Grand Committee
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall)
Good afternoon, ladies and gentlemen. I remind noble Lords that if there is a Division in the House, the Committee will adjourn for 10 minutes from the sound of the Division Bell.
Working Time (Amendment) Regulations 2013
(11 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord De Mauley
That the Grand Committee do report to the House that it has considered the Working Time (Amendment) Regulations 2013.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley)
My Lords, the Government are committed to providing an environment for all sectors of the economy in which private enterprise and businesses can flourish. A key objective is to simplify employment legislation and remove unnecessary burdens from businesses. As part of this, the Government have taken forward legislation through the Enterprise and Regulatory Reform Act 2013 to end the separate agricultural minimum wage regime in England and Wales and to bring employment in agriculture into line with other sectors of the economy.
The amendments which the Government are proposing to the Working Time Regulations 1998 are a necessary consequence of the abolition of the Agricultural Wages Board for England and Wales on 25 June 2013 and the end of the separate agricultural minimum wage regime after 30 September 2013. Agricultural workers are already protected by the main provisions of the Working Time Regulations, including those relating to the maximum 48 hour week. However, some minor technical amendments are needed to align the position for agricultural workers in England and Wales fully under the regulations with that of workers in other sectors of the economy. If approved, these amendments will come into force on 1 October 2013, when the current special regulatory framework for agricultural minimum wages will end.
The proposed amendments will remove some very specific exemptions in the 1998 regulations which apply only to workers employed in agriculture. These are in relation to the date of the commencement of the leave year and the arrangements for giving notice to take leave. Under the Working Time Regulations, the leave year for a worker begins on the date provided for in a relevant agreement. Where there is no provision in a relevant agreement, the date of commencement of the leave year for a new employee is the date or anniversary of the date of commencement of employment. For agricultural workers in England and Wales, the commencement of the leave year is governed by the provisions of the Agricultural Wages (England and Wales) Order 2012, which will remain in force until 1 October. The order requires that the leave year for all agricultural workers begins on 1 October. There are also specific arrangements in the Working Time Regulations for taking leave which require workers to give their employer advance notice of the intention to take leave and for the employer to give similar notice if either they require the worker to take leave or do not agree to a request for leave from the worker. These arrangements provide transparency and certainty for workers and employers, but do not currently apply to agricultural workers.
If approved, these amendments mean that where agricultural workers in England and Wales come into the industry and enter into employment contracts after 30 September, the arrangements in respect of commencement of the leave year and for leave-taking will be brought in line with the arrangements for other workers under the 1998 regulations. For agricultural workers already employed before 1 October, their existing arrangements will remain in place until the end of their current employment. This will ensure that there is no risk of loss of annual leave entitlement for agricultural workers during a period of employment. Any agricultural worker who is employed between now and 1 October must still be treated in accordance with the full terms and conditions set out in the agricultural wages order 2012. A worker in this position will similarly retain the arrangements for commencement of the leave year and leave-taking as provided for under the order until the end of their current employment.
If these amendments to the Working Time Regulations 1998 are not approved, once the agricultural wages order 2012 ceases to be in force after 30 September this year, there would be no default position for commencement of the leave year, nor arrangements for giving notice to take leave for new agricultural workers coming into the industry after that date. This could cause uncertainty and confusion for both agricultural workers and their employers.
It may be helpful here to say something more generally about the proposed application of the Working Time Regulations to agricultural workers after 30 September 2013. From 1 October, all new workers coming into the industry in England and Wales will be protected by the National Minimum Wage Act and the Working Time Regulations, as are other workers in different sectors of the economy. This means that agricultural workers will be entitled to at least the minimum requirements for annual leave entitlement and length of rest breaks as provided for by the 1998 regulations, although we would expect that many employers will agree terms which are more favourable to their workers than the minima set in the legislation.
Currently, under the terms of the agricultural wages order 2012, agricultural workers have enhanced entitlements for annual leave and rest breaks. The Government have made very clear during debates in Parliament on the amendment to the Enterprise and Regulatory Reform Act to abolish the agricultural wages board that agricultural workers will retain any existing contractual rights, including relating to leave and rest breaks. This has been enshrined in the relevant secondary legislation abolishing the board and the agricultural minimum wage regime.
Therefore, let me reassure noble Lords that the amendments we are now proposing to the Working Time Regulations will not have any impact on these existing contractual rights. Workers with pre-existing contracts at 1 October 2013 will retain the right to the annual leave entitlement and length of rest break determined in their contract of employment, unless either they agree with their employer to vary their contract or the contract comes to an end. These amendments are a necessary tidying-up exercise as the result of the abolition of the agricultural wages board and the agricultural minimum wage regime. Without them, for agricultural workers who take up new employment on or after 1 October 2013, there would be legal uncertainty and no clear provision as to the arrangements for the commencement of their leave year and leave-taking. I hope that your Lordships will accept these regulations.
The Deputy Chairman of Committees
My Lords, I should have said at the beginning of the Committee that, in view of the extreme heat, if anybody wishes to remove their jacket they are welcome to do so.
Lord Whitty
My Lords, the noble Lord, Lord De Mauley, might be pleased to hear that I will not remove my jacket.
I have vehemently opposed the whole principle in relation to the agricultural wages board. I am not in essence opposing the provision today because, as the noble Lord said, it is a logical tidying-up measure. However, serious questions arise about its timing and the way in which it has been introduced. He will recall that during the passage of the Enterprise and Regulatory Reform Act there were arguments about the impact assessment produced by the Government at that stage, which Ministers in effect discounted and put to one side. To some extent the Minister has repeated that today. That impact assessment produced for Defra showed a total detriment to agricultural workers of about £250 million over 10 years and a consequential benefit to farmers from that saving in their wages bill. I argued at the time that that was a notional benefit to farmers since, in effect, most of it would end up in the pockets of the supermarkets. Nevertheless, that was the Government’s argument at the time. During the course of deliberations, they disavowed that whole impact assessment.
The noble Lord has repeated today that many employers will improve the terms and conditions of agricultural workers. That, however, is totally contrary to the best expert advice available to the ministry at the time that the amendment to the Enterprise and Regulatory Reform Act was put through. In relation to limits on hours, I suspect there is not a big detriment. There may even be a benefit. However, we do not have another impact assessment. We do not have any indication of there being any analysis by the department as to which way that would work.
Obviously, the Government’s logic is to bring everything in line with general minimum terms and conditions legislation, whether in terms of the minimum wage Act or the working time directive and the legislation stemming from that. I think that that is logical. However, it is perhaps also interesting that Regulation 3 of this very short instrument enshrines the Government’s view that the conditions of the existing workforce, or those who are taken on before 1 October, will not be changed by this enactment. That is, of course, legally correct. However, the current terms and conditions will remain in place only until they are altered, until the employer gives notice of the end of their terms and conditions.
The totality of the Government’s approach here is to change the balance of power between the employee in the agricultural sector and the farmer or other employer. It is hardly worth the paper that it is written on to say that existing terms and conditions will continue to apply to those who are already in the workforce. It may take a few months or a few years for that to change. One of the reasons that the impact assessment was ultimately rejected by Ministers on the Floor of the House was that they recognised there would be a significant disbenefit to workers in the industry: not only new workers but existing workers would be faced with the likelihood of their terms and conditions being changed once the agricultural wages board disappears.
I think the Minister is probably right that this is relatively straightforward and unlikely to cause huge detriment. It is nevertheless part of the overall principle that we have opposed from these Benches. It is part of the attitude towards wages within the agricultural sector that this is being done without any meaningful underpinning even of the terms and conditions of people who are already in the industry.
Having said that, my main concern about the timing of this relates to the way in which it was written. It continues to provide for Scotland to be excluded from this measure because Scotland has always had its own agricultural wages board and still does. That means that it applies in England and Wales. Only last week, however, the Welsh Assembly passed legislation to establish a statutory body within Wales which would have the possibility of retaining the statutory force both of the substance and of the enforcement of the agricultural wages board. There would, therefore, be a new agricultural wages board for Wales.
Surely it would be more sensible to wait to introduce any consequential statutory instruments until it was clear how they would in theory apply to Wales—until it is clear how that new Welsh structure will evolve. The original proposition from Wales was that the legislation would not apply to Wales. They were, therefore, broadly content that the previous way in which the AWB had applied to the Welsh farming workforce would continue. However, we are now chipping away at that for workers in Wales as far as working time is concerned. That shows a serious disrespect for devolution, for the position of the Welsh Assembly and for the attitude that has been taken by the Welsh farming industry and the workers within it.
The timing—less than a week after Wales passed a clear indication that it did not want the changes to apply there—is, to say the least, unfortunate. I hope that the Minister will give us some guarantee that he has consulted with his Welsh colleagues and that this will not apply immediately to Wales, if it is still in the process of establishing its own statutory board as of 1 October.
Lord Knight of Weymouth
My Lords, as we have heard from my noble friend, we are returning to what is, for us on this side of the Committee, the vexed question of the abolition of the agricultural wages board, which we have consistently opposed. In opening, the Minister implied that the agricultural wages board was all about the minimum wage for farm workers. It is worth reminding the Committee at the outset, by way of clarification, that it is about so much more than just the minimum wage. This is doing away with a whole wage structure, training, regulations and measures in respect of accommodation and farm dogs, and all sorts of other things.
My noble friend Lord Whitty talked about the timing. I will return to the issue of Wales in a moment, but this also follows yesterday’s Tolpuddle festival—an occasion on which, in beautiful sunny Dorset, we remember the Tolpuddle Martyrs. In 1834, George Loveless, James Loveless, James Hammett, James Brine, Thomas Standfield and Thomas’s son John were all charged with having taken an illegal oath and then transported to Australia. That was the basis of the formation of the trade union movement in many ways and is rightly celebrated every year at Tolpuddle, when those martyrs are remembered.
My noble friend was right to probe the lack of an impact assessment. At the time, we kept returning to the impact assessment for the legislation which abolished the agricultural wages board, and we will keep reminding people that 150,000 workers are affected by the abolition of the board and that £240 million will be taken out of farm workers’ pockets. I know that that is contested by the Government, but they did not take advantage of this opportunity to publish any kind of impact assessment on these regulations to repair that.
I also want to comment on the implications for existing terms and conditions for individual employees. The abolition of the agricultural wages order largely protects existing employees engaged prior to 1 October 2013 with no specific contractual provisions. However, I note an article in Farming UK dated 26 June which quotes Colin Hall, a partner at BTF Partnership and a director of the 50 Club Horticultural Employers’ Association, as saying:
“For others, however, such as those more recently employed with a specific contractual provision reserving the employer’s right to amend their contractual terms following abolition of the AWO, or those employed on or after 1 October 2013, the implications are greater.”
There may be some currently employed workers who have particular contractual provisions who will be affected by these changes. I would be interested to hear from the Minister whether he and his department are planning on working with agricultural employers and advising them on their new obligations as employers following the abolition of the board and the bringing into force of the regulations that we are debating today.
The Minister may have seen the article in Farmers’ Weekly on 11 July—I know that he is a keen listener to “Farming Today”, and I am sure that he is as assiduous in reading Farmers’ Weekly—about Peter Bailey, who was employed as a tractor driver and stockman in Berkshire for more than 22 years. He was awarded £38,000 for underpayment of wages after working an average 55-hour week at a farm there. Defra took up the case with the board and in the end Mr Bailey was able, through a tribunal, to prove that he was being exploited, not getting the pay he was entitled to and forced to work more hours than he should have, and that his employer was at fault. The tribunal found against the employer. That was a contravention of the old agricultural wages order but demonstrates that some farmers struggle to put existing employment regulations into proper effect. As things change, it is a particularly vulnerable time for employers. We need to ensure that they are properly advised so that they do not, inadvertently, do the wrong thing by their staff.
It is equally important that farm workers know their rights, reduced as they are. For any of them listening, I strongly recommend that if they are not a member of a trade union they quickly join because they will need one more than before as they will have to negotiate their pay and conditions on a case-by-case basis with employers. They will need the advice and support of a trade union to do that effectively. It is also worth noting—this was not something that was in force or that we even knew about when we debated the legislation to get rid of the board—that as of 29 July, this month, workers unfairly dismissed or discriminated against by their employers will be charged a fee for taking their claim to a tribunal. That means, in the absence of the protection of the agricultural wages board, that these typically extremely lowly paid workers will be denied the access to justice of a tribunal unless they are willing to pay a fee, with no guarantee, if the case is found in their favour, that they will get that fee back.
It is worth saying that the law is also changing so that if their employer—who might be their landlord—sidles up to them in the farmyard and makes them an offer to do things slightly differently and change terms and conditions, they would not be able to use that conversation in a tribunal either. That would no longer be admissible. I find that of huge regret, and we were not able to debate it when those orders went through. The changes to their pay and conditions as a result of this order and the new law abolishing the agricultural wages board increase the risk of agricultural workers suffering.
My noble friend Lord Whitty raised the issue of Wales and asked some highly pertinent questions about how this will work given the decision of the Welsh Assembly Government effectively to retain the agricultural wages board in the Principality. I would be very interested to hear how the two will work together. I understand that these regulations were laid before that decision was made by the Welsh Assembly Government, so perhaps there is unfortunate rather than deliberate problems of timing. It will certainly be September before the other place has a chance to debate these regulations. If we do not have a satisfactory answer from the Minister now, we will have to decide whether we want to pray against the regulations or leave it for the Minister to come back with some proper consideration of these matters when they come to the Commons in September. There will certainly be a problem if the agricultural wages board arrangements are to apply in Wales while the changes to leave entitlement are being made in these regulations. The exemptions were put in place in 1998 for a good reason. If they are to apply in Wales while also being changed it will create a problem which the Minister will have to resolve.
So for all the reasons that my noble friend Lord Whitty gave, we are not opposing these regulations as such, subject to some reassurance on the Welsh issue, because they are merely tidying up. However we hugely regret the abolition of the agricultural wages board. I do not think that it has been properly thought through. I think that, in combination with some of the other changes that are taking place, there will be more farm workers who are exploited beyond the few who are exploited at the moment, one example of which I gave from a recent report in the agricultural press.
With those words, I am happy to listen with bated breath to what the Minister will tell us.
Lord De Mauley
I thank the noble Lords, Lord Whitty and Lord Knight, for their contributions. As I said earlier, the amendments we are proposing to the Working Time Regulations are necessary technical amendments to the legislation as a result of the end of the agricultural minimum wage regulatory regime on 1 October, as the noble Lord, Lord Knight, was good enough to acknowledge. The amendments have no impact on levels of protection for agricultural workers and I believe that they are, in themselves, relatively uncontentious. However I recognise that, as the noble Lord, Lord Whitty, said, recent developments in Wales raise certain issues in regard to abolition of the agricultural wages board which noble Lords are rightly interested to hear about.
The Agricultural Sector (Wales) Bill, passed by the National Assembly for Wales on Wednesday last week, would restore a separate agricultural minimum wage regime in Wales. It might be helpful here if I gave noble Lords some explanation about relevant procedural matters.
Under the Government of Wales Act 2006 there is a recognised procedure for the consideration of whether Bills passed by the National Assembly for Wales are within its legislative competence. Essentially, this provides that the Attorney-General and the Counsel General for Wales—either or both—have four weeks after a Bill is passed by the National Assembly in which to decide whether to refer any question of competence to the Supreme Court. After this period, if no referral is made and the Secretary of State for Wales has indicated that he will not use his powers under the Government of Wales Act to intervene, the Bill is submitted for Royal Assent. This applies to all Bills passed by the National Assembly and this is the stage which we have now reached with the Agricultural Sector (Wales) Bill.
My right honourable friend the Attorney-General is currently assessing the legislation to determine whether its provisions are within the Assembly’s competence, as he does with all legislation passed by the Assembly. It would not be right for me to speculate here what conclusion either the Attorney-General, or indeed the Counsel General, might reach. I will say that, as noble Lords are aware from previous debates on this issue, the UK Government regard the agricultural wages regime as wage-setting and employment law, which are subjects that are not devolved to Wales. However, it is for my right honourable friend the Attorney-General and the Counsel General separately to consider whether or not a reference should be made to the Supreme Court on the question of the competence of the provisions of the Welsh Bill. This is a decision for them which it would not be appropriate for me to second-guess. Should either the Attorney-General or the Counsel General for Wales, or both, decide that such a reference should be made, it will be up to the Supreme Court to consider the Bill and make a judgment.
I hope, therefore, that that makes the position clear. There is a statutory procedure to be followed in the case of all Bills passed by the National Assembly and, quite properly, that procedure is now being followed in relation to the Agricultural Sector (Wales) Bill. The noble Lord, Lord Whitty—
Lord De Mauley
I am now coming on to some of the other points. Perhaps I may proceed, and if I do not cover them the noble Lord can intervene then. Would he like me to try?
Lord De Mauley
The noble Lord effectively asked why we do not wait to press ahead until all this has been resolved. We will not know the outcome of the Welsh position for some time, but we need certainty for people in employment in farming in the mean time. If we did not do this then new employees could effectively be left in limbo.
The noble Lord, Lord Whitty, asked what discussions the Government have had with Welsh Ministers about all of this. There has been extensive discussion with Welsh Ministers about the position of the agricultural wages board in Wales, and Welsh Ministers were informed of the Government’s decision to pursue abolition by the Enterprise and Regulatory Reform Act. The UK Government communicated our view that this was a non-devolved matter which did not require the consent of the Assembly clearly to Welsh Ministers.
The noble Lord, Lord Whitty, reiterated his position when we debated the Act—if I may shorthand it. I understand his position very well. Abolishing the agricultural minimum wage will bring agriculture into line—
Lord Knight of Weymouth
Before the Minister moves off Wales completely, I would be grateful to know whether he considered the order applying just to England, so that we would not have this issue. Given that detailed conversations were going on with Ministers in the Welsh Assembly Government, was that an option?
