeth.
There are already wide variations in the sensitivity and understanding shown by local authority staff in assessing and responding to people’s needs. I recently had a review visit to assess my suitability for a personal budget. Like fellow service users, I am naturally very wary of reassessments as they generally involve budget cutting. I did not know what to think when I received a copy of the reassessment report last week. It says that I have,
“severe difficulties in either self-expression or understanding”.
If any of your Lordships have difficulty understanding what I am saying today, please come to my office for clarification. On a more serious note, the reassessment of my ability to communicate could mean the difference between a social care direct payment and NHS-funded care. That might be fine if support would not change for the worse as a consequence. It is no secret that some local authorities cannot wait to offload clients onto NHS continuing care. I am hopeful that health budgets will eventually mirror social care direct payments. However, this is not yet the case.
Last year, the JCHR investigated independent living. The resulting report was dedicated to a 22 year-old disabled man. This young man had been in part-time employment and living independently, supported by social care direct payments. However, after being admitted to hospital with a chest infection, it was decided that he would be safer with a tracheostomy. Tracheostomy care is not rocket science. It does not take long to train a sensible person. However, the local authority decided that this man was now “the problem” of the NHS. As a result, his direct payment was withdrawn. It took health commissioners six months to decide how he would be cared for, leaving him in a hospital critical care unit for three months longer than was necessary. This severely disabled independent man lost his job, his loyal PAs and his dignity. The cost to the taxpayer was £36,000 in hospital fees, double what it would have cost had he been allowed to keep control of his cash and care, with an enhanced payment from the NHS to pay for the extra PA hours needed during the night.
Is it any wonder that disabled people fear the future? They do not just fear the consequences of inadequate funding, they dread past ways of working creeping back in the name of austerity. Those of us who use care services must be given more control to enable us to survive these difficult financial times. Services need to adapt to enable the recipients to create their own budgeted support and to seek work, wherever that may be. This nicely leads me to return to an issue I have been raising in your Lordships’ House for the past four years. Noble Lords will know that I have a particular concern about portability of care and support. I will push for the Government’s proposals on portability in this Bill to match the outcomes set out in my Private Member’s Bill.
The Minister for Social Care in another place has indicated his desire to work closely with those of us campaigning for total portability of care and support. I have consulted on the subject for more than five years with disabled people and their organisations, carers, lawyers and professionals in social care. My Private Member’s Bill is the culmination of that work. My Social Care Portability Bill has been recognised by the Department of Health. The greater part of it has been subsumed into the Care Bill before us today. However, there is one crucial difference. My Bill ensures that disabled people can move to another area, confident that they will receive the support they need to enable them to continue to play an active role in society. The manner in which the council meets those needs may be different because of the different configuration of local community and care services but it should not reduce choice and control, and the ability to achieve the outcomes they need. I believe that the Care Bill has the same intention but I would welcome confirmation that this is indeed the case. There are questions about bureaucracy and enforceability but the detail can be fleshed out in Committee.
There is one other matter I want to flag up today. Those who receive their care not from a public authority but from a private body lack the full protection of the Human Rights Act. The Joint Committee recommended an amendment to the Bill to put this right but the Government have not addressed it. It is a loophole that must be closed. I will be interested to hear the Minister reflect upon that issue.
I have great expectations of this Bill’s capacity to change the way that care and support are delivered in the future. We have waited for this a very long time. We must not let the opportunity slip through our hands. We are all interdependent. We all need to feel safe and valued. We all need our dignity respected. We must take heed of those “experts by experience”, of which I am proud to be one. We have much to offer the debate on how we create care and support services which maximise the well-being of those who need them. I am sorry if I have taken longer than many other noble Lords may for the rest of this debate but I feel so strongly about this issue. We have much work to do and I am happy to do my part.
Lord Mackay of Clashfern
My Lords, it is a great privilege to follow the noble Baroness, Lady Campbell of Surbiton, who speaks on these matters with a particular authority and profound experience. I should mention my interests: I am a vice-president of the Carers Trust, a member of Barnardo’s and I have honorary fellowships from three of the medical royal colleges.
I am extremely grateful to the noble Earl, Lord Howe, for his explanation of the Bill. I also congratulate the department and the Ministers there as quite a number of changes have been made to the draft Bill and yet they have managed to get it in so early in this Session. One of the difficulties that that may entail is that the funding arrangements may not be fully known at the beginning of our consideration of the Bill in Committee.
I was privileged to be a member of the Select Committee engaged in pre-legislative scrutiny of the Bill and I want to acknowledge the great expertise of my fellow committee members and the excellent chairmanship of Paul Burstow, who was the Minister before he found himself chairing this committee.
In the many submissions that the committee received there is one that goes very deep into this situation. It is from the King’s Fund, suggesting that the time may have come for a reappraisal of the arrangements between social care and healthcare. As I went through the Bill, I appreciated from time to time that the division between these two areas affects integration. There was a great desire for integration and I share that. One of my lawyer friends connected with the committee said that as a lawyer he had some difficulty with integration. One can see why that is. The King’s Fund has raised a huge question about whether some change should be made. No doubt the noble Lord, Lord Sutherland of Houndwood, will have something to say about the matter later, with his expertise in this area.
The Bill sets out in Part 1 a very welcome and wonderfully wide principle of well-being as its object for individuals. I am thankful for the alterations, and indeed the widening of that principle which was made on the recommendations of the Joint Committee. However, I echo what has already been said—that without adequate funding the anticipation of what the Bill will achieve will be considerably higher than the realisation, which can only be damaging for those who promote the anticipation in the first place.
The Joint Committee advised that the duty to have regard to this well-being principle should be incumbent on the Secretary of State when he is making regulations under the Bill. I must say that that seemed to me, and I am sure to the rest of the committee, to be eminent common sense. Sadly, however, in preparing the Bill, the Government did not feel that that should happen. In the explanation given in answer to our recommendation 22, the Government say:
“We do not agree that the Bill should require the Secretary of State, when making regulations or issuing guidance, to have regard to the general duties of local authorities under clause 1”.
As regulations are intended to give effect to the obligations of the local authorities under Clause 1, one would think that in making regulations it would be common sense to have regard to the principles on which the local authorities should work. Here is the Government’s answer:
“Local authorities are responsible and accountable for social care. We believe that creating new duties for the Secretary of State would distort these clear lines of accountability”.
I have some difficulty in understanding that. The object was not to create new duties for the Secretary of State but to assist him in performing the duties that he has to make regulations. It seems to me that to attempt to make regulations in relation to this matter for local authorities, which are bound by the general principle, it would only be sensible that the person making the regulations should have regard to the general principle.
I welcome the Bill very much: it has great opportunities, subject to what I have just said about the funding. I shall comment on only one or two particular points because there are many speakers and there will be many matters that people want to raise and I do not want to create unnecessary repetition.
Clause 22, as it is now, defines the difference between healthcare and social care. The Joint Committee commented on that but the department has enlarged the clause; it is bigger than it was before, but I am not sure that it is much clearer. In particular, it provides that if a registered nurse is to be employed, the consent of some commissioning board—usually the national one, I think—is required. I would have thought that something could be done about that without requiring continual reference to the commissioner.
I will not say much about the Dilnot clauses because generally they came later than our committee could have seen, but I agree with the point that the eligibility and cost arrangements nationally must be important for the Dilnot cap to work. It ought to be the same fit whether in London or Cumbria. That would require a degree of uniformity across both cost and eligibility that might be quite difficult to attain.
The noble Baroness, Lady Campbell, has already mentioned the human rights point. The Joint Committee suggested that this should be put in, and I adhere to this matter being looked at in Committee in due course. The point I particularly wish to stress is the situation of young carers. The Joint Committee recommended that this should be dealt with in the Bill. The answer is that it is inappropriate that children should receive adult care. However, that was not the point the Joint Committee sought to make. Its point was that the Joint Committee considered that there can be a relationship between the care provided for the adult and the child providing that care.
One of the important factors is that the child’s obligations of care, which are often undertaken cheerfully and voluntarily, do not cause damage to the child. The imposition and undertaking of undue burdens of care for adults, which may be given out of love, affection and loyalty to the adult, may be damaging to the child. I—and I think the Joint Committee as a whole—believe that this is an important factor to be put into this Bill. The regulations and legislation about care of children are contained in five different statutory provisions, starting with the Children Act 1989. There have been others since and I gather that there are about six different provisions of guidance on these matters. The children are surely entitled to some degree of simplification, just as the adults are, by this Bill.
Another point I shall touch on is the question of guidance. The Joint Committee recommended that guidance should be by way of a code, which should be available and endorsed by Parliament. However, the Government have said: “This is not really necessary. It is not quick enough; things change so quickly that we need to change them all the time, therefore it is not appropriate in this situation to have a code”. We expect a lot of social workers and often they are the people who take the burden of complaint when something goes wrong. It cannot be right to have a lot of different pieces of paper for social workers to know what the guidance is—and when the guidance changes the pieces of paper just increase. They do not always seem to destroy the previous pieces of paper, so the difficulties for people trying to carry out this work are increased by that system.
I remain of the view—which we can discuss in Committee—that guidance should not be ad hoc pieces of paper, but a code, which can last for a reasonable time. After all, the statutory provisions have lasted some time. There are many other matters that one could raise, but I do not want to find myself shortening the time available for others.
Baroness Pitkeathley
My Lords, like the noble and learned Lord who has just spoken, I—and several noble Lords speaking today—was a member of the Joint Scrutiny Committee. Like the noble and learned Lord, I join the thanks to the officials, the chairman and my fellow members. I very much welcome the changes that the Government have made to the draft Bill as a result of the committee’s report.
Your Lordships will many times have heard me and others—whom I have a habit of referring to as the usual suspects—detail how inadequate social care systems are for meeting the needs of the increasing numbers who need them. “The system is not fit for purpose”, “out of date”, “confusing” and “a lottery”—all those are familiar phrases to your Lordships’ House. So it is a great pleasure to welcome a Bill which attempts to address some, though by no means all, of the problems. Importantly, it addresses the issue of the law relating to social care. It encapsulates proposals made by the Law Commission report in May 2011. The Law Commission pointed out that the law relating to adult social care stretched back to the Beveridge reforms of the 1940s and included a plethora of other Acts, including the National Assistance Act 1948, parts of which are still in force. The law relating to people with disabilities and carers, as we have heard, is similarly contained in a variety of parts of Acts and Private Members’ legislation.
The Law Commission originally proposed that there should be a tightly defined process for determining the scope of adult social care. But when it consulted very widely, it decided instead to define the purpose of adult social care as promoting or contributing to the well-being of the individual. That recommendation was accepted by the Government and is central to the new policy. The whole of the new policy structure is shaped by the well-being provision, although I share with the noble and learned Lord, Lord Mackay, anxiety about the accountability of the Secretary of State for Health in this regard.
The enactment of the Care Bill will not just consolidate and streamline into a single statute 60 years of piecemeal law-making, it will place on a statutory footing for the first time both the principle and practice of self-directed personal care based on individual assessment. Particularly pleasing is that the well-being principle is also to be applied to the individual’s carers. It is around carers that I want to base the majority of my remarks this afternoon.
In the draft provisions it was not clear whether the important duty on local authorities to put the promotion of well-being at the heart of their delivery of care and support also applied to carers. The new reference to “individuals” rather than to “an adult”, which appeared to refer to an adult receiving care, now rectifies this and removes any doubt that carers are qualified. This is an important and welcome distinction.
The Bill also adds a new landmark duty that local authorities should have a duty to ensure that they plan for sufficient care and support services when enabling carers and disabled people to be supported, especially with regard to them being able to undertake paid employment.
A Private Member’s Bill was introduced by another member of the Joint Committee, Barbara Keeley MP, which would have put in place this sufficiency of support duty. Although the Bill did not progress, its vision has now been accepted by the Government who have responded in the Care Bill by placing a new requirement on local authorities to ensure that there are sufficient care and support services to meet current and future needs. This would have a particular focus on supporting carers to undertake paid work and caring where this is possible, although when we come to the issue of carers’ resources to provide that sufficiency, we will no doubt have many debates.
The new provisions in the Bill set out a framework for the development of more modern services that can help family members. As well as being hugely important in preventing financial hardship for families, this can also be seen as of great benefit to the wider economy. It has been estimated that carers giving up work costs the economy up to £5 billion a year.
Another very important change that has been made for carers is with regard to finance. The draft Bill did not make it clear that, as in the case of the person with care needs, a carer’s need for support should be assessed before their financial circumstances are considered. I am pleased to see that the Bill has been amended to put an assessment of support needs before financial assessment. Again, that is very important.
The draft legislation could have meant that carers could be wrongly charged for services provided to the person they care for. The Government have said that this was not their intention and they have made it clear that carers must not be charged. However, what is a carers’ service and what is a service for an older and disabled person are not yet clearly set out in the Bill. We will need to make further changes that will define what they are and prevent confusion and disputes down the line.
Two other areas about carers will need careful scrutiny as the Bill goes through and I hope that the Minister will comment on these. The first is the issue of young carers, as has already been mentioned. The Joint Committee that scrutinised the legislation called for amendments to ensure that young carers get equal rights to assessments and support in law, both in this Bill and the Children and Families Bill currently before Parliament. The Government have made some limited changes that mean that where a young person receiving care is in transition between children's and adult services, the circumstances where they or a young carer would be covered by provisions in the Bill would ease this transition.
However, the changes do not alter the fact that young carers will have lesser rights to assessment and support than adults caring for adults. The same thing will apply to parent carers, because we have to ensure that parent carers—those who look after disabled children—do not also end up with lesser rights, because the changes made for carers, and we hope for young carers, are very positive. Parent carers now have an imbalance of rights because they are not included, and we shall need to give this careful attention as the Bill proceeds.
Others have commented on the Dilnot proposals and I will not do so, except to say that, for many of us, the level of the proposed cap is disappointing. The effects of bringing many who are currently self-funders into the assessment system have not yet been sufficiently recognised.
In conclusion, there is no doubt that the Care Bill has the potential to make major improvements to how social care is delivered. However, we shall have to focus very carefully on several issues, apart from those I have mentioned already, if it is to achieve that potential. I will just list them now. The first is national eligibility criteria and where they are to be set: there is a great deal of anxiety about that. The second is the role of advocacy in helping people negotiate a system which, by the Government’s own admission, is complex and difficult to understand. The Joint Committee thought that advocacy ought to be part of the element of information and advice, but the Government have not accepted that. There is also, of course, the old issue of integration of health and social care, which we all know is so vital; the Government have recently made renewed commitments to such integration. Also under this heading, we need to look at the role of prevention, which is similarly such a vital part of integrated services. There is also the vexed issue of funding, on which I look forward to spending many happy hours. In order to make the vision encapsulated in this Bill a reality, the Government and the nation simply have to make resources available. Not to do so is a false economy and will store up many more problems for the future.
I hope our debates will enable us to look at a broader vision too, such as that encapsulated in the Ready for Ageing? report from the committee chaired by my noble friend Lord Filkin. If anyone imagines that the Bill before us today provides a long-term solution to all the problems in social care, they are very much mistaken. I hope the Minister will be able to acknowledge this. Recently I gave a lecture at King’s College entitled, “Social Care: Our Biggest Problem or Greatest Opportunity?”. My conclusion was that it was both. My noble friend Lord Filkin’s report is the clearest call yet that we have had for a new vision for social care—a different settlement for the older people we will all become. This is not just a matter for health and social care, but for whole communities, the whole of government and all political parties. This Bill is a welcome first step towards that new vision—or new settlement—but we must never lose sight of the fact that it is only a first step.
Baroness Tyler of Enfield
My Lords, I start by saying how very strongly I welcome this Bill, which I also see as a landmark piece of legislation, addressing one of the key social policy issues of our time. After decades of putting this issue in the “too difficult to deal with” box, and with earlier reports gathering dust on shelves, this Government, in very difficult economic times, are finally establishing the architecture which will allow for the capping of catastrophic social care costs—something that has created fear for many families up and down the country. Many people deserve credit for getting the Bill to this stage—including, of course, my noble friend the Minister—but I, too, particularly want to pay tribute to the outstanding work and tenacity of my honourable friends Paul Burstow and Norman Lamb in getting both the policy and the legislation to this stage.
I see this legislation—and the surrounding guidance and regulations—as having the ability and potential to transform the lives of many of our fellow citizens for the better. All my other remarks will be made within this context and reflect my wish to strengthen the Bill still further. Also, I will focus in particular on issues affecting carers, who contribute so much to their loved ones, families and to society, but who too often go unnoticed and unvalued. However, I do not claim to do so with anything like the same degree of expertise as that of the noble Baroness, Lady Pitkeathley.
There is much to welcome in the Bill and the recent changes which have been made as a result of the excellent pre-legislative scrutiny undertaken by the Joint Committee mean that it offers an ambitious and positive vision for the future of social care. It is also an important consolidation of the existing social care law. It introduces for the first time new rights for carers, giving them the same rights to assessment and care services from local authorities as those they care for, which is something that I welcome. However, as so many others have said both in this House and outside, much of this will hang on the amount of funding that is available for social care, a matter that I suspect we will return to time and again.
I would like to highlight the following key provisions. I turn first to the new well-being principle, which is something that I strongly support, in particular the fact that carers are now covered by this important duty. Secondly, the new requirement on local authorities to ensure that there are sufficient care and support services to meet current and future needs is absolutely critical. Thirdly, we have the introduction of a national eligibility threshold for care services, alongside a new assessment process and eligibility criteria. This will make the way people are treated when they apply for care more equitable and easy to understand, including when they move away to different parts of the country. Fourthly, at the heart of the Bill are paving clauses to allow for the introduction of regulations setting out the level of the cap on social care costs and changes to the care means test. This is of course the architecture, and there will be plenty of debate to come on the appropriate level of that cap. While I very much welcome the increased level of the care means test, which has already been announced, I hope that as the economy improves and more resources become available, it will be possible to reduce the level of the cap to something more akin to that suggested by Andrew Dilnot. Finally, there is to be a duty on local authorities to provide information and advice, again with the explicit inclusion of carers. This is important as currently far too many carers feel that they have missed out on financial support as a result of not getting the right information and advice early enough.
During the passage of the Bill I will want to focus on four particular areas, and I shall say something briefly about them now. I turn first to well-being. As I say, I am a strong supporter of the well-being principle underpinning everything that happens in social care, but like the Joint Committee and other noble Lords who have already spoken, I would like to see it extended to the Secretary of State so that the whole pack of cards is fully aligned. We hear much, quite rightly, about the importance of horizontal integration between health, social care, housing and other services. In my view, what I would call vertical integration within the care system is equally important, and I will be pressing for this to be incorporated in the Bill.
The second area is that of dignity. In recent times, we have seen and heard of shocking failures in the care of older people across both the health and the social care sectors. Moving forward, we need to see a major cultural shift to ensure that dignity is embedded in everything that happens, along with a positive attitude to ageing and working with older people, a point that the recent report on ageing from the Lords Select Committee on Public Service and Demographic Change, of which I had the privilege and pleasure to be a member, made loud and clear. Public confidence in the current social care sector’s ability to treat people with dignity is very low. A recent survey showed that only 26% of the public are confident that older people receiving social care are treated with dignity. We have a great opportunity here. The Care Bill could, for the first time, embed dignity in legislation as a core element of the well-being principle, thus placing it alongside other crucial aspects of well-being such as physical and mental health, and family and personal relationships.
I also want to add my voice to a pressing issue that unfortunately has gone largely unnoticed in recent legislation and to which others have already referred. Both the Care Bill and the Children and Families Bill represent commendable and critical efforts to improve the lives and enhance the rights of many people, but sadly, a particularly vulnerable group appears to have slipped through the gap between these two Bills. It remains mired in complex legislation and disadvantaged by limited rights. This group is young carers.
The 2011 census identified 178,000 young carers in England and Wales alone and a further survey taken by the BBC in 2010 estimated the number to be more like 700,000, with as many as 8% of secondary-school children providing moderate to extensive care. As a group, young carers are infamously hard to identify and evidence suggests that in many cases the carer tries to keep this part of their life secret. But although they may often be invisible, young carers and their rights are in serious need of attention. Evidence suggests that young carers are often rightfully proud of their roles and the invaluable contributions they make to their families and the lives of those close to them, but that does not mean that they do not encounter serious difficulties and disadvantages—a point made so eloquently by my noble and learned friend Lord Mackay of Clashfern. So while young carers work to look after the needs of another person, the system must work to protect them and their rights and well-being.
A very welcome aspect of the new adult carers’ right is that it strips away the requirement for adult carers to have to establish that they are providing both regular and substantial care, placing a duty on adult services departments to provide services to meet the assessed needs of adult carers. Young carers, on the other hand, have been left with what has been described as,
“a mishmash of relic semi-serviceable carers’ Acts”.
In certain cases young carers will be required to establish that they are providing regular and substantial care with higher thresholds than for adult carers. In other cases young carers will have to demonstrate that they are in a household that is receiving services, and even then will have only a discretionary entitlement to support. When scrutinising the legislation, the Joint Committee called for amendments to ensure that young carers get equal rights to assessments and support in law, both in this Bill and the Children and Families Bill currently before Parliament. In response the Government have made some limited changes aimed at easing the transition between adult and children services, both for young people receiving care and for young carers, and they are welcome. But these changes do not change the fact that young carers will have lesser rights to assessment and support than adult carers caring for adults. Nor does it go far enough in placing a responsibility on adult social care services to prevent inappropriate caring by children—something which I would like to see clearly included in the Bill.
To summarise, both the Care Bill and the Children and Families Bill present an important opportunity to simplify and clarify the law for young carers, to provide a clear interface between the two pieces of legislation and to ensure that young carers are not left with unequal rights compared with adult carers. It is imperative that the Government urgently address this rights imbalance in an even-handed way. I ask the Minister to give assurances that the Government will look at the issues I have highlighted in a fully joined-up way to ensure that all carers receive the same legal rights to assessment and support.
Lord Rix
My Lords, the introduction of the Care Bill is to be welcomed. It provides the opportunity to fundamentally improve the lives of disabled people and the legal framework for the social care and support system. Social care is vital for people with a learning disability. Good social care and support empowers them to live independently and within the community. It means that they can be valued members of our society and not marginalised and hidden out of sight in institutions such as Winterbourne View.