Lord De Mauley
The words I used apply to both England and Wales. That is the point. It would leave those coming into agricultural employment in Wales in limbo as well. We do not want them to be left without certainty as to commencement of leave year and the other things we have been referring to here.
Lord Whitty
My point is on Wales. Although I recognise the delicacy of the position of the Attorney-General in looking at the question of competence of the Welsh Assembly, in advice going to the Attorney-General presumably the department has made clear the point that I made when the Government made a similar point during the passage of the Enterprise and Regulatory Reform Act: that although the Government have now invented the doctrine that this is employment legislation, since at least 1948, the wages board has been the responsibility of Defra or MAFF, not of whatever department was responsible for employment law. That may not be a clincher for the Attorney-General, but it is an important indication of the approach of previous Governments and in previous legislation—that is, as a matter of agricultural not general employment legislation.
Lord De Mauley
The noble Lord has been around for longer than I have in these affairs. I am absolutely certain that that has been done, but I will reiterate it. He makes a perfectly fair point and I will make sure that it is made again.
Perhaps I may continue with the next series of points. The Government’s position, as noble Lords know, is that abolishing the agricultural minimum wage will bring agriculture into line with other sectors in the economy. Allowing farmers to compete fairly in the labour market and for agricultural wages to follow market levels will enhance the competitiveness of the sector and may increase employment. This will in turn encourage long-term prosperity in rural areas.
Having said that, my experience is that workers, often on highly complex machinery and managing animals, which these days is also a pretty technical affair, are highly skilled and that the market for them is highly competitive. We have been quite clear that there is uncertainty about what the actual impact will be. The costs and benefits are made up of a number of elements, including the potential impact on wages for workers and other terms and conditions and the reduction in employment costs paid to government and others. The reality will, as I said, depend on demand, which evidence shows is increasing.
The real benefits will be from allowing farmers and workers the same flexibility to agree terms and conditions as employers and workers in other sectors of the economy, while ensuring the same levels of protection for workers. As I said in my opening remarks, workers with pre-existing contracts will retain those entitlements, and that is enshrined in legislation. I take the noble Lord’s point about that.
The noble Lord, Lord Knight, made a number of points. I acknowledge what he said about what is covered by the agricultural wages board. Of course he is right. Essentially, he asked why we had not done any back-assessment on the regulations. As we discussed, these are minor, technical amendments to the Working Time Regulations as a consequence of abolition of the agricultural wages board. They do not have an impact on the level of protection for workers, nor do we consider that they will have a significant impact on businesses, so an impact assessment has not been carried out.
The noble Lord asked whether we would be working with employers to remind them of their obligations. We have prepared guidance on the changes for agricultural workers and employers, which we have already shared with stakeholders. That guidance will be published on the Defra website shortly.
The Government firmly believe that the end of the separate agricultural minimum wage regime is in the best interests of the industry. The proposed amendments to the Working Time Regulations are a minor piece of the jigsaw to complete a simplified employment regime across all sectors of the economy. This will provide simplification, transparency and greater flexibility, thereby encouraging investment, growth and job opportunities in the sector, which will benefit both workers and employers. A successful agricultural industry will contribute to the growth of the wider rural economy, which is one of my department’s four key objectives. I beg to move.
Age-Related Payments Regulations 2013
(11 years, 4 months ago)
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Lord Newby
That the Grand Committee do report to the House that it has considered the Age-Related Payments Regulations 2013.
Relevant document: 7th Report from the Joint Committee on Statutory Instruments.
Lord Newby
My Lords, as noble Lords will be aware, this Government established the Equitable Life payment scheme in 2010 to make payments totalling up to £1.5 billion to as many as 1 million former Equitable Life policyholders who suffered financial losses as a result of government maladministration that occurred in the regulation of Equitable Life. Since the establishment of the scheme, the Government have received representations suggesting that a specific group of elderly policyholders who bought their with-profits annuity from Equitable Life before 1 September 1992 should be included within the scheme.
The Government remain of the view that there is no basis for their inclusion in the scheme. The reasons for the exclusion of this group of policyholders are well documented and have been subject to debate in Parliament. In short, the Equitable Life payment scheme is based on the understanding that those investing with Equitable Life relied on regulatory returns that were subject to government maladministration. As such, they had lost the opportunity to make a fully informed decision and if they had had this opportunity, they might have invested elsewhere. The first returns that would have been different if maladministration had not occurred were those of 1991, which would not have influenced policyholders’ decisions until September 1992. Therefore, investment decisions made before this time are not included in the scheme.
However, it is clear that this particular group of policyholders are under financial pressure in their later years, as they have not received the income they hoped for from the Equitable Life annuity that they bought more than 20 years ago. In this year’s Budget, the Chancellor announced that the Government will make an ex-gratia payment of £5,000 to those individuals who bought an Equitable Life with-profits annuity before 1 September 1992 and were aged over 60 on 20 March 2013. An additional £5,000 will be available to those policyholders who meet the above criteria and are in receipt of pension credit.
The draft regulations before the Committee today confirm the rules surrounding these payments. Policyholders will not be required to prove their eligibility for these payments; instead policyholder information held by the Prudential, which makes regular annuity payments to all Equitable Life with-profits annuitants, will be used to identify those eligible for a payment. Eligible individuals will receive one payment of £5,000—£10,000 if they are in receipt of pension credit—regardless of the number of policies they hold. I can also confirm that should an annuitant pass away after the Budget announcement on 20 March this year but before receiving their payment, the payment will be made to their estate. The rules are available in full on the Government’s website.
The Government recognise the need to issue these payments to elderly individuals as soon as possible. The Treasury has been considering all the possible options for delivering these payments quickly and efficiently. I am pleased to confirm that it now plans to make these payments within the current financial year, rather than in 2014-15 as previously envisaged. It is currently planned that in the coming months letters will be dispatched to all eligible policyholders to inform them of the Government’s plans to make these payments. A few months after that takes place, the payments will be issued to all living pre-1992 WPA policyholders. Payments to estates, and the £5,000 additional payment made to those overseas policyholders in respect of their receiving a specified equivalent to pension credit, will be made later this financial year.
The letter sent to all eligible policyholders will also advise that they check their eligibility for pension credit. Individuals will have until 1 November this year to do that, and to apply for pension credit if necessary. Policyholder information will then be securely shared with the Department for Work and Pensions to identify those eligible policyholders in receipt of pension credit. The payments due to them will be increased from £5,000 to £10,000 accordingly before they are dispatched. More information on the delivery of these payments will be announced in due course. Finally, I draw the Committee’s attention to a correction slip issued today that makes minor corrections to the numbering of the regulations. I commend the regulations to the Committee.
Lord McKenzie of Luton
My Lords, I thank the Minister for his introduction to these regulations. They take us back to the saga of Equitable Life, which spawned a range of inquiries and reviews, including those by the FSA, the Treasury Select Committee, the actuarial profession, the Treasury, the ombudsman—twice—and the Public Administration Committee. I do not propose to pick over those in detail this afternoon. As we have heard, they culminated in the Equitable Life (Payments) Act, which came before your Lordships’ House in 2010 as a money Bill. The Act, which we supported, introduced a payment scheme to be operated by an independent commission. It would seem that the scheme is well under way and is open until April 2014, although annuitants will clearly continue to be paid thereafter.
One bone of contention with the proposed scheme was the overall amount of money allocated, although the Parliamentary Ombudsman recommended the need to reflect a public interest consideration and the impact on the public purse. Another bone of contention was the starting date of the scheme which, as we have heard, applied to policyholders who invested from September 1992. In justifying not including earlier investment, the then Minister—the noble Lord, Lord Sassoon—stated:
“The first issue here is that they took out policies before any maladministration could have affected their decisions”—
that reflects what the Minister said earlier today. He continued:
“That is the first and principal reason why they have not been included in the Government’s proposed payment scheme … Sir John Chadwick and Towers Watson”—
the actuaries—
“… concluded that the pre-1992 WPAs received more from Equitable Life than they would have if the society had been properly regulated”.—[Official Report, 24/11/10; cols. 1157-58.]
As it paid out more in the earlier years but less in later years than it would have had there been no maladministration, “no compensation is due”. We are told that the Government remain of this view. That is what the Minister reiterated earlier. Can he confirm that and tell us whether any updated assessment was undertaken to verify the balance of the over and underpayments in that analysis? Does it still fall in a way that validates the view then expressed?
Lord Newby
My Lords, I am extremely grateful to the noble Lord for the speed with which he joined this debate from the Chamber and for his typically forensic questions. He asked me whether the reality validates the view we originally took on under and overpayments on Equitable Life. I believe that it does. If I am wrong, I will write to him, but I think that it does. He asked when the payments would score. I believe that they will score when they were made, so earlier.
The noble Lord asked one or two detailed numerical questions. How many would be precluded by being under-60 at the relevant point? I understand that there are 19, so it is literally a handful. He asked about how many are resident overseas. There are 223 overseas policyholders, 125 of whom are within the EU. He asked about the incomes of the people involved—how many would be paying tax at the various rates. We simply do not have information about the incomes of those pre-1992 with-profits annuitants.
The noble Lord asked whether there would be multiple payments. No, there will not be multiple payments. There will be one payment per policyholder even if they have more than one policy. He then asked the wider question of why £5,000 and why this group. These are simply matters of judgment. Should it be five rather than four rather than six? The view taken by my colleagues in the Treasury was that £5,000 had a sense of justice about it, and that it was felt broadly right and was affordable.
Why this potential group? As the noble Lord knows, this group has been part of the debate about Equitable Life all the way through—about where do you draw the line between payment and non-payment. After a very long period of discussion it was simply thought that these groups were Equitable Life policyholders who had not got the sort of benefit that many other Equitable Life policyholders had got, notwithstanding the fact that they were not subject to maladministration in the same way, and that it was a question of fairness to them. That was the telling argument which decided us on this course.
I hope that I have answered all the noble Lord’s questions. On that basis, I commend the regulations to the Committee.
Lord McKenzie of Luton
I am grateful for the very full answers that the noble Lord has given, but perhaps I may come back on this issue of only one payment. I hear very clearly what the Minister says. Either I am misreading the Explanatory Note, or it is something that we will have to settle outside our discussions today, but it would be good to be clear on that.
On the issue of who we are supporting here, it is quite possible that the people who are getting these ex-gratia payments are higher-rate taxpayers as well as people who do not pay tax at all. Obviously, having a tax-free ex-gratia payment is of particular value to such people. The overall cost, which is, I think, £45 million, is not in these days a small sum. This is why my last question is about all the demands and all the challenges that we have, particularly some of the benefit changes. Why spend £45 million on this group, including some who are higher-rate taxpayers who are going to do very well out of a tax-free ex-gratia amount? I think that I have made the point, and I am grateful for the noble Lord’s explanations.
Lord Newby
I do not think that there is any doubt that one individual will get a maximum of one payment. I am sorry if the note is not very clear but I think that that is correct. Should these payments be tax free? One of the considerations—bearing in mind that these are not insubstantial payments, but they are not vast payments—was that, given that we do not know the current incomes of the people, having a common payment to this group of elderly policyholders seemed to us to be the easiest, simplest, and fairest outcome.
Judicial Appointments Commission Regulations 2013
(11 years, 4 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Judicial Appointments Commission Regulations 2013.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the three sets of regulations before us today contain the detail of selection processes for judicial appointments and the composition of the Judicial Appointments Commission. Specifically, the draft Judicial Appointments Regulations 2013 set out the details of the selection processes to be followed when selecting for certain judicial offices managed by the Judicial Appointments Commission, and processes of selection for the offices of Lord Chief Justice, heads of division, the Senior President of Tribunals and Lords Justice of Appeal. The draft Judicial Appointments Commission Regulations 2013 set out the details of the composition of the Judicial Appointments Commission including the number of commissioners and the process for their selection, while the draft Supreme Court (Judicial Appointments) Regulations 2013 set out details of the selection process for the appointment of Supreme Court Justices, including the revised composition of the selection commissions.
Before setting out further details, I will explain the background to these changes. In November 2011, the Ministry of Justice issued a public consultation entitled Appointments and Diversity: A Judiciary for the 21st Century, which focused on delivering changes to the statutory and regulatory frameworks for judicial appointments and contained measures to increase judicial diversity. One of the proposals in our consultation was to address the balance between primary and secondary legislation; specifically, to move the detail of the appointments processes into secondary legislation while keeping important elements of principle on the face of primary legislation. This approach was supported by the Constitution Committee as part of its inquiry into the judicial appointments process.
Running concurrent with our consultation, the Constitution Committee in the other place carried out an inquiry into the judicial appointments process. In its final report following the inquiry, the committee agreed that the detailed provisions of the Constitutional Reform Act 2005 should be included in secondary legislation. They emphasised that Henry VIII clauses should not be sought; provisions of particular constitutional importance should continue to remain in primary legislation where they will continue to be subject to full parliamentary scrutiny. Upon the introduction of a Bill, the Government should publish draft secondary legislation and the Lord Chief Justice and, where relevant, the senior judge of the Supreme Court should be consulted before secondary legislation is laid before Parliament.
Following the committee’s recommendations and the support we received via our consultation, the Government introduced powers for the Lord Chancellor to make regulations through the Crime and Courts Act 2013, with the agreement of the Lord Chief Justice and, where relevant, the senior judge of the Supreme Court, which would contain the detail of the judicial appointments processes, and these are the regulations we are considering today. While moving this detail into secondary legislation, we also made some changes to the judicial appointments processes themselves that were informed by the recommendations arising from the report of the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger, together with observations received from the Constitution Committee in the other place.
All three sets of regulations have been developed in conjunction with the judiciary and the Judicial Appointments Commission, and we have shared the draft versions with the devolved Administrations. Early drafts of these regulations were shared with Parliament during the course of the Crime and Courts Bill, as it then was, through Parliament as per the observation made by the Constitution Committee. Lastly, as required by legislation, the draft Judicial Appointments Regulations 2013 and the draft Judicial Appointments Commission Regulations 2013 have been agreed by the Lord Chief Justice before being laid. The draft Supreme Court (Judicial Appointments) Regulations 2013 have been agreed with the President of the UK Supreme Court before being laid. With this in mind, I turn now to each statutory instrument individually.
Lord Marks of Henley-on-Thames
My Lords, I wish to make a brief general point about judicial diversity in connection with these regulations. The Committee knows that my noble friend is a forceful advocate of judicial diversity. The Government’s commitment was apparent during the passage of what is now the Crime and Courts Act, and in particular in their promotion of the provisions which find expression in Schedule 13 to that Act. While not wishing to make any judgment about the recent appointment to the position of Lord Chief Justice it is, from the diversity point of view, a shame that the extremely highly thought-of female candidate was not selected. That would have been real and very public progress.
These regulations implement the new systems in ways that are both detailed and welcome, but the imperative is to ensure that we move towards a much more representative judiciary with more women, more ethnic minority judges and judges from a far broader range of social background. These regulations can be no more than a step on the way to achieving that. While they are detailed and welcome provisions, to achieve real change we need a deep and continuing change of culture. That was highlighted in the report of the Advisory Panel on Judicial Diversity, chaired by the noble Baroness, Lady Neuberger and mentioned by my noble friend. I look forward in the future to Government and the judiciary working together to achieve that change.
Lord Hope of Craighead
My Lords, I shall make a short point relating to the Supreme Court (Judicial Appointments) Regulations. Before I explain my point, I should declare an interest. I recently retired as deputy president of the Supreme Court. For the past four years I have been a member of the ad hoc commission and thus responsible, along with the president, for a number of appointments, which have included something like a third of the court now sitting as the Supreme Court across the square.
My point relates to diversity in a rather unusual way. As the Minister has explained, one of the aims of redesigning the composition of the selection commission described in Part 3 of these regulations is to meet the recommendation that the commission should no longer be seen to be appointing or selecting for appointment people in their own image. It may be that that was a fair criticism at the time when I was sitting as one of the two judicial members of the panel since the president and I were both men, but I have just retired and I have been succeeded by the noble and learned Baroness, Lady Hale of Richmond. In a way, this follows on from a point just made by the noble Lord that one may regret for diversity reasons the choice of Lord Chief Justice. I make no comment on that, but one great advance that has been made in the Supreme Court is that we now have the noble and learned Baroness, Lady Hale, who is a very vigorous proponent of diversity and is probably best suited of anyone to sit on such a commission.
It is a great misfortune of timing. If she had been in my position when the noble Baroness, Lady Neuberger, came with her members to visit us and to discuss the change, I am sure that the noble Baroness would have seen—it would have been perfectly obvious—that the noble and learned Baroness was there and that we had on our team every component for diversity one could possibly have wished for. As the noble Lord rightly explained, when the draft regulations were discussed with us, it was impossible to make the point that the noble and learned Baroness, Lady Hale, might be my successor because I had not yet resigned and the selection process for my successor had not yet taken place. Therefore, we were very cautious not to make any prediction about who would succeed me. The succession process produced this result only about four weeks ago.
It is a great misfortune of timing has led us to the position where the noble and learned Baroness will now be excluded from participation in the selection process. The regulations are very carefully drafted because the composition of the selection commission in Regulation 11 provides for a senior UK judge to be nominated to take the position which I previously occupied. It is quite clear, if you read Regulation 11(1)(e) with Regulation 14 and Regulation 2, that the senior UK judge can be any senior UK judge other than a judge of the Supreme Court. So it is quite clear it can only be the president who would be the Supreme Court member, and the noble and learned Baroness, Lady Hale, has no prospect of playing any part in the work of the commission.
The way that the appointments have gone in the Supreme Court in recent years means that there will be no fresh vacancy, I think I am right in saying, for two or three years. Now that I have gone, the way is clear for the court to settle down without any real change. However, in two or three, or possibly three or four years’ time, a significant number will retire and fall to be replaced, and the noble and learned Baroness will still be there. The composition of what one might call the next but one Supreme Court will be greatly influenced by the work of this commission. It is a great pity that the reform has taken this form. As I said earlier, I doubt very much whether it would have done before, but I must concede that the Minister is absolutely right to say that the regulations were shown to us. We did the best we could in our discussions to make this point without naming names.
The purpose of my intervention is to express regret at this turn of events and hope that perhaps one day it may be possible to recognise the enormous qualities of the noble and learned Baroness, Lady Hale, and the major contribution she would be able to make to increasing diversity in a way which concerns us all.
Lord Scott of Foscote
My Lords, perhaps I may express my agreement with the remarks made by my noble and learned friend Lord Hope of Craighead. I want to add a few words on the Supreme Court regulations relating to the manner in which believed incapacity is to be dealt with. As your Lordships will be aware, the regulations provide for the setting up of a selection commission, and various individuals are to be given the power to nominate other individuals for membership of that commission. One of the persons with the power to nominate such a person is the President of the Supreme Court. That is set out in Regulation 5:
“(1) The selection commission must consist of—(a) the Deputy President; (b) a senior UK judge nominated in accordance with regulation 7”.
Regulation 7 states that, unless paragraphs (2) or (3) of Regulation 5 apply, the President,
“must nominate a senior UK judge who is not disqualified under regulation 16”.
Paragraph (2) of Regulation 7 goes on to state that:
“Where—(a) the office of President is already vacant; or (b) it appears to the Lord Chancellor that the person holding the office of President is for the time being incapacitated, the Deputy President (unless the Deputy President is disqualified under regulation 16) must nominate a senior UK judge in accordance with paragraph (1) to sit on the selection commission”.
The believed incapacity puts out of the ring as a nominator the President and brings in the Deputy President. So far, so good, but the existence of the incapacity is simply dependent upon the opinion of the Lord Chancellor: it appears to the Lord Chancellor that the person holding the office of the President is, for the time being, incapacitated. One finds an echo of that in Regulation 14:
“(1) Unless paragraph (2) or (3) applies, the President— (a) must nominate a senior UK judge who is not disqualified under regulation 16”,
or,
“(2) Where—(a) the office of President is already vacant; or (b) it appears to the Lord Chancellor that the person holding the office of President is for the time being incapacitated, the Deputy President (unless the Deputy President is disqualified under regulation 16)”.
Under Regulation 16,
“A person is disqualified for the purposes of membership of a selection commission if it appears to the Lord Chancellor that that person is for the time being incapacitated from serving as a member of the selection commission”.
All these provisions depend on nothing other than the opinion of the Lord Chancellor “for the time being” that the individual is, using the language of the regulations, incapacitated. There appears to be no indication of whether the person concerned agrees with his or her believed incapacity, it is just the opinion of the Lord Chancellor that the incapacity exists and therefore someone else must be the nominator for the relevant purpose. I would suggest that that is profoundly unsatisfactory. There are provisions about incapacity in the Constitutional Reform Act 2005. Section 16 provides that the Lord Chief Justice is incapacitated only if at least three of the four heads of division declare in writing that he is incapacitated. Section 36,
“applies if the Lord Chancellor is satisfied by means of a medical certificate that a person holding office as a judge of the Supreme Court—(a) is disabled by permanent infirmity from the performance of the duties of his office, and (b) is for the time being incapacitated from resigning his office”.
What does “incapacitated” mean? It depends on the opinion of the Lord Chancellor. One of the functions of the 2005 Act was to put an end to the believed impropriety inconsistent with the separation of powers of the highest court in the land being a part of the legislature—the Law Lords, as they then were. The impropriety of that was accepted by a number of people, and the Supreme Court was brought into existence to put an end to that conflict. However, this produces another conflict. So far as the regulation is concerned, the Executive, in the form of the Lord Chancellor, does not have to base his opinion on any medical evidence at all. The Lord Chancellor has the right to pronounce his belief in the incapacity of the President, the Deputy President or some other senior UK judge to act for the purposes of the selection commission that these regulations will set up. That itself seems to be inconsistent with the separation of powers—not, as before, the separation between the legislature and the judiciary but between the Executive and the judiciary. It appears to be a much more serious infringement of the doctrine of separation of powers than that which formerly existed when the Law Lords, as Members of this House, acted as the highest court of the land.
I wonder why relying on the opinion of the Lord Chancellor on these matters of incapacity, which must require somebody with a little medical or perhaps psychiatric knowledge to have a view, and without any indication that the individual who is thought incapacitated is having his or her opinion canvassed, should be thought to be an appropriate way of dealing with this situation. I would seriously suggest to the Government that it is a most improper way of dealing with the situation. The Lord Chancellor’s opinion should not be sufficient to declare somebody incapacitated, unless backed by a medical certificate—which would suffice—or by the concurrence of the heads of division or, so long as it was not the Lord Chief Justice’s position being considered, of the Lord Chief Justice. However, just relying on the opinion of the Lord Chancellor on a matter that would require some medical or psychiatric expertise seems to me to be offensive, unnecessary and something that should be remedied before these regulations are brought into effect.
Lord Jones
My Lords, I thank the Minister for his pithy exposition of the Supreme Court (Judicial Appointments) Regulations 2013. I have been in this Parliament for only four decades. Notwithstanding that, I know that a Member without any legal insight is entitled to take part in the proceedings of your Lordships’ Committee and ask a question of the resourceful Minister who is taking forward the business. By coincidence, a new Lord Chief Justice—a distinguished Welshman—was appointed very recently, and I noted in the correspondence column of the Times today that my compatriot, Mr Winston Roddick QC, a former Counsel General to the Welsh Assembly Government, has strongly supported his appointment. I think the Lord Chief Justice is being warmly welcomed throughout the Principality; he has the reputation of being a very charming and knowledgeable Welshman.
At this point, I will hurry on to ask whether the Minister is able to say in what way, if at all, there is any prospect of what one might call ordinary people being consulted on this enormously important post of Lord Chief Justice. Does he have a point of view on that? Does a point of view exist regarding widespread consultation or has it been resolved that such a course would not be wise? How was the First Minister of Wales consulted? I see at Regulation 19 that the First Ministers in Scotland and Wales are down for consultation. Would it be reasonable to assume that the First Minister of Wales was consulted on this recent appointment of the new Lord Chief Justice? I am not in any way asking what the result of the consultation was, or about the detail of what was said or written, but it is reasonable to ask in what way he was consulted, when he was consulted, and how, by whom and how recently his opinions were received.
The Minister mentioned diversity. Is he able, in all this, regarding this regulation and this appointment, to give to the Committee instances of diversity in these senior appointments of crucial importance to all the people in Britain? I note, too, that references are made to the Judicial Appointments Commission. Does he have to hand the current membership of that commission? I again thank him for his pithy exposition at the beginning of our debate.
Lord Hardie
My Lords, in relation to the Judicial Appointments Commission Regulations 2013, I seek some guidance and some information from the Minister. In terms of the composition of the commission, to which the Minister referred in his remarks, Regulation 4(5) includes as a legally qualified member of the commission a,
“fellow of the Chartered Institute of Legal Executives”.
What particular judicial appointments would the commission comprising such a member be involved in? Perhaps the Minister can assist me. I may have something further to say once I know the answer to that.
Lord Brown of Eaton-under-Heywood
My Lords, I, too, echo the words expressed by my noble and learned friend Lord Hope of Craighead about the signal and striking contribution made over the years by the noble and learned Baroness, Lady Hale of Richmond, to the laudable, estimable cause of judicial diversity. It is indeed a pity—I cannot put it higher than that—that at the very moment that she would stand to be a critical part of the selection process these regulations in every sense must disappoint her.
I would also say a word sharing my noble and learned friend Lord Scott’s concern, though perhaps without the passion he brought to bear on the point, about the insistence throughout the regulation—he referred to the various places where this concept appears—that it is purely for the opinion of the Lord Chancellor whether any relevant person is incapacitated from serving as a member of the selection commission. The same formula he pointed out appears in Regulations 7(2)(b), 14(2)(b), 16(1) and 17(2)(b). That is exhaustive but that is where the concept appears. He made a point on Section 16 of the Constitutional Reform Act 2005 with regard to the incapacity of the Lord Chief Justice. It is fair to point out that in Section 16 that is a permanent incapacity, and indeed “incapacitated” is defined in Section 16(5) in relation to the Lord Chief Justice to mean,
“unable to exercise the functions of that office”.
It is made plain that that is on a permanent basis. There is a distinction between that and, in our regulations, the formula,
“for the time being incapacitated”.
I suggest a possibility: somebody else, together with the Lord Chancellor, could be involved in making a judgment and expressing a determination as to whether there is, for the time being, incapacity of the relevant member—that is, simply incapacity from serving as a member of a selection committee. I would suggest possibly the Lord Chancellor together with the Lord Chief Justice did that. If somebody were then to make the point, “Well, it may be that the Lord Chief Justice could himself be a candidate for appointment either to the relevant office or, indeed, to being on the selection committee”, in such a case it could be the next senior UK judge, who, again, is defined within the statute. I merely put those forward as possible suggestions to dilute the objection and concern voiced by my noble and learned friend Lord Scott that it is, at least in terms of perception, troubling that the matter should be left simply to the untrammelled opinion of the Lord Chancellor unaided.
Lord Beecham
My Lords, I join other noble Lords in congratulating and thanking the Minister for his very clear presentation of the regulations, and join some of your Lordships in expressing a slight note of regret that the noble and learned Baroness, Lady Hale, has not been appointed to the very high position of Lord Chief Justice—not this time at any rate. That in no way reflects, of course, on the esteem in which the new incumbent is held across the system. However, if the noble and learned Baroness had been appointed, it would have sent a powerful signal endorsing the Government’s approach.
In congratulating the Government generally on coming forward with these proposals, it is as well to remember where we are in the higher courts in terms of diversity. Of 110 High Court judges, only 17 are women and only five are from black and ethnic minority backgrounds, with no female heads of division. However, we now have a female Supreme Court judge and that is welcome. Those facts illuminate the reason for the Government’s approach, which we certainly endorse. I particularly welcome the reinforcing of independent elements in the appointments processes and, of course, promoting diversity. That includes the revision of the composition of selection panels for the most senior appointments. The Government’s intention is explicit—to make the appointments more diverse and increase lay representation on the panels. However, I am not entirely clear about the extent to which the selection panels themselves reflect diversity among their members, particularly at the higher levels. As there are five members of the commission, it is important that diversity is also reflected at that level.
I particularly welcome two matters. The first is that these procedures will apply to tribunals. In answer to the noble and learned Lord, Lord Hardie, that, I think, is the relevance of the inclusion of the Chartered Institute of Legal Executives in the new process as they are eligible for tribunal appointments, as the Minister indicated. There is, therefore, every reason why they should be on the panels.
Lord Hardie
To clarify, is the noble Lord saying that the legally qualified person who is a fellow of the Chartered Institute of Legal Executives would only be part of a commission which appointed members to a tribunal?
Lord Beecham
I am not in a position to say that—the Minister is—but I gather that he or she would not necessarily be restricted in that respect. Personally I welcome that because otherwise you would have the somewhat anomalous position where the converse would not be the case: the member engaged in tribunal appointments would, by definition, not be a member of the chartered institute and would be either a barrister or solicitor. There is the option for balance—it is not necessarily the case—where the CILEx member was involved in other than tribunal appointments. That possibility could occur. I dare say the Minister will correct me if my interpretation is wrong. I very much welcome the inclusion of CILEx in that.
I return to the question of the steps the Government will take to ensure that there is diversity in the appointment of membership of panels, especially in relation to gender and ethnicity. The noble and learned Lords, Lord Scott and Lord Brown, referred to the difficulties raised by the provision relating to incapacity. It is rather striking that incapacity is only treated as a matter of concern if it afflicts a holder of judicial office. It is not inconceivable that it might afflict the Lord Chancellor but that is not covered by the arrangements. That is slightly odd. I sympathise very strongly with the observations of the noble and learned Lords in that regard. There must be a procedure in which the Lord Chancellor is not perceived to have an unfettered and sole discretion in this matter. That might not be the Government’s intention—I suspect it is not—but it would be much better if that were explicit. I hope the Minister will take this back and possibly make it the subject of further regulation. The point that was made was quite powerful.
There are two other matters I invite some comment on. First, given that we are not talking about judicial appointments, I wonder whether the Government have taken on board sufficiently—or to any extent—the impact on future appointments of the changes they are proposing, particularly in criminal legal aid. There is widespread concern, expressed across the legal profession and reaching into the judiciary, that diversity issues will arise if, as seems likely, there is a significant reduction in the size of particularly the criminal Bar but also of the solicitors’ side of the profession. I declare my interest as a member of the Law Society and an unpaid consultant to a firm of which I was formerly senior partner. There is a fear that the ladder of appointments might become rather remote from those who currently succeed in progressing. Even now, as I indicated, they do not progress as high as the Government would wish. Again, I invite the Government to consider the impact of these changes on their aspirations for diversity in the judiciary.
Secondly, there is an area that I confess is beyond the scope of these regulations. I invite the Minister to indicate what steps the Government are considering to sustain and promote diversity among the magistracy. That is diversity of all kinds: again gender and ethnicity but also, although it is not in this series of recommendations affecting the judiciary, social class as well. A local justice system needs diversity in its officeholders to a significant extent, as does the judiciary with which we are today concerned.
Having said all that, the Government are certainly moving in the right direction. We hope that some of the points made today might be reflected in further regulation. This is a good start but needs to be taken further. No doubt over time the Government will assess what progress has been made and what steps they could take to encourage more applications for judicial officers at all levels from a wide range of people qualified in every respect to fulfil that important duty.
Lord McNally
My Lords, I am extremely grateful to all those who have contributed to a very interesting debate. I have to confess that as I sat waiting for the debate to begin, I felt rather like a character in Alfred Hitchcock’s “The Birds”, as I watched various distinguished Members of your Lordships’ House flutter on to their perches waiting to take a peck at me. I shall start by responding to the noble Lord, Lord Beecham, who is always thoughtful and incisive in what he has to say.
I think that a lot of people were hoping that the selection of the Lord Chief Justice would give us an opportunity to make a great statement in terms of diversity with the noble and learned Baroness, Lady Hale, as one of the candidates. But, as has been made clear in a number of letters to the Times today, that does not take away from the fact that we have a very good choice for the Lord Chief Justice and we wish him well in his appointment. A name which has been bandied around a great deal is that of the noble and learned Baroness, Lady Hale. I remember when the Metropolitan Police appointed its first black policeman, PC Norwell Gumbs. For a while, PC Gumbs seemed to be on duty outside 10 Downing Street, Buckingham Palace or almost anywhere that would give the impression of a diversity that did not actually exist. I must also say to the noble and learned Lord, Lord Hope, that in the three years that I have been a Minister, the Supreme Court has made three or four appointments, none of which has been particularly diverse, although undoubtedly extremely eminent. As my noble friend Lord Marks said, in these regulations we are taking some stuttering steps forward in diversity. I have been assured by the very highest ranks of the judiciary that if I am patient, in 20 years’ time all will be well. I would say that that is not a timescale that the country will be satisfied with.
We are trying to encourage the panels themselves to be diverse. It could take us into a much wider debate, but I am conscious that it is from the criminal Bar that we get the flow of eminent lawyers who go into our senior judiciary. I hope that the Bar itself becomes much more constructively involved in looking at how we bring about social mobility there. For one reason or another—you cannot put all the blame on legal aid—in my opinion, access to the Bar is probably less socially mobile than it was 20 or 30 years ago, and that should be a matter of concern to us.
I also agree with the noble Lord, Lord Beecham, in that I am a great supporter of the magistracy. There is always a problem in respect of its social composition but I think that it has come a long way from being the local squire dispensing justice. Indeed, if we want to look for diversity in our judicial system, it is there in the magistracy, where there is far greater diversity both in terms of gender and ethnic representation. I hope that we will look at how we encourage more people into the magistracy and how we can give the magistracy greater responsibility and powers within our criminal justice system. While I remain in this post, I will certainly look for those opportunities.
Baroness Donaghy
I thank the Minister for allowing me to intervene on this. I do not have any legal qualifications, but I understand employment relations. I am grateful that the Minister has agreed to take this incapacity issue back because I think it is important to look at it from an employment relations point of view, if only to refer to agreed procedures in the regulations. That might see the issue out.
I think that there has to be transparency about the procedures. The circumstance might be very narrow, it might be extremely rare, but it is always those narrow and rare occasions which come under the spotlight. I think it is also a case of how the people who work in that environment feel about the fact that they could be treated in this way. I think there is an important issue as regards referring to some accepted procedure for the Lord Chancellor to go about in taking his or her decision.
Lord McNally
First, I am sure that those who produce Hansard will know this, but I think that I said that the noble and learned Baroness, Lady Hale, was a candidate for Lord Chief Justice. I was of course referring to Lady Justice Hallett, but I know how wonderful Hansard is at making sure that “ums”, “ahs” and mistakes miraculously become eloquence the following day.
I must be clear on this: I cannot take back the order. I am not empowered and, as I made very clear, these three orders have gone through a considerable mincer. What I have said I will do is draw to the Lord Chancellor’s attention the concerns that have been expressed today, the broader concerns of noble and learned Lords, and the noble Baroness’s particular concerns from the point of view of what I would call human relations. I will ask him to consider the points that have been made. If this is genuinely a mistake, a lacuna, or something that needs further action, I am sure that there are ways and opportunities to do so.