The system, however, is in crisis. Social care for working-age adults is under funded by at least £1.2 billion and thousands are being excluded from services as local authorities tighten eligibility criteria. It is a situation that the learning disability charity of which I am president is only too well aware. Mencap research has shown that the vast majority of councils have tightened criteria from “moderate” to “substantial”, which is now by far the most common level. Put simply, people with a learning disability are being left without any care and support for basic needs, such as help with getting out of bed in the morning, making a home-cooked meal, communicating with friends and family and even getting out of the house.
The report, The Other Care Crisis, produced by Mencap, the National Autistic Society, Scope, Leonard Cheshire Disability and Sense, and supported by economic modelling by Deloitte, highlighted that alongside the moral imperative for action, investing in support for people with moderate needs will ultimately lead to savings for the taxpayer. Well, Clause 13 gives the Government the ability to set a national eligibility threshold in regulations; however, setting the threshold at “substantial” rather then “moderate” will result in more than 100,000 people being denied the support that they need. To prevent us going backwards, the Bill must be underpinned by an appropriate funding settlement in June’s comprehensive spending review.
I wish now to move on to safeguarding. Time after time, we have seen how agencies have not taken safeguarding seriously, with horrific consequences for people with a learning disability. There have been the deaths of Francesca Hardwick and her mother Fiona Pilkington, the murder of Steven Hoskin and, more recently, the abuse scandal at Winterbourne View Hospital, where it took a whistleblower and “Panorama” to expose the abuse meted out by staff.
The Bill does much to clarify and strengthen the law, and address the widespread concern that current procedures for safeguarding adults at risk of abuse or neglect are inadequate. Putting adult safeguarding boards on a statutory footing will better equip them to prevent abuse and respond to it when it occurs. Nevertheless, it must be made absolutely clear when safeguarding investigations are to be carried out, their threshold and the process. However, the Bill also introduces a welcome duty on local authorities to make inquiries when it suspects that an adult is at risk of, or experiencing abuse or neglect, but there is no duty on providers or other relevant partners to inform the local authority when they suspect that an adult is at risk. This appears to be an oversight that I hope will be addressed by the Minister.
I should like also to touch on the cross-over between the Care Bill and the Children and Families Bill, currently on Report in the other place. We all know the difficulties that disabled young people and their families face in transition to adulthood and how often young people fall through the gaps as they move from children’s to adult services. These two pieces of legislation offer a unique opportunity to make this better.
The Children and Families Bill will introduce education, health and care plans, potentially up to the age of 25—something to be widely welcomed. At the same time, the Care Bill introduces care and support plans for disabled adults over 18. Young people aged between 18 and 25 could therefore have two different plans. It seems to make sense that when a young person is eligible for both, they be brought together to create a consistent approach. I hope that the Minister and officials will work with interested parties, including Mencap and the Every Disabled Child Matters campaign to ensure that these plans are complementary and do not result in separate processes and plans.
Clause 55 of this Bill gives local authorities the power to assess children and young carers under the adult statutory framework in advance of their 18th birthday. This will be known as a child’s needs assessment. If a local authority does not comply with a request to undertake an assessment, it must give a written explanation for the decision. The clause is welcome and will allow young people better to plan their future because they know their entitlements. However, local authorities will have to assess children and young carers in advance of their 18th birthday only if they judge it will be of “significant benefit” and,
“it appears to the authority that the child is likely to have such needs”.
There are also repeated clauses about the potential contribution of “other matters” such as support from friends and family when determining necessary provision. This might well allow local authorities to use this wording as a way to pass on their responsibility to carers and family members or, frankly, to wriggle out of their responsibilities altogether.
Clause 63 creates welcome new protections to ongoing children’s services where a child’s needs assessment has been requested. However, this puts the onus on the parent or the child to request the assessment. If a parent or child is not told of their right to request such an assessment, and do not request one, they receive no protection under this clause. I therefore hope the Minister will consider extending this protection to all children and young people, not just those who have requested an assessment.
Part 3 of the Bill focuses on health, specifically on the establishment of Health Education England, which will be responsible for the planning and delivery of education and training for the NHS and health workforce. It is absolutely critical that the NHS meets the needs of people with a learning disability. This is simply not the case at the moment. The three-year confidential inquiry into the premature deaths of people with a learning disability published its final report in March of this year. The inquiry looked at the deaths of 233 adults and 14 children with a learning disability in the south-west. It found that 37% of deaths would have been potentially avoidable if good quality healthcare had been provided. As if to underline this, today there was a report by the NHS Ombudsman, Dame Julia Mellor, on how mistakes by an out-of-hours GP service and Basildon University Hospital in Essex contributed to the death of a young woman with both physical and learning disabilities.
Unfortunately, this is no surprise to many families, who feel that blunders, poorly trained staff and indifference are to blame for the deaths of their loved ones. We await the Government’s response to the confidential inquiry’s findings, and its recommendations on how to prevent the needless deaths of people with a learning disability. Clearly, the training of healthcare professionals is vital. I trust that appropriate and acceptable amendments will be made during the passage of the Bill through your Lordships’ House.
To conclude, I reiterate that the Care Bill is a very welcome piece of legislation. However, I cannot stress enough that if we are to meet the aspirations of disabled people we will need to ensure that the eligibility threshold is set at “moderate”, not “substantial”. “Substantial” should be used for the funding of social care for disabled people, but knowing this Government’s attitude toward adequate funding for this vital service, I can only say, “Don’t hold your breath”.
Baroness Bakewell
My Lords, there is no doubt that this is indeed a momentous Bill. It will affect the lives of many who are already old, and the many millions whom medical progress and judicious lifestyles will bring to a multiplicity of years. It attempts to deal with what is not simply an immediate domestic crisis, although of course it is that. It is about a change in human society on a Darwinian scale: for the first time in history the human race will be living substantially longer than ever before. In Japan, there are already 50,000 people who are more than 100 years of age.
We have to realise the scale of the change that is under way. When Beveridge wrote his 1940s report he confronted five challenges: the evils of squalor, ignorance, want, idleness and disease. Today there are just as great evils stalking the old in this country: they are fear, ignorance, need, loneliness and neglect. In dealing with the problems that this creates, society has a mountain to climb. This Bill, which is much needed, deals merely—and deals well—with the immediate foothills. In doing so, it endorses two important priorities, which I welcome. Part 1 defines the central concern of the legislation as being the well-being of the individual. Later, the Bill shifts the emphasis of legislation towards,
“preventing … the development of needs”
in the first place. This is an honourable objective but there are many obstacles that the Bill does not resolve. In examining and improving this Bill, we must bear in mind the scale of the problems as they already exist and the expectations that such problems will vastly increase in future.
Considered as a “foothills” measure, the Bill may be judged a very good one. It now includes many of the recommendations made by the Joint Committee on the draft Bill, and I pay tribute to the committee’s efforts. But there are many issues that we still have to address more thoroughly so, on behalf of older people, I will address the five evils I enumerated.
The first is fear: old people are haunted by what will happen as they age. They fear having to give up their home to move into strange places among strange people. The Bill goes some way in the implementation of the Dilnot report recommendations to assure them on this account. However, Dilnot had suggested a cap of between £25,000 and £60,000; the Government have set the cap at £72,000. This will clearly be of greater benefit to the wealthiest. It is not yet clear what types of insurance packages might be offered to the less well-off to cover their costs. It is obvious that with average earnings currently at £26,500, many people will not be buying such insurance at all. At the same time, the funding cap could create a new form of regional inequality due to the wide variation in average house prices in different areas of the country. In addition, with the increase to £123,000 as the upper threshold for receiving means-tested support, the King’s Fund estimates that the result will be an additional 100,000 older people in need of public funding. The fear will persist.
The second is ignorance: many old people long ago took to heart the phrase “from the cradle to the grave” and are still in shock when you explain to them that the NHS comes free but that social care—however it is defined—must be paid for. Confusion about the difference between medical and social exists in the system and the Bill makes a gallant attempt for care provision to integrate the two. However, the difference remains: one is a free service and the other must be paid for, either by the state responding to precise criteria or by the individual. Given that no one would have conceived things this way when the NHS was created, the dilemmas persist about how to inform those who implement the system as well as its beneficiaries about exactly how it works.
An example of how such issues come to a head can be seen when an individual is discharged from NHS care—a hospital—into social care. Caroline Charles, the director of external affairs at Age UK, tells us that 6% of hospital beds are occupied by people readmitted to hospital within a week of discharge because their care arrangements have not been worked out satisfactorily. The Bill tasks local authorities with integrating care and health provision—a hugely costly and convoluted undertaking.
I will round up my final three concerns into one. Need, loneliness and neglect all afflict far too many of our old people. The Bill’s answer to these issues is to define need. The noble Lord, Lord Rix, referred to this concern as it affects the disabled. Levels of need were introduced and defined in 2003 as critical, substantial, moderate and low. Different local authorities applied different criteria, but the Nuffield Trust cites a recent survey that found that 82% of councils now provide care only to those with substantial or critical needs, an increase from 62% in 2005-06. The trend towards setting higher needs thresholds is driven remorselessly by funding pressures on local authority budgets. The Bill moves the responsibility for eligibility to a central, nationally consistent measure—an important and welcome step forward. However, whether it will succeed in setting the criteria back to moderate, as so many of us wish, depends very much on a substantial increase in spending.
So we come remorselessly to the issue of money. With appropriate judgment, the Bill loads local authorities with many of the tasks of meeting the needs of older people, but without strong commitment to central government spending, many of those changes will be unworkable. According to Age UK, since the Government came to power, £710 million in real terms has been cut from social care spending, mostly as a result of cutting local authority budgets at the very time when needs are rising. ADASS reports that more than a third of local authorities anticipate having to reduce services and a fifth expect to have to increase charges. All of this is moving in the wrong direction and towards further disasters and tragedies. The implementation of the legislation calls for a commitment in the coming spending review to a major increase in spending on social care.
Finally, as we contemplate the mountain peak of need from the foothills of reform, let me reaffirm my suggestion: I believe that it is time for England to have its own commissioner for the old. That would be a unique role that would give such a commissioner access to planning across different government departments. The life of the old is influenced by housing, transport, justice, and now, with the encouragement of David Willetts, education; each department should have a strategy for the old linked across departments. Of course, a commissioner for older people would be a new cost. In Wales and Northern Ireland, where such appointments already exist, each commissioner has a budget and an office, but it is already proving money well spent in keeping people informed on the available options, and keeping all departments immediately aware of needs and impending crises. In the long term, that will represent major and consistent savings. Such an appointment would help both the needy and their providers to find their way around this confused and confusing system. The 10 million people now over 65, the 3 million over 85, deserve no less.
Lord Willis of Knaresborough
My Lords, what a privilege it is to follow the noble Baroness, Lady Bakewell. If there is to be a commissioner for the old in England, I second her nomination at this point.
I also congratulate the Government on bringing together these timely reforms to our social care system. When the noble Baroness, Lady Bakewell, was talking about the problems for local government, I was reminded that it is 20 years since I was elected to North Yorkshire County Council for the first time and put in charge of looking after the budget for adult social services. It was an impossible task 20 years ago. It is an impossible task today. Her remarks are very timely in concentrating our efforts on getting that right.
Parts 1 and 2 begin to address key questions of affordability and access addressed by the Dilnot commission and the issues of quality and safeguarding highlighted by the Francis report. Although modernising the legal framework, as proposed by the Law Commission, and clarifying the rights of individuals and their carers, is an important step, no one should suggest that the Bill will rectify decades of neglect in our social care system. Here, I agree very strongly with my noble and learned friend Lord Mackay that not until we have completely aligned our health and social care systems can many of the issues recognised by Dilnot be fully addressed. Nor would anybody suggest that the proposed new funding arrangements will be a panacea, but they provide at least a more equitable solution than exists at present and afford the nation a breathing space until a more radical solution can be found. I say “more radical” because the reality is that at the current rate of increased demand our health and social care system is not sustainable.
About 30% of the UK population currently suffers from a chronic disease, many with co-morbidities, and the rates of increase are frightening, as are the costs. Seven and a half million of us are being treated for hypertension—many I suspect in this Chamber at the moment—which is up 11% since 2006-07; 2.5 million are treated for diabetes, which is up 25%; 1.8 million have chronic kidney disease, which is up 45% since 2007; 800,000 have long-term cancers, which is up 79% since 2007; and 270,000 have long-term dementia, which is a rise of 25% over that six-year period.
Unless we seek better ways of preventing the onset of chronic conditions and managing them more effectively in the community, or even better finding cures, many of the worthy reforms in this Bill will merely provide respite care. This is why I am so supportive of Part 3, the setting up of Health Education England and the Health Research Authority as arm’s-length bodies. The way we will transform the health and care landscapes radically is by improving the education and training of the workforce, and by giving it the tools to transform patient care by using our outstanding research base.
Health Education England has already made a hugely positive start under the excellent leadership of Sir Keith Pearson, but the need to move swiftly to NDPB status to make sure that we align workforce planning with education and training is essential. What is missing from the legislation is a duty to future proof workforce supply into the NHS and social care system. There should not be a three-year plan for LETBs but a 10-year rolling target so that we avoid the feast and famine often associated with kneejerk reactions from government Ministers as problems of nurse, doctor and consultant shortages appear.
We cannot allow a return to local, short-term self-interest that is the real danger for the LETBs; nor must we exclude the private and voluntary sectors, the key role that they must play in workforce planning, and—crucially—the contribution that they must make to training and education. When he replies I hope the Minister will say how the private and voluntary sectors will be brought in. Incidentally, I am delighted that in Clause 82 there is now a duty for Health Education England to promote research. I congratulate the draft Bill committee for getting that into the Bill, but why does this duty not extend to the LETBs? Improvements will come about only if all the workforce recognises the value of research and puts it at the heart of its daily routines. LETBs are crucial to this agenda. Perhaps the Minister can explain why they have been excluded from that duty.
There are many other issues that need to be raised over Health Education England, but one requires an urgent response. The damning criticism in the Francis report about the role of healthcare workers is largely ignored in this legislation, as are crucial elements concerning nurse education. Francis was clear about the need to train, regulate and register HCAs. These recommendations were also strongly made by the recent commission that I chaired, but in the Bill there is no regulation and no registration, and only a minimalist training programme that is not mandatory.
Can I suggest to the Minister that at the earliest possible date Skills for Health is quietly retired, that new standards are set by the NMC and that Health Education England is mandated to ensure high-quality training with appropriate certification for all healthcare support workers? I understand the challenges of adopting a fully fledged registration scheme, but ensuring that any healthcare support worker who cares directly for patients is trained to a mandatory standard, and that training is certificated and registered for inspection with employers, is surely achievable. Making employers legally responsible for registering the competency of their staff and regularly updating that competency safeguards patients, staff and the reputation of the provider.
Finally, I am delighted with the progress made on the HRA so far. The HRA has demonstrated that it is more than an enhanced national ethics service, which I feared it might become, and I congratulate the Minister and his colleagues on ensuring that it was given that freedom. The crucial next step of creating an NDPB with scope to make the NHS and our social care system the most research-intensive in the world is hugely exciting. However, there remains timidity about the legislation in this Bill. In 2011, the Academy of Medical Sciences highlighted the need for better and more streamlined regulation, and we are not there yet. Clause 93 gives the HRA the duty to promote the co-ordination and standardisation of practice in the UK with regard to health and social care research, but will this extend to the removal of unnecessary levels of regulation?
At a recent Science and Technology Select Committee hearing, part of its inquiry into regenerative medicine, one regulator said to the members, who included the noble Lord, Lord Winston, that because the science was complicated, so must the regulation be. That is what bedevils the regulatory framework for research. The power of different regulators to gold-plate their regulation continues to worry me. Does the HFEA really have a role in embryonic stem cell research, or could its regulatory functions be subsumed by the HRA or indeed be merged with the Human Tissue Authority? Will the HRA have the powers to abolish, or at least to recommend to Parliament the abolition of, unnecessary regulators, or will those regulators, with their independence, still have the upper hand?
As we move to more stratified medicines, regenerative medicine and greater emphasis on genomics and bioinformatics, the key will be to move fast with often small groups or lone patients. The current system of regulation is too burdensome and cumbersome for us to be able to act. The system is simply not fit for purpose. Surely we should be seeking to strengthen the powers of the HRA so that it can decide appropriate regulatory pathways, rather than the existing regulators.
A similar issue arises with National Health Service research and development permissions. The HRA has done brilliantly in streamlining local ethics approvals, but there are still difficulties with individual trusts over site approvals. Not only does each site have to give approval, but if there are variations to a clinical trial, the whole process has to be repeated. This is nonsense if we are aiming for more trials involving more patients at more sites. Simply publishing good guidance, as expected in Clause 98, is insufficient. I hope the Minister will go further and say how the HRA will ensure that trusts have regard to its guidance. Of course, the success of research and the HRA will depend significantly on public buy-in, an issue which the Joint Committee took very seriously. Transparency is key, and the open publication of data should be a statutory requirement for the HRA. The Association of Medical Research Charities, which I chair, has just published Our Vision for Research in the NHS, which includes, from all members of the charity, a call to publish research results and make them accessible.
This is an excellent Bill. It has huge potential. It is not a panacea. It is a great start, but it needs a little bit of courage, and I urge the Minister to have that courage.
Lord Low of Dalston
My Lords, I am delighted to follow the noble Lord, Lord Willis. I must confess I felt my score on the hypertension scale rise as we went through the day and the debate got nearer, but we are ready in time. I thank the Minister for the very clear way in which he introduced the Bill, and I must apologise for missing the opening seconds of his speech.
There are six reasons why this Bill should be welcomed—and it is not often that one can say that about a government Bill. First, it consolidates and modernises the legal framework for adult social care. Secondly, it creates a framework for limiting people’s exposure to crippling costs for their care. Thirdly, it establishes the principle that the well-being of the individual should be the animating purpose of social care. Fourthly, it establishes rights for carers. Fifthly, it establishes the principle of portability of care. Sixthly—a slightly more parochial concern, in which I declare my interest as a vice-president of the RNIB and a visually impaired person—it renews the statutory basis for local authority-maintained registers of visually impaired adults. We still have some work to do to ensure that the system is maintained for visually impaired children. The Government are to be commended on all these things.
The Bill, therefore, makes important progress in getting the framework right. However, there is still major work to do to ensure that it is adequately funded and implemented in the right way. Without this, all this good work will come to nothing. Adult social care is now consuming more and more of local government’s budgets, and is set to consume virtually all of them in a couple of decades’ time. However, four in 10 disabled people who receive social care and support say that it does not meet even their basic needs for things like eating, washing, dressing and getting out of the house. At present, the shortfall in funding is conservatively estimated as being in excess of £1.2 billion a year. Over the past three years £2.68 billion, or 20%, has had to be cut out of adult social care budgets. If greater integration of health and social care budgets is to mean anything at all, it must mean a transfer of resources from the NHS budget to fund adult social care properly.
This has important implications for the sections of the Bill that deal with prevention—Clause 2; and eligibility—Clause 13. Getting these right will be key to delivering the Bill’s potential, and I will say a word about each of them. Prevention has the potential to be a win-win. It clearly matters to individuals, who see their care needs escalating without the kind of support that Clause 2 requires local authorities to put in place. However, it matters not just to individuals, but to cash-strapped councils as well. In the debate on the Queen’s Speech, the noble Baroness, Lady Hollis, spoke most interestingly of there being three stages of retirement:
“a decade or so of healthy life … a decade of some limiting disability, such as a lack of mobility, the inability to reach or difficulty in hearing, but with care needs sufficiently modest that … they can normally be met at home; and between two and five years of frail dependency, including dementia, during which substantial personal care is needed”.—[Official Report, 14/5/13; col. 292.]
The noble Baroness suggested that the second stage, of limiting disability, would most repay investment, because funding and supporting people at that stage is not all that expensive. All the evidence points to prevention being cost-effective.
An analysis by Deloitte of a range of British Red Cross services suggested that the charity achieves savings of £1.50 for every £1 invested. Its 2012 report, Taking Stock: Assessing the Value of Preventative Support, estimated savings ranging from between £700 and £10,430 per person, depending on the individual circumstances. This places a premium on the preventive aspect of care. Providing relatively low-cost, timely support—for example, when someone is discharged from hospital or loses their sight or hearing—makes obvious sense.
The Bill represents significant progress on the prevention agenda. The Care and Support Alliance, the coalition of more than 70 organisations working with people with care needs, particularly welcomes the references to preventing needs in the assessments and eligibility sections of the Bill, in Clauses 9 and 13. Yet the Bill says nothing about the importance of providing this kind of intermediate care—what is increasingly referred to as reablement, which we used to know as rehabilitation. Reablement perhaps focuses more on getting people over the immediate short-term crisis. The Bill says nothing about these things. This is especially regrettable when you consider that a structured programme of rehabilitation and the provision of minor aids and adaptations can be just the services that the blind and partially sighted, and many other adults who become disabled, need most if they are to remain independent. Clause 2 on prevention will therefore need strengthening if we are to move towards a care and support system with prevention at its heart. At the moment, the accountability for fulfilling the preventing needs duties is weak so, when we come to Committee, I shall look for amendments to strengthen the lines of accountability through health and well-being boards.
The Bill has changed to signal the Government’s intention to set out specifications for different types of preventive services and to whom or for how long they might be available. What are the Government’s intentions with regard to regulations here? Will those adults who need a short burst of intermediate care, or perhaps even longer bursts of specialist rehabilitation, get the help that they need? Can the Minister confirm that intermediate care and other qualifying services such as community equipment will remain free of charge, as today?
One of the most important areas for reform of social care concerns the question of eligibility. The Bill will fail to improve the social care system for disabled and elderly people if eligibility is set too high. We are all familiar with the impact that slashing social care budgets has had; many local authorities have been raising the threshold at which people become eligible for support. In 2005, 50% of local authorities set their eligibility criteria at moderate needs; by 2012, 84% were setting their eligibility criteria at the higher, substantial needs level. As a result, just 14% of those with moderate needs are receiving care, and at least 800,000 people with care needs are not receiving any support at all. The introduction of a national eligibility threshold under the Bill is thus most welcome, but it will do little good unless the threshold can be set at the equivalent of moderate under the fair access to care services system, and the Secretary of State is required to have regard to the duty of local authorities to promote individual well-being in setting the threshold.