I hope that this very useful debate, which has covered a wide area, has given us an opportunity to air a number of important points. In the end, however, it is worth remembering that these statutory instruments build on the ambitions of previous Governments to make our judiciary more diverse and the method of selection more open. To go right back to the noble Lord, Lord Marks, yes, there is still a long way to go and these are perhaps timid steps, but they are steps in the right direction and I hope that they will have the support of the Committee.
Lord Hardie
I should just express my concern about the reference to CILEx. I fully appreciate that CILEx members should be members of a commission appointing a tribunal where they have experience, but the whole point of having legally qualified members of the commission is to have people who have experience of the courts within which they appear. That is why we are talking about barristers or solicitors of the Supreme Court. When it comes to those other courts, the CILEx member will have no experience of that and he or she will effectively be an additional lay member, so the balance of the commission is being skewed. I invite the Minister to reflect on that and perhaps come back with an amendment to confine the involvement of CILEx members to jurisdictions where they practise and have some experience. It is important that we should be aware of the legal qualifications and legal ability of the people presiding over courts in which they do not appear.
Lord McNally
I hear what the noble and learned Lord, Lord Hardie, says. As with the other point, I will take it back. We have to get the balance right between panels that are suitably qualified so that they know what they are doing and panels that choose “chaps like us”. That debate will go on.
Lord Hardie
I should say that I am not from this jurisdiction. I have no experience of this jurisdiction and I was not advocating an appointments process on the basis of appointing “chaps like us”. I was trying to confine myself to the regulations. The regulations themselves set out the basis on which the commission is to be composed. It is to be composed of so many judges, so many lay people and so many legally qualified people. The point of legally qualified people—that is, barristers and solicitors in the Supreme Court in England and Wales—is that these men and women have experience of that jurisdiction and know what is required of people exercising that jurisdiction. I can understand the Government’s desire to involve CILEx in tribunal appointments because that is a jurisdiction of which its members have experience. I am not advocating jobs for the boys but trying to adopt a sensible approach to these regulations. If you appoint a member of CILEx to sit on a commission which is appointing a judge of a higher level than that of a tribunal, effectively you are adding an extra lay member and you do not have the balance that the regulations suggest.
Lord McNally
I repeat that these regulations have gone through the most thorough mincer in gaining the approval of the Lord Chief Justice and the President of the Supreme Court. They have been examined by the Constitution Committee and very thoroughly by both Houses. I think that the noble and learned Lord, Lord Hardie, is making a new point. I can only take it back to colleagues but that was not how we saw the position in terms of having CILEx members. I think that a CILEx member is now a judge, although admittedly of a tribunal. CILEx members can apply for judicial office. Although I cannot withdraw the regulations, I will draw this to the attention of the Lord Chancellor and—
Lord Marks of Henley-on-Thames
My Lords, I wonder whether part of the answer to this is that membership of CILEx is one of the three possible qualifications. Members of CILEx are practising in all fields of the law. All this is saying is that a member of CILEx can be appointed to the commission. It has nothing to do with the possible appointment of a CILEx member to a judicial post.
Lord McNally
That is most certainly true. When I saw the noble and noble and learned Lords gathering, I should have known that this was not going to be an easy task. One of the great benefits of the House of Lords—those who know that I am an avid reformer should take note of this—is there are not many places where one could get such profound legal advice so cheaply. For that, I am extremely grateful to noble and noble and learned Lords. I would again ask that they pass these regulations, but with the firm promise that the points that have been raised will be drawn to the attention of the Lord Chancellor.
Lord Scott of Foscote
I hope that the noble Lord can clarify a matter for me. My understanding is that this has to go before the House, which must pass the affirmative resolution. The matter cannot be dealt with finally just by this Committee.
Lord McNally
It will go before the House where, I am sure, having listened to my explanations today, I will have at least a dozen strong supporters in favour of adopting these regulations.
Judicial Appointments Regulations 2013
(11 years, 4 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Judicial Appointments Regulations 2013.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments.
Supreme Court (Judicial Appointments) Regulations 2013
(11 years, 4 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Supreme Court (Judicial Appointments) Regulations 2013.
Relevant document: 6th Report from the Joint Committee on Statutory Instruments.
Offender Management Act 2007 (Commencement No. 6) Order 2013
(11 years, 4 months ago)
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Lord McNally
That the Grand Committee do report to the House that it has considered the Offender Management Act 2007 (Commencement No. 6) Order 2013.
Relevant document: 4th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, Sections 28 and 29 of the Offender Management Act provide for the polygraph testing of sexual offenders. Specifically, they enable polygraph testing to be included as an additional licence condition for adult sexual offenders. The Act required the provisions to be piloted in specified areas before full implementation. Those pilots took place in eight probation trusts from January 2009 to March 2012. As I shall come to explain, the pilot was successful. The purpose of this order is to commence the provisions fully, to enable polygraph testing to be included as a licence condition for sexual offenders throughout England and Wales rather than just in the pilot areas.
As noble Lords may be aware, a polygraph is a device that indicates whether someone might be lying. More specifically, it measures changes in heartbeat, breathing rates and sweating. Changes in these activities can indicate whether an individual is telling the truth in response to a set of questions. The management of sexual offenders in the community is rightly a serious concern to the public. Having an objective assessment of how truthful or otherwise an offender is with his or her probation officer has the potential to make supervision more effective and hence might reduce the risk of further offending. The potential for polygraph testing as a tool for enhancing the effectiveness of the statutory supervision of sexual offenders was considered in the Home Office’s Review of the Protection of Children from Sex Offenders, published in 2007. That review recommended the piloting of polygraphy as a licence condition.
Following commencement of Sections 28 to 30, polygraph testing was piloted in the east and West Midlands from January 2009 to March 2012. In the pilots, adult sexual offenders released on licence into the pilot area had a condition to comply with polygraph testing included in their release licence. In these pilots, sexual offenders were polygraph tested during supervision to help assess whether they were complying with their licence conditions or their level of risk had changed. The polygraph was, of course, just one component of their supervision. Offenders were also subject to the usual supervision process, which includes regular reporting to a probation officer and may also include attendance on an accredited sex offender programme, help with substance misuse and assistance with accommodation or employment.
Polygraph testing was provided under a contract with the University of Newcastle. An independent evaluation study of the pilots was carried out by the University of Kent. The aim of the pilot was to find out whether polygraph testing was a useful additional tool for probation officers in their management of sex offenders in the community, who were on licence. In other words, the pilots set out to answer the question: is polygraph testing effective in helping to protect the public from serious harm?
The commencement order made under Section 41 defined the areas where the pilots would take place and their duration. The intention was that, on completion of the pilots, Parliament would consider their efficacy and whether polygraphy should be rolled out across the probation service in England and Wales. Any extension or expansion of the scheme may be made only with parliamentary approval. Now that the pilots are complete and have been evaluated, I am pleased to report that they were very successful.
I should, at this point, draw attention to a change in the explanatory memorandum provided to the Secondary Legislation Scrutiny Committee. The explanatory memorandum stated that 599 offenders from seven probation trusts were subject to mandatory polygraph testing during the pilot. Five hundred and ninety-nine offenders were tested across eight trusts during the entire lifetime of the pilots, which ran between January 2009 and March 2012, but the evaluation, which was conducted between April 2010 and December 2011, was based on the testing of 332 offenders in the pilot areas. In other words, testing started before the evaluation and continued afterwards, but only those tests undertaken during the period between April 2010 and December 2011 were used for the evaluation study. As the 599 figure was based on previously unpublished internal management information, officials advised that it would be more appropriate to use the publicly available evaluation data on 332 offenders, and the explanatory memorandum was amended accordingly. The evaluation is in no way diminished or affected by the changes to the original explanatory memorandum. The Minister for Prisons and Rehabilitation arranged for the original explanatory memorandum to be withdrawn and an amended version to be laid in its place. I know that the Minister has apologised to his colleagues in the other place and to the chairman of the Secondary Legislation Scrutiny Committee for this late change, and I should like to add my own apologies to noble Lords.
The evaluation is a robust study of the mandatory polygraph pilot. Outcomes for offenders who were subject to mandatory polygraph testing were compared with a similar group of offenders who were supervised in other probation areas where they did not use the polygraph as part of supervision. The evaluation found that the offenders subject to polygraph testing made more “clinically significant disclosures” than the comparison group. These are disclosures that led to changes in the way the offender was managed. Information disclosed as part of the polygraph process led to probation offender managers taking additional actions to manage the offender’s risk and to improve compliance with their licence conditions. This included, for example, changing the focus or frequency of supervision or, if combined with further information, recalling the offender to custody. The explanatory memorandum includes a link to the final published report of the evaluation study. That report provides full information on the effectiveness of mandatory polygraph testing during the pilot. In summary, it concludes that polygraph testing has the potential to lead to more informed and effective supervision by probation officers.
I am aware that there are a number of misconceptions about what a polygraph is and how it is used. Polygraphy is often seen in the entertainment industry, and if you search for polygraphy on the internet, you will find sites which tell you that it does not work and give advice on how to “beat” it. Opinion is divided about how accurate a polygraph is in detecting deception, but the US National Research Council indicates that the polygraph can obtain levels of accuracy of around 80% to 90%. This is clearly not the same as 100% accuracy but it is well above chance.
As part of the supervision of sex offenders, it is not the detection of deception that is the critical factor, rather it is the information disclosed by the offender before, during or after the polygraph test that is used to inform decisions about their supervision. In other words, it is less about “detecting lies” and more about gathering useful information to properly manage risk. For that reason—this is a point that I want to make absolutely clear—no offender will be recalled to custody as the result of a polygraph test alone. An offender will be recalled to custody only if there is additional information that they are not complying with licence conditions or that their risk to the public is increasing. In many cases, such information was volunteered by offenders in the pilots, when they were presented with the results of their tests. Nor will the polygraph be used to determine guilt or innocence. Indeed, Section 30 of the Offender Management Act 2007 specifically prevents any information obtained under the polygraph being used in criminal proceedings against the offender.
Lord Beecham
My Lords, we have heard a good deal about capacity and incapacity this afternoon. With respect, it does not say much for the capacity of the department that it clearly made an error in the way it presented the report to the Secondary Legislation Scrutiny Committee. It ought to be comforted by the fact that it was an error of only 40% compared with the 90% that appeared in the costing that it applied to higher-value claims in the criminal legal aid consultation paper—the department is moving in the right direction. In all fairness, it should be pointed out that the letter from the committee talked about “probationary trusts”, so capacity is perhaps an issue that extends to the committee as well as the department.
I very much welcome this report, for two reasons to start with: the whole scheme was started by the previous Government and Newcastle University was very much involved in it. Those are two grounds on which I could hardly fail to commend the Government for proceeding. It is right that the project should be taken forward.
I am slightly unnerved by the concept of polygraph testing. To me, it has echoes of “Minority Report”, the Tom Cruise film—I do not know whether the Minister saw it—in which, in a future world, technology is used to predict criminality by potential offenders and they are intercepted at an early stage. That nightmarish outcome is not envisaged under the regulations; on the contrary, they should assist in dealing with potential offenders. I welcome the assurance contained in the explanatory note, and given again by the Minister, that they will not be used as a basis for returning people to custody; nor will they be relied on in court proceedings. They are an indicator as to whether steps should be taken—additional supervision or the like—for offenders. That is a welcome limitation.
However, I have one or two questions. The discussion is about applying the polygraph tests to serious sex offenders. I am not clear what constitutes a serious sex offence for this purpose or how you define serious sex offenders. It would be helpful if the Minister could clarify that.
In addition, it is interesting that the process as currently envisaged sees the technician carrying out the test at the behest of a probation officer. Given the proposed changes in the probation service, do the Government intend that such an approach would always be supervised by a probation officer as opposed to some of the other people who will be carrying out supervision under the new contractual and payment-by-results system which the Government seem intent on pushing forward? Given the nature of the offences we are talking about, it would be preferable for these matters always to remain within the domain of the probation service.
The explanatory note refers to a national rollout targeting not only serious sexual offenders—a point I have already made—but,
“others for whom it is deemed necessary and proportionate”.
Again, can the Minister give an example—if not today, subsequently—of what is envisaged by that rather broad phrase? It seems to me that both parts of that phrase need to be more clearly defined.
In debate in the House of Commons, my honourable friend Jenny Chapman asked whether all sex offenders should be covered by the procedures, as opposed to serious sex offenders only, however defined. There is capacity, it is noted in the note, for a further 200 sexual offenders to be built into whatever contract is eventually arrived at—hopefully not with Group 4 or Serco—for this. That would be in addition to the 750 per year which it is anticipated would be subject to mandatory testing. Actually, the report states that the most recent figure is 780. So we might be talking about 1,000 people altogether, with that extra capacity of about 200.
The question arises whether that will be sufficient. It was argued quite forcefully by the Minister replying to the debate in the House of Commons, Mr Wright, that there was a cost factor here. One understands that, but the cost of this project is estimated at about £3 million. If every sexual offender were to be tested—although I am not suggesting that—that would increase the cost to, say, £12 million. Given the nature of the offences, I wonder whether the financial consideration should be all that material. I repeat that I am not suggesting that everybody should be tested, that would not be sensible—but I hope that an artificial financial limitation will not be imposed on the procedures. That would be a matter of public concern, whereas this whole proposal should reassure the public that their safety is likely to be enhanced by the process, with all the safeguards and qualifications to which the Minister has referred.
The Opposition approve the thrust of the report, and I look forward to hearing from the Minister about the queries that I have raised—either today or subsequently.
Lord McNally
My Lords, I thank the noble Lord, Lord Beecham, for that response. As I made clear in my speech, the department regrets the error that was made, but at least we got good marks from him for our choice of university, so I have come out of this with some merit. I am not a great Tom Cruise fan and I have not seen “Minority Report”, but that is probably a generational thing. I started off with the same scepticism about polygraphs, mainly because of my addiction as a child and a young man to American B-movies where they quite often played a key part. I am thinking of Broderick Crawford exposing the villain.
The noble Lord said that making it available for all sex offenders was a consideration at one point, but the way we are approaching this enables us to target resources on those offenders who are likely to cause the most harm to the public. It will be for serious sex offenders, and just to clarify another of his questions, it will remain part of the public probation service. All offenders released on licence for sexual offences will be managed under the multi-agency public protection arrangements. All MAPPA cases will be retained by the public sector. This means that the providers of polygraph testing will work with offenders who are managed by retained public sector staff. We will ensure that all staff working with high-risk sexual offenders are appropriately trained and supported in how to use polygraph testing to enhance the effectiveness of the statutory supervision.
The noble Lord asked how the choice will be made. It will be made where the MAPPA process indicates sexual offenders who are assessed as being at high risk of both reoffending and causing serious harm. By doing this, it enables us to target resources on those offenders likely to be the most dangerous to the public. As the noble Lord said, I do not think that cost should be the decisive factor, although of course it has to play a part in deciding what we can afford in taking this forward, but more than cost it is a matter of proportionality. It is a useful tool for the offender manager. I am glad that he acknowledged that the whole thrust of both the pilot and now the proposal is to add an extra piece of equipment to the armoury of the offender manager so that he or she can make a better informed assessment of the danger to the public of a sex offender and thus take forward appropriate treatment—including, if necessary, recall. The noble Lord indicated that this was an initiative of the previous Government which we have carried forward and which I think we can recommend to the House with cross-party support.
Lord Beecham
I am very grateful for that response. Could he, in due course, set that out a little more clearly? I revert to this question of what constitutes a serious sexual offence. There are some obvious things—rape, attempted rape—but you get down to indecent assaults and so on. Are you going to be weighing, for example, a lesser offence by a record that suggests that it has been repeated, although it is not of itself a serious offence? In other words, what is the composition? That needs a little bit of elucidation. I am not asking for that now. Also, is there any chance of this system being extended to politicians or even Ministers?
Lord McNally
Even as I was speaking I was conscious that I was sweating but that is more because of our heat wave. Whenever you use words such as “serious” in part that is the professional judgment of the probation officers. It is their judgment and assessment of future danger and risk that qualifies them for this kind of assessment. The intention in bringing this forward is showing that assessing future risk is itself a risky business. We feel that this use of polygraphs as a tool in a wider range of skills and judgment by the probation officers is a useful addition—no more, no less. With that, I recommend the order to the Committee.
House of Lords
Introduction: Lord King of Lothbury
Personal Statement
Lord Selsdon
My Lords, with the leave of the House, I would like to make a personal statement. In my speech at the Second Reading of the Littering from Vehicles Bill on Friday, I unintentionally suggested that I might have been provided with the personal data of motorists by the DVLA. I should like to confirm that I have not at any time asked for, or been given, from the DVLA any information which is not in the public domain. In particular, I have not been given the names of keepers of vehicles. I much regret that my speech, made without text or notes, should have given rise to press speculation to the contrary, and I apologise to the House.
Schools: Admission Policies
(11 years, 4 months ago)
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Baroness Bakewell
To ask Her Majesty’s Government whether they have plans to encourage religiously selective schools to adopt more open admission policies.
The Parliamentary Under-Secretary of State for Schools (Lord Nash)
My Lords, the coalition supports inclusive admission arrangements. New faith academies and free schools may admit only half their intake based on faith where they are oversubscribed. The Government also remain strongly committed to faith schools, which play a long-established role in our diverse education system. They allow parents to choose a school in line with their faith and they make a significant contribution to educational standards in this country.