There is no denying that this will be a daunting challenge, but there can only be dividends to be reaped from putting in the necessary support before things reach crisis level. In its Cutting the Cake Fairly report from 2008, the Commission for Social Care Inspection reported that needs assessments were unduly standardised. We need to get away from generic needs assessments and, instead, match disabled adults undergoing assessment with the specialist assessors who are best qualified to determine their care and support needs.
Clause 12 paves the way for specialist needs assessments. However, if I am not mistaken, Clause 12(1)(f) is actually weaker than the corresponding clause in the draft Care and Support Bill. This clearly needs to be put right. If blind, partially sighted and other disabled people who need one were to receive a specialist needs assessment undertaken by a person with expertise in the relevant field, there would be a stronger chance of their care needs being identified as the often substantial needs they really are.
Lord Patel of Bradford
My Lords, the Minister has clearly outlined the many positive qualities in the Bill. Although I welcome many aspects of it, a number of issues cause me concern, particularly with respect to the care of some of the most vulnerable people in society—those with mental health problems.
I wish to explore four specific aspects of the Bill and seek assurances from the Minister about how the Government intend to address these: first, the lack of adequate safeguards for effective advocacy—for example, in ensuring take-up of personal budgets and protecting those detained under the Mental Health Act; secondly, what I see as unnecessary changes to the definition of mental health aftercare services; thirdly, how adult safeguarding boards will be able to exercise their functions effectively; and, finally, the lack of clarity about continuity of care for people in prison and on leaving prison.
I start with the new national eligibility criteria and personal budgets. Overall, I support the Bill’s focus on this and believe that giving everyone who is eligible access to a personal budget will greatly improve their lives. However, accessing these budgets is a far from simple process. For example, there are already significant variations in the take-up of personal budgets between councils and regions, and between different community groups. The official figures from the NHS information centre show that while 29% of adult care users or carers receiving community services had a personal budget in 2010-11, the rates ranged from 4% in Somerset to 71% in Manchester. The figures suggest that progress on moving people onto personal budgets is slowest in the south-west, where the average take-up is around 18%, and fastest in the north-west, at around 35%.
Moreover, the uptake of personal budgets among people with dementia still lags way behind most other client groups. The Alzheimer’s Society in a report in 2011 found that three in five people with dementia assessed as eligible for a care package were not even offered a personal budget, while 15% declined an offer of one. The report clearly highlighted the importance and need for advocacy or brokerage services and stated that,
“support planning and brokerage services are crucial to enable people to access the system”.
I fear that without a statutory entitlement to effective advocacy and support, some of the most vulnerable users and carers, such as those with mental health problems, learning disabilities and dementia, will not be able to access the system nor have their needs met through the kinds of informal support services that personal budgets are so good at enabling.
I am concerned that it was not considered necessary specifically to reference advocacy within the duty to provide information and advice. In meeting this duty, local authorities will be expected to provide information and advice that is accessible and proportionate to all. Of course, I recognise that an individual’s requirements for information and advice could range from a leaflet or a face-to-face conversation to long-term independent advocacy but, as the Law Society stated, “information … is no substitute” for a proper system of advice and advocacy for service users to navigate what will be a “complex system”.
Further, in a really important point, the Law Society notes that Clause 2(3) states that local authorities may be permitted to “make a charge for” this service and that this will be set out in regulations. I would like to know how vulnerable people who lack resources and in many cases live in poverty will find the means to pay for this. For those who are vulnerable and disadvantaged, charging could in fact become a new barrier to accessing an already difficult system.
What about those with mental health problems? The Bill rightly highlights the Government’s aspirations of achieving integrated and joined-up care, including parity of esteem between physical and mental health. This parity of esteem must include those detained under the Mental Health Act, where there is an even stronger case for the provision of effective and independent advocacy. I feel very strongly that unless all patients subject to compulsory powers under the Mental Health Act can access a truly independent mental health advocate, they will continue to be at risk of missing out on the most basic elements of care and support intended by the Bill. This is even more important for those groups already experiencing significant inequalities, such as those suffering from mental health problems who are from black and minority ethnic communities. It is crucial that we tackle these existing inequalities in the mental health system. I believe that providing effective and independent advocacy would be an essential step in doing this.
In fact, I am very concerned about the relative lack of focus on mental health in the Bill. Frankly, mental health is the biggest unaddressed health challenge of our age and is costing our society and the economy millions of pounds every day, not to mention the cost of the suffering among individuals and families. Why, given the critical nature of mental health problems, have the Government once again chosen to change the statutory provision of free aftercare services for people who have been treated under the Mental Health Act? I speak, of course, about Section 117 services, which noble Lords will recall this House debated to a large extent during the passage of the Health and Social Care Bill. Yet here we are again, faced with what I believe to be an unnecessary and possibly harmful change to these vital services. I will be seeking to make amendments in Committee unless the Minister can explain how these changes help or improve provisions which may not be perfect, but which ensure a degree of protection for those very vulnerable groups of people.
In particular, I am at a loss as to why the Government are attempting to change the eligibility criteria for Section 117 services. For example, Clause 68(5) introduces a new definition of aftercare services such that these services must be,
“meeting a need arising from or related to the mental disorder of the person concerned”.
This is surely unnecessary, but more importantly—and this gives me real cause for concern—given the history of local authorities in trying to avoid their responsibility for aftercare services of this kind, this new definition would enable local authorities to refuse aftercare on the basis that the need is no longer related to the mental disorder. Far from clarifying the position, this new definition adds to the complexity and risk, creating a situation where more people are denied access to these essential services.
I understand that the Government’s aim was to translate the Law Commission’s recommendation on Section 117 of the Mental Health Act into the draft Bill, but I note that the Law Society has asked for specific assurances that there is no intention by government to erode the current free-standing duty to provide free aftercare under Section 117 to,
“some of the most vulnerable”,
individuals in society. I suggest that the proposed new definition of aftercare services is too restrictive and could generate complex legal disputes over whether a service should be provided under Section 117. I will need a great deal of persuading that the proposed changes bring any benefit and do not in fact create the likelihood of greater harms.
Care of the vulnerable must be at the forefront of our efforts. Therefore I welcome the statutory framework for adult safeguarding, which includes the establishment of Safeguarding Adults Boards in local areas. The Bill states that these boards will be required to produce safeguarding plans and updates on progress, and that where a board “knows or suspects” that “serious abuse or neglect” has contributed to the death or serious harm of an individual, it will be required to carry out a safeguarding adult review.
However, I have a number of concerns and questions around how these boards will be able to exercise these functions effectively. For example, not only must local authorities and the NHS work together, but neighbouring local authorities must establish communication systems to ensure that all knowledge on abuse issues is shared not just in a local area but across areas, if another Winterbourne View is to be avoided. We also need avenues of communication for carers and families to register concerns, and for these to be looked at quickly. In fact, carers and families should not only have input on the boards but, I suggest, be supported to act as representatives on them.
Moreover, effective safeguarding work cannot be disassociated from other aspects of care and support provision. For example, with more and more people with higher needs potentially being employers with personal budgets, they will be vulnerable to abuse in their own homes. How will this be safeguarded against? There can be no doubt that for these boards to be effective, local authorities will require additional funding. Where is this to come from? I will not add to the many comments about lack of funding already made by other speakers; I simply pose the question again.
Finally, as I understand it, the whole point of this Bill is to move away from responding to crises and emergencies which can result in costly and unnecessary hospital or residential care. The aim is rather to develop person-centred and preventive approaches that meet real needs in a timely and appropriate fashion. One group who especially need this are those with social care needs who are entering or leaving prison. For this group, care is often not of the same standard as it would be in the community. In fact, a 2007 report by the University of Birmingham for the Care Services Improvement Partnership, Adult Social Care in Prisons: A Strategic Framework, identified major shortcomings in the provision of social care in prisons.
Clause 69 could be a very important step in addressing these shortcomings, particularly considering that around 70% of prisoners will have mental health and substance misuse problems. Providing this care can have a significant impact on reoffending and greatly enhance people’s ability to rebuild their lives on release. However, for such benefits to be realised, it is essential that there is continuity of care between prisons and the community. We need to ensure that prisoners have access to care that is equivalent to what is available in the community. People receiving care before entering prison should continue to receive such support, and any care provided while a person is in prison should be continued through the gate. Local authorities, prisons and probation services must work together to ensure that effective links are in place. I would like some reassurance from the Minister that this will indeed be an outcome from the Bill and one that he recognises is important.
Many aspects of this Bill are welcome and are long overdue. However, there are significant omissions and there is a real risk that in the current economic climate and with the background of funding cuts, nothing will really change. I am concerned about those who are most vulnerable and whether we have truly learnt the lessons from Winterbourne View and Mid Staffs. If we continue to react to problems rather than resolving them at an earlier and more effective point, we will place the most vulnerable in our society at risk. I hope that the Minister will reflect on my concerns and respond appropriately.
Baroness Emerton
My Lords, I thank the Minister for the introduction to the Care Bill. This legislation provides the missing links in the Health and Social Care Act 2012 and sets out clearly the responsibilities and the part to be played by local authorities in providing the missing links towards achieving a fully integrated service which aims to provide holistic care, from maintaining pathways in well-being, disease prevention, sickness, care and support through to end-of-life care.
The Bill also shows how the costs of the services will be met, ensuring that advice and understanding will be available for all. The Bill’s success depends on breaking down the organisational and professional boundaries that have prevented progress previously. It will succeed only if its three parts are fully discussed in Committee and then implemented in line with the comments made at Second Reading. The Committee will address Part 3, followed by Part 2 and then Part 1. I firmly believe that Part 1 will not succeed unless Parts 2 and 3 are fully understood and addressed.
I am a retired nurse and a carer so I approach the Bill from an essentially practical perspective. I shall therefore start with the provision making Health Education England a non-departmental body. This change is vital if the body is fully to fulfil its responsibilities, as the noble Lord, Lord Willis, said. The Secretary of State will issue a mandate and this will be of great value to Health Education England, which must work in tandem—and within a defined budget—with a wide range of specialities and many different bodies. The Government’s addition of Clauses 87(5) and 93(3) from the draft Bill underlines the fact that planning for a period of longer than one year is essential when considering workforce requirements such as education and training which involve a long lead-in period. Clause 88 sets out the importance of having sufficient numbers of skilled workers to meet the health and social care requirements. LETBs will have responsibility for planning for the workforce and the skills requirements for a defined area but they must also take account of the wider geographical requirements if specialities and the time element are to be addressed, especially if this is to be cost-effective.
Healthcare assistants—support workers—have been a subject of concern regarding training and the review by Camilla Cavendish which the Prime Minister requested is due shortly for publication. Skills for Health has published a list of skills that should be part of the training for healthcare assistants. As we know, however, simply teaching a skill without providing the background knowledge is of no value in delivering quality care. Both Robert Francis QC and the noble Lord, Lord Willis, recommended mandatory training. I hope that the Government will seriously consider that after considering Camilla Cavendish’s recommendations. I ask the Minister seriously to consider mandatory training programmes which might link skills training to the NMC’s care standards, which are the core of the nurse training curriculum. That would provide a greater understanding for both the healthcare assistants and for the registered nurses who are responsible for supervising and delegating to the healthcare assistants. If high-quality care is to be delivered in the NHS, in local authorities and, importantly, in the independent sector of nursing homes and care homes, where standards are not always compatible with high-quality care, then the matter of training for healthcare assistants must be dealt with urgently.
Health Education England has an enormous task in improving the provision of workforce data on all disciplines and clarification is required about the part to be played by the Centre for Workforce Intelligence and how this slots into the Health Education England programme. Achieving the right numbers of appropriately qualified people who are in the right place at the right time is an enormous task but it is essential if safe, high-quality care is to be delivered to the satisfaction of patients and their families. There are already examples of shortfalls in all disciplines but in nursing there are great disparities between those who produce high-quality care and those who do not. These disparities usually reflect the ratios of registered nurses to healthcare assistants and the required level of supervision. The right numbers in the right ratios are the most cost-effective and care-effective way of delivering high-quality, safe patient care both in the NHS and in local authority health and social care services. I hope that the two vital issues of healthcare assistants’ training and the ratio of registered nurses to healthcare assistants can be sorted out as a matter of urgency.
Continuing professional development is crucial to the future of integrated care programmes. It is important that the values set in the NHS constitution and within healthcare trusts, primary care and local authorities are understood by all employees and employers. There is a need to encourage onward development of all employees by implementing a sound appraisal system which reflects the needs and aspirations of each employee and results in an individual CPD programme. If this is not rigorously followed through on, the issue of burnout and loss of commitment will become apparent. In such circumstances morale falls and healthcare provision can fail. Such a culture is not conducive to high-quality care and is similar to that experienced in Mid Staffordshire.
I turn to the Health Research Authority. Evidence-based practice and innovation depend on research findings. It is a great disappointment that the constitution provided in the Bill is stated in such general terms that it is impossible to determine whether there will be multiprofessional representation on the board or among the employees. All healthcare professionals now require a degree but the responsibility for research has until now remained with the medical profession and little attention has been paid to the other healthcare professionals when considering representation on boards, in committees and in terms of funding. How can innovations be developed without research backing? Promises were given verbally during the briefing for and passage of the Health and Social Care Act but there is no evidence that any notice has been taken.
One good example of the outcome of some research done by a Florence Nightingale Foundation scholar— I declare an interest as president of the foundation—was the introduction of care bundles. As a result of that scholarship the mortality rate in people suffering from three long-term conditions was reduced to below the average SMR. We need more projects and research like that to ensure that practice is based on evidence and sound research. I ask the Minister to ensure that there is more investment on the multiprofessional side of research as well as on the medical side.
Part 2 of the Bill refers to care standards. It is pleasing to see that the Government have taken steps to legislate on some of the Francis report on the Mid Staffordshire inquiries. The CQC’s role in identifying failing trusts on the basis of quality as well as financial concerns is welcomed by nursing staff who strive to maintain delivery of safe, high-quality care to the satisfaction of patients and relatives. Work by the CQC is ongoing and we will study it as an important step forward.
Part 1, on care and support, is a crucial part of the Bill that fundamentally sets out the responsibility of local authorities in the fields both of preventing the need for care and support and promoting well-being. However, the critical and most difficult part is promoting the integration of care and support within the health services. Fundamentally, integration is vital and the most important ingredient in successful health and social care, bringing together a huge band of people who will need educating, training and an understanding of the true meaning of holistic care that enables a patient pathway to be clear and understandable by those delivering the care, whether within the aegis of the local authority, the NHS or the independent sector.
In summary, the Bill is a welcome step forward in tackling the issues that so badly needed to be addressed. It will influence and persuade health and social care providers to provide the population they serve with quality and satisfaction.
Baroness Browning
My Lords, it gives me great pleasure to follow the noble Baroness, Lady Emerton, in these matters. She has not only a lot of knowledge, but a great deal of personal experience. I always listen carefully to what she says. I refer the House to the register and to my interests particularly in certain charities which I shall mention. I, too, share the welcome that has been widely given across the House to this legislation. It has great potential to improve the lives of many people with a disability or who are elderly and frail. Simplifying legislation that affects local authorities’ care responsibilities is both timely and something that many of us hoped would happen for some time.
Like others, I share concern about the ability to fund such an ambitious piece of legislation. In the impact assessment available in the Printed Paper Office, I noticed that the monetarised benefits actually outweigh the public sector costs. If that is true, it is really to be welcomed, but I must tell my noble friend at the Dispatch Box that in Committee we will want to look carefully not just at the costs identified in the impact assessment, but at what are perhaps the glaringly obvious omissions, particularly future demographics. This Bill is very generous. To a degree, it seeks to underwrite the costs for people who currently do not receive state help with their care. The way in which the population demographics work out in this way is challengeable. I would say to my noble friend that what is really important is that we do not raise expectations through this legislation, only to find that they cannot be resolved.
I say this from personal experience. I remember some years ago when my son, who has Asperger’s syndrome, was in his late 20s and lived permanently at home with my husband and me. As the named carer, I received through the post forms to fill in, asking me what my carer’s needs were. Every time this form came, I am afraid that I wrote across it in large letters: “If my son’s needs were met, my needs would be minimal”. They probably caught me on a bad day. As any carer will know, the reality was that sometimes even the very basic needs of the person you are caring for are not met. In a way, this Bill promises that this will be addressed. After all, what does “well-being” mean if not the well-being of the whole person? The well-being of carers is very much dependant on the well-being of the person for whom they care.
This is particularly relevant among those people who cannot advocate for themselves. We heard in today’s debate discussion about people with dementia, mental health problems and learning disabilities—so ably expanded by my dear noble friend Lord Rix. I have had an association with various autism charities and can say that these people need somebody to make the case for them—usually the carer, though there is not always an immediate carer. It is really important that this legislation will fulfil its promises.
I am a little concerned about one particular area. Although it is extremely welcome that throughout this Bill there are requirements to assess—for example, the person needing care or the carer—if those assessments cannot be fulfilled, there will be a huge feeling of let-down. My own experience, not just as a carer, but having served for nearly 20 years in another place as a constituency MP, is that all too often there is huge push-back and resistance to an assessment, even when there is a statutory requirement to provide it. This is purely because the people who are asked to carry out the assessments know only too well that whatever their conclusions, they cannot do very much about them because the resources are not there to deliver what that person needs.
It must be pretty awful for the people who carry out those assessments to know that if they do their job fully and properly, at the end of the day there is not an awful lot they can do to make a difference to that person’s life. I think my noble friend described the resources attached to this legislation as being about the engine working better rather than putting more petrol in the car. I would say to him that the engine needs to work better and he needs to fill up a few more times, otherwise I do not think that the resources will meet the need.
Looking quickly at the autistic community, I mentioned earlier that there are some omissions. This applies both to autism and to people with dementia, perhaps more elderly people who go on to have Alzheimer’s. There are a huge number of people who are still undiagnosed. In the autistic community it is improving, particularly with younger children. However, there is still an adult community with needs that do not always come to attention. As with those with learning disabilities, if they have been living at home with elderly parents who themselves have a crisis, it is the crisis of the person they have been caring for that comes to the attention of the authorities. All too often, that means crisis management and huge sums of money with all the disruption that goes with it to try to put some form of stability package in place at short notice.
This is not helped by something which the Bill aims to address—I hope it is successful and has been touched on by many speakers already today. This is the relationship between health and social services. When I was a constituency MP, I used to say, tongue-in-cheek, “We are having an ‘Oklahoma!’ moment”. Often people would come to my surgery with the typical problems of those who do not receive the correct services, or are carers who are at breaking point and cannot get anybody to understand their needs. For those who can remember it, “Oklahoma!” has a song with the line, “The farmer and the cowman should be friends”—but they never seem to talk to each other. That is the “Oklahoma!” moment, and it is quite easily resolved by Members of Parliament. When in my surgery or on the phone I was presented with a problem that quite clearly needed a group of people to sit around a table and talk about it, I used to cut to the “Oklahoma!” moment as quickly as I could. All too often, good things happen when an MP says to health and social services, “I think you should get together”. Indeed, I sometimes used to say, “Don't worry, I'm very happy to come along to the meeting myself”, which usually galvanised a few people. Problems were not always totally resolved overnight, but we started to make progress. It used to occur to me, “Why do I have to have this ‘Oklahoma!’ moment when all these people could be doing all this for themselves?”.
I say to my noble friend that, as we go through the Committee stage of the Bill, I will want to pay particular attention to those parts that seek to improve things so that we do not have “Oklahoma!” moments. The structure must be such that automatically there is dialogue and not stand-offs about who pays for what, because the difference between who funds the social care and who funds the health care is addressed in the Bill. All of this bodes well for resolving many of these problems, but I still have concern that if the resources are not available, we shall not do so.
Finally, it is important that we have a new piece of legislation on the statute book; the Autism Act. It has not really bedded down yet and it is early days. But the new Care Bill must ensure that the duties in the Autism Act statutory guidance continue to apply to local authorities and local NHS bodies to ensure the ongoing implementation of that Act. I hope that the Minister will be able to reassure me on that when he makes his concluding remarks.
Baroness Wilkins
My Lords, as so many noble Lords have said, making the points that I wanted to make, this is potentially a very important piece of legislation. I warmly welcome it. The well-being principle set out in Clause 1 is particularly welcome and the Government are to be congratulated on acting on so many of the Joint Committee's recommendations for strengthening the Bill. But unless this Bill is properly funded, its aspirational principle and welcome structure will just rub salt into the wound of the current crisis in social care. The Bill must be properly funded and other government departments must work in concert with this legislation if the social care crisis is to be alleviated.
The media debate around the Bill has largely focused on the care needs and the funding of that care for older people. I want to concentrate on the social care needs of working-age disabled people who comprise one-third of social care users. I will focus particularly on funding and housing.
Current government action on these two issues does not bode well. As we know, the fine aspiration set out in the well-being principle is cloaking a grim reality. This is particularly the case for the more than 20,000 most severely disabled people who, until it was closed to new applicants in 2010, were funded by the independent living fund to live ordinary lives in their own homes.
When I became disabled in the mid-60s, these were the people who, unless their families had sufficient money and suitable housing, were warehoused in residential care with no hope of living any sort of normal life. In the decades since, as we heard from my noble friend Lady Campbell, we have witnessed the liberation of this group to live fully integrated lives as part of the community. Some have been enabled to work and make considerable contributions to our society only because the ILF has provided top-up funding to the support available from local authorities.
But despite the fine words of Clause 1, these ILF users fear that current government action is threatening to return them to institutional care. ILF funding is ending and these people are being transferred to the local authority system in 2015. Their fears are not exaggerated and have been confirmed by the directors of social services, the Local Government Association and the Government's own impact assessment as well as the National Association of Financial Assessment Officers who have said that some councils will decide that residential care is a less expensive option than supporting people to live at home.
A few weeks ago, a group of ILF users took this decision to judicial review. It lost, but during the two-day hearing, it became clear that transition funding to protect current ILF users is available only for one year, 2015-16, and that neither the DWP nor the noble Earl’s own Department of Health want to take responsibility for making the case to the Treasury for further funding in the spending review.
What steps will the Department of Health and the DWP jointly take to ensure that funding is available after 2015? Will the Minister assure the House that ILF users will not be forced into residential care or confined within their own home with only ‘life and limb’ care following the transfer of funding responsibilities to local authorities? If this Care Bill is to fulfil its principle of well-being, what level of funding do the Government believe is necessary to ensure that we do not return to the days when disabled people with high support needs had no opportunity to live independently? If there is no time to answer at the end of the debate, would the Minister be so kind as to write to me?
The justified fears of ILF users serve only to highlight the current crisis in adult social care which is failing to support disabled people to do the basic things in life—basic needs such as washing, dressing and getting out of the house. I will not repeat the points that other noble Lords made so eloquently. However, as the Care and Support Alliance has emphasised, this Care Bill will fail to improve the social care system for disabled people if the welcome proposal of a national eligibility threshold is set too high. The White Paper's suggested threshold of “substantial” is too high. For the ambitions of Clause 1 of the Bill to be realised—that social care should enable participation in work, education and society—it is essential that the eligibility threshold should support that ambition, not demolish it.
It is vital that the national threshold is set at no more than “moderate” to ensure that prevention is at the heart of the social care system. Prevention must lie at the heart of this Bill. It will also depend on other government departments and other local authority services playing their full parts to ensure that social care expenditure does not escalate in an unintended way.
One of the most important factors in prevention is housing; both the provision of suitable housing and the aids and adaptation service. Countless stories of people being unable to return to their own homes after serious illness or accident because of inaccessibility are heartbreaking. They also result in costs occurring elsewhere in the system because of delayed discharge from hospital or expensive residential care. Simple adaptations to a person’s home can prevent the need for costly care, whether it is the provision of ramps and handrails, lever taps or a downstairs bathroom when stairs become insuperable.
This applies equally to the need for supported housing especially for people with learning disabilities. Frequently, local authorities do not even seem aware of their legal responsibility to house this group. I congratulate the Government on having listened to the Joint Committee on the draft Bill and including the suitability of a person’s home in the definition of well-being in Clause 1. During the passage of this legislation, I will seek to ensure that housing also appears on the face of the Bill in other relevant clauses so that it cannot be forgotten.
Finally, it seems like a forlorn hope that the Chancellor will recognise the urgent need to build the thousands of homes needed for social housing. They are particularly needed by disabled people who are more dependent on social housing than the rest of the population. Instead, the Chancellor spends our scarce resources on his help-to-buy scheme, which can only lead to yet another catastrophic housing bubble.
I wish the noble Earl the eloquence of angels in persuading his fellow government Ministers that they must all play their part if this Bill is going to result in more than just fine words and aspirations, particularly the Chancellor of the Exchequer.
Baroness Barker
My Lords, I declare an interest as one of the usual suspects referred to by the noble Baroness, Lady Pitkeathley. Like many of the speakers in today’s debate, I am a veteran of more care Bills than I care to remember. I wish to put on record my admiration not just for my colleagues Paul Burstow and Norman Lamb, who did a remarkable job getting this Bill to where it is now, but also to a number of people—not least of whom are the noble Lords, Lord Lipsey and Lord Sutherland of Houndwood—who over the whole of the last decade started the debate which has got this Bill to where it is today. An awful lot of work has gone on in the last decade that has shaped this legislation. It has to be clear, coherent and consistent; people and their carers need to know what they are entitled to receive from social care, what they will be expected to contribute and what their entitlements will be. That has been a long process, but it is a relief that we have finally got there.
A lot in this Bill is admirable and it starts for me at the third sub-heading in Part 1, which talks about the purpose of assessment. Assessment is key to all this Bill: the extent to which it is possible to assess a person’s needs, means and support networks and the extent to which social care, health and private insurance have a common assessment process are the keys to whether the aspirations that we all have for joint care can really and truly be achieved. At the heart of it all is housing. We have known for some considerable time that the care that an older person receives in later life depends upon whether they own a property and the extent to which they can use that to fund their care. This Bill goes a long, long way to ensuring that other people—those who do not have properties at their disposal—get the help that they need as well.
There is much detail in here about the assessment process and much of it is extremely welcome. However, there is one subsection—Clause 9(4), which looks at how one’s need for support is assessed—which talks about the need to look at what a person can do and the sources of support around them in their family before an assessment for eligible needs can be carried out. We need to be clear by the time this Bill finishes all its stages that people and their families are being assessed on what it is that they are able to provide by way of support and care, rather than what they are expected to provide to make up for some of the deficiencies of the care system at the moment. We do not wish to see people and their families pressurised into providing more than they possibly can.
I welcome Clause 11, which talks about the enduring responsibility of a local authority to care for an older person even if they refuse to have an assessment. All of us who have worked with older people know that horrible moment when a carer finds that their mum has gone for her assessment and sworn blind that she can do lots of things which on her very best day she might be able to do, but routinely she cannot. Here I also make the point that the noble Lord, Lord Hunt of Kings Heath, and I always raise on occasions such as this, in memory of Lord Weatherill. There are some people, particularly Christian Scientists, who do not lack capacity but who wish to refuse to have assessments and so on. Their views need to be upheld. I am extremely pleased that the need to assess somebody’s financial resources is in the Bill. It is quite clear that that assessment happens separately and after their needs have been assessed.
Clauses 15 and 16 talk about the cap on care costs and implement Andrew Dilnot’s report. Again, there is much in this that is extremely welcome. It is welcome that there are some things for which local authorities will not be able to charge. The whole process of how one gets from the point of an assessment of need to the point of eligibility is much more complicated than many people realise. There will be things such as care costs that people have already paid for in their own homes which are not taken into account. The same is true for payments for their daily living costs. We also know that the current system whereby local authorities will pay up to what they call the usual rate—which may be well below what an older person and their family believe they need—will continue to endure under this new system.
It is absolutely critical that this whole part of the Bill is scrutinised in great detail, because there is a danger that this could end up like the fares for a budget airline. You have an upfront figure, which by the time you finally get to the airport, turns out to have so many add-ons that it bears no resemblance to the original fare. If, at the end of our process of scrutiny, that is what we end up with, then the whole system will become discredited. We really need, above all else, to emerge from this legislation with everybody knowing in detail, with some certainty, what their costs are going to be.
One of the issues on which the Government’s response to the joint scrutiny committee was slightly disappointing was about drawing the boundaries between health and social care. Those of us who have been involved in working with older people for any length of time know that when resources are tight, the ability of the NHS and local authorities to withdraw and start pressuring people from pillar to post gets tempting. There was an attempt in the draft Bill to differentiate clearly between healthcare and social care. In the Bill that has emerged now, it is less clear than it was originally. That will not help anybody; it will simply set the basis for ongoing court cases about what constitutes continuing care. Again, one of our main duties in the passage of this Bill is to ensure that there is clarity on that point.
Turning to deferred payments for social care, we currently have a system of deferred payments and we have some case law already on the way in which that works. It is welcome that the Government wish to extend that and to make it more consistent across the country. However, I hope that in doing so, they have paid attention to the existing case law about when people’s properties can be taken into consideration when other members of their family are living in those houses. I have to ask the Minister what financial modelling has gone into this part of the Bill, because we are talking potentially about the deferment of a lot of money for a lot of care for a very long time. Given the state of the finances of local government at the moment, we could be talking about a policy of quantitative worsening of social care, rather than quantitative easing of it.
I move on quickly to safeguarding. It is very welcome that we are finally getting a statutory power to investigate the potential abuse of older people. People such as the noble Baroness, Lady Greengross, have been working for 20 years towards a time when we put the abuse of older people on as serious a statutory footing as the abuse of children. However, the changes to Section 47 of the National Assistance Act—the power to remove older people from unsanitary conditions—without a power of entry when a third party is withholding access to somebody who may be being abused, may mean that we have a statutory power that is not going to protect people. I agree with the noble Lord, Lord Patel of Bradford, that Section 117 support for mental health is important, and we must make sure it is not weakened.
We have within our grasp a system that will deal with the biggest problems with which we have been grappling for more than 20 years: how to make our social care systems, our health systems and the rest of our public finances work together, so that individuals, their families, their communities and the National Health Service all know where they stand in relation to each other. We are not quite there, but with some concerted effort, and using our combined experience, we will get there by the end of this Bill.
Lord Patel
My Lords, the Government have to be commended on bringing forward this Bill to reform the current system of social care and thus bringing in a fairer system. Many noble Lords have commented on the financial issues, saying that adequate finances will be required to make sure that the ambitions of the Bill are delivered. Noble Lords have also commented on another important issue, that of the eligibility criteria that are to be used. If these two things are not met appropriately, the duties being placed on local authorities in Clause 1—promoting well-being, preventing deterioration and reducing need—will be difficult to meet. It will also mean that more people end up in A&E, in primary care and as in-patients.
I am concerned about two other issues. As yet, the Government have not accepted the need to provide free care and support for cancer patients at the end of life. I remain encouraged by the comment made by the noble Earl when we considered this issue in the debate on the gracious Speech. He said that there was “much merit” in the idea. I hope that he will be able to convert the thought that the proposal has much merit into an amendment that the Government will bring forward.
A survey by Macmillan Cancer Support has shown that 91% of cancer patients at the end of life wish to die at home or in surroundings familiar to them. The barrier to this is the lack of care and support they need along with complicated, lengthy and stressful processes to access funding for care. Financial means testing when patients are dying does not seem to be compassionate or caring. The argument for providing free social care at the end of life is strong. It will deliver the Government’s vision of integration and choice. Research by the Nuffield Trust shows that a saving of some £52 million a year could be made through reduced hospital admissions. I hope sincerely that the Government will amend the legislation to do this, or accept an amendment that I will bring forward.
There is also the issue of the support that the carers of cancer patients get or, rather, that they do not get. Almost 1 million cancer carers give their valuable time to this, saving services probably in the region of £12 billion a year, yet half of them receive no support at all and the other half very little. This is partly because most of them do not see themselves as carers and are unaware of their rights; fewer than 5% get any assessment at all. What would help is if a similar duty as the Bill puts on local authorities is placed on the NHS to work with local authorities to identify the support needs of carers who are themselves supporting cancer patients. Cancer carers will then receive the support they deserve.
The other areas of concern to me relate to Clauses 55 to 63, also referred to by the noble Lord, Lord Rix, and I associate myself with his comments. I want particularly to make a point about the support and care of children and young adults during the transition period. More than 40,000 children and young people aged between one and 19 in England have long-term conditions which, for the most part, will end their lives or for which they will require palliative care. They may have complex health conditions and severe disabilities, and for the most part they are looked after by parent carers. This is not end-of-life care, but care that brings some comfort, respite, the relief of suffering, and a little bit of quality of life. Evidence shows that while they are children and in their early teens, these young people receive support from children’s services. In their late teens they begin to receive services from adult services, but that support is often reduced, fragmented and disjointed. Parents describe this transition of care as “standing on a cliff, about to fall into a black hole”. It is not difficult to imagine the stress and anxiety it must cause to young people and their carers.
The proposals in the Bill are a step forward, but in my view they need to go further. A consortium of charities which has grouped together under the charity, Together for Short Lives, feels that this provision needs to be strengthened. The Bill should make it clear that when a young person reaches the age of 14, local authorities should initiate transition planning with the young person, their family and the relevant agencies, so that by the time they reach the age of 16 a five-year rolling programme for their support and care is in place. I hope that the Government will be sympathetic to this and that the Minister, if he is able to do so, would be willing to meet with representatives from Together for Short Lives and myself.
Part 2 of the Bill relates to performance rating. I support in principle the idea of introducing a system that assures quality of delivery of health and social care. Suffice it to say at this stage that whatever the final system that is introduced is like, it has to be credible and have the confidence of both patients and health professionals. If it is going to be based on three domains of quality—clinical effectiveness, patient experience and patient safety—the dataset needed to achieve this in an equitable and fair way is available for some areas, but not all of them. I hope that the Government will see the introduction of assessment as formative and embedded over a period of time, evolutionary in helping to develop appropriate datasets leading to improved services, rather than a one-off assessment that identifies only failures and shortcomings. I am very familiar with a system based on standards that encompass the three quality domains of clinical effectiveness, safety and patient experience, but using a different process that works. I know of no system within our national healthcare that is similar to the proposals, although of course there are large healthcare providers which are using a similar methodology. I look forward to the debate on this subject and hope to contribute to it.
Perhaps I may comment briefly on the other parts of the Bill, starting with Health Education England. In my view, the Government have brought in provisions that we agreed in principle in the Health and Social Care Bill. The Government have to be commended on doing this and I thank the noble Earl. I am also encouraged by the appointment of Professor Wendy Reid as the medical director. Health Education England will have someone with huge experience and skills in health education. My only comment relates to the local education and training boards. Why is there not a duty placed on them to promote research and research training, a point also mentioned by the noble Lord, Lord Willis of Knaresborough?
As for legislation related to the Health Research Authority, its current role is small and we will want to see how it evolves. I recognise the comments made by the noble Lord, Lord Willis, about too many regulators in the area of health research. I hope that the Government will look at this, while the inquiry into regenerative medicine may also give rise to some comments. I think that the Government are right not to put a duty on the Health Research Authority to require the publication of the results of research. It is much better that the authority should work with others to encourage the publication of research and that it develops over time an appropriate methodology. The mandatory publication of research by the authority would have been the wrong thing to do. It does not work; it has been tried in other countries, including the United States.
As for the Human Fertilisation and Embryology Authority, the original Government thinking was right, but now that they have changed their mind and have decided to keep the authority, I hope that it concentrates on its key role of improving services related to infertility.
In conclusion, on the whole I am supportive of this Bill and hope that the Government will be sympathetic to amending some of the areas I have alluded to in order to help improve the lives of those most in need of care and support.
Lord Wigley
My Lords, I welcome this very important Bill. I do not want to repeat the points that have been made, but I will add my support to the comments made by the noble Baroness, Lady Campbell of Surbiton, on the need for real independence and dignity for disabled people and to the points made by the noble Baroness, Lady Wilkins, on the housing needs of disabled people of working age. I also share the concern expressed by her and by many speakers in this debate that this Bill will work only if adequate resources are available. I noted the comments made by the noble Lord, Lord Rix, that the system is now in crisis and that people with real needs are left without support, which is a worrying situation.
I want to highlight matters relating to the detailed working of this Bill and the complexity that arises in some areas by virtue of the fact that social care is devolved in Wales to the National Assembly, since some of the provisions in this Bill impinge on devolved responsibilities. First, can the Minister confirm that legislative consent Motions have been agreed with Ministers in Cardiff and that there are no outstanding issues that need to be resolved?
Secondly, on the issue of funding, the Secretary of State Mr Hunt said on 11 February:
“All the Barnett consequential issues are decided by the Treasury”.—[Official Report, Commons, 11/2/13; col. 601.]
I understand that additional spending in England of about £1 billion should generate about £60 million of consequential spending in Wales. Can the Minister confirm that a figure has been agreed, and can he tell the House what it is? There is the associated question of the Barnett formula being generally inadequate and particularly inadequate in this context, where the age and need profile in Wales differs from that in England. Wales has higher levels of disability for historical and industrial reasons, and thousands of people retire from England to the beautiful coastlines and countryside of Wales. They are very welcome to come, but there is a cost implication. Wales has the highest proportion of older people of any country or region in the United Kingdom. Nearly one in four are over 60 years of age, and that is expected to increase by a further 5% over the next 10 years. The noble Baroness, Lady Browning, rightly emphasised the need to be aware of the demographic changes that are taking place and the effects that they will have. Any funding system that is based merely on total population relativities will inevitably generate inequalities.
Thirdly, the Government of Wales are currently in the process of reorganising social care in Wales. The Social Services and Well-being (Wales) Bill is similar to this Bill in many aspects and will, inter alia, increase the number of services for which people can claim a direct payment from the local authority, introduce national eligibility criteria, and provide for portable assessments to avoid the cost and trouble of reassessment. These detailed provisions need not exercise your Lordships’ House. What is of concern, however, is that any provisions in this Care Bill with an England and Wales remit will impact on the changes taking place in Wales under the other legislation.
Equally, changes taking place in Wales will have an implication for cross-border placements and the portability of care packages. Can the Minister tell the House whether discussions have been concluded with Ministers and officials in Cardiff and whether all issues in this area have been resolved? In particular, has there been a resolution of the portability of social services assessment undertaken in Wales in the event of persons choosing to move to England, and likewise of the portability of care packages for persons choosing to move from England to Wales? I am not referring to cross-border placement, which is quite another matter. Will the UK government cap on social care costs follow an individual who moves to Wales from England and is already in receipt of a care package, and if the cap is different in Wales, which of the two would apply? There is a real danger of disputes arising. The Care & Support Alliance commented:
“The Care Bill could have gone further to set out a strong and clear dispute process”.
The difficulty to which cross-border issues give rise within England between local authority areas is covered by Clause 36. This provision deals with people choosing to move for genuine reasons, but it does not appear to deal with those moving between England and Wales for genuine reasons. Likewise, Schedule 1 deals with the cross-border placement question, and paragraph 1(2) deals with the placement from England to Wales, but it does not appear to specify who has the responsibility for paying. Perhaps the further provisions referred to in paragraph 1(5) are meant to cover this, but it is far from clear and we need some assurances on the matter. It is also less than clear that paragraph 6(2) of Schedule 1 is adequately rigorous to provide for full recompense or that it is relevant in all cases. I should say that the Social Services and Well-being (Wales) Bill also fails to clarify these cross-border issues. These are matters that we certainly will need to clarify and to follow up in Committee.
Finally, I refer to the proposed health research authority provided for by Clause 96. Clause 98 states that the HRA’s remit is to promote the co-ordination and standardisation of practice in the UK in the regulation of social care. The Bill places a duty on the HRA and the devolved Administrations to co-operate with one another, but how on earth is such a duty going to be enforced? And what happens if disagreement arises between conflicting expectations in Wales, Scotland and England? Does the Secretary of State in England have to act as a referee in such a dispute? I am not arguing against the need for such co-operation, of course, but legislating for these matters never guarantees the desired outcome. All these issues are points for further consideration in Committee. Meanwhile, I am very content to support the Second Reading of the Bill.
Lord Lipsey
My Lords, I declare an interest as unpaid president of SOLLA, the Society of Later Life Advisers. I want in my remarks to concentrate on the Dilnot-related parts of the Bill—that is to say, the cap and the related changes to the means test. I should state straightaway that I welcome the cap. Indeed, I hope that the House will not think it unduly immodest of me if I claim to be, if not its father, perhaps its grandfather. In the minority report of the 1999 royal commission, which I signed with the noble Lord, Lord Joffe, there was a proposal that people should have their care costs covered if they were in care for more than five years. I was not even able to command the majority in the minority on that matter, because the noble Lord, Lord Joffe, did not agree with me on that, although we agreed on everything else. So right from the beginning I have been a strong supporter of people being protected against catastrophic costs of care. I emphasise the word “catastrophic”, because I am also extremely glad that the Government opted for the £75K cap, which I referred to in this House in my initial reaction to the Dilnot proposals, and not for the much lower figures put forward by the commission, which frankly I thought to be unaffordable.
I hope that my credentials as a broad supporter of what the Government are doing are established and that it will not seem impossibly contrarian if I point out two disadvantages of the proposed scheme that we need to bear in mind throughout proceedings. The first is that it is still pretty expensive—£1 billion by the end of the next Parliament, rising to £2 billion by 2030, according to calculations by the Health Economics Group at the University of East Anglia and the LSE’s PSSRU. In the times of austerity in which we are living, any increase in public spending needs to be very thoroughly justified, because of its implications for taxation if nothing else. There is a particular danger in spending money on helping people to pay for care. The real acute and immediate crisis that we face is not about people paying for care; it is about the amount of care that we are providing, on which spending has been cut by about £710 million in real terms since this Government came to power. There are loads of figures, but that is the one that hit me. People are doing without services. If you do not have substantial needs, you do not get services any more. When the priorities come to be weighed, that seems to me to be the pre-eminent one.
There is also the issue of where this money goes. The Dilnot proposals—for all their advantages, which I will come back to before noble Lords get convinced that they should not go forward—do little for the poor. They mostly benefit the better-off. That is because poor people get paid for in full under the present means-testing system. It is the better-off who have to pay. Of course they do not like that and it understandably creates a furore. Even the Government’s plan, which I will call “watered-down Dilnot”, benefits most the better-off. According to the same academic sources that I quoted, the plans in 2030 will be worth £52 a week to people over 85 in the top quintile by income—the top 20%—compared with just £20 a week to those in the lowest quintile. That is an inevitable consequence of replacing means-tested benefits with targeted universal benefits, which is why some of us are chary of the current fashion for scrapping means tests.
Dilnot argued that the cap will protect a bigger share of the assets of those with modest wealth than those with lots of wealth. That is true. It is, however, also true that those with modest wealth will have to contribute to the cost of their care a higher percentage of their wealth than will richer people. It was therefore as difficult a choice for me as it was for Joel, my noble friend Lord Joffe. I go back to the only dispute that we ever had.
Against those disadvantages had to be weighed two important advantages. One is that there is real injustice in the present system, because it is a total lottery as to whether you need care or none at all. It seems unfair that one set of people, however well off they may be, have their wealth wiped out because they happen to need a lot of care, while more people—about two-thirds—get away with the full loot to leave to their children because they do not happen to need care. That lottery is unjustifiable.
I have been in politics for some time and, frankly, I thought that it would be a tremendous advantage if, at reasonable cost, we could get this issue of paying for care off the agenda and concentrate on the things that really matter—the money that has to go into care services, the way that those services are organised and the way that individuals get more control over those services. The issue of the old having to sell their homes to pay for care is a distraction from a more important debate, and the proposals, at modest cost, will take it off the agenda. It is right to proceed with them, but I am sorry that the cap changed from £75,000 to £72,000 and that it has been brought in a year earlier as a result of the Budget. That means increased Exchequer costs earlier, which is robbing money that should go on services.
Incidentally—this is a side issue, but important—the administrative burden on local authorities is quite alarming. Getting this done by 2016 is a major deal. Authorities will need to invest huge amounts in systems, staff, advice and all these things—perhaps £500 million just for the administrative costs. The Government must—I repeat, must—pay for that in full, but it will be nip and tuck as to whether it is done in an orderly fashion to the new timetable. If that had not been done, we would have had a little extra money. At quite modest cost, the government scheme could be tweaked to do more for those with relatively modest wealth and we would not have to worry as much that all the benefits were going to the better-off.