Baroness Bakewell
I thank the Minister for that Answer. However, in the light of the government announcement last week of a funding initiative for 6,000 new schools, and given that this year the Department for Education has already accepted 16 new Christian schools and six Muslim schools, and that the Cantle report into the 2001 riots cited religious and ethnic fragmentation as an underlying cause, will the Minister tell us whether this Government believe that the children of this country should be integrated or segregated?
Lord Nash
This Government believe strongly that one of the secrets for success in this country is that children should be integrated and that all schools should teach a balanced all-faith curriculum, even if they have a particular faith-based thesis. We will not make a long-term success of this country unless we can succeed in doing what the noble Baroness has mentioned.
Baroness Cumberlege
My Lords, my interests are in the Lords’ register. Is my noble friend aware that Catholic schools are ethnically diverse—more diverse than community schools—that they serve some of our most deprived areas, that they make a major contribution to community cohesion and that they often have higher academic standards? Does my noble friend agree that it would be a mistake to tamper with a system that has served us so well and for so long?
Lord Nash
My noble friend is quite right. According to the five A* to C statistics, including English and maths, 65% of pupils at Catholic schools achieve five A* to C grades, as opposed to non-faith schools, where the figure is 58%. At level 4 of key stage 2, 85% of pupils at Catholic schools achieve a pass mark, as opposed to 78% for non-faith schools. I agree that Catholic schools and all faith schools contribute strongly to our diverse education system.
Baroness Whitaker
Will the Government ensure that the duty to promote community cohesion works in religiously selective schools now that that responsibility has been taken away from Ofsted and the governors themselves may not value it?
Lord Nash
All state-funded schools are required to promote community cohesion. Under the draft citizenship curriculum, pupils will be taught about diverse national, regional, religious and ethnic identities in the UK and the need for mutual respect and understanding. Schools are also free to teach pupils about such issues in PSHE. All state-funded schools are also required by law to teach a broad and balanced curriculum that promotes the spiritual, moral, social and cultural development of pupils, and Ofsted’s inspection framework includes a focus on this.
Baroness Richardson of Calow
Is the Minister aware that not all schools of religious character select on faith grounds? The Methodist Church has 65 primary schools that are state-funded and 17 independent schools, none of which select according to the faith of the parents, although all are organised on Christian principles, but they are offered to society for the good of society as a whole.
Baroness Brinton
My Lords, I am grateful to the Minister for confirming earlier that some religious free schools can select up to 50%. How does the department monitor the percentage of admission by faith in schools, particularly in those previously independent religious schools that are now free schools.
Baroness Massey of Darwen
May I ask the Minister about the curriculum? In every Education Act that I can remember, certainly in the past few years, it has been stated that children should be permitted or encouraged to have a broad and balanced curriculum. How will faith and free schools enable pupils to have such a broad and balanced curriculum?
The Lord Bishop of Birmingham
Does the Minister agree with the Secretary of State that Church of England schools are most often found in very challenging areas in our communities and provide excellent education? Would he encourage the expansion of religious schools of that kind in oversubscribed areas?
Lord Nash
Where we have areas of basic need, we are keen to encourage all comers to help us. I entirely agree with the right reverend Prelate about the performance of Church of England schools. Again, in respect of achieving five A* to C grades, including in English and maths, they score 62% versus 58%, and at level 4 of key stage 2 they score 82% as opposed to 78%. We would welcome expansion of these schools as they provide an excellent education.
The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford)
It is the turn of this side, but we shall be very quick and then we shall hear from the other side.
Lord Cormack
My Lords, does my noble friend agree that throughout this country church schools, Church of England schools in particular, make an enormous contribution to the cohesion of their local communities, and that Church of England clergy play a big part in this, both by what they teach and by serving as governors on the boards of such schools?
Lord Nash
I agree with my noble friend. A 2009 independent report commissioned by the Church of England analysed Ofsted’s judgments on schools’ promotion of community cohesion. The report found that for secondary schools, faith schools contributed more highly to community cohesion than community schools and had higher average grades than community schools for promoting equality of opportunity and eliminating discrimination.
Lord Dubs
My Lords, will the Minister look at the situation in Northern Ireland where more than 90% of the children are in schools that are segregated on religious lines? Whereas that is not the only factor contributing to the historic difficulties in Northern Ireland, there are ominous lessons for us. Surely, the right way is to move, as in Northern Ireland, towards integrated education, which is what the majority of people in Northern Ireland want and what I believe most people in Britain would want.
Lord Nash
We need a diverse education system that, as I say, is open to all faiths and teaches tolerance of all faiths. Indeed, there are good examples of faith-based groups running schools or sponsoring schools in Muslim areas, where the co-operation is working extremely well.
Armed Forces: Pension Scheme
(11 years, 4 months ago)
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Lord Touhig
To ask Her Majesty’s Government how many soldiers made redundant since the Strategic Defence Review have reached full pension age.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)
My Lords, no soldiers fall into this category as full pension rights are granted only at the completion of a full military career. Personnel within the last three years of their engagement were ineligible for consideration under the redundancy scheme. The redundancy scheme that we have implemented is designed to ensure that all those made redundant leave by 31 March 2015, and personnel requiring full pension rights by that date would therefore normally leave anyway.
Lord Touhig
My Lords, following our last exchange on this matter on 20 June, I received an e-mail from a 35 year-old soldier who joined the Army as a boy of 16. He served in Northern Ireland, Sierra Leone, Iraq and Afghanistan and was told that he had a future in the Army. Indeed, two months ago, he was promoted to WO2.
While he was convalescing following surgery, his wife attended an army wives’ event to discover by chance that he was to be made redundant; he had not been told. Further inquiries revealed that he was to be made redundant 24 days before he qualifies for full pension. He is set to lose £10,000 a year in pension. I am sure that the whole House will join me in wishing him well in his appeal against redundancy.
Lord Touhig
When he returns to his department this afternoon, will the Minister review the redundancy package and, if necessary, come back to the House and reassure us before we break next week that no soldier who is prepared to put his life on the line in defence of our country will be made redundant in this cheapskate sort of way in order that the Treasury can save what amounts to no more than a few bob in petty cash?
Lord Astor of Hever
My Lords, I am sorry to disappoint the noble Lord, but we have no plans to review this. When selecting personnel of the Armed Forces for compulsory redundancy, no consideration was given to the proximity of the immediate pension point. I can tell the noble Lord that only 1.2% of those made redundant are close to their immediate pension point. As we reduce the size of the Armed Forces, our priority is to ensure that the services maintain the correct balance of those skills and experience across rank structures that are required to deliver operational capability now and in the future. That is what has determined our redundancy criteria.
Lord Ribeiro
My Lords, what support will be made available for members leaving the Armed Forces, in particular for those members who are in danger of committing suicide?
Lord Astor of Hever
My Lords, my noble friend asks a very important question. The majority of service personnel make a successful transition to civilian life. All service leavers are entitled to some form of resettlement assistance. The Career Transition Partnership has proved successful in assisting service leavers to find work and a recent defence statistics survey shows that of the service leavers in 2011-12 who have a known employment outcome, around 85% are employed within six months of leaving the Armed Forces. Our resettlement arrangements are kept constantly under review to ensure the needs of service leavers are met.
Lord Hughes of Woodside
My Lords, did I hear the Minister correctly? Did he really say that, in making people redundant, no account was taken of the proximity of the retirement date and that only 1% were so affected? How can he have the bare face to come to this House and make a statement like that?
Lord Astor of Hever
My Lords, I did say that only 1.2% are affected. The redundancy schemes recognise those who miss out on immediate incomes by paying them significant enhanced tax-free redundancy compensation lump sums. Those who leave before the qualification point will get preserved pensions and further tax-free lump sums at the age of 60 or 65, depending on the pension scheme they are in. Armed Forces pensions remain among the most generous in the public or private sector. We recognise the unique role and sacrifice of the military, which is why the Armed Forces continue to benefit from non-contributory pension schemes.
Lord Palmer of Childs Hill
My Lords, what impact does the Minister consider has been made to Army morale since the announcement of the third round of redundancies on 18 June this year? What conclusions about morale does my noble friend the Minister draw from the increased proportion of voluntary redundancies in the recent tranche of Army redundancies, up, reportedly, from 72% to 84%?
Lord Astor of Hever
My Lords, there is no evidence that morale in the Armed Forces has been adversely affected by the redundancy programme. The number of applications for redundancy is not an indicator of the state of morale because the Army has deliberately set out to maximise applications. Recruiting for the Armed Forces remains buoyant.
Lord Elystan-Morgan
My Lords, it is the Minister’s case that no cognisance is taken of the proximity of a decision in relation to redundancy and a pension date. How does it come about that the Ministry is able with such precision to say exactly what proportion is applicable in this case?
Lord Astor of Hever
My Lords, because of the complexity of pensions calculations, establishing the exact number of Army personnel who fall into this category would require manual analysis of the records of those selected for redundancy. This could be undertaken only at disproportionate cost. However, to ensure the redundancy programme is fair, selection criteria have been published by each service and, while rank and seniority are reflected in selection criteria, length of reckonable service is not. This means that individuals might be made redundant either just before or just after the length of service at which they qualify for an immediate pension. Redundancy criteria are based on the future needs of the Army. Exempting personnel because of proximity to pension point would be contrary to this principle and would mean selecting others instead.
Lord Grocott
My Lords, the mood of the House in response to the Minister’s answers is one of considerable concern. It is no answer to the serious example spelt out in detail by my noble friend Lord Touhig, which seems to show a grave injustice, to say that this grave injustice applies to only 1.2% of the people affected. It is a grave injustice to them and, at the very least, I would appeal to the Minister—who listens carefully to what is said by the House—to go back to the department and say that there has been a very unhappy response to the answers he has given today.
Lord Astor of Hever
I will take on board what the noble Lord says. I cannot make any promises, as we have spent a lot of time considering this scheme and it has been very carefully thought out.
Air Pollution
(11 years, 4 months ago)
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Lord Winston
To ask Her Majesty’s Government what measures they are taking to mitigate the health risk caused by air pollution in London.
Baroness Northover
The Government have invested more than £1 billion in measures that will help to improve air quality, including incentives for low-emission vehicles and sustainable transport. In London, the mayor is responsible for working towards national air quality objectives. The Government work with the mayor and London boroughs to improve air quality and help support the health needs of people across the capital.
Lord Winston
My Lords, I am sure we are grateful to the Mayor of London for the initiatives he has taken, even though their implementation seems to be rather slow. However, is the noble Baroness aware that the WHO has calculated that there have been something like 29,000 premature deaths due to air pollution in the United Kingdom? Will she be kind enough to let me have details of the like-for-like figures, by region, for people dying as a result of air pollution compared with those dying as a result of obesity, alcohol or smoking?
Baroness Northover
The noble Lord is quite right to give the figure of 29,000 premature deaths per year because of pollution. I will get him the information that he requires from the department.
Baroness Gardner of Parkes
My Lords, the area in which I live in London is considered one of the worst in the UK. Is it not a fact that we have been in breach of the European Union directives for many years and that the EU keeps extending the time before we have to pay the penalty? Does that not seem to be a very unsatisfactory position?
Baroness Northover
The noble Baroness is not quite right. There are a number of measures and the United Kingdom has worked incredibly hard to try to meet these; for example, on particulate matter, which is very significant, the UK met EU requirements for the PM10 measure in 2011. In addition, 22 out of 27 states are struggling to meet the nitrogen dioxide directive, largely because of problems with diesel vehicles. So across the board countries are finding this a challenge. We are working very hard to ensure that we comply, aiming for later this decade.
The Earl of Listowel
My Lords, is there particular concern about the welfare of cyclists, and are they being given advice, particularly about wearing masks?
Baroness Northover
My brief tells me that cycling is actually a safer means of transport and that the risks from pollution highlighted by the noble Earl are not of major significance. However, clearly it would depend which roads those cyclists are cycling along. We want to do our very best to encourage people to cycle and walk, for the general benefit to themselves and the wider public, but it is true that there are greater risks in certain areas than in others.
Lord Berkeley
My Lords, could the Minister explain how we are to know whether or not this reduction in pollution is correct, when the Government no longer require local authorities to measure pollution officially? We had this last year, before the Olympics, when it was reported that many measuring stations around London were covered with plastic bags so that we did not know that the pollution in London was actually worse than in Beijing before its Olympics.
Baroness Northover
In fact, pollution levels were and are carefully monitored. The challenge is to tackle that and we are trying to tackle that at all levels: national, across London and in the boroughs. The noble Lord will note also that Public Health England, which has recently been set up, is taking this forward, working with local public health specialists. He may also wish to contribute to the local air quality management review, which is occurring at the moment and is looking at what is being done locally and consulting on how best to take this forward.
Lord Tope
My Lords, do the Government accept that the biggest public health risk after smoking is air pollution? Is the Minister aware that the House of Commons Environmental Audit Committee concluded that,
“a public awareness campaign would be the single most important tool in improving air quality”?
What plans do the Government have for such a public awareness campaign?
Baroness Northover
I noted the reports from The Lancet which cited air pollution as being the second greatest cause of lung cancer after passive smoking, so the noble Lord is right to flag its risks. The Government are working very closely to raise awareness. We are providing funding for this to local authorities. The public health outcomes framework includes an indicator on air pollution which enables public health professionals to address this. We are providing a forecasting service on levels of air pollution and information to vulnerable groups. There are some trials at Barts on how best to get information to vulnerable groups.
Lord Knight of Weymouth
My Lords, in reply to the noble Lord, Lord Berkeley, the Minister, referred to the consultation Local Air Quality Management in England. In that consultation, the Government’s preferred option is to remove the requirement for local authorities to report and declare air quality management areas. How then do the Government propose to monitor air quality if their preferred option is chosen—or are the Minister’s warm words just hot air?
Baroness Northover
The noble Lord refers to hot air on a day like this. The consultation is a genuinely open one, and I am sure the noble Lord’s views will be taken into consideration. Many of these Acts date back a long way, including of course the Clean Air Act which had a fantastic effect in earlier decades. We need to make sure that these Acts are brought up to date, and I am sure the noble Lord will feed in his very cogent views.
Critical National Infrastructure: Ownership
(11 years, 4 months ago)
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Lord Harris of Haringey
To ask Her Majesty’s Government what proportion of the United Kingdom’s critical national infrastructure is owned by foreign-owned companies; and what assessment they have made of the benefits and disbenefits of that level of ownership.
Lord Wallace of Saltaire
My Lords, although detailed ownership figures are not held, much of the UK’s infrastructure is foreign owned. More broadly, as a nation the UK has a pipeline of more than £310 billion of potential infrastructure projects over the next five to 10 years. Investment will need to come from a variety of sources, foreign as well as domestic. The UK welcomes all investors, irrespective of nationality, particularly those bringing additional capital into the UK, provided that they meet our corporate governance standards and do not represent an unacceptable national security risk.
Lord Harris of Haringey
My Lords, I note that the Minister does not know what proportion of our national infrastructure is owned by foreign interests, but he does acknowledge that most of it is. Our ports are owned by Dubai, the BT network is controlled by the Chinese and London’s electricity is supplied by the French. Does he not think that it is about time that the Government started to take our national sovereignty, and our freedom of manoeuvre, seriously?
Lord Wallace of Saltaire
There are several points there. To say that the BT network is controlled by the Chinese is, to say the least, a considerable exaggeration. The issue of the dependence on the supply of equipment from China is a rather different one, and that, as noble Lords will know, is the subject of a recent ISC report. British sovereignty has traditionally and in recent years been debated much more in terms of threat to English common law, and the existential threat which Brussels and the European courts are thought to provide to Britain, than in terms of the threat from foreign investment. I should welcome the noble Lord banging on about one rather than the other—it would make a nice change.
Lord Spicer
My Lords, surely one of the good things about foreigners owning bits of our infrastructure is that they cannot take these bits away with them—
The Chancellor of the Duchy of Lancaster (Lord Hill of Oareford)
We shall hear from the Cross Benches first.
Lord Bilimoria
My Lords, today the former Governor of the Bank of England has taken his seat, and we welcome him. His successor is a Canadian. How many other countries would have a foreign national as the governor of their national central bank? We do. Do not the Minister and the Government think that we should be proud that we are one of the most open economies in the world, and that that is a great strength to this country? Regardless of that, and on the other hand, how much longer are the Government going to dither and procrastinate about increasing our airport capacity in London?
Lord Wallace of Saltaire
I shall exclude the second half of that question from my response. I rather hoped that the noble Lord would welcome the degree of foreign investment in our automobile industry. Ten to 15 years ago, many would have sneered at the whole idea of Indian investment in our automobile industry. The recent announcement of the expansion of investment in Jaguar Land Rover is extremely welcome for the prospects for British exports.
Lord Smith of Clifton
My Lords, how many of our former nationalised public utilities, having been privatised, are now owned or largely controlled by nationalised industries abroad?
Lord Wallace of Saltaire
My Lords, a number of French, German and Dutch companies which are partly or wholly state owned participate in our electricity, gas and railway industries. I hope that I shall not upset noble Lords by adding that 10% of Thames Water is now owned by Chinese investors. I hope that that will not make your Lordships worry a bit as you clean your teeth tomorrow morning.
Baroness Smith of Basildon
My Lords, the Intelligence and Security Committee has raised its concerns about the degree of foreign ownership of the UK’s telecommunications infrastructure. What assessment have the Government made of its report and how do they plan to tackle the problem?
Lord Wallace of Saltaire
My Lords, the Government published a response to that report a few days ago, announcing that they will instigate a review of the Huawei cell, which is the issue very much at stake here. I emphasise that we are talking about a global supply chain in which there are, at most, two potential suppliers of some of the highly sophisticated equipment available—I believe that the other is Swedish. The dependence which we all have on each other for critical national infrastructure in telecommunications is a great deal more complicated than we previously understood. However, Vodafone owns a number of large mobile networks in other countries which are part of their critical national infrastructures, so this is not a one- way trade.