This now gets a bit geeky, but I will persist. The Government propose to raise to £123,000 the limit on how much wealth you can have before you stop getting means-tested support. That is good; it represents the value of a cheap house in some parts of the country. However, it is not very good. I do not know how many noble Lords are fully aware of this but, in fact, if you have £123,000 in assets and that modest house, all the money that the Government are trying to give you under the means test will be taken away from you. Why is that? It is because of a little-known thing called the tariff. Under the present system, for every £250 that you have in excess of about £14,000 in assets, you lose £1 a week in benefit. You would require a 20% return on your savings—£50 a year on £250—to benefit. The money is taken out of your pocket by this tariff in the means test as it is put in by the increase in the ceiling.
How could this be changed? It could be done easily. Suppose that the tariff was changed so that, instead of losing £1 for every £250 of your assets, you lost £1 for every £500. Therefore, those with assets of up to £123,000 would get decent benefits from the state towards the costs of care. Nor would the cost to the state be great. According to the academics whom I quoted, the cost would be around £150 million—less than a sixth of the cost of the Government’s proposals. A small slice would go to those with modest income and wealth and, if necessary, it would reduce the very large slice going to those with substantial income and wealth. In other words, if this proposal were to be combined with the cap proposals, we would have a much less regressive package. If it were necessary to fund it by raising the cap from £72,000 to, say, £80,000 or a little more, that would be a price well worth paying for a more socially just solution.
My party has rightly criticised the Government, mildly, because their plan does not do enough for the less well-off. Here is a ready-made solution. The Minister was described at a meeting earlier this afternoon as a saint. I would not dissent from that. I do not mean to be offensive to the noble Earl, but he would not like the tag put on him that he cares only for the better-off. When the Bill goes to Committee, I am confident that the noble Earl, Lord Howe, will stand up and accept amendments to reduce the tariff to £1 for every £500, thereby making this Bill much more progressive and helpful to those hard-working people on modest incomes who want their fortunes to be protected.
Lord Bichard
My Lords, I should declare an interest as chair of the Social Care Institute for Excellence—or SCIE, as it is known in non-media circles. The first chair of that organisation was the noble Baroness, Lady Campbell, so I am conscious that I have rather a lot to live up to, but I will do my best. I took on that role because I believe that social care is the most important social issue for the next decade or two. That means that this is one of the most important Bills to go through this House in this Session or, indeed, at any time. As others have said, the Bill has the potential to redefine the landscape of care and to offer a new deal to those in need of care, many of whom, let us not forget, are vulnerable and frail and face difficult and complex problems and decisions about their future. They have often contributed greatly to our society and their communities, and deserve to be properly supported and sustained when the need arises.
Again, there is much in the Bill to applaud and welcome: the greater emphasis on prevention, the cap on the cost of care, the responsibility to promote individual well-being, the emphasis placed upon integration and co-operation, and the new rights for carers. We can all applaud and welcome those provisions. However, in Committee we will naturally look at ways in which we can make the Bill even better. I want to suggest five measures that we may consider.
First of all, I should like to see an even stronger commitment to dignity at the beginning of the Bill. The recent events in mid-Staffordshire and in individual care homes must surely have taught us that whatever changes we make to organisational structures, technology, financial systems, buildings or even equipment, they count for little if personal dignity is not afforded absolute priority on the ground. It must be the bedrock upon which everything else rests. It can no longer be taken for granted or left unsaid. Clause 1(2) refers to dignity, but in passing. It does not feature strongly enough and is entirely lacking in other key provisions, such as in Clause 1(3). I should like the very first clause to state boldly that the general duty of all providers, not just local authorities, is not only to promote individual well-being but to ensure that individuals are treated with dignity at all times and in all settings.
In making my second point, I declare that I am a vice-president of the Local Government Association. There is a danger that Parliament—I use that term rather than “Government”, because we all have a responsibility in this—sees this Bill as an opportunity to make bold statements of good intent and then immediately to pass on the responsibility for achieving them to local government, with insufficient thought being given to the consequences.
Local government rightly has a key role to play in this, but we all know that it is bearing the brunt of budget cuts, and it would be irresponsible of us not to take account of the pressures facing local authorities as we debate the Bill. Others have already reminded this House of the reductions that local authorities are making: £2.68 billion in the last three years to social care funding, and another £800 million in 2013-14. Like many others, I can see no way in which the ambitions of the Bill can be achieved without some additional funding sooner rather than later. At the very least, in our discussions and in our debates we should carefully make explicit and take account of the practical implications of every clause and every proposal, so that we do not just make bold statements of intent.
My third point is that there is a danger that in making these proposals the Government do not examine closely enough how their own practice and their own behaviour can make it more difficult for all those on the front line to deliver the kind of integrated service we all want to see. It would be quite wrong for the Government merely to encourage others to go away and integrate without looking carefully at their own practice and their own behaviour. The King’s Fund—I am a member of its advisory board—says that in feedback from its work with local health and social care leaders, one reason for the lack of progress in developing integrated care is that some aspects of current policy, practice and regulation are acting as serious barriers to progress. The Government need to look at how Whitehall departments can be made to work together more effectively. They need to look at the impact that silo-based budgets, targets and regulation systems have on good practice on the ground, and they need to look at some of the big strategic issues, such as the interface between the NHS Commissioning Board and clinical commissioning groups. This needs to be addressed afresh.
At the moment, a great many good things are happening out there, but very often you are told, as we were recently in the Select Committee in this House, that they happen in spite of Whitehall and in spite of Westminster, not because of them. Maybe Clause 3 should refer again not just to local authorities exercising their functions with a view to ensuring integration but to Government. Let us not forget housing providers. Why do we feel comfortable imposing statutory responsibilities to co-operate on everyone except central government departments?
My fourth point relates to the importance of information and advice, and to the need for this to be properly independent from providers’ interest. Clause 4 refers to the need for financial advice to be independent, but we need to ensure that individuals are not vulnerable to other advice that might disadvantage them but benefit providers. Clearly, the Government have set their face, for the moment at least, against a legal right to advocacy, while acknowledging in the Explanatory Notes that advocacy might be necessary in some circumstances. I wonder whether this issue would benefit from one further look. Is it really not possible for us to come up with some affordable advocacy support for people who are, as I said earlier, facing such difficult decisions?
Finally, I would like to see us making greater efforts to make care and support provision more inclusive. At the moment, care homes, to take one example, sometimes stand apart from their communities, and too often communities seem content for that to happen. Such a situation would be completely unthinkable with schools. As a result, opportunities to improve residents’ quality of life are missed, and crucial opportunities to identify unacceptable practice are missed too. We cannot expect infrequent CQC inspections to be the only way to spot poor care, and I believe that David Behan, the chief executive of the CQC, agrees. More frequent visits from volunteers could make a big difference. It is quite clear that relatives of residents are often reluctant to complain, because justly or not they fear that this would be held against their loved ones. We need stronger external involvement, and we could help to achieve it by adding a duty in Clause 1(3) to take steps to ensure that care and support facilities are open, transparent and accessible to local communities. It is already good practice and we can see it happening in the best care and support facilities, but it needs to be uniform.
This Bill could be a defining moment in the history of care in this country. Care is an issue that should in large part rise above party politics. I look forward to this House doing what it does best: playing a key part in achieving the best possible legislative outcome, but ensuring most of all that those in need of care are treated fairly, and always with the greatest dignity and respect.
Baroness Donaghy
My Lords, I welcome the introduction of the Care Bill. There are areas which I hope to see strengthened, but it represents a basic framework on which future generations should be able to build. My concern is how we make the words a reality. It is not the first time that this has been mentioned in debates. Will future funding restraints prevent any real improvements? How can we ensure the essential co-ordination between hospital care and home or residential care? My final concern is around the capacity and welfare of our workforce in health and social care and in local authorities. To make the words a reality the Care Bill must, in the words of Age UK,
“make a tangible difference to the lives of people with care and support needs who are currently effectively ignored by the system”.
The Bill contains measures to ensure a single national eligibility threshold for care services, but if, as the noble Lord, Lord Rix, has already mentioned, the regulations set the minimum level at “substantial” rather than “moderate”, it would affect 100,000 people and would render a national system meaningless. Age UK asks for the Bill to be strengthened in a number of ways, for instance by linking eligibility for social care to the achievement of outcomes based on the individual’s well-being, as defined in the Bill. The requirements on local authorities to plan to meet the diverse needs of their populations and to promote quality and choice could be strengthened by requiring service commissioners to monitor and take action where necessary. Clause 8, describing the kinds of support which local authorities must offer, should include issues such as transport.
Finally, on turning words into deeds, good quality information and advice is needed. The most stressful thing for any family caring for the frail elderly is finding their way through the maze, feeling unsupported and fearful that they are not accessing the best possible services for their loved one. Website information is welcome, but some people need more intensive help. The clause on advocacy has already been mentioned. It should be strengthened, perhaps by creating a positive duty on local authorities to ensure that someone has the help and advice they need.
Secondly, despite not being written in the scope of this Bill, future funding is critical for its success. As many of us have said in this and previous debates, there have been real-terms cuts to social care funding: 7.7% in 2011-12 and 6.8% in 2012-13. The rising levels of unmet need are such that 800,000 people who need care now are not receiving it. The Nuffield Trust calculates that,
“there would be a funding gap of between £7 and £9 billion by 2021/22 if funding were held constant in real terms”.
It adds:
“These funding pressures would rise to between five and six per cent a year if the recommendations of the Commission on Funding of Care and Support were implemented, resulting in a total funding gap of £10 to £12 billion by 2021/22”.
This gap will have to be faced by the next elected Government and will probably be met only by a combination of productivity savings, managing chronic conditions, holding down pay and taking a larger share of public funding. The social care funding gap is likely to be between 3% and 6% a year, depending on trends in chronic conditions, and Dilnot costs of course. The Nuffield Trust concludes that:
“The NHS in England may face continued austerity measures into the early 2020s”,
which is something of an understatement.
The Local Government Association supports the intentions behind the Bill but has pointed out that,
“the government’s austerity programme … does not fit well with the aspirations of the Bill”.
Policy decisions and financial decisions have become detached. The point about underfunding has also been made by the Care & Support Alliance and Age UK.
The need to co-ordinate health and social care is going to become even more desperate. In its response to the Francis public inquiry report, the Nuffield Trust states:
“The reality is that more and more trusts will be treating large numbers of sicker, older adults in an atmosphere of pay restraint and frozen budgets”,
and recommends that,
“the highest priority for initial development of fundamental standards be given to care of the frail older people on acute wards … and that this priority should shape any new requirements for data collection in NHS trusts set by the NHS Commissioning Board or the Care Quality Commission”.
The NHS is already creaking under the weight of our failure to solve the social care crisis. When I was a carer, I fought tooth and nail for my mother to be allowed to stay in hospital until her health improved rather than be sent back to the care home where she spent the last 18 months of her life—not that her care was good in hospital; it was a choice between bad and worse. I understand the dilemma of families who want to do the best for their elderly relatives. Perhaps we need more halfway house temporary accommodation, jointly funded by the NHS and local authorities or charities, to relieve the undoubted pressure on hospital beds. If care standards in residential homes were better, that would relieve pressure on hospital beds.
The changes proposed in the Bill will put enormous pressure on staff in the health service, social care and local authorities generally. The Joint Committee on the draft care and support Bill has already raised the issue of initial and ongoing training and support needed for local authority staff and social workers. Others have dealt with the certification of care workers. Long shifts and low pay are a real problem in residential homes and often determine the quality and commitment of staff. With all these new responsibilities being piled upon staff by this Bill, we should not forget our responsibility to meet their capacity and welfare needs. Also, the statutory requirement for candour may not sit easily with a more market-oriented approach to health and social care. This would also place a tremendous burden on some staff.
Finally, I have not referred to the “Dilnot-lite” elements of the Bill. Of course it is disappointing that the Dilnot figure was not accepted. The proposed figure will benefit very few people, particularly with the additional £12,000 a year overhead costs, but it is a start and having a framework is very important.
The timetable for the Mesothelioma Bill clashes with the Committee stage of this Bill, so I will not be able to be present for the early stages, but looking around I feel sure that all angles will be well covered by noble Lords on all sides of the House.
Lord Sharkey
My Lords, it is a pleasure to follow the noble Baroness, Lady Donaghy. Like her, I very much welcome this Bill. It is a very good Bill and the Government are to be congratulated on bringing it forward, on responding constructively to the recommendations and observations in the Joint Committee’s excellent report on the draft Bill, and on incorporating the essence of the Dilnot report into the Bill. When it becomes law, the Bill will have the effect, among other things, of introducing certainty, stability and consistency into the provision of care. It will also create the conditions in which financial institutions can begin to write policies that will directly help in the pooling of risk, which is not the case at the moment.
The Bill deals with a very complicated subject and seeks to make fundamental changes to the current arrangements. Many of the critical components of this reform of the care system are to be left to secondary legislation and guidance. Although it is clear that many details will need to be and should be left to secondary legislation and guidance, I think that the Bill would benefit by addressing some of the key issues more directly in primary legislation.
The recent toing and froing over Section 75 of the NHS Act illustrates the point. There are some things to which the answer is not yes or no. There are things that the House may very well want to debate in a way that produces amendment. I suggest that the size of the various caps critical to this Bill are such things and would be better debated amendably than on a yes or no basis.
Dilnot noted in his report that setting the cap above £50,000,
“would not meet our criteria of fairness or sustainability”.
The proposed cap of £72,000 is greater than Dilnot’s £50,000, even allowing for inflation. I suspect that many Members will want a vigorous debate in Committee on where the trade-off between reach and affordability should lie. The same goes for the definition of eligibility in Clause 13, and for Clause 34(1), which will by regulation set out when an authority may agree to defer payment. All these things may be better discussed in the more flexible environment of primary legislation.
I will now comment on four more specific areas of the Bill. The first is communications, which is dealt with in Clause 4. The Dilnot report, which for me is a model of absolute clarity, has 10 recommendations. Two of these are about communications because Dilnot clearly views that issue as central to the success of the entire scheme. Recommendation 7 says:
“To encourage people to plan ahead for their later life we recommend that the Government invest in an awareness campaign”.
This is proactive and prospective information. Recommendation 8 says:
“The Government should develop a major new information and advice strategy to help when care needs arise”.
This is reactive and responsive information. The Bill addresses the second recommendation and not, I think, the first.
Clause 4 specifies in some detail what information must be provided by local authorities but it seems to be aimed, as Dilnot puts it, at situations “when care needs arise”. It does not seem to deal with Dilnot’s Recommendation 7, which asks for more general, wider and very much earlier awareness campaigns. Dilnot seems to be asking for a heavyweight, national publicity campaign aimed at the general population before need arises.
Furthermore, the Bill contains no provisions for defining the test for sufficiency in “sufficient” information as stipulated in Clause 4(3). It does not seem to include the requirement to provide information, for example, about how to appeal against a judgment of ineligibility. I assume that there is such a right of appeal, and a simple and quick mechanism for handling such appeals in the first instance, even though I could not spot it in the Bill.
There also appears to be no requirement in the Bill for local authorities to have a mechanism for measuring and reporting their success in providing information or the success of that information in achieving its objectives. I should be very interested in the Minister’s comments on general early-awareness campaigns; on the need to measure success in providing what the Bill calls sufficient information; and on the existence of an appeal mechanism at first instance.
The second area I wanted to speak about is eligibility. I have already said that I think that the criteria for eligibility should have been available before this debate. I also worry about a Section 75 problem in dealing with the criteria and secondary legislation. In particular, I wonder how local authorities are to be able to take a properly comprehensive view of who might be eligible. The Bill states in Clause 9:
“Where it appears to a local authority that an adult may have needs for care and support”,
and so on. That strikes me as a very passive and rather weak obligation. It does not specify any duty to be properly aware of such adults, merely to act if it appears to the authority that an adult may have such needs. We may need firmer language here. The Bill would surely benefit from obliging local authorities to take appropriate and proportionate steps to make sure that they are reasonably likely to know when an adult is in need of care and support.
The Bill is also silent on the time that a local authority may take between becoming aware that an adult may be in need, making an assessment, determining eligibility and providing the service. It is clear that we need national standards of service here. I assume that requirements will be written into guidance, but I would welcome the Minister’s assurance on that.
The third area that I want to address is the question of direct payments. The Joint Committee was quite right to propose that we should not be too restrictive about the use of direct payments, and I was glad that the Government agreed to that in their response and to see no unreasonable restrictions in the Bill. However, the problem is likely not to be abuse but accidental mismanagement and complications arising from it. It seems highly likely that some who ask for and are allowed direct payment may find the subsequent commissioning and managing of the services that they need stressful, complex and burdensome. It may be a very good idea if the local authorities have an obligation to provide friendly oversight of and help with the management of direct payment services, at least in the first months of their existence. It would be a great pity if the valuable ability of people to specify and obtain what they need was allowed to suffer from bureaucratic, management or legal difficulties due to inexperience, misunderstanding or contractual unsuitability.
The fourth and final area on which I should like to touch briefly is funding. As many other noble Lords have said, to make all that work, the funding needs to be sufficient. In particular, the Dilnot cap needs to be set at the optimum level to balance reach and affordability. We will want to examine the assertions made in the impact assessment carefully in Committee. I hope that the impact assessment’s calculations turn out to be accurate on examination and when we are in possession of all the details to be contained in secondary legislation.
I note, for example, that the Joint Committee states in Recommendation 5:
“The introduction of a capped cost scheme, which will result in many more people being assessed and entitled to a personal budget, is likely to lead to an increase in disputes and legal challenges. We are not confident that Ministers have yet fully thought through the implications for local authorities of these changes”.
Rather worryingly, there does not seem to be any financial provision for that in the impact assessment.
I end by repeating what I said at the beginning. Notwithstanding my four areas of concern and my feeling that the balance here between primary and secondary legislation is not quite right, I believe that this is a very good Bill. I believe that, with proper funding, it will lead to a clear and genuine improvement in the provision of care, and I congratulate the Government on introducing it.
Baroness Greengross
My Lords, I add my name to the list of noble Lords who have expressed the view that the Bill is very welcome indeed. I was privileged to serve on the scrutiny committee considering the Bill. Integrating—or at least having co-operation between—services that are so differently organised at the moment is extremely difficult to succeed in, but essential if we are to get it right. We are talking about an extremely vulnerable group in our society. In fact, there is more than one group. There is a huge number of frail, older people and a very large number of disabled people of all ages. It is not fair or worthy of our society to think that people can shop around for the services that they need. It is impossible, we know that. They must be integrated.
I have a very simplistic view on this. I know that it is difficult to bring a paid-for service and a service that is free at the point of delivery together, but if the money is ring-fenced and put in the hands of either the clinical commissioning group or the health and well-being board, where they are mandated to mix up the money and use it in a co-ordinated way, I cannot understand why that would not work. As I said, that is my simplistic way of looking at this.
Everyone has echoed the fact that we need more money to make this succeed. We do, but Andrew Dilnot and his colleagues demonstrated clearly that the amount of money needed to make this succeed is a minute proportion of what we spend in the National Health Service, primarily on acute services, and that if we integrate those services we can achieve a great deal. We do not always measure the savings that we will make on acute NHS services, as a proportion of NHS costs, by getting this right. Those are not, generally speaking, the right services to deal with the people involved. People often need to go into hospital for short periods but much of what they need can, and much more could, be provided in the community.
I have previously spoken with the noble Earl about the innovation that is necessary, including step-down facilities for people who do not need to be in acute hospitals, like the Scandinavian model of patient hotels. That would not be privatisation, as they would be NHS-funded contracted services which provide private accommodation and family care—opportunities for care rather than healthcare—with access to medical specialists as and when necessary. All sorts of such experimental schemes can be introduced if we mix the money. I think that that is the priority.
We need to get rid of the terrible situation at the moment where people are waiting in their own homes for the care that they need. I know about this because I was the lead commissioner for domiciliary care for older people not very long ago. If people who need services are at home, a care worker comes to you who cannot count the time that it takes to get there but then has to get you up, clean you up, clean up your room, dress you, make you a meal, talk to you and help you eat your meal within 15 minutes. That is, physically and mentally, totally impossible. It is an insult and an impossibility. We cannot go on doing that to vulnerable people, so we must somehow put our resources together and get this right. It is a disgrace at the moment and of course, when it does not work, we need advocacy services. I agree with the noble Lord—forgive me, but I think that it was the noble Lord, Lord Bichard—who was talking about the role of care homes. Another step-down facility can be the care home, if the care home of the future can be more of a local hub.
I would like to see that my mum gets to know the care home provider, goes there for French classes, local history lessons or art—and for the odd weekend if daughter is going away—and that, knowing it, she goes there for a holiday and then moves in. That is not dumping mum; it is mum going to a place that she already knows well. The care homes of the future must be a resource for the local community and linked to all the other services. They must be part of the step-down procedures, from acute hospitals to caring for the sort of vulnerable people who we are talking about.
In the Bill, there is the possibility of making this happen but we must get some things clarified. What are the duties of a local authority in promoting well-being, for example? It is not absolutely clear. We must be certain that there is enough care and support provision in every local area. In terms of well-being, we need to make sure that the Prime Minister’s challenge on dementia, which is due soon, will outline how much progress is being made on making the quality of care as important as the quality of treatment. When we talk about the growing challenge of dementia, it is not always about treatment but about care. The prevalence of dementia makes that essential. The other point that we might bring in is that much of dementia care should come under public health because it is about prevention, well-being, design and preventive care. If we can bring public health professionals, who are now very important at a local level, into this group of providers then we stand a chance of getting this right.
I also support the noble Lord, Lord Bichard, in making the point that end-of-life care is important and that we must make sure that people who are approaching their last days do not have to pay for the care that they need. These definitions of what health and social care are should disappear at that point. We are talking about services to dying people. After all the years that I have worked in the field of aging and with older people I know that the loss of dignity and respect, and going into an inappropriate hospital setting, are what people fear most as their life draws to a close.
I agree with everybody who said that moderate care must be part of the equation. If I was a director of adult social services, I would have to concentrate on those in the greatest need. We are so limited as regards the number of people who can obtain services at all. If we could only include moderate services, we might have a chance of preventive types of care being part of our envisaged service provision.
We must also do something about self-funders subsidising the funders who get their total funding paid for by the local authority. In terms of inflating the cap and the personal care account, although annual wage inflation appears to be the chosen index some sort of acknowledgement must be made of the actual cost of care. I assume that the practice of self-funders paying more than local authority-funded people, often for the same accommodation in a residential or other type of care home—subsidising the latter, in other words—will be clarified or should cease. Otherwise, self-funders are going to reach the cap far in advance of other residents. This is not only unfair but might well be challenged as not being legal, being a form of taxation which is not publicly accountable.
When elderly people who are frail go into hospital, their discharge procedure must be verified and known about as part of the admission process. I think we made this clear in the scrutiny committee. We get these terrible stories now of very frail people being discharged from hospital with no proper plan. We know, because we have heard about this recently, about the horrible wait that people have to leave hospital. We must make sure that advice relating to care and support includes information about how to access relevant independent financial advice. This should bring in the members of SOLLA; the noble Lord who spoke about that was in an authoritative position to do so.
Some new schemes are coming forward from one or two think tanks, including one with which I am associated, which are looking at more affordable savings products that might appeal to people of modest means. I hope that for people not normally able to pay for an insurance scheme, these products would help encourage the insurance companies to come in and provide the sort of long-term schemes that are needed to make this care system work properly. Unfortunately, they really do not exist in this country at the moment, but with the catastrophic costs being taken on board by the state it should be possible before too long to interest the insurance industry in being part of paying for care for older people in the future.
This Bill has been awaited for a very long time. We need to make sure that other things that we have learnt, such as human rights protection, are not left out of the Bill as it proceeds through Parliament. We know that there are some serious problems in ensuring that human rights protection will follow people, however their care is provided. I hope that we can work on that in Committee to make sure that it is clarified and that it is simple to access human rights protection. Whoever the provider of care might be, frail and vulnerable people, who are usually very old, need that protection. We have seen too many instances of human rights being abused and quite dreadfully breached. This Bill is so important, as long as it guarantees that those sorts of abuses will not happen in the future.
Lord Warner
My Lords, let me say at the outset how much I welcome this Bill and in doing so I pay tribute to the contributions made to its construction and arrival in this House by Paul Burstow and Norman Lamb. I should also declare my interests, as a member of the Dilnot commission and as a member of the Joint Select Committee on the draft Care and Support Bill. I emphasise that it produced a unanimous cross-party report with more than 100 recommendations for improvements, mainly in relation to Part 1 of the Bill. The evidence given to the Select Committee showed strong stakeholder support for the Bill, but there were important proposals for further improvements that we reflected in our recommendations.
At this stage I shall not comment on the Dilnot recommendations, other than to distance myself slightly from the remarks of my noble friend Lord Lipsey and to associate myself with the excellent remarks made by the noble Lord, Lord Sharkey. I will come in a moment to some of those Joint Committee recommendations that were not accepted by the Government. First, I would like to ask the Minister about the Bill’s silence on the key area of public health to which the noble Baroness, Lady Greengross, referred.
We know that the NHS’s core business is the management of 17 million people with long-term chronic conditions, many of which have been largely caused by—if I may put it this way—lifestyle decision-making. We know that nudging on its own does not really cut the mustard with issues around smoking, alcohol consumption and poor diet and that legislation may be needed. It was disappointing to many people outside this House—certainly, I have had a lot of approaches about this—that the Government did not use this Bill to bring forward the standardised packaging of cigarettes, the minimum pricing of alcohol and some kind of simplified system of food labelling. They have failed to do so. Will the Minister tell us a bit more about the Government’s plans for introducing legislation in these three areas? If it is not to be this Bill, when will we see legislation tackling these issues, on which there is a very large measure of public support for something to be done?
I now turn to some areas in Part 1 that require fuller scrutiny in Committee and probably amendment. The principle in Clause 1 of promoting well-being has been warmly and widely welcomed, as the noble and learned Lord, Lord Mackay, mentioned earlier. The Joint Select Committee considered that this principle should be applied to Ministers when exercising their responsibilities under the Bill. Ministers in oral evidence seemed slightly sympathetic to this idea, but when they got back to Richmond House they seem to have gone cold on it and rejected the Joint Select Committee’s recommendations. I will be interested if the Minister can produce more convincing arguments than I have heard so far on why the Joint Select Committee’s recommendation was rejected. If we are not convinced by the arguments of the Minister and his colleagues, I hope that some of my colleagues on the Joint Select Committee will join me in prodding the Government a little further with an amendment to see what they are made of.
I shall flag up briefly for the Minister some other areas in Part 1 where I am minded to put down amendments. On integration, I think the response to some of the Committee’s recommendations suggests that the Government are a bit happier talking the talk rather than walking the walk with practical ideas such as—dare I suggest it?— pooled budgets, joint commissioning, joint provisioning and a number of others. Like the noble and learned Lord, Lord Mackay, I still think that implementing the Bill’s changes effectively over time requires a statutory code of practice, and I would favour an amendment to achieve that. As noble Lords have said, the Bill needs strengthening on young carers, advocacy and human rights protection for those in private care homes. We have been over that latter ground a number of times in this House, and it is time to deal with this once and for all. I do not think the outside world is convinced by the Government’s position on this or, indeed, by the previous Government’s position on it. We need some careful drafting that gives proper protection to those in care homes who are paying their own way. It is not good enough to leave things as they are.
Let me flag up some issues around whether there will be a credible way of dealing with what is likely to be a considerable number of disputes over this legislation. The noble Lord, Lord Sharkey, mentioned this. There will be two types of dispute: disputes between service users and the local authority, and disputes between the local authority and service providers. We could leave things as they are, but if we really want a lot of judicial reviews and to clog up the courts, that is the right way to go about it. We need to hear a bit more from the Government about their further thinking on some tribunal-type way of dealing with these disputes without relying on the courts.
I am genuinely puzzled by the Bill’s drafting on the boundary between the NHS and social care, as is the noble and learned Lord, Lord Mackay. I am still unclear whether the boundary has been changed. I would very much like to hear the Minister’s response to the view of the noble and learned Lord, Lord Mackay, given the attention he has given to this issue in the Joint Select Committee and outside it.
The issue in Part 1 that is of greatest concern to most people is Clause 13 on eligibility criteria, as a number of noble Lords have said. They are to be dealt with by regulations and, as I understand it, drafts will not be published before the spending review announcement scheduled for late June. The Government have promised to establish a minimum national threshold of service need to be met under these criteria. It is still a bit unclear to me where in the Bill we find that. Will the Minister explain how this will be done?
More widely on Clause 13 there are widespread concerns that this threshold will be set too low to ensure that enough effort is put into preventive help to protect independence and preserve well-being. I think consideration will have to be given in Committee to placing in the Bill a stronger framework of requirements on eligibility criteria rather than leaving so much to ministerial discretion within regulations. I certainly feel a set of amendments coming upon me on this issue, and I welcome any contributions on this issue—the more, the merrier.
There are some other issues I want to raise on Part 1, such as including social care savings in auto-enrolment schemes for pensions, the right to die at home and free social care at end of life for patients suffering from cancer. However, the last point I wish to raise today on Part 1 is one that a number of other noble Lords have raised: funding for social care. The Dilnot commission’s report made it crystal clear that its proposals would not solve the existing shortfall in social care funding. I do not wish to trade figures today with the Minister on this issue, but what is beyond doubt is that there is a major funding shortfall relative to need. It is fair to say that historically under successive Governments social care has been less generously funded than the NHS, and promising a brave new future under this Bill without adequate funding for implementing the new system would be a cruel deception to inflict on many vulnerable people. More immediately, the funding crisis in social care is having a major impact on the NHS in terms of the major flow of people into A&E departments, especially at night, and the lengthening of hospital stays as discharge packages cannot be funded.
Social care has never had a review of its funding like the review that the late Derek Wanless carried out for the previous Government on the NHS. We should consider bringing forward an amendment to the Bill to provide for an independent review of the funding required for adult social care. I would like the Government to be willing to contemplate asking the Office for Budget Responsibility to conduct such a review, and I would like to be in a position to put down an amendment so that we can debate this issue fully during the passage of the Bill. I know that the King’s Fund will be undertaking a further review of social care funding, but Derek Wanless did one for it on this some time ago. It simply does not have the clout and authority that an organisation such as the Office for Budget Responsibility has.
There are a few issues on Part 2 that I will wish to raise. I shall not dwell on them for very long today, but I want to mention to the Minister some of the issues around Clauses 76 and 77, which are concerned with trust failure. As I understand these clauses, they relate to foundation trusts only, but the trusts with the possibility and risk of failure are those within the remit of the NHS Trust Development Authority. They are the trusts with the longer-standing financial problems and, by association, they present the greater risks to quality for patients. Indeed, the TDA’s mandate, in a ministerial letter of 7 May, says that the TDA is expected to “make a significant contribution to improving quality of care”. Can the Minister explain to us why the TDA trusts are not covered by the Bill when they appear to have a less robust approach to failure than Monitor? Does this not put patients in these trusts more at risk than those in foundation trusts?
Lord Sutherland of Houndwood
My Lords, it is, of course, a pleasure to follow my colleague, the noble Lord, Lord Warner, whose experience contributed so much to the outcome of the Dilnot review, and who has regularly drawn the attention of this House to the importance of its conclusions. I also thank the noble Baroness, Lady Barker, for her kind remarks. Suffice it to say that I remain one of the usual suspects and will continue in that gang for the foreseeable future.
The context of this Bill has a history. The post-war creation of the modern welfare state as we know it was momentous, and many of us have benefited from that for most of our lives. The two Bs, Beveridge and Bevan, gave us two structures. The first is the National Health Service, which in principle offers healthcare free at the point of delivery, and the second offers other benefits that cannot be defined as healthcare, including care services deemed to fall outside healthcare. These are not free at point of delivery but are subject to two constraints. The first is means-testing and the second is that responsibility for delivering these benefits lies currently with local authorities, and so is not currently in national service as is the National Health Service. This Bill goes some way, but not the whole way, towards changing that situation, and I will come back to that. It contributes to a redefining, but I agree with the noble Lord, Lord Warner, that the role and the difference between healthcare and social care still remains unclear.
The second and last relevant point of difference from when the national services—the health service and the local authority care service—were set up is the growing demographic change in our country and in every country. Demographic shifts have created a completely new situation which, whether we like it or not, will have an impact on how and where we spend money. We simply live in a different world. For 50 years, we got away with trimming at the edges, changing bits here and there in relation to health and social care spending. That can no longer be the case. It is clear, at last, that something must be done. This Bill does something, and it is very welcome. That is the strength of the Bill. However, it is, at best, a good start, for many of the reasons that have been given already. Its strength is that a peg has now been put in the ground, and there is a commitment to having a national strategy and policy that we have simply avoided because of the huge fissure that runs between health services and social care services. That is part of the world in which we live and it has very significant consequences.
The fundamental recommendation of the Dilnot report, that a cap be put on the cost of care for any individual, has been accepted. All credit is due, for this is at last an acceptance by the Government, including, therefore, the Treasury, that the risks involved in the frailties of old age, like those involved in cancer, stroke and diabetes, should be shared across the whole community. I hope that that principle has been established in the Bill before us.
Of course, the fears of the Treasury, which are always there, are already being realised. Inevitably, a chorus of voices points out that there is less to this than meets the eye. The Bill does not commit the resources that we all know are necessary if you are to duplicate the quality in social care services that we have in the National Health Service. As we have heard, Dilnot’s proposal included the possibility that a cap might be as low as £25,000. In the event, it is eventually £72,000, with the possibility of deferred payment. Again, as we have heard from the noble Lord, Lord Bichard, local authorities are vigorously pointing out that there is already a shortfall in funds made available before account is taken of this new proposal. They estimate that the current round of cuts to the adult care budget amounts to £2.68 billion—or 20% of previous provision—and that is before the provisions of this Act are dealt with. At the same time, as has also been mentioned, care home owners often subsidise local authority-sponsored residents from the charges made to those who are self-financing. That cannot be right. There should be a single charge, and a single cost that applies to everyone. However, the rich—or the moderately rich—are subsidising others. That is the position in which they have been put.
Of course, we all know that we are now in the worst financial crisis in living memory. Account has to be taken of that—and I put it to you that account has already been taken of it. What that does—and the noble and learned Lord, Lord MacKay of Clashfern, made this point very fairly—is to raise expectations, in the way in which this Bill is being canvassed, which will come home to roost. People who have legitimate hopes that their old age will be comparatively secure will be disappointed.
Equally important in the Bill is an implicit bet—and that is the best of it, as far as I can see—that the principle of a cap on care costs will stimulate a strong insurance market to cover pre-cap and possibly post-cap costs. We shall see, but there is no guarantee about that. Of course, conversations have been held, but my previous experience on the royal commission was that those providing insurance products were not interested. We shall see if a cap makes all the difference. Let us hope that it does.
The Government, while being commended on a good start, or indeed on facing up to demographic change, must accept, however, that as we stabilise our economy—and the expectation and hope is that we will do that—a reordering of priorities will be the only rational response to the empirical realities of the huge demographic change. We must accept, as a Government and as a Parliament, that these priorities will have to be looked at. The world out there is different. The facts and the shape of the population are different. If there is no more money, priorities have to move around a bit. That is the reality, or we will be having desperate scenes in the houses, streets and care homes of our country.
One change which cannot and should not wait until then is the need to ensure that the huge sums already being spent on care, social care and even more so on healthcare—the noble Baroness, Lady Greengross, referred to this—are spent in the most efficient and effective way, and to maximum standards of the quality of care.
In two successive parliamentary Sessions we have had two relevant major Bills. The first, now an Act, was, despite its Title, almost wholly concerned with healthcare. It is called the Health and Social Care Act but there is not much social care in it. This second Bill, as its Title says, has to do with care. However, there is the rub. Why were these two not one Act? There is a legal, financial, and administrative fissure in our society that runs through our attitude to the provision of care. We simply cannot continue like this. It is at government and at professional level. Doctors and social workers are the best of friends in the pub, but you should hear them when they talk about each other when it comes to money. There is a fissure there.
On the royal commission, we reran the hoary old joke about the difference between a health bath and a social bath. You had to divide them up in those days to decide which fund provided the money to provide the bath. Both the commission and the Dilnot report firmly made it plain that bringing together health and social care provision and, ultimately, budgets, is essential if we are to maximise value for money in this massive and increasing spend—and it will not go down.
There are some good pilots taking place. I would find it very helpful if the Minister could tell us what the outcome of the pilots would be. What process is there for taking account of the evidence of what they provide in terms of shared facilities, budgets and provision? The message is very clear: combining budgets provides better administration, improves the effectiveness of spend and, importantly, has a huge potential vastly to improve the quality of care.
I would like quickly and briefly to make two points that have come up in the debate about the assessment and evaluation of what is going on. The first is that there is provision, rightly, to deal with what I can refer to only as the Southern Cross problem. We cannot have major providers going bust on us. That is right—but I wonder whether it is right to ask the Care Quality Commission, whose expertise is in a wholly different field, to take responsibility for this. Is there not even a group within the department of health economists, or economists, who know about running big businesses—they are essentially property businesses—and can give a proper health reading? Those responsible for assessing the quality of care are not those people. Yes, they will employ others. But if it is to be a kingdom within a kingdom, why not charge reasonably well paid civil servants with doing that?
Lastly, although it is not mentioned in the Bill, the Minister made mention of a new inspector. I simply ask whether we can have some information about the context in which such an inspectorate will work. It is canvassed as being like Ofsted, which is of course a great reassurance to those of us who were involved in setting up that body. However, it does not seem at all like Ofsted. Does this new inspectorate have a statutory basis? Is it independent of Ministers? We have had a row within recent weeks about who can close down a unit within a hospital—for example, for the heart surgery of children. Where are the lines of accountability? What is the new inspector responsible for? The chief inspector of schools is accountable to Parliament, not to Ministers. That gives it an independence and certainty about being taken seriously that will not necessarily be the case for an inspector within the employ of the department. So there is a lot of room for clarifying the provision there, but I am sure that we will come back to that in Committee.
Baroness Uddin
My Lords, I come to this debate from the perspective of a professional in the social care sector, as well as with experience as a local authority councillor and, not least, as a carer for over 30 years. I agree that we are at a crossroads for our social care system. In my contribution, I shall draw on the evidence presented to us in the Joint Committee inquiry on the Promoting Independence, Preventing Crisis report, which was ably led by the all-party parliamentary groups on local government and disability. I take this opportunity to salute the work of my noble friend Lady Campbell, Anne McGuire, Heather Wheeler, and the noble Baroness, Lady Wilkins.
Much emphasis has rightly been put on the demands of our growing ageing population, and it is right that we do so, as is the fact that one in three of those who use our care services are disabled people of working age. I would like to focus on that aspect, and I make no apologies for unreservedly quoting some aspects of the inquiry, which I commend to the House.
For too long, Governments have used a sticking plaster approach and incremental improvements in dealing with adult social care, resulting in systems that are bewildering for the recipient and unwieldy for authorities to administer. So I, too, welcome the principle of adult social care reform. The Joint Committee inquiry took evidence from a long list of expert witnesses representing all sectors, all the major disability organisations and those involved in statutory provisions, as well as local authorities and academia. There was undeniable consensus, and a call for disabled people to be at the heart of social care policy reform as well as making decisions in their care. In doing so, we must not see them as passive recipients, but must uphold their human rights under the UN convention to which the United Kingdom is signatory, and embrace the fundamental principles of independence.
There are pervasive concerns that much of our provisions fall significantly short of providing dignity and choice, thus hampering independent living. Of course, the funding shortage is a reality, but we cannot allow those who may be voiceless to be sidestepped at the behest of what may be regarded as best value by locally set criteria. The evidence received by our Joint Committee points to local authorities struggling to achieve the best outcomes, resulting in raising their eligibility threshold for care provision. Many instances have been cited, implying that current eligibility criteria have led to many thousands of disabled individuals falling out of the care system altogether.
The statistics are astonishing. The Audit Commission on social care in England found with the fair access to care system in 2005 that 50% of 152 local authorities in England provide services to those with moderate needs and above but, by 2012, 84% were only providing services at the higher threshold of substantial need, with three councils now providing social care to people who fall into all four eligibility bands and only 24 councils providing care to those with moderate needs and above. The Care Bill will fail to improve the social care system for disabled people if eligibility is set so high that those in need will not receive even the basic help such as washing, dressing or getting out of the house. These changes, challenges and differences in eligibility are bound to lead to more disabled people left ineligible for care and support, contrary to the Minister’s claim that the Bill will provide compassionate and consistent care to those who need it.
The inquiry committee hopes that the Government will consider more uniformity in setting thresholds for eligibility right across the country, ensuring that the 2013 spending review will give due regard to adequate resources being made available so that the needs of disabled people are not compromised. I was surprised to hear the Minister say that legislation will not impact on the funding available. How can provision be efficiently provided, as he suggests, when the system is already stretched to its limits? Disabled people deserve to have confidence in any new care and support system, and I hope that we will be able to rectify some of these anomalies.
There is a significant body of opinion calling for prioritising the design of a new framework of eligibility, which should actively engage core stakeholders, addressing gaps highlighted already in the House today. The joint inquiry report suggests that the current fair access to care services criteria should be replaced by a system that is more objective and coherent and implemented across the country, where resource allocation is transparent and enables the disabled person and their carers to take part in the decision-making process. Worryingly, the evidence that we took suggests that there is little cohesion within various partners of care providers. This will stretch the ambition of the seamless services that the Care Bill envisages. Personalisation appears not to break down the barriers between care, housing, transport, leisure and community involvement, particularly when any person moves from one area to another. Therefore, I welcome the commitment in the Bill that continuity of care packages will not be interrupted by any move to another local authority or area. I would like to ask what mechanism will be in place to ensure a smooth transition if that happens, and whose lead responsibility it will be to manage the transition. I suppose that I am asking who will manage the “Oklahoma!” moment and who will provide the leadership.
This Care Bill is happening alongside the Government reassessing all those working-age disabled adults receiving disability living allowance and transferring recipients on to the personal independence payment. The House has voiced significant concerns to the Government, which were augmented last week by the whistleblower giving an insight to reports that individuals were not receiving even-handed services. The fact that supporting evidence given by applicants was not forwarded by the assessing company for assessors to use suggested a bias towards finding reasons to award points begrudgingly or not to award points, thereby affecting resource allocation. I have spoken to a number of carers and this is being seen by some as another cynical example of eligibility criteria being used to reset the goalposts for determining how much financial help people with disabilities require and ultimately receive.
A Member of this House recounted in a meeting last week the experience of being assessed. I hope that that respected individual will not mind my repeating what was said. The whole experience was said to have been so harrowing that the individual felt defeated by the very system which has the ambition of delivering dignity and choice through this Care Bill. I am deeply saddened that so little appears to have changed in the 30 years since I had a bitter experience with my son. Trying to access educational and social care was like asking for rain on Mars. In the end, we as a family were so defeated that we retreated into relying only on our own resources and ways and means.
I agree that reforms need to be made but they must and should be robust and intelligent in respectfully and professionally identifying genuinely deserving individuals, especially as regards those with disabilities which are difficult to understand and those with fluctuating conditions. Indeed, I have been made aware of the case of a disabled adult and her advocates who are trying to augment a personal budget. The person says that she felt bullied by a director of commissioning into accepting a package which represented best value for the authority but completely ignored her condition and needs and possibly violated her right to privacy and family life. If our society is to be judged by how we treat our weakest members, we have some distance to walk. I hope that we will be bold and ambitious enough to remember that social care must not simply be about basic survival but about supporting people to live independently. Independent living means disabled people of all ages having the same universal rights of freedom, choice, dignity and control as other citizens at home, at work, and in the community. It means having the right to obtain practical assistance and support to participate in society and live an ordinary life that others take for granted.
Your Lordships may not be surprised to learn that even in this context there is a distinct difference in the services provided to those from minority communities. It is a fact that 32% of all disabled people live in household poverty. Sadly, for minorities this figure jumps to 44% of disabled people living in household poverty. A report suggests that income for minority disabled people is 30% lower than for the general disabled population. The Equalities National Council and Scope in a report entitled Over-looked Communities, Over-due Change found that services are not fully inclusive for BME disabled people, who experience significant language and communication barriers, social isolation and stigma exacerbated by their lacking access to information and advice, including from well recognised NGOs. Many of the large NGOs operating within communities accepted that they had some way to go in addressing the needs of minority disabled people. In fact, a quarter of BME disabled people report difficulties receiving benefits and accessing independent living compared with 16% of others, indicating that additional unmet needs exist. Evidence on barriers to care shows that BME disabled people's conditions and impairments tend to escalate quickly to higher levels of need. I submit to the House that this is a costly process and that it is therefore even more important that the social care system provides effective coverage at lower care need equivalent to “moderate” within the current fair access to care needs system.