Lord Spicer
My Lords, surely it is a win-win situation. We get their money and, because of the infrastructure, they cannot take it away.
Lord Wallace of Saltaire
That is a very good comment. I remember, many years ago, when Mrs Thatcher was Prime Minister and an architect of free-market economics nevertheless phoning the Japanese Government to insist that they pressure Japanese banks to make their partial investment into funding Eurostar and the Eurotunnel project.
Lord Stirrup
My Lords, I am sure that the Minister shares the concerns about the vulnerability to cyberattack of some elements of our critical national infrastructure. So far, the Government’s approach to this problem has been to seek a consensual solution with the industries involved. To what extent is such an approach likely to be successful with foreign companies?
Lord Wallace of Saltaire
My Lords, GCHQ and a number of other government agencies are actively engaged in mitigating the large and, to some extent, unknowable risk of cyberattack. This is a growing problem for all Governments in the world. I emphasise again that the specific issue at stake in the ISC’s recent report was the dependence on foreign equipment and the computer codes which come with it. That is something which GCHQ is much engaged with and which it has now been agreed the National Security Adviser will conduct an inquiry into.
Lord Kennedy of Southwark
My Lords, does the £310 billion of projects which the Minister said was in the pipeline include the extension of the Tube to south-east London, which has been waiting since the Second World War for such an extension?
Lord Wallace of Saltaire
My Lords, I am answering for the Cabinet Office on the question of critical national infrastructure. I do my best to cover all other aspects of government when challenged, but my knowledge of Tube projects in south-east London is a little more limited than of some other subjects.
Mutuals’ Redeemable Shares Bill [HL]
Education (Amendment of the Curriculum Requirements) (England) Order 2013
(11 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Coroners and Justice Act 2009 (Consequential Provisions) Order 2013
(11 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord McNally
That the draft order laid before the House on 8 May be approved.
Relevant document: 2nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 10 July
Apprenticeships (Alternative English Completion Conditions) (Amendment) Regulations 2013
Baroness Garden of Frognal
That the draft regulations laid before the House on 3 June be approved.
Relevant document: 3rd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 15 July
Extension of Franchise (House of Lords) Bill [HL]
Lord Dubs
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Motion agreed.
Mesothelioma Bill [HL]
(11 years, 4 months ago)
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Lord Freud
“(c) the person has not brought an action for damages in respect of the disease against the relevant employer or any insurer with whom the employer maintained employers’ liability insurance at the time of the person’s exposure to asbestos,(ca) the person is unable to bring an action for damages in respect of the disease against any employer of the person or any insurer with whom such an employer maintained employers’ liability insurance (because they cannot be found or no longer exist or for any other reason), and”
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud)
My Lords, in speaking to these amendments I hope noble Lords will not mind if I open with a few thanks. First, I thank noble Lords for their consistent and invaluable dedication to this important Bill. The Bill looks quite different now to how it did at Second Reading and it is certainly in better shape for its passage through this House. I never cease to be amazed by the attention to detail and rigour that noble Lords apply when examining a Bill and I admit that I have ruthlessly stolen as many noble Lords’ ideas as I could over the past few weeks.
The Bill as it stands is a collaborative piece. I have listened with great interest to the concerns of noble Lords and responded to the pressure points. Since the Bill was introduced we have been able to renegotiate the rate of payment to 75%, which is in no small part thanks to the pressure exerted by this House. We have pledged to explore the creation of an oversight committee to ensure that the scheme may operate in the most efficient and just way, an idea that I cannot claim credit for. For that, and indeed much more, I must thank the noble Lord, Lord McKenzie, and the noble Baroness, Lady Sherlock. The noble Lord and the noble Baroness have been kind enough to give their time frequently and I am grateful for their supportive approach and their expertise.
Returning to the issue of scheme management, we have announced that the scheme administrator is to be selected through an open-tender route. I am confident that the scheme that will be set up as a result of this Bill will be the best it can be and will offer financial support to those who, through no fault of their own, have contracted this terrible disease yet cannot sue for damages. This represents a substantial achievement and, once again, one for which I cannot claim all the credit; so I thank noble Lords. My particular thanks go to those who have given so much of their time to contribute to the comprehensive debates we have had. The continued support and attention of the noble Lords, Lord Howarth, Lord Wigley and Lord Avebury, have been key.
One issue that we have discussed at length, and I know that many noble Lords feel strongly about it, was research into mesothelioma. As noble Lords will remember, I mentioned that when negotiating the terms of this Bill, I really hit a brick wall at every turn regarding research. A great debt of thanks must therefore go to the noble Lord, Lord Alton, for raising the awareness of the lack of research in this area and, although we disagreed on the mechanism, the pressure of his amendment has helped me, jointly with my noble friend Lord Howe, to form a strategy for how we might encourage proposals for high-quality research into mesothelioma. On Report last week, my noble friend Lord Howe outlined this strategy, and I thank the noble Earl once again for his support and collaboration on that point. The momentum in this area created by his efforts and the efforts of this House should not be underestimated.
I have tabled one amendment for today and I apologise to the House for its tardiness. The amendment is minor and technical in nature and we will come to it in a moment, but I will quickly say that further thanks are due, this time to the noble Lord, Lord Browne. The purpose of the amendment is simply to add further clarification to Clause 2. It was the noble Lord’s careful scrutiny of that clause that alerted us to a possible source of confusion. The amendment was deemed necessary in cases where an individual had tried but failed to bring a claim against a relevant employer but, where any other relevant employer existed, the individual must attempt to bring a claim against that employer also before being able to come to the scheme. It has always been the policy intention that this scheme must be one of last resort and that all other avenues should be exhausted first. The object of the amendment is only to avoid any misinterpretation of Clause 2.
Before I conclude, I will briefly mention the sterling work of the team behind the scenes. There have been many working in DWP, MoJ, the Department of Health and parliamentary counsel to whom I extend my thanks, including, in the Box, Rose Willis and Fiona Walshe of the Bill team. I pay especial thanks to the tireless work of our redoubtable Bill manager, Lee Eplett, with whom I know many noble Lords have worked during the passage of this Bill.
I know that noble Lords have wished for the Bill to go even further than it does but I hope that they can agree with me that it is a major step forward. The issue of poor record-keeping in the industry has for far too long prevented mesothelioma sufferers from receiving the compensatory payments due to them. The Bill represents substantial progress in rectifying this injustice, and I once again thank noble Lords for their role in this achievement. I beg to move.
Lord Browne of Ladyton
My Lords, I speak in support of these amendments to the extent that they improve the Bill. I am pleased to have been of some assistance to the noble Lord, Lord Freud, in improving the Bill. I venture to suggest that at one stage he thought that I was perhaps more of an irritation than an assistance on Clause 2. However, important issues still need to be addressed and, if your Lordships’ House will bear with me for a couple of minutes, I shall explain.
My noble friend Lord McKenzie of Luton first raised concerns about Clause 2 when he moved Amendment 12 in Committee on 5 June. My noble friend’s contribution spurred my interest, and I recollect making some points of observation in debate. In his response the noble Lord, Lord Freud, initially dismissed these points, but as the debate became more engaged he promised to write. That was because he found himself—I think I quote him properly—“in deep legal territory”, or he was concerned that he might find himself in deep legal territory. He promised to write, and on 7 June he did so. He dismissed my concerns again, but I persisted. Thanks to the engagement of the Bill team, in particular the Bill manager, I was able to find a route of communication with parliamentary counsel about my concerns in relation to Clause 2.
I will not take up the House’s time by going into these in detail, but I remain unconvinced that even an amended paragraph (c) of Clause 2(1) is necessary, except in the most remote, hypothetical circumstances. I commend the ingenuity of those supporting the Minister in trying to find sets of circumstances which justify the words in the first draft of the Bill. In my view, the justifications which I was given were either wrong or showed a repeated misunderstanding of the interaction of other parts of Clause 2 with that very paragraph or, as we got deeper into the weeds in this, a misunderstanding of the relationship between Clause 10 and Clause 2, and then a misunderstanding of the relationship between Clause 2 and its provisions, and the draft set of rules which we were then given. I presume they will now form the template for the regulations which will set out the scheme.
At every point at which a justification was made for the wording there was an inconsistency, which I pointed out. However, having said that, the clarification which the Minister gave in his letter of 7 June that the phrase “the relevant employer” in Clause 2(1)(c) was a reference to the same “a relevant employer” in paragraph (a) of the same subsection, perhaps deals with the issue, at least to some extent. If the Minister finds some way of putting that explanation on the record, it may be sufficient to see off my concerns in the short term. In any event, at this stage I do not intend to persist, now that the paragraph has been divided and recast.
Amendment 1, which would put new paragraph (ca) in Clause 2(1), and Amendment 3, which would put new paragraph (ba) in Clause 3(1), are improvements. I support them without any qualification because they deal directly with my concerns about cases where an employee had multiple employers. It is a simple necessity that at the time of application the employee-applicant, or an eligible dependant, must be unable to bring an action against any of the employers or relevant insurers.
I move now to the consequences of Amendment 5. Amendment 5 is extremely interesting. It would amend Clause 18(3) so that it reads as follows:
“The scheme may specify circumstances in which a person is, or is not, to be treated as able to bring an action for the purposes of section 2(1)(ca) or 3(1)(ba)”.
This is potentially a very significant provision. Remarkably, despite all of the scrutiny it has remained totally unscrutinised. It has now been brought to my attention because of this amendment. I presume that these circumstances will now require to be set out in the regulations which will apply to the scheme—in other words, what were the draft rules that we were given copies of. I went through the draft rules in detail after I received this amendment and could find no references at all to any such circumstances. It seems therefore that a very important part of the structure of this scheme has not been subject to any form of parliamentary scrutiny. I hope that this will be corrected when the Bill goes to the other place. If this provision is necessary, the circumstances that are to be in the scheme ought to be shown to Parliament before parliamentary scrutiny of the Bill is concluded, which it has not been.
Finally, the most important point that has arisen from my engagement beyond Parliament with the Bill team is that during my conversations and in correspondence with those advising the Minister it was explained to me that it was the Government’s intention that, when a person was diagnosed with diffuse mesothelioma on or after 25 July 2012 but before the Bill comes into force as an Act, application to the scheme would have to be made and received by the scheme administrator not later than three years after the date on which it comes into force, not three years from 25 July 2012. That would be a very welcome relaxation of the limitation rules, given the nature of this dreadful disease and how quickly it can become fatal.
Unfortunately, the draft rules make no mention of that relaxation and there is no such relaxation anywhere in the Bill. However, there is a very specific relaxation in draft rule 7, where a person has died on or after 25 July 2012 and the claim is made by an eligible dependant. That very significant concession is known to me and is now known to all Members of your Lordships’ House. It requires some parliamentary acknowledgement or commitment, at the very least. More than that, it requires some commitment that the regulations will deal with this in an explicit way.
Lord Howarth of Newport
My Lords, if it is in order to make some brief remarks in the debate on these amendments which go a little wide of them, as the Minister has just done, I will do so now rather than on the Motion that this Bill do now pass. In the absence of the noble Countess, Lady Mar, I will take a chance and hope to have the indulgence of the House. In our proceedings on the Bill, we have considered very closely the predicament of people who have suffered the tragic misfortune of contracting mesothelioma. This predicament has elicited strong feelings of sympathy all around your Lordships’ House. It is the role of your Lordships’ House to advise our elected colleagues in another place and I would like to reflect for just a moment on what the essence of that advice should be.
In the Bill, we are attempting to deal with the consequences of what should certainly be regarded as a major scandal. Of course, among employer’s liability insurers there are many honourable and conscientious people, but in their ranks there have also been, I regret to say, a significant number who have been deeply dishonourable and reckless. Some of the employer’s liability insurers have behaved as badly as the worst of the bankers and the worst of the touts of mortgage loans did in the run-up to the crisis of 2008.
Because of the long latency of mesothelioma and the three to four decades that the disease takes to incubate, there was scope for genuine administrative confusion, but a significant proportion of insurers have managed to lose the documentation that would have enabled mesothelioma sufferers to make a claim against their employer, or their employer’s successor, and perhaps to make their case in the civil courts. Within that number, it is very clear that there were also significant numbers of insurers who wilfully destroyed that documentation. Such negligence and criminality in relation to people who are doomed to suffer from this most horrible illness and to die of it seems peculiarly cynical and, I would say, depraved. There has been the inhumanity of that but there is also another fundamental issue at stake; the proper administration of contracts is fundamental to the functioning of a free-enterprise economy and to the maintenance of trust in society.
We have all admired and applauded the Minister who, building on the initiative of my noble friend Lord McKenzie of Luton, negotiated with employer’s liability insurers the scheme that this Bill would legislate. The Minister and his officials have invariably been helpful to us, and he was most generous in his remarks just now about noble Lords who have participated in these proceedings. As he said, it has been a collaborative process. We recognise and thank him for the improvements that he has made to this scheme during the passage of the Bill—the raising of the rate of payment to 75%; his agreement that details of the scheme should be brought in by regulation; his acceptance of the principle of an oversight committee; and his decision that the scheme should go out to open tender. I am sure that he will continue to give attention to the significant issues raised just now by my noble friend Lord Browne. The noble Earl, Lord Howe, made a very constructive set of proposals in response to the noble Lord, Lord Alton, on how to facilitate and fund further research into mesothelioma.
The difficulty that the Minister has had, and one that we entirely understand, is that having conducted his negotiation with the industry and reached an agreement with it, he has found it very difficult to budge from the exact terms of that agreement. I do not think that Parliament is bound by the terms of an agreement negotiated between the Government and the industry. Indeed, it is the responsibility of Parliament to improve the scheme further if we can in the public interest. There is therefore a small number of issues which we should commend to our colleagues in the House of Commons for their further consideration. I hope that they will want to look again at the rate of payment and the date for eligibility. I very much hope that they will want to look at the plight of people who are at the moment excluded from the scope of the scheme, such as members of the households of people who were employed and exposed to asbestos, where the employee has not so far contracted the disease but the household member, perhaps someone who did the household laundry and washed the contaminated overalls brought back from the workplace, has contracted it. People in that situation are not covered by the scheme. The self-employed too, even if self-employment was something of a technicality, will not be eligible to benefit. I hope also that the Government will after all agree that there should be an annual report on the progress of the scheme to assist Parliament in its necessary further vigilance in the interests of mesothelioma victims.
I know the Minister has been fearful that if such refinements to the scheme were to be brought in by way of amendments to the Bill, the insurance industry would take away its bat and ball and revert to its customary position of taking legal action to prevent the Government from requiring it to do what in decency and justice it ought to do. Of course, we do not want to see any delays to the implementation of the Bill. I hope that Members of the House of Commons will take the view that a legal case by the employers against minor improvements of this kind to the Bill would be very weak indeed, given that they have accepted the principle that there ought to be a scheme of this kind which they should fund. My noble friend Lord McKenzie of Luton has demonstrated that the costs of such improvements would be affordable, and I do not believe that the employer’s liability insurers would be so shameless as to go to court to try to prevent these modest further improvements and further advance of justice for mesothelioma victims.
In the course of our proceedings on this Bill in your Lordships’ House we have defined the issues and laid out arguments and I very much hope that our colleagues in the elected House will wish to pursue these issues.
Lord James of Blackheath
My Lords, I had not expected to rise at this stage of the debate but, having listened to the noble Lord, Lord Howarth, I feel compelled to do so on behalf of the insurance industry, as he has made a serious allegation of fundamental dishonesty within it. I remind the House that I myself have stood trial in the USA on a charge that would have got me 24 years in the slammer, and was acquitted. At issue was the integrity and honesty of the British insurance industry, for which I signed the audit certificate that led to the ultimate creation of Equitas. The noble Lord should remember that we are a very public arena, and that there are many in the world with other motives who will look to get any crumb of comfort that they can to mount an action that would lead to a financial advantage for them.
The issue on which I was arraigned in the Justice Courts in New York was that, with the fundamental insolvency of Lloyd’s of London totally at issue, I had signed an audit certificate that said it was solvent when it was not. I had seven days’ non-stop interrogation on the subject, but I won. I would like to go on the record to this gathering, for the outside world as well, about why I won so that we may not find that we are undermining the integrity and financial security of the insurance industry on which this scheme will depend. There is no point in us busting the world of the insurance industry for the sake of the Bill and getting nothing.
The point was that I had signed an audit certificate to say that Lloyd’s of London was solvent and could meet all its liabilities, at a time when most people believed that it could not. I relied upon Section 18(1) of the Insolvency Act, which by the greatest irony I wrote when I was assistant to Sir Kenneth Cork in drafting it. The Act makes very specific statements about what justifies a claim for solvency, and I claimed that those conditions were met in the case of Lloyd’s. The ultimate proof that it was is the fact that Equitas, whose creation by Lloyd’s of London I chaired, has been sold to Warren Buffett for an enormous amount of money, with a guarantee that he will fulfil Equitas’s entire liabilities. In the process, he will pick up about £3 billion in pocket money for himself, and good luck to him.
The events of those days cast a very long shadow. The noble Lord, Lord Howarth, may be right in his comment that there was dishonesty in the loss of documentation and the avoidance of liability by those devious means, but there is no question of integrity in the industry with which we are dealing. It is adequately funded and has adequate backing, and it is completely solvent for the discharge of all the liabilities that we want to meet, including those that we are discussing in the Bill. It would be an outrageous act of complete disregard for the facts of history and the integrity of the industry if we were to cast any doubts on its ability to stand behind its liabilities. The issue is that there are these liabilities but there are the reserves in the world for them—you just have to find the key to unlock them, and the Bill is a wonderful part of the process of doing that. There is no question of the integrity of the industry regarding its solvency.
Lord Howarth of Newport
I hope that the noble Lord will accept that I did not in any way impugn the general integrity of the industry, let alone cast doubt on its solvency or its capacity to meet its obligations. I asserted, and I believe this to be correct, that there were within that industry at one time people who behaved dishonestly and, because it was convenient to them, allowed that documentation to go missing.
Lord James of Blackheath
I thank the noble Lord for that. I hope that he will appreciate that my concern was that I did not want to start the forthcoming Session by doing the perp walk down the middle of a 747 on an extradition order back to the USA.
Baroness Masham of Ilton
My Lords, I thank the Minister for what he has done for these unfortunate people, but I very much hope that there will be an increase in research. If there is a will, I am sure that there will be a way of finding a cure.
Lord Alton of Liverpool
My Lords, before the Bill passes and goes on to another place, I want to add a few words to those that have been spoken. I specifically support what the noble Lord, Lord Browne of Ladyton, said earlier about the limitations and relaxations that may well occur in Amendment 5. Like him, I hope that when the Bill goes to another place it will be subject to further scrutiny.
Lord Selsdon
My Lords, last time I declared an interest as someone who had worked in the asbestos industry and I made a suggestion to the noble Lord, Lord Alton, which I have researched further. That is that the amount of clean-up that will have to take place over many years is the perfect target for a levy that might be placed upon it for research purposes.
Lord German
My Lords, before I seek the same dispensation that the noble Lord, Lord Howarth, sought at the beginning of his speech, I will say a few words about the amendments which are before us in order to give my noble friend time to locate the answers to them.
I appreciate all the work that the noble Lord, Lord Browne, has done to get to this point. He referred to remote and hypothetical places where things might occur. I hope that what I will say is not hypothetical, although I suspect that it will be remote. I am worried about the omission of the words,
“at the time of the person’s exposure to asbestos”,
from the new provisions now proposed as Clause 2(1)(ca) and Clause 3(1)(ba). The hypothetical, or rather remote situation, is the following. A company at the time of a person’s exposure did not have employer’s liability insurance—it was behaving negligently—and subsequently, when that person had left that company’s employment, it secured employer’s liability insurance in order to become compliant. As this is written, that would mean that there could be a possible—or not possible—claim against that employer’s liability insurance, which was subsequent to that person’s period of employment. That very remote case leads me to wonder about the omission of those words from the second part of each of those clauses and whether they need to be inserted, or rather made clear. Of course, maybe this could occur in the regulations that may follow from the rules of the scheme that pursues this.
I will quickly say a few words about the Bill. As regards the achievements that noble Lords have made in this House and the work they have done towards the changes that have been made to the Bill, in each of those three or four key issues there has been a change and a degree of success which we ought to recognise. I will first address independence and oversight, which was raised by noble Lords from all sides of this Chamber. They are both very important: the first ensures that the people who manage the process do not rule the way it operates, and the second ensures that there is a degree of observation of how it is run by all those who are, if you like, the actors on the stage who are affected by this dreadful disease.
The second issue is that of research. The noble Lord, Lord Alton, has already referred to the work which is being done by the two Ministers present today, my noble friends Lord Howe and Lord Freud. Clearly, there are differences of view as to how that might happen—statutory versus non-statutory. That is probably the way this House deals with issues: they have been raised, and although the solutions may not be the same ones that noble Lords wanted, they are, none the less, an approach to doing research into this disease.
One way in which we can keep track of what is happening in this area is by scrutiny of Ministers. It is not a matter of whether the Minister who follows is a good Minister—to rephrase the words of the noble Lord, Lord Alton—but of being able to hold Ministers to account. That is what Parliament can and should do. These things should not be kept from the public eye. I am sure that, in years to come, noble Lords will pursue this issue strongly with Ministers of whatever persuasion, from whichever part of the House they come, in order to ensure that we better understand this dreadful disease and how it can be treated and ameliorated. It is important also to take an international approach and work with those who suffer from this dreadful disease in other parts of the world.
The third area that has been of importance to your Lordships’ House during the course of the Bill is the level of compensation. Clearly, a major issue at the beginning was the percentage of civil damages that was to be given, according to a ratio or tariff. Noble Lords sought to raise the bar. There was some success, and, given the public interest in these matters, clearly on one side you wish to ensure as much compensation as you can, quite rightly, for sufferers who cannot trace their employer or their employer’s insurance company. However, you do not want to put another burden on companies that are not responsible for what happened, which would in turn pass on the costs to customers, who would have to pay them. We may not have reached the right balance but I pay tribute to the Minister for moving the bar upwards against all the pressure he was put under during the passage of the Bill.
There are ways in which the Bill can become a model for dealing with other forms of industrial illness relating to asbestos, and with other industrial diseases. The situations may not be exactly the same because, appropriately, this measure is directed at a unique and terminal illness that is dreadful in every aspect. However, it may be that we can derive other models from some of the work that has been done in the Bill.
Finally, I congratulate the Minister on his personal commitment. Many noble Lords will know that he has personally taken this as a challenge that he will see to its conclusion. The job was started by the previous Government, and the noble Lord has obviously taken it a step forward from where it was left by that Government. I pay tribute to the starting point. However, to see it to its completion, having undertaken what must have been horrendous negotiations with people who were not responsible but who had to pay for the people who were responsible and had disappeared off the scene, cannot have been easy. When eventually the fly on the wall in those meeting rooms publishes its memoirs, I am sure that we will be able to see the level of pressure brought by the Minister. From these Benches, I congratulate him and say that it was a job well done. We have taken a step that will lead us in future to deal with problems associated with this disease in an appropriate way. I hope that we will see an early start to implementation, so that people will no longer have to wait for compensation in cases where their former employer, or its insurance company, has gone out of business.
Lord Empey
My Lords, perhaps, in summing up, the Minister could address two matters that were raised last week, one by the noble Earl, Lord Howe, and one by him. First, I think it is true to say that during the proceedings a cocktail of suggestions were made by the noble Earl, Lord Howe, as to how research could be opened up, extended and encouraged. Secondly, I believe that it was the noble Lord, Lord Wigley, who sought from the noble Earl an undertaking to look at a reporting mechanism so that we might have some way of following progress. Can the Minister say when he feels that it will be possible to initiate this process, and can he keep us informed of the progress being made with regard to the research, which is so critical for the future?
We keep repeating the mantra about how 56,000 people in this country may yet contract this disease. However, I remind noble Lords that western countries are exporting the disease to south-east Asia, where I believe it is a disease of the future, not a disease of the past. Together with our colleagues in the European Union, we ought to be looking even harder at whether there are certain things that can be justified.
I join in the thanks to the Minister and the noble Earl, Lord Howe, as well as to the Bill team, for the work that they have put into this. Whatever shortcomings some people may feel there are, I believe that significant progress has been made with this legislation.
Lord McKenzie of Luton
My Lords, we support these amendments, which were spoken to by the Minister some little while ago. We do so in the confidence of having received advice from my noble friend Lord Browne, to whom I pay tribute for his tenacity in pressing certain points, even at Third Reading, and for the food for thought that he has left for colleagues in another place, added to that suggested by my noble friend Lord Howarth and the noble Lord, Lord Alton.
We have heaped praise on the Minister for all his efforts in developing and bringing forward this scheme, and we should do so again this afternoon—in particular, for his determination to have a co-operative approach to a scheme which, sadly, will have to last for many years. This has been reflected in the welcome approach of the Bill team, for which we are very grateful, and indeed in the attitude adopted by all noble Lords who have participated in this debate. I thank my noble friend Lady Sherlock in particular.
Of course, we would have hoped that the scheme would go further, especially in terms of the level of payment. However, we have something solid and substantial to build on in both another place and with a future Government.
I have a final word for all those who have campaigned on behalf of people who are or will be affected by this terrible disease. They, too, can be justifiably proud of what has been achieved so far. It will be their efforts that continue to remind us of what we still have left to do.
Lord Freud
My Lords, I shall just tidy up the questions that noble Lords have raised. I turn, first, to the concerns about the scheme rules raised by the noble Lord, Lord Browne, who takes pride of place in terms of specificity. He was looking at the draft rules, and we will update them to reflect the points that he has made. I do not have an answer for him right now concerning the discrepancy between “a relevant” and “the relevant” employer but I will write to him over the summer. If possible, I should like to borrow his expertise in the coming months. We are still seeing the Bill through and I retain overall responsibility for making sure that it gets through in good shape. Perhaps I may borrow the noble Lord to go through some of these points with the Bill team, because he seems to have been most effective and helpful.
My noble friend Lord German raised related points concerning a company which is uninsured at the point of exposure and which later moves on. If the employer still exists, a claim would have to be made against that employer. If the employer no longer exists and no employer liability insurer can be identified, the person could come to the scheme. That is relatively straightforward to address.
I should take up the points raised by the noble Lord, Lord Howarth, who has been utterly assiduous in looking through the Bill, for which I thank him. I will touch on some of the points that he commends to another place. These issues are very specific, so the rate that we can pay is tied very much to the risks that the costs get passed on to British business. The start date is very much tied to the structure of the smoothing that we have, so that would be very difficult to change. We also have a problem with the household member concerned because it is cover not from employer liability but from public liability. We look at the point on annual reporting in the context of how the oversight committee works.
On the point made by the noble Lord, Lord Empey, on research, we are having a meeting later this week on this issue with key players, launched by the British Lung Foundation. My noble friend Lord Howe and I will be there, and it might be a useful place to discuss how we might look at the progress of research. While we did not agree with the amendment of the noble Lord, Lord Alton, we very much agree with the sentiment behind his motivation for raising the issue because something most disturbing was happening with the lack of research. We are looking for the very best way of making sure that we have quality research. I know that my noble friend Lord Howe went through that in great detail and that he has put a lot of energy into ensuring that we transform that situation. With that, I beg to move.
Lord Freud
Lord Freud
“(b) no one has brought an action for damages in respect of the disease under the fatal accidents legislation, or on behalf of the estate of the person with the disease, against the relevant employer or any insurer with whom the employer maintained employers’ liability insurance at the time of that person’s exposure to asbestos,“(ba) no one is able to bring an action for damages in respect of the disease under the fatal accidents legislation, or on behalf of the estate of the person with the disease, against any employer of the person with the disease or any insurer with whom such an employer maintained employers’ liability insurance (because they cannot be found or no longer exist or for any other reason), and”
Lord Freud
Care Bill [HL]
(11 years, 4 months ago)
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Lord Lipsey
Lord Lipsey
My Lords, I think all five of the non-governmental amendments in this group are down to me, so I crave the Committee’s forgiveness if I am not the soul of brevity on this occasion. All the amendments refer to the Government’s proposed universal deferred payment scheme.
I start by reminding the Committee of the background to this scheme. Its origins lie in the proposal made by a minority of the royal commission of 1999. We—my noble friend Lord Joffe and I—were concerned with one clear defect of the means-tested system. It meant that people were forced to sell their homes to pay for care. The Daily Mail banged on about this practically every week, and it was right—I never thought that those words would escape my lips—to do so. However, we also felt that it would be wrong that people needing care could simply hang onto their homes and eventually bequeath them to their families without spending any of the capital that those homes represented to pay for their own care. Therefore, we proposed deferred payments—local authority loans secured against the value of people’s homes and repayable only when the home was sold, often after the person had died.
Every politician that I have ever discussed this with sees this as a no-brainer. Unfortunately, officials at both local and national levels over the years—I do not of course make this charge against any officials on the current Bill—have taken a rather different view. They could not understand why anyone would hang onto their house when they were living in a care home and they did not want to see valuable homes left empty. The emotional side occasionally escaped them.
The Labour Government nevertheless brought in a scheme to allow deferred payment, but it was essentially sabotaged. A decision was made that no interest should be paid on the loans, and that gave local authorities a financial incentive not to make them. Then many local authorities refused to put schemes in place. If they were challenged in the courts, they lost, but how many people wanted to mount such challenges? Or they denied individual applicants who could succeed only if they showed stamina and determination and lived long enough to see them through.
The result is that the deferred payment scheme has been, if not a complete failure, not by any means a success. There are about 8,000 deferred loans outstanding, which is around 2% of the number of people in care and maybe twice that for self-funders. Most of the schemes are short-lasting in practice. The old person takes out a deferred loan and maybe they hope they will get home after a spell a little longer than the 12 weeks allowed in law to make a decision. Eventually they see that they will not be able to return to their own homes and the deferred loan is brought to an end. It performs a very useful function for the old person in giving them time to think, but the schemes are fairly short-lasting.
I am delighted that the Government have decided to complete the work that was half-botched in the 2000s and which Dilnot endorsed—a universal deferred payment scheme that actually works. The amendments in my name and one in my name and that of my noble friend Lord Warner are designed to refine the Government’s proposals to make them work even better still.
Amendment 92ZZV gets rid of a suggestion in the Bill that people should in some circumstances require third-party guarantees on the loans as well as their being secured against the value of the home. That is belt and braces and I do not see why families should be providing braces when there is a perfectly good belt in place. It would particularly apply when the deferred payment is secured on where somebody else—perhaps the old person’s son or daughter—lives. At the moment, case law provides that a local authority cannot in those circumstances force the sale of a property in order to redeem a mortgage on that property when somebody else lives there. However, if a guarantee was sought from the co-owner, the guarantor could be in a position where they are expected to repay the individual’s care costs based on an unrealisable value of half of the property they live in. This provision may put off people who would otherwise have taken advantage of the scheme and I ask the Minister to look at it again.
Amendment 92ZZW limits the interest rates that local authorities can charge on deferred payments to MLR plus 2%. This is to prevent local authorities attempting to sabotage the new scheme as they sabotaged the previous scheme. They could otherwise do so by charging Wonga rates of interest and this amendment will prevent their doing that.
Lord Warner
My Lords, one of these amendments has my name attached to it. I certainly fully support my noble friend’s other amendments and perhaps should have added my name to them. This is an important group of amendments in relation to the deferred payment arrangements, which are an equally important part of the architecture of the new scheme.
I agree very much with the purpose of my noble friend’s Amendment 92ZZX. When the Dilnot report proposed the idea of a deferred payment scheme, it was to be a national scheme that was totally consistent with the minimum national criteria threshold and portability. I have to say that we envisaged it coming into operation at the same time as the cap. The Government’s proposal of universal payment arrangements is certainly consistent with our approach but it leaves unanswered the question of whether you want to administer such a scheme through 152 local authorities.
One could make a case for a central scheme or latching the management of a such a scheme on to some existing agency. I think that the arguments are relatively evenly balanced. My noble friend has come up with one way of doing it, which is a model scheme that would be required to be adopted by most local authorities. The worst of all worlds would be not to take hold of this issue and leave it to a marketplace of 152 different bodies without much guidance or assistance with compatibility of IT and issues of that kind. We need to hear from the Government how they intend to ensure that this scheme is operated consistently by 152 local authorities. I personally do not have an axe to grind one way or another but I fear that if the Bill is left as it is, we may end up with a bit of a mess, with a wide range of diversity among the different local authorities.
I certainly see the sense of the first part of my noble friend’s Amendment 92ZZY. I shall be very interested to hear the Minister’s response. The second part raises a wider issue, which I still think we need to give more consideration to. There was considerable concern during the Dilnot inquiry about access to sound, independent financial advice, not just in relation to a deferred payment scheme but to some of the other financial products or major financial decisions on paying for care that people would be taking—often at a time of crisis in a family’s life. People would not necessarily be as clear-headed as they might otherwise be. There would be a lot of emotion, and it was important that people could feel confident about getting impartial advice. My sense is that as these major changes come closer, the financial services industry itself might well prefer some stronger statutory safeguards on accessing quality financial advice, if only to protect it from accusations that people had been misled.
I think that we need to come back to this issue. Can the Minister tell us more about discussions with the industry, and where the Government’s thinking is on a statutory requirement on accessing independent financial advice, not just in relation to deferred payments, but to a wider range of financial decision-making?
I added my name to my noble friend’s Amendment 92ZZZ because, like him, I have considerable doubts about whether by April 2015 we can get in place a well thought out and reliable universal deferred payments scheme in place, alongside all the other systems changes that have to be made. The new consultation document, at more than 100 pages, which came out last week on the new funding and payment arrangements demonstrates the complexity of what is involved. These changes will require a major public awareness and education campaign, as we discussed last week. By coincidence, last week I received a note, as other noble Lords may have done, from Saga. It suggests that there is still a mountain to climb in making the public aware of and well advised about these particular new arrangements.
As I have already mentioned, it is not at all clear to me whether we are talking about a nationally administered deferred payments scheme, or 152 separate schemes. That issue in itself will, I suggest, take some time to get sorted out. It is another powerful argument for not rushing our fences and trying to get this all in place by April 2015. We need some convincing chapter and verse from the Minister on readiness, because I, like my noble friend, cannot see how it is sensible to introduce a deferred payments scheme a year in advance of the new cap scheme, with all the interrelationships between these two schemes.
The good news is I perhaps slightly take issue with my noble friend, and give the Minister some comfort on Amendment 92ZZW. I am not sure about putting an interest rate into primary legislation. The ex-Minister in me would be saying, “I think we need a bit more flexibility than that”.
Baroness Barker
My Lords, I shall give some support to the noble Lord, Lord Lipsey. He has thought about this issue in greater detail than many, and that is very important. It is worth pointing out one thing which many people seem to have forgotten. We already operate deferred payments. We have done for a very long time; this is not new. My first question to the Minister is, what intelligence have the Government taken from the evidence which already exists about the operation of current deferred payment schemes—albeit not as part of the Dilnot scheme—in the assumptions they have made about how this legislation will be implemented?