That is not all: meeting criteria and being eligible for support is not the end. An assessment determines the value of someone’s personal budget, and the resource allocation system ascribes a number of points to each eligible need which has been identified and, in referring to a table, sets out the financial value of each set of points, which then fleshes out the support plan to purchase and achieve identified independent living outcomes. Final decisions about the value of personal budgets are made by an anonymous panel of local authority social care professionals based on information provided by the disabled person, their social worker and the RAS calculation, often without ever having met the disabled person. The Sue Ryder report, The Forgotten Millions, highlights this point and found that a lack of uniformity among local authorities in allocating resources and calculating care packages for individuals is causing deep confusion and stress. A case was brought to my attention recently of a disabled adult who had all services stopped at 6 pm one evening. Apart from the legality of how and why this happened, an anonymous panel had turned down for the third time a request to increase travel by nine miles twice weekly, despite the social worker having great input from advocates on the matter. As the client had received an insufficient explanation from the social worker at 6 pm at night, she had to recall her father from business in London. He arrived at the social work offices the next day to petition the head of services as to why this had happened. Fortunately, services were immediately reinstated, with the family being offered a transfer from a direct service from the local authority to a personal budget.
Many carers claim that all these formal processes lack transparency regarding panels, their remit, obligations and decision-making. Disabled adults and their advocates are forbidden from having adequate details about the panel making the decisions. Surely transparency should be an obligation. If the objective is to provide care and support while maintaining the dignity of the individual, surely it is critical to have the individual or their representative present to ensure that their opinion is heard and valued as they are the experts on their own lives. The panel should have due regard to the contribution of disabled people in determining the nature of their care and support in any decisions that are made. Our report asks that the Government place resource allocation systems on a statutory footing through the Care and Support Bill and place new duties on councils to be transparent about these decisions. I welcome the move to put personal budgets on a statutory footing in Clause 25 of the Care and Support Bill. That should be enhanced to ensure that local authorities are transparent about decisions relating to the allocation of resources. All too often, personal budgets have care costed at one rate, with another rate available if external agencies are used.
Baroness Garden of Frognal
I apologise to the noble Baroness but she has been speaking for 15 minutes, which is normally the maximum time.
Baroness Uddin
I apologise. I am nearly finished. Anyone not associated with the care sector will become dizzy when encountering the array of acronyms and phrases such as RAS, FACS, DLA and PIP. Indeed, they are fortunate members of our society, with the ability to lead an active, fulfilled and independent life. They are fortunate enough to be able to perform everyday tasks such as getting up, washing, dressing, personal care, food preparation and eating without having to justify even the most basic daily tasks. For those members of our society who are reliant upon our care systems, this Bill represents a new hope that our social care system will enable disabled people to live an independent life which is just and equitable. I note noble Lords’ massive endorsement of the Bill and eagerly await its outcome.
Lord Turnberg
My Lords, when I spoke in the debate on the Queen’s Speech last week I concentrated on care of the elderly in the community which is one of the most critical issues facing society, as we have heard from some remarkable speeches today. If anyone has any doubt about the scale of the problem they will just have to read Hansard. I will not repeat what I said the other day, save to reiterate my specific plea that we pay attention to the screening of vulnerable elderly people in the community by primary care and social services staff so that we can introduce simple preventive measures to keep people at home. I hope the noble Earl might say something about that.
Tonight I want to concentrate on the proposals in the Bill to establish Health Education England and the Health Research Authority as non-departmental public bodies. These are, of course, extremely welcome proposals but inevitably there are a number of aspects where we need to seek clarification and improvement. The roles of the HEE and the associated local education and training boards—inelegantly abbreviated as LETBs—are spelt out in the Explanatory Notes but I fear that the Bill itself is fairly silent on how it will ensure high quality and standards in education.
For example, much is made of the fact that the LETBs are provider-led and dominated by the needs of NHS trusts for sufficient numbers and range in the workforce to meet those needs. So far so good, but what is missing is a proper recognition that the quality of training, the curricular content and the skills and knowledge of those going through training programmes will be taken care of. Where, for instance, is reference made to the need to include postgraduate deans on the boards of LETBs? It is not in the Bill and given only passing reference in the Explanatory Notes. Where is reference to the need to engage closely with local universities or training colleges—that is, with those whose whole raison d’être is education and all that that entails? Content of training programmes and maintenance of standards is their special expertise and for providers to ignore that aspect will be to their detriment. I am sure they are aware of that but we need mention in the Bill of a need to involve universities, either in the membership of the board, albeit in a minority, or, if not that, then an obligation to seek their advice in formulating their programmes of training.
At the national level, in the HEE, there is some recognition in the notes to the Bill, but not in the Bill itself, of a need to seek advice from the royal colleges—here I have to express my interest as an ex-president of a royal college—the GMC, the GDC and the NMC in developing its policy. It seems to me that all those bodies have considerable expertise in education and training. Indeed, the main functions of the medical royal colleges, for example, are in the development of all the curricula for medical trainees and in setting their exams and assessments to make sure that they have reached an acceptable level of skills, aptitudes and knowledge. Every cardiologist, orthopaedic surgeon and psychiatrist has to go through a training programme devised and run by a royal college. The regulatory bodies have responsibilities for the oversight of training and education to ensure that it is fit for purpose. Yet despite all this remarkable body of expertise, no mention is to be found in the Bill that the HEE will draw on any of this for advice and assistance.
Then there is a further issue of the need to take account of the importance of clinical researchers in programmes of training and education. We have heard much helpful comment from Ministers about the need to embed research in the NHS and to make every health professional a researcher and every patient a willing participant. The noble Earl was extremely helpful in getting research high up the agenda for the NHS in the Health and Social Care Bill. It is, of course, through research that we may in due course find some answers to the major diseases from which we suffer such as dementia, diabetes and Parkinson’s, so it is vital that research really is in the middle of the NHS.
While the new Bill is very helpful in stating that the HEE must promote research into matters relating to its activities, which is rather subtle, it hardly takes account of the need for LETBs to take account of this in their training programmes. Those embarking on a clinical academic career have to be able to take time out from their purely clinical training to train in research, perhaps for up to three years if they are going to do a PhD. All other trainees, at least in medicine, need to be able to carry out some research so they have experience of what research is about. They are then in a better place to take advantage of the results of research and not resist the rapid introduction of innovations when they go on into practice. I fear that the dominance of provider-led interests in LETBs will lead them to paying little attention to this aspect of training unless they have access to advice from their local universities and the research community. I fear very much that the shadow body of the HEE has shown little sign so far that it is aware of this particular point.
I come now to the Health Research Authority. I believe we are extremely fortunate in having Professor Jonathan Montgomery as its first chairman. He is clearly switched on to the need to be able to protect the public and the patient interest, while at the same time encouraging high-quality clinical research and not putting unnecessarily burdensome regulation in the way. It might be thought that these twin responsibilities—the need to protect patients and ensure their safety and confidentiality on the one hand while promoting and encouraging research on the other—are opposed to each other but they are closely aligned. Patients want not only to be safe but they are very keen for research to be done on their diseases. Furthermore, surveys of patients’ attitudes show that more than 90% of patients want to be involved in research themselves in clinical trials. They are desperate for innovations in treatments arising from research to be applied to them. Of course they want to be safe and protected but they also want high-quality research, so the two go hand in hand. It is pleasing to know that Professor Montgomery is well aware of this and the need for proportionality in regulation.
I welcome the clear statements in the Bill on this and in particular in Clause 98(3) where it is proposed that the HRA must promote standardisation of the regulation of research across England and ensure that such regulation is proportionate. It is clear, too, that for the HRA to gain credibility with the public and patients it cannot simply pontificate about safety from on high. It must actively communicate with the public and have processes in place for it to be able to listen to the views of the wider public. It needs access to the public view and should put in place mechanisms to achieve that.
I come now to another aspect of transparency. In addition to its own transparency, the HRA should also be encouraging transparency of researchers engaged in clinical trials in academe and industry and their results should be published as expeditiously as is reasonably possible. Results should become freely available, after careful checking for reliability, whether they are positive or negative. It is helpful to know that GSK is leading the way in industry by publishing its data more openly and others are beginning to follow. We do not want the HRA to be given too rigid a formula. That would be counterproductive, but we do want to be able to encourage and support the HRA in its efforts to use measured persuasion.
Finally, it is good to see in the Bill the confirmation that the HRA will continue its good work in co-ordinating the work of the ethics committees and in taking on the roles provided until now by the Secretary of State and what was PIAG in ensuring the safe use of patients’ data. It is gratifying to know, too, that the HRA is moving towards a single application process for entry into the jungle of research regulation. There remains at least one major barrier to research and that is the local R&D approvals that have to be given by each trust where clinical trials are being done. This is where we need a rational, proportionate and national system and if the HRA can incorporate trust R&D approval into that national scheme, the research community would heave an enormous sigh of relief.
I hope I have not given the impression that I am unhappy with this part of the Bill. I think the proposals to set up HEE and the HRA are extremely valuable but of course there is always room for some improvement.
Baroness Masham of Ilton
My Lords, I thank the noble Earl for explaining this Bill so clearly. The idea of the Bill is good in theory but will it work in practice? Will there be enough resources to go round and will there be good communication and co-operation between professionals? Will this Bill eliminate the postcode lottery? As so much help is organised locally, this may continue to be a problem.
The Bill emphasises care for elderly people but one must not forget those people of working age who have disabilities. A little help can make all the difference. If eligibility is set too high, people will become isolated in their homes and unable to work. Children, if there are any, may have to help their parents, causing problems at school and putting a strain on their childhood. I am sure that care can become more co-ordinated and save resources if health and social care work in co-operation and co-ordination.
To give your Lordships an example, I speak as president of the Spinal Injuries Association. One of our members, who is paralysed from the neck down but is bright and motivated, goes out to work. The health service helps her with her toileting and the social services help her with dressing. It means that two lots of helpers come in for one person. I am sure that the skills of operational therapists can help with integration as they work in both health and social services. The wheelchair and equipment service needs improving, as does the speed of adaptations to people’s accommodation when they become disabled. This sometimes means that extra time is spent in hospital.
Part 2 of the Bill deals with the post-Mid Staffordshire NHS Foundation Trust. The aim is that no such appalling situation can arise again, but nobody seems to have taken responsibility for the failings. The people who knew about what was happening and witnessed the neglect and cover-ups were not listened to. I feel that throughout the health and social care systems, we need openness and honesty, and that a duty of candour would help. I would be grateful if the Minister would say what progress is being made, as this is a recommendation of the Francis report. A culture has developed among some nurses of doing as little as possible to make patients safe and comfortable. Not all staff are the same; some are exemplary and kind, which is what patients who are often worried and in pain need.
I am concerned that unacceptable practices are happening in many hospitals throughout the country; either they are unbeknown to management or it turns a blind eye. One foundation trust, which ticks all the boxes and always has a good review, had a hospital to which a friend of mine was admitted as an emergency. He had been chairman of the PCT and worked hard for the NHS. Time passed and he was given nothing to eat, so he asked if he was nil by mouth. “No”, said the nurse, “the last person in your bed did not fill in the menu card, so nothing was ordered”. He was then offered a sticky toffee pudding—the last thing his condition needed. He also said that the nurses chattered all night and did not help a critically ill patient in the next bed.
To make the situation better for patients there will have to be a huge change in attitude and practice throughout the health and social care systems. Only last Saturday the Yorkshire Evening Post reported appalling abuse of patients at the Solar Centre in St Catherine’s Hospital in Doncaster. There had been delays in the conviction of two care assistants who mistreated vulnerable patients. The newspaper stated that this was,
“an appalling abuse of trust and a violation of what society should be able to expect from people in the care profession”.
One of the problems seems to be that people who cannot get other jobs become care assistants. As there is such a demand they get work, even if they are undesirable and not fit for purpose. Should there not be better selection and vetting of those who work with vulnerable people? It seems vital that there should be registration of care assistants with adequate training. I am told that Australia is going back to state enrolled nurses. It has found that not having the practical, trained nurse has been dangerous to patients. There is need for a highly technical nurse, but also for a practical nurse to work alongside.
There seems to be an overall welcome for establishing Health Education England, and the Health Research Authority. Research is vital if progress is to be made. Resistance to much needed antibiotics is an example and new drugs and research are needed into such devastating diseases as motor neurone disease, neuroblastoma in children and all the rare conditions which need new and effective drugs. Some day a way may be found to join and regenerate the spinal cord.
I feel it was an unwise move by the Government to disband the Advisory Group for National Specialised Services—AGNSS. Will they consider reinstating this much needed service? I look forward to the Minister’s reply.
Lord Hunt of Kings Heath
My Lords, we are approaching the end of what has been a serious and expert debate on the Care Bill, which has clearly drawn considerable support from your Lordships’ House. However as speaker after speaker has pointed out, there is a marked contrast between the Bill’s intentions and the reality of the health and social care system, which is under huge financial pressure at the moment. Of course, this Bill puts new pressures and responsibilities on local authorities, but there are no signs yet as to how those authorities are to find resources.
We are happy to co-operate in postponing deliberation of Part 1 of the Bill, to allow it to take place after the spending review has been announced. However, in a sense that concerns the future and future responsibilities. The fact is the crisis is here now in relation to social care. Very little has been heard from the Government about how they intend to respond to it. I hope the noble Earl will say something about it tonight. Many noble Lords have referred to the eligibility criteria and the intention to set this at a national level to get consistency and deal with the issue of the huge variation that is now apparent throughout the country. This has been widely welcomed, but I would tell the noble Earl that we certainly expect the Government to publish the all-important draft regulations before we go into Committee to deal with this important matter. I would be grateful if the Minister will confirm that he intends to do that.
He will know that there is widespread expectation that the Government will set the national level at the “substantial” level. I do not expect the noble Earl to confirm that tonight, but does he agree with the noble Lord, Lord Rix, that local authorities have increasingly moved the threshold up to the substantial level, with, of course, prevention and early intervention being unavailable? May I also ask him about the risk of those local authorities which do not at the moment set the threshold at the substantial level, actually raising it in the light of the national criteria being set at that level? That way, we will have national consistency, but it will be consistency where provision is at the meanest. That would cause considerable concern in many local authority areas.
The noble and learned Lord, Lord Mackay, and my noble friend Lord Warner raised the question of Clause 22 and the all-important boundary definition between the means-tested social care and the free-at-the-point-of-use NHS. The noble Lord, Lord Sutherland, hopes that at some point this might be a thing of the past, but at the moment this is a critical delineation between the two services. The Minister will know that the Select Committee was concerned that a court might view any changes in the wording as implying a change in the meaning of the provision. It is important that we hear a response from the Government about why we ought not to worry about that.
The noble Baroness, Lady Campbell, spoke so eloquently of the problems of people being shunted between the two services because of the cost implication between local authorities and the NHS. At the same time, the noble Baroness passionately promoted the need to support disabled people to be as independent as possible. This is not an issue that will go away and we will need to come back to that in Committee in terms of the new meaning—if it is a new meaning— in Clause 22.
This is not just a Bill for older people, but the challenges that older people face are formidable, as my noble friend Lady Bakewell said. Like my noble friend Lord Lipsey, I welcome the Dilnot provisions and the cap—as far as they go. However that is not the complete picture. The cap and increased threshold will reduce the risk of catastrophic costs, but there is a concern about the way that people of modest means will be treated. I listened with great interest to what my noble friend Lord Lipsey said about the operation of the means-tested tariff and the impact on people with modest income. My noble friend Lord Warner does not quite take his view on that, but it would be good to have a debate on this in Committee.
I would also be interested to know whether my noble friend Lord Lipsey has taken into account that in some benefits the first £6,000, and in others the first £14,000, are exempt from the tariff, which in itself is progressive, with those with the most savings hardest hit. It is important we come back to that.
My final point on Dilnot is about the insurance market, which a number of noble Lords raised. What is the noble Earl’s current assessment of the prospects of an insurance market developing? Has his department been in recent communication with the ABI and can he say any more about the confidence that he has in insurance products developing? This is very important in reaching a conclusion about the likely success of the Dilnot proposals in this legislation.
Finally in this area, I turn to a point raised by my noble friends Lord Lipsey and Lord Warner. The actual administration and assessment that will have to take place, particularly as thousands of self funders will need to be assessed under these proposals, will lead local government into a major administrative task and to an increase in disputes and legal challenges. The Joint Committee was not confident that Ministers had fully thought out the implications for local authorities of these changes. Will the noble Earl comment on that and also on my noble friend Lord Warner's suggestion that we need to establish tribunals in order to deal with disputes to keep them out of the courts as far as possible?
Very good points were made about the need for impartial information in relation to Clause 4. When one thinks about some of the financial consequences of the decisions made, it is a powerful argument. I also hope that the noble Earl will respond to my noble friend Lord Patel in relation to Clause 68 and the question of aftercare and the implications that it has in relation to Section 117 of the Mental Health Act 1983. We had extensive debates on these matters only a few months ago. I hope that this is not opening up the question and is not a reinterpretation.
On carers, my noble friend Lady Pitkeathley spoke eloquently about the importance of these provisions, and we welcome them. But there is a question about why they do not relate either to parents caring for disabled children or young carers. As Barnardo’s has said, young carers represent a uniquely valuable group of people whom the Government should be ensuring receive help to address the very serious effects that caring has on their lives. The noble and learned Lord, Lord Mackay, made an important point about the need to ensure that, in the case of children caring for adults, the impact on the child must be given due consideration.
My noble friend Lady Wilkins talked about housing. The point she raised is surely right. What concerns me is the lack of very much reference to housing provision or housing authorities in the Bill. I am sure that we can look forward to some amendments in that direction from my noble friend.
On safeguarding, it is a matter of regret that there is no duty on providers to report to local authorities where they suspect the risk of abuse. It is also a matter of regret that there is no clause allowing for power of entry. This was raised by the Joint Committee and it was clear that there should be a power of entry for local authority representatives where a third party is refusing access to a person who may be at risk of abuse. I know that the Government will say that the consultation produced a lot of people opposed to that. But if we are to take abuse seriously, we should come back to examine whether a power of entry is necessary and should be required.
On Part 2, there is the NHS failure regime. I was pleased that the noble Earl’s officials gave us a briefing on this. It is rather complex and there seems to be a risk of confusion of roles between the two regulators, CQC and Monitor. Will he respond to the question raised by my noble friend Lord Warner about non-foundation trusts? I should have declared an interest as chair of an NHS foundation trust and indeed as a consultant and trainer with Cumberlege Connections. Why are the weaker organisations subject to a much less regulated framework than the foundation trusts? Why are the non-foundation trusts not covered in the Bill?
I am disappointed that there is only a partial implementation of the Francis recommendations, particularly as far as primary legislation is concerned. For instance, where is the duty of candour? We have the offence in Clause 81 of publishing false or misleading information. But Francis wanted a statutory duty of candour on healthcare providers to inform patients or appropriate persons if treatment has caused death or serious injury to the patient. Why is that not in the Bill? Where is the registration of healthcare support workers, as the noble Baroness, Lady Emerton, suggested?
On public health, I agree with noble Lords who regret that there is no provision for standardised packaging for cigarettes. I look forward to a continuing debate on that matter. On Health Education England, some very important points were raised by noble Lords. I would particularly refer to my noble friend Lord Turnberg’s comments about the LETBs and the need to ensure high quality in training and the involvement of postgraduate deans. As regards research, again, the provisions are very welcome but there is real concern that this country is losing out in terms of the number of multi-centre trials that take place here. Does the noble Earl thinks that the HRA should be given more authority over both the local research ethics committees and NHS trusts in terms of R&D approval? We cannot just leave it to these different bodies when the whole prosperity of our country is in many ways based on this kind of investment.
This has been an excellent debate. We look forward to the responses from the noble Earl. He will know that there are a lot of provisions here that command general support but, ultimately, the real concerns relate to current and future resources, and to the need for the Government to respond strongly in convincing argument about the kind of integrated services that are required to ensure that the provisions of this Bill will be implemented. The Government need to show that they really do get it and are going to come forward with those proposals.
Earl Howe
I begin by thanking everyone who has spoken today. There have been some excellent and highly informed contributions from all sides of the House. Health and care matter to us all throughout our lives; the quality of the contributions today demonstrates how important the issues are in this Bill. I am grateful in particular for the welcome given to Part 1 of the Bill by many noble Lords. A large number of questions have been raised during the debate and I will endeavour to cover as many of them as possible in the time that I have. Unfortunately, there is unlikely to be time to address all of these issues but I will, of course, write to follow up on any unanswered questions.
I listened with care, as I always do, to the speech of the noble Baroness, Lady Wheeler, but I must confess that I was disappointed by the somewhat negative tone that characterised her remarks. Anyone listening to her could be forgiven for thinking that the Labour Party opposed the principles set out in the Bill. I was very glad to hear the noble Lord, Lord Hunt, correcting that impression. I hope that, at the very least, we can look forward to a constructive approach in Committee from all noble Lords opposite. As ever, I stand ready to work with the noble Baroness and the noble Lord, Lord Hunt, and indeed all noble Lords to ensure that we explore the Bill thoroughly so that we can, in due course, send it to another place in a form of which we can be collectively proud.
A number of noble Lords referred, unsurprisingly, to the funding envelope for adult social care. We recognise that the last spending review provided local government with a challenging settlement and that is why we took the decision to prioritise adult social care and provide extra funding to help local authorities maintain access to services. In the White Paper, we committed to additional support for social care over the next two years. However, it has to be remembered that local authorities ultimately have discretion over how they use their resources. Of course we agree that the level of funding available in future will have an impact on how far the reforms are realised, but noble Lords should appreciate that we have committed to funding the reforms set out in the Bill in full.
For example, as the noble Lord, Lord Lipsey, pointed out, funding reform will cost the Exchequer £1 billion a year by April 2019 and there will be an additional £175 million a year to fund the new legal rights for carers in 2015-16. I assure the noble Baroness, Lady Wilkins, that the needs of social care will be at the front of Ministers’ minds as we approach the spending review. However, noble Lords will understand the realities facing us. We cannot improve care and support by simply putting more and more money into the system, and in this financial climate it is therefore more important than ever that councils review their practices, drawing on the work of the sector’s efficiency programmes, to ensure that they are using their resources in the most effective and efficient way possible.
The noble Baroness, Lady Wheeler, and others criticised the level of the cap on care costs. It is surely to be welcomed that, for the first time, there will be a cap to protect people from spiralling costs, and that people will no longer have to live in fear that their home will be sold while they are in a care home or that all their life savings will disappear. The level of the cap is not set in the Bill, but will be set in regulations. Why do we propose to set it at £72,000? We want to strike the right balance between supporting people in paying for care and managing the public purse in a sensible, sustainable way. We believe that a cap of £72,000, which is equivalent to around £60,000 in Dilnot terms, along with the increase in the means test threshold to £118,000, achieves this balance. I was grateful for the broad support provided by the noble Lord, Lord Lipsey, in that context.
The noble Baroness, Lady Bakewell, in her characteristically eloquent and powerful speech, contended that the formula we have arrived at protects the wealthiest. The current system, as she knows, exposes those with few savings or modest housing wealth to the greatest risk of losing everything to pay for their social care. That is unfair and it needs to change. Yes, we are expanding the scope of the means test benefit so that more people will get help, but the vast majority of state support will be provided to the 40% of older people with the lowest incomes and wealth. This is about protecting people with the greatest lifetime care needs, not the greatest wealth.
The noble Baroness, Lady Wheeler, asked me to confirm the details of the sliding scale of contribution towards care costs. People with assets above the lower capital limit, which will be £17,000 from April 2016, will have to make some contribution to the costs of residential care. The sliding scale determines the amount they must contribute. Individuals are deemed to be able to contribute £1 for every £250 of assets above the lower capital limit. We are extending the upper capital limit to £118,000 in residential care, which removes the cliff edge in the current assessment and will result in a gradual increase in support towards an adult’s care costs.
I have noted the hopes and concerns of a number of noble Lords, including the noble Lords, Lord Rix and Lord Warner, and the noble Baroness, Lady Bakewell, around the eligibility threshold. There has been widespread support for a national eligibility threshold and noble Lords are understandably keen to see the regulations that set it. In determining the threshold, we must consider the funding settlement to local authorities; the national minimum eligibility threshold will be announced as part of the spending review on 26 June, and the regulations will follow. Indeed, in answer to the noble Baroness, Lady Campbell, and the noble Lord, Lord Hunt, we will make available a draft of the regulations under Clause 13 to provide for the national eligibility criteria in order to support debate of the Bill in Committee.
The noble Baroness, Lady Uddin, said in her powerful speech that care and support was harder to access for minority ethnic people. I would say to her in that context that information is central to ensuring equality of access to care and support, a point rightly made by the noble Lord, Lord Hunt. Clause 4 sets out clearly and places the duty on local authorities to provide information which is accessible to people needing care and support in the local community. The information must be accessible to those for whom it is provided. So, for example, it should be translated into the languages that are used in the area. The noble Baroness also said that a disabled person should be involved in decisions about how their needs are met and their personal budget is settled. Clause 25 sets out important new duties for the local authority to involve the adult in care planning and to take all reasonable steps to reach agreement with the adult or carer on how their needs are to be met.
My noble friend Lord Sharkey and the noble Lord, Lord Warner, expressed their concern that the Bill contains no provision for a right of appeal against eligibility decisions. The Bill sets out, for the first time in primary legislation, how eligibility decisions will be made by local authorities and the new right to a written record of the decision and the reasons for it. These are important new rights, which will promote transparency and aid decision-making. Where people are unhappy about a decision, there is an established right to make a complaint, which is set out in the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. There is no need to set out another system in the Bill. I say to the noble Lord, Lord Hunt, that we will look at the existing complaints arrangements, including considering how best to provide for effective challenge to local authority decisions, in the light of the findings of the review of NHS complaints led by Ann Clwyd and Professor Tricia Hart and our consultation on the capped-cost scheme.
The noble Lord, Lord Patel of Bradford, drew attention to Clause 2(3) and the power to charge for prevention services. He was concerned about how people will pay for this. Local authorities already have the power to charge for preventive services. We do not expect this to be the norm for lots of simple preventive services but we think it important to retain the ability to do so. We intend to use regulations to ensure that services which must currently be provided free, including intermediate care and minor aids or adaptations, remain provided free of charge.
The noble Lord, Lord Sutherland, drew attention to the cross-subsidisation issue. Local authorities and individuals can pay different prices for care, as he well knows, and this can be because individuals have chosen premium facilities or because the local authority has negotiated a lower price in exchange for buying care for a large number of people. The Bill places new duties on local authorities to promote an efficient and effective market for high-quality care services. The local authority must ensure that it has regard to factors such as the sustainability of the market.
The noble Baroness, Lady Wheeler, asked how the Bill interacts with benefit changes. My department is in regular contact with the Department for Work and Pensions on the relationship between welfare reform and our proposals for care and support in order to understand the interaction and impact on people who use care and support, carers and families.
My noble friend Lady Barker asked whether the development of the deferred payment scheme would take into account existing case law. The answer is yes. We have committed to a universal scheme for deferred payments for people who need residential care. In designing this scheme we will of course take into account all relevant case law.
The noble Baroness, Lady Wilkins, spoke about the Independent Living Fund. Following the closure of that fund, we have committed to passing funding to local authorities in order to allow for ILF recipients to be brought into the mainstream care and support system. Final details will be announced as part of the spending round on 26 June.
The noble Lord, Lord Hunt, and the noble Baroness, Lady Wilkins, stated their view that the Bill does not do enough to reference the importance of housing to care and support. In actual fact, the Bill does a lot to recognise housing as a determinant of health and well-being. In response to comments during consultation and pre-legislative scrutiny, we have included “suitability of living accommodation” within the list of matters which well-being relates to in Clause 1. Clause 3 requires local authorities to integrate the provision of healthcare and support and health-related services, which includes housing, while Clauses 6 and 7 require local authorities to ensure the co-operation of their housing officers, both internally and with the authority’s “relevant partners”, in care and support.
The noble Baroness, Lady Donaghy, stated her view that Clause 8 should include transport as a way of meeting needs. I agree that the provision of transport is an important way of meeting people’s needs but we do not believe that there is any requirement to set this out in Clause 8. That clause provides high-level examples of ways of meeting needs so as to leave maximum flexibility to the local authority and the adult to agree on how their needs should be met. Of course, that could encompass transport.
The noble Baroness, Lady Wheeler, and the noble Lord, Lord Hunt, asked whether we had been talking to the insurance industry about the reforms. It is encouraging that many companies support the change. We have been talking to the industry. The Association of British Insurers has welcomed the announcement as a,
“positive step forward in tackling the challenges of an ageing society”.
My noble friend Lord Sharkey asked why the Bill does not implement Dilnot’s recommendations for an awareness campaign. Legislation is not required for that but the Government agree on the need to raise public awareness. The Government will adopt a strategic approach to maximising the public’s understanding of the new care and support system, and that is a crucial part of our plans to implement Dilnot.
My noble friend Lady Jolly and the noble Lord, Lord Patel, spoke about the proposal to legislate for free end-of-life care. The palliative care funding review recommended that social care should be provided free at the end of life. The Government are funding eight pilot sites to test this and other recommendations, which are gathering evidence over two years until 2014. Before making any decisions we want to consider the evidence collected from the pilots. I can, however, confirm that primary legislation will not be required to enable social care to be provided free at the end of life.
My noble friend Lady Browning spoke about autism and people with Asperger’s. The autism strategy and its statutory guidance mark a great step forward for adults with autism in England, as I know she acknowledges. What it does not do, however, is guarantee that everyone with a diagnosis of autism will receive support or services from local authorities. If your needs do not meet the eligibility criteria set out by your local authority you will not receive social care services. The Bill will ensure that you are given information about what other support is available in your local area. As local areas gain a better understanding of autism needs locally and develop autism commissioning plans, we expect local authorities to look more at the cost benefits of more low-level and preventive services such as befriending services or social skills training.
A number of noble Lords, including the noble Baronesses, Lady Pitkeathley and Lady Wheeler, my noble friends Lady Jolly and Lady Tyler, and my noble and learned friend Lord Mackay, referred to young carers. The boundaries between children and adult legislation ensure appropriate distinctions between what can reasonably be expected of adults and children. It is of course crucial that adult and children’s services work together to ensure that young people are not carrying out inappropriate caring roles or are disadvantaged in their education and losing their childhood because of caring. First and foremost, however, young carers should be seen as children and assessed in that context.
Several amendments to the Children and Families Bill on support for young carers were debated in the other place. My honourable friend the Parliamentary Under-Secretary of State for Children and Families, Mr Timpson, recognised that the effective identification of young carers and assessment of their needs for support are best achieved by children’s social care, health and education services working together and considering the whole family’s needs. He explained that he would reflect on the arguments put forward and the evidence from the National Young Carers Coalition. Ministers in his department are very happy to meet noble Lords who are interested in this area as the Children and Families Bill moves to this House. Officials are in contact with the National Young Carers Coalition and other key stakeholders as part of the consideration of the evidence that they have provided. I should say, however, that the Care Bill encourages local authorities to take a whole-family approach in assessing an adult, which means that adults’ needs for care and support are not seen in isolation from their family circumstances, including the contribution of young carers. Regulations about assessment procedures to be made under Clause 12 will put a duty on councils to have regard to the family of the adult to whom the assessment relates.
The noble Lord, Lord Rix, spoke about the transition into adulthood, and I completely agree that transition between childhood and adulthood is an important time when young people and their families are thinking about their goals and aspirations for the future. The Bill gives young people and child carers the right to request an assessment before they turn 18 in order to help them to plan for the transition to adult care and support in order for them to have the information that they need to prepare for their future. The Bill will ensure that no child reaching the age of 18 should go without the care and support that they need around the point of transition. It will require local authorities to maintain children’s services until a decision has been taken about whether they require adult care and support in place for there to be no gap. The Bill will therefore incentivise local authorities to focus more closely on the relationship between these services to improve the experience of transition for all.
The noble Lord, Lord Patel, said that care plans should be in place from the age of 14, and for five years thereafter. As he well knows, the difficulties that some young people and their families face as they move into adult care and support are well documented. The Care Bill aims to smooth the transition. It sets no restrictions about whether the child is already receiving a specific service under children’s legislation in order to request this assessment, nor does it contain any restriction or stipulation about the age of the child for whom the request may be made, or their proximity to their 18th birthday. Instead, the local authority must consider whether the individual child is likely to have needs for care and support after they turn 18 and whether there would be significant benefit in undertaking the assessment.
My noble friend Lady Barker said that Clause 9(4) needs to be clear that people’s needs are assessed on the basis of what their family can provide and not what they are expected to provide, so that there is no pressure on them. I completely agree with what she said. The assessment is to include whether any carer is able, and is likely to continue to be able, to provide care. The intention is also that the regulation supporting assessment will require the local authority to have regard to the needs of the whole family, as I have just mentioned.
The noble Lord, Lord Low, stated his view that Clause 12(1)(f) is weaker than it was in the draft Bill. I will write to him about that, but that is not our intention and we will look at that point. My noble friend Lord Sharkey referred to the Clause 9 duty to assess where it appears to the local authority that a person may have needs. He thought that might be too passive. The duty is worded on the basis of the existing duty that it will replace, Section 47 of the National Health Service and Community Care Act 1990. It implements the Law Commission’s recommendations on what should trigger the duty to assess, and it is not intended to be passive. In fact, we do not think that it is.
The noble Baroness, Lady Campbell, spoke powerfully about the portability provisions in the Bill. The Bill will ensure that no one should face discontinuity in their care and support when they move local authority area. This is an important reform which will improve well-being for many people who use care and support. The Care Bill will place duties on local authorities that will ensure continuity of care. This will provide clarity on which local authority is responsible, and should ensure that there is no disagreement between authorities which might result in disruption to a person’s care.
The noble Baroness asked why there was no requirement for equivalent services when somebody moves. We believe that when people move local authority area their circumstances are in many cases likely to change. They may be moving to be nearer family support or to take up employment, and their needs for care and support may also change. After the move it will not always be appropriate for them to have services that are equivalent to those that they had before. Moreover, equivalent services may not be available in the new area. The assessment process we are putting into legislation is very much focused on these needs, rather than service provision.
With the leave of the House I would like to continue for a little longer, because there are a number of questions which I hope noble Lords would be glad if I answer while I am on my feet. If that is not the wish of noble Lords, I will race through the rest of my remarks. My noble and learned friend Lord Mackay of Clashfern, my noble friend Lady Tyler and the noble Lord, Lord Warner, all referred to the duty in Clause 1 to promote individual well-being, and asked why the Secretary of State was not bound into that duty. I am sure that we will have debates in Committee on that point, but I only say now that the well-being principle in Clause 1 is intended to apply at an individual level, when a local authority makes a decision. This individual focus on the specific well-being and outcomes for that person is at the heart of the way that the Bill has been drafted. It is not intended to apply in a more general way. Given that we do not think it would be appropriate for the Secretary of State to be subject to the same duty, the Secretary of State does not make decisions at the individual level.
The noble Lord, Lord Patel of Bradford, and the noble Baroness, Lady Pitkeathley, asked why there was no mention of advocacy in Clause 24(2)(b). The Bill specifies that the information and advice service provided by local authorities,
“must be accessible to, and proportionate to the needs of, those for whom it is being provided”.
This allows for information and advice to be provided in a variety of ways, as is appropriate to the needs of the people who use the service. Information and advice provided by an explanation in a leaflet or on a website may be a sensible way of providing this service for many people, but other people may require individual discussion through their assessment and care support planning process, in a variety of depths from independent brokerage to advocacy.
The noble Lords, Lord Bichard and Lord Warner, and the noble Baroness, Lady Pitkeathley, referred to the key issue of integration, which again I am sure we will debate in Committee. Integration is about more than legislation. That is why my department has been working with national partners—NHS England, Monitor, the Local Government Association, ADASS and others—to empower local health and care communities to improve integrated care and support for their populations and to tackle the barriers to achieving this. This is described in detail in Integrated Care and Support: Our Shared Commitment, which was published last week and which I commend to noble Lords.
The noble Lord, Lord Wigley, asked about cross-border issues and whether a legislative consent Motion was required for issues to do with Wales. We do not anticipate any issues in this area. Legislative consent on matters applying to Wales has been sought from and agreed in principle by Welsh Ministers. Of course, this is subject to the tabling and agreement of a legislative consent Motion by the Welsh Assembly. The issue of cross-border placements is complex due to diverse charging systems and regulatory requirements across the UK. The exact details of cross-border residential placements will be tailored to the wishes of each Administration and we will create a bespoke set of regulations for each Administration to meet those diverse operational requirements.
The noble Lord, Lord Rix, expressed concern that, in relation to the safeguarding duty, there is no duty to assess based on the appearance of risk. He suggested that that was an oversight. It is not an oversight. The adult safeguarding duty to make inquiries in Clause 41 arises where the local authority suspects that an adult with needs for care and support,
“is experiencing or is at risk of abuse or neglect”.
The local authority duty is to make inquiries to decide what action should be taken. One such form of action is to assess the adult’s needs under Clause 9. The duty to assess needs arises where it appears,
“that an adult may have needs for care and support”,
and that would cover an adult who is at risk of abuse or neglect.
My noble and learned friend Lord Mackay said that social workers should not have to rely on bits of paper to know what they have to do and that there should be a code of practice. I totally agree that social workers should not have to look at lots of bits of paper. Guidance should be set out in single, clear, accessible volumes. The only issue is whether it has to be laid before Parliament each time it is changed. We do not think that that is necessary. Equivalent guidance to social workers on children’s social services is not laid before Parliament but is set out in accessible volumes and we plan to do the same. Our proposals will look and feel just like a code of practice and will have the same legal effect.
The noble Lord, Lord Patel of Bradford, drew attention to Clause 68 and the proposed definition of Section 117 aftercare. We noted that several mental health organisations were concerned that the consultation definition of aftercare was drawn too tightly. We therefore changed the wording to clarify that Section 117 services address needs “related to” as well as “arising from” the person’s mental disorder. We have also clarified that the purpose of Section 117 aftercare is to reduce,
“the risk of a deterioration of the person’s mental condition (and, accordingly, to reduce the risk of the person requiring admission to a hospital again for treatment for the disorder)”.
Various noble Lords, including the noble Lord, Lord Low, and the noble Baroness, Lady Greengross, asked about Clause 22. The boundary between the NHS and local authorities is critical to the way in which the law impacts on the services people receive. This needs to be as clear as possible so that the division between local authority care and support and healthcare, particularly continuing healthcare, is more easily understood. The current law is especially complex and dates back to 1948. It was not designed for setting out the boundary between modern care and support and the reformed NHS. It has been subject to much case law and dispute over many years. The clause establishes the boundary between the responsibilities of local authorities and the NHS and includes a regulation-making power to enable clarification in the event of uncertainty. It is not intended to alter the current boundary, but instead to express it in a more transparent way which fits with the new framework.
I shall cover rapidly the rest of the points made, if I may. My noble friend Lady Jolly asked about the timescales for introducing ratings. We are currently considering the Nuffield review; we will respond in due course with our plans for implementation. We want to proceed quickly, but it is important that the CQC has the time to develop ratings properly in consultation with the wider health and care system. The CQC will begin the discussion on ratings with the publication of a consultation document in June.
The noble Lord, Lord Patel, emphasised that the domains of effectiveness, patient experience and safety should form an important part of the CQC’s ratings of hospitals. In accordance with the Nuffield Trust’s recommendations, it will be for the CQC, working with key stakeholders, to design and develop the rating system. However, the ratings are likely to include information on safety, effectiveness and user experience, as well as some measures of the quality of governance.
The noble Baronesses, Lady Wheeler and Lady Masham, asked why the duty of candour was missing from the Bill. We will introduce a statutory duty of candour on health and care providers to inform people if they believe that treatment or care has caused death or serious injury and to provide an explanation. That will be introduced in secondary legislation as a requirement for registration with the CQC.
The noble Lord, Lord Sutherland, asked about the role of the chief inspector. The Chief Inspector of Hospitals will oversee CQC inspections, assessment and ratings of providers, identifying both good and poor performance. Ratings will be part of the information used to establish a single version of the truth. The chief inspector will be a CQC post, which does not need to be established in statute.
The noble Lord also asked why the CQC is the right body to oversee market failure. The CQC is the independent regulator of care and support providers in England. It already has significant experience of the care and support sector and longstanding relationships with all registered providers, on which it can build to assess financial sustainability. In our view, the CQC is the body best placed to take on that important role.
The noble Lord, Lord Warner, asked why the NTDA is not included in Clauses 76 and 77. Where the TDA considers that it is in the interests of the health service, it can already advise the Secretary of State to place an NHS trust which it considers to be a clinically and/or financially unsustainable into special administration. An equivalent provision for the CQC to trigger similar action in respect of NHS trusts will be made through directions to the TDA; it does not require primary legislation.
I was struck by the fact the noble Baroness, Lady Wheeler, asked me why the Bill was a partial response to Francis. The short answer to her question is that we can do a lot without primary legislation, but we will be producing a further response in the autumn which will include action resulting from the range of reviews currently under way—for example, on complaints, safety, bureaucratic burdens and training and support for healthcare assistants.
I turn briefly to Health Education England. My noble friend Lord Willis asked how it will ensure sufficient workforce supply. I have a lengthy answer, which I hope that he will allow me to entrust to paper and which I shall copy to all noble Lords. I will write similarly in answer to the noble Baroness, Lady Emerton, on the role of the Centre for Workforce Intelligence and the action being taken by Health Education England to support the development of care assistants and to ensure that there is a sufficient number of nurses and the right ratio of nurses to healthcare assistants.
The noble Lord, Lord Turnberg, asked how Health Education England could ensure continuous improvement in the quality of education and training. Again, I have a good answer for him. In short, I can say that as commissioners with responsibility for the investment of around £5 billion, Health Education England and the LETBs will have considerable influence over the education that is commissioned from education institutions and the training that is delivered by employers through clinical placement and training programmes. They will work together with providers to deliver high-quality clinical and public health placements. I can assure the noble Lord that Health Education England must seek advice widely. The Bill requires that the body obtains the necessary advice needed to carry out its functions, which includes professional regulators and organisations involved in the provision of education and training—royal colleges and universities, for example.
The noble Lord, Lord Rix, asked me what Health Education England will do in terms of improving education and training for people who care for those with learning disabilities. The answer is that it will work with employers, commissioners, education providers and professional bodies so that education and training evolves better to support people in that category.
My noble friend Lord Willis and the noble Lord, Lord Patel, asked why local education and training boards do not have a duty to promote research. Health Education England has the primary duty to promote research. As committees of Health Education England the LETBs will support the national body in delivering this duty through their workforce planning and education and training functions. Health Education England will work with the National Institute for Health Research to ensure appropriate investment in education and training to develop clinical academic careers.
I will respond to the noble Baroness, Lady Emerton, on her question of representatives of the professions on the board of the HRA, and that there should be more investment in multi-professional research and not just clinical research. In my letter, I shall also cover transparency of research, which was rightly raised by the noble Lord, Lord Turnberg, and others.
To my noble friend Lord Willis, I can say on his question about the HRA’s responsibility for co-ordinating and standardising regulatory practice that that is precisely what is envisaged for the HRA. That is why the clauses give the HRA a unique freestanding duty to do just that, relating to the regulation of health and social care research, in addition to the duty to co-operate with other regulatory bodies. I am happy to expand on that when I write to him, along with the question posed by the noble Lord, Lord Wigley, about the HRA’s duty to co-operate with the devolved Administrations.
The noble Baroness, Lady Pitkeathley, observed that this Bill does not provide all the answers to the challenges facing us in meeting the needs of those adults who require social care. I would never claim that it does. However, I have discerned that she and other noble Lords regard the Bill as a landmark measure, representing an essential and major advance in the law relating to care and support. Later stages of our debates will provide an opportunity to consider the detailed issues that noble Lords have raised today and the Government’s mind is open to making further improvements to clauses. I look forward to those debates, and to engaging with noble Lords outside this Chamber to clarify and discuss the Bill’s provisions. Meanwhile, I repeat my thanks to all noble Lords who have spoken today in a debate that has been fully worthy of the vital and pressing issues now before us. I commend the Bill to the House.