Secondly, I share the view of the noble Lord, Lord Warner, that the potential effects will vary according to demography. In certain boroughs, the overall balance of the population and its longevity will mean that this has a greater impact than elsewhere. For example, in Greater London, the impact will be completely different in the London Borough of Newham and the London Borough of Richmond. Have the differing effects in different geographical areas been modelled? What lessons have the Government taken from that modelling?
I think that the noble Lord, Lord Lipsey, is right. This scheme is a very important part of the overall architecture of Dilnot, and if it does not work, given the sensitivities which there are around property and so on, it could be extremely damaging. The noble Lord may be right that it should be deferred, perhaps as the noble Lord, Lord Warner, suggested, for a year. It may be better to do it at leisure and in more detail than to do it in haste and get it wrong.
Lord Hunt of Kings Heath
My Lords, the Opposition strongly support the intention behind deferred payments. I hope therefore that the Minister will be able to give a serious response to my noble friend Lord Lipsey, because the issues before us are how the scheme is going to operate, the complexity that is necessarily involved and the ability of local authorities to do the right thing. Around all those matters, there remain some question marks.
While I would not necessarily support my noble friend on the specification of the interest rate, there are questions to be answered about how the Minister thinks the scheme will operate among the many local authorities which will be charged with discharging the scheme. For instance, on the question asked by the noble Baroness, Lady Barker, we could see large differences emerge between different local authorities. That would be unfortunate, and I would be interested to hear from the Minister what work his department has done in trying to model how it thinks local authorities will operate the deferred payment scheme.
The argument for a model deferred payment scheme is pretty persuasive. Even if local authorities are to have discretion—I do not disagree with that—in operating their own scheme, surely the production by the Minister’s department of a model scheme would ensure greater consistency and save local authorities a great deal of work in having to work out the details of their own scheme. Given all their other responsibilities, as much support as possible should be given to local authorities. A model payment scheme would be very useful.
I have two points to make on my noble friend’s Amendment 92ZZY. First, it is very specific on the loans being made available for the purchase of point-of-need insurance policies secured against an adult’s legal or beneficial interest in their home. That raises the whole issue of the insurance market. I again ask the Minister to reassure the House that he is confident that the insurance industry is prepared to come to market with suitable products. I know that he commented on this last week, but there remains some doubt about whether insurance companies really wish to operate in this market. Given that the whole thesis of Dilnot is that capping cost would lead to the development of an insurance market, this is something that we need to debate fully and be reassured on.
On Amendment 92ZZZ and the commencement date, I agree with my noble friends Lord Lipsey and Lord Warner about the complexity of what local authorities are being asked to do. We of course need to consider delay, but I do not understand why a different date has been chosen for the deferred payment scheme in contrast to other parts of the Dilnot implementation. It does not seem to make sense and, I would have thought, would be very confusing for people involved.
That brings me back to the second part of Amendment 92ZZY, which is the issue of regulated independent financial advice being made available to a person considering taking out a deferred payment. Surely the Minister will have been convinced by now that the financial consequences of decisions made by people in relation to the provisions in this Bill will be momentous. I would have hoped that by now he would recognise that the assurance that can be given through independent financial advice would be an important safeguard. Unless we have that, I fear that many people will have to make very difficult decisions, involving potentially large sums of money, without the necessary advice. That would detract from the generally consensual way in which we need to go forward. I hope that the Minister will perhaps have some good news for us on that front.
Lord Campbell-Savours
My Lords, I intervene briefly to ask the Minister a rather pedantic question. Subsections in Clause 35 all use the word “may”. There is no actual requirement for the Government to introduce regulations and therefore for local authorities to be placed in a position whereby they can charge. Why has it been left open, rather than using the word “shall”? If we could take the wording as meaning “shall”, can we assume that each further instance of the word “may”—that is to say:
“The regulations may specify costs … The regulations may require or permit adequate security…The authority may not charge interest under regulations…The regulations may make other provisions”—
is part of a whole package? Or, if “may” does mean “may”, might only individual parts of this clause be introduced, as opposed to the whole clause? For example, subsection (2) states that:
“The regulations may specify costs which are, or which are not, to be regarded as administrative costs for the purposes of subsection (1)(b)”.
If that particular part of the clause were not implemented, it would leave local authorities open to decide for themselves what the administrative costs could be. Whatever internal reasons they may have—and my noble friend Lord Lipsey referred earlier to the reluctance of local authorities—should local authorities have that ability to be flexible? I am seeking to establish whether, if this is all going to happen and we should read “shall” for “may”, all the subsections of Clause 35 will be implemented and that isolated subsections will not be introduced in the regulations. That might create difficulties that we are not foreseeing during the passage of the Bill.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
I am grateful to the noble Lord, Lord Lipsey, for his amendments. He has a unique perspective, having first put forward the idea of deferred payments—as he reminded us—when a member of the 1999 royal commission. The Government share his disappointment that deferred payments are patchy and inconsistent across the country. Many people going into care face difficult decisions as a result, and authorities lose money when they offer a deferred payment because they cannot charge interest.
We also share the noble Lord’s commitment to ensuring that deferred payments work better in the future. We agree with the Dilnot commission that deferred payments should become a full and universal offer across the country for people who have to sell their homes to pay for residential care. We intend the scheme to be cost neutral to local authorities, as the commission also recommended.
We are proud to introduce this universal scheme from April 2015. It will provide much needed peace of mind to the 40,000 people who sell their homes each year to pay for care. As well as offering time to make decisions and choices over what happens to their home —a point well made by the noble Lord, Lord Lipsey—it will open up new options, such as renting it out.
In his amendments, the noble Lord raises important questions about implementation. These concern the interest rate, the use of a deferred payment to purchase insurance, support for authorities to implement deferred payments and the timetable. Before turning directly to those amendments, it may be helpful if I briefly outline our plans.
Clauses 34 and 35 contain the necessary powers for us to introduce deferred payments. All authorities will offer deferred payments and it is our intention that people at risk of selling their home to pay for residential care will qualify. They will be able to defer reasonable residential care and accommodation fees, in the care home of their choice, for the whole of their lifetime. We are currently consulting on more detailed proposals on who will qualify and what fees they can defer, and are gathering more evidence on the costs and practical issues involved with offering deferred payments.
One practical issue that we are exploring in our consultation is the possibility of situations in which the authority cannot secure its debt through a legal charge on the property. This is why the Bill provides for other forms of security, including third-party guarantees. The noble Lord, Lord Lipsey, expressed doubts about this provision and wondered whether the proposals in the Bill may put people off taking out a deferred payment plan. Our guiding principle here is that we want as many people as possible to benefit from deferred payments, but it is equally important that local authorities are able to secure their debt.
Traditionally, deferred payments have been secured by registering with the Land Registry a legal charge on the person’s land, but this might not always be possible or offer sufficient security to allow the authority to recover its costs. Examples of this might include when a charge cannot be secured by registration with the Land Registry or where there is reasonable doubt about the person’s ability to afford the care home of their choice over the longer term, but we are consulting on whether there are situations in which offering a deferred payment is particularly challenging and, if so, on what a constructive way forward might be. That might include use of a different form of guarantee such as a solicitor’s agreement or the involvement of a third party. It is important that the Bill contains this flexibility so that when we design deferred payments to accommodate all situations that might arise, individuals’ preferences about the type of security that they wish to offer can be built in. I hope that this will persuade the noble Lord to withdraw his amendment, at least for the time being.
These issues will, in turn, inform how we set the interest rate, which has to strike an important balance. The rate must be enough to help authorities cover their lending costs but be affordable to people going into residential care who are at risk of selling their home. I understand the intention of Amendment 92ZZW to fix the interest rate at a predictable level but, as the noble Lord, Lord Lipsey, might have sensed—the noble Lord, Lord Warner, may have alerted him to this—I am concerned that setting the rate in the Bill before we have finalised other aspects of the scheme is premature. We will announce the proposed interest rate following the consultation and decisions on the wider design of the scheme. This will be set out in the regulations that we will consult upon in 2014. It will be a nationally set, maximum interest rate and local authorities will not therefore be able to charge excessive rates.
I have tabled government Amendment 92ZZAA, which would introduce a new clause allowing authorities to make alternative arrangements for people who would not wish to have a deferred payment because of their religious objection to paying interest. I am grateful to the Islamic Bank of Britain for its help on this amendment. We will work with the bank over the summer to produce detailed proposals, and ensure deferred payments are available to such people.
Lord Lipsey
My Lords, I wonder if the noble Earl could clarify what he said about equity release as an alternative to deferred payments. There seem to me to be two absolutely insuperable objects to that working. One is that you could not have both a deferred mortgage and an equity release on the same property. You cannot have two things secured. More importantly, you cannot get equity release on a house that is empty. The rules of the Equity Release Council—I am on its advisory board—do not permit that. That is not a possible solution to the problem which I put forward.
Earl Howe
I have received advice that, technically, that is not so, but I am more than happy to engage the noble Lord in discussion after this debate. It would largely depend on the availability of a deferred scheme, agreed to by a local authority. It would also largely depend on the quantum of the debt that was already in existence. Of course, setting aside this particular issue, there could be a property on which there was pre-existing debt of a considerable size. It would largely be for the local authority to judge in individual cases whether it was in a position to offer a deferred payment scheme, looking at the facts of the case. I do not think one can make generalised remarks about this. We think that technically it is possible for an equity release scheme to exist alongside a deferred payment loan. As I say, I am sure that the noble Lord, with his insight into the market, will be able to put us right if we have misread the situation.
Lord Warner
While we are on this topic, it seems to me that there is an issue for the Government to think about. What is the market rate for equity release, compared to the market rate for deferred payments? If you are not very careful, you could end up with a situation where one is incentivised over the other. I wonder what consideration the Government will give to that issue.
Earl Howe
We will, of course, give that consideration. I am just reflecting, in the light of the noble Lord’s comment, on whether deciding what arrangements suit the individual is a matter for the Government, or rather a matter of individual choice. If there were a difference in the interest rate, it would surely be up to the individual to decide whether they wished to avail of whatever facility was being offered to them. I do not see that it is necessary to go down the path that the noble Lord, Lord Lipsey, is suggesting, whereby a local authority should be the one and only provider of funding in that kind of situation, merely because the interest rate was perhaps more favourable than an insurance provider’s.
Deferred payments mean that people will not have to sell their home in their lifetime to pay for residential care; I do not think that any commercial product offers that. Equity release is not available to people currently in residential care. However, there is potential for equity release to help people with domiciliary care and other costs. We would welcome developments in that market but this is an evolving discussion with the industry.
In respect of Amendment 92ZZX, we will continue to work with the care sector to ensure that authorities are in the right position to offer deferred payments from April 2015. There will be a dedicated implementation effort led jointly by government and local authorities, learning from local areas with well established deferred payments schemes. This will help to achieve a consistent national approach that fits with existing local systems and structures. We have also announced £335 million of additional funding in 2015-16 to support local authorities to deliver funding reform, including the introduction of universal deferred payments.
Amendment 92ZZZ would delay implementation by one year, until 2016. Given the work already under way with the sector and the shared desire across both Houses to address the issue of care and support funding reform, it is surely only right that we implement this at a reasonable pace. My view—and I hope, on balance, that the Committee will agree—is that it would be unfair to persist with the current system for longer than is needed. The timetable we have set out has other advantages. The 2015 introduction means that deferred payments will be part of the new offer to self-funders coming into place that year, and the stronger engagement by authorities with self-funders will be excellent preparation for introducing the capped costs system in 2016.
The noble Lord, Lord Warner, expressed the fear that we would have 152 deferred payment schemes around the country. As we have discussed, some authorities already have established deferred payments schemes. We think it makes perfect sense to build on the good work that exists. It will also ensure that deferred payments integrate with wider care services. The point here is that authorities will be following criteria set out in national regulations. There will be a consistent approach to who qualifies and what fees they can defer, and a consistent policy around interest and charges.
There is, of course, work to be done by local authorities, but I suggest that what we are tasking them to do is not exactly alien territory to them. We are confident that local authorities have the skills to offer deferred payments. The requirements primarily involve financially assessing people and keeping a record of fees that people have deferred and the interest owed, which is all consistent with activities that authorities undertake as part of providing means-tested care and support. Many authorities already operate deferred payments very effectively. We will work with the sector to identify good practice, as I have mentioned.
In answer to my noble friend Lady Barker, in local authorities with established schemes 20% to 30% of self-funding care home residents take out deferred payment. The level of uptake in 2015 may be similar or it may be somewhat higher. Again, it is incumbent on us—and we recognise this—to work with the sector to identify good practice that others can learn from.
Earl Howe
Yes, it is intended to be an average estimate across local authorities.
The noble Lord, Lord Lipsey, was concerned that there might be an incentive to encourage people to go into care homes rather than receive care at home, which would be contrary to the direction of the policy. That is an understandable concern, but Clause 1 creates a new statutory principle that applies to all the functions under Part 1, including care and support and safeguarding and means that, whenever a local authority makes a decision about an adult, it must promote the adult’s well-being. That ensures that individual well-being is the driving force behind care and support so that local authorities focus on achieving the outcomes that matter to people.
Moreover, although local authorities will be able to charge interest they will not be able to make a profit on deferred payments, so there should not be perverse incentives. Even so, it is important that people who go into residential care should understand their financial options so they can decide what is best for them. Authorities will have a duty to establish and maintain a service to help people access independent financial advice. We are currently consulting on how this duty should operate in practice, including how it works for deferred payment.
The noble Lord raised an important point in relation to the details of the scheme. These are all things we want to look at as part of our consultation and in the work we are doing with the care sector on implementation of funding reform.
Lord Warner
I am sorry to interrupt the Minister, but he skipped past the whole issue of 152 schemes rather rapidly in his answers and brushed aside most questions. Have the Government actually considered a national scheme, which was one of my questions? Does the Minister realise that only a small number of local authorities are actually running deferred payment schemes? It is a very small proportion of the total. The overwhelming majority of them have no experience whatever of running a deferred payment scheme; very few of them are used to valuing assets. These are all new complexities, but the Government are not going to be producing their draft regulations until 2014, by the Minister’s own admission. This is a recipe for a total shambles.
Lord Hunt of Kings Heath
My Lords, the noble Earl has said, and I am sure it is welcome, that the Government intend to set a maximum interest rate to be charged by local authorities. Does he agree that, since it is a crucial part of a deferred payment scheme, setting a rate nationally is consistent with a much more uniform approach? That is why I would have thought my noble friend’s amendment would be a sensible way forward. It is not being mandatory and does not go as far as my noble friend Lord Warner, but simply asks for a model scheme to be introduced.
Earl Howe
We are absolutely on side with the suggestion that there needs to be a uniform approach to the essentials of this scheme. That includes a national maximum interest rate. I suggest to the noble Lord, Lord Warner, that we do not need a national body running an all-singing, all-dancing, nationally mandated deferred payment scheme. We want to build on the good work already going on out there. The noble Lord made a fair point that only a minority of local authorities currently operate deferred payment schemes. Of those that do, many provide us with a very good basis on which to build and share knowledge with other local authorities. That can start now before the regulations are drawn up. We can and will start work with local authorities to ensure that they are gearing themselves up in the right way to approach this task.
Lord Campbell-Savours
But suppose that the local authorities come back and say, “We don’t want regulations to cover the issue of administrative costs”. What happens then? Is it possible that the regulations might be introduced excluding the requirement of administrative costs, if the consultation threw that up as a response? If it were possible, would it not change the nature of the debate that we are having today on this part of the clause?
Earl Howe
We fully expect a range of views about how to implement the proposals that we have set out in the consultation document. However, what we do not anticipate is wholesale objections to the very idea of the proposals, because by and large they are widely accepted as being the right ones. We need to ensure that they are capable of being implemented in a practical way.
Lord Campbell-Savours
I am sorry to press the Minister, but the point is that some local authorities—let us say Westminster, Maidenhead and Windsor or Wandsworth—may want to raise the charges for administrative costs while other authorities might be more sensible and reasonable about what those costs are. There has to be national uniformity in that area, and we should be given assurances today that there will not be flexibility, which would invite differential administrative costs between local authorities and trouble for many people.
Earl Howe
I can reassure the noble Lord that we are aiming to have uniformity. Merely because one local authority may present us with some rather maverick objections, I do not think that I could possibly envisage us capitulating to that kind of pressure. We want to see a system where people, wherever they live in the country, can rely on some clearly set-out rules and can thereby have peace of mind if they take out a deferred payment scheme. I hope and sincerely believe that the noble Lord’s fears will prove groundless, but I am happy to clarify as much of that as I can, given that we have only just gone out to consultation, in the letter.
Lord Deben
I wonder why the particular councils which were chosen by the noble Lord are all among the best councils in Britain, which would certainly behave in the most generous way.
Earl Howe
My noble friend is, of course, completely right. They are model councils of their kind. It is rather fanciful to present them as possible examples of councils that might wish to do badly by their residents.
This is a major reform that we have committed to introduce in this Parliament. While I am the first to agree that that in itself should not drive the timetable, we think that the timetable is achievable. We are consulting to get the details right and working with the care sector to ensure that implementation goes as planned. The noble Lord raised some important points. I am sure that he knows me well enough to accept that this is not the last occasion when I shall look at the points that he has raised. I shall do so further. For the time being, I hope that I have responded to his satisfaction, at least on some of the amendments, and that he will feel able to withdraw the amendment.
Lord Lipsey
My Lords, I genuinely thank the Minister for that response. I do not want to be the least bit churlish about these amendments which, after all, finally put into practice an idea that came to me in the bath 14 years ago. It does not happen very often, but this time we are on the verge.
I warmly welcome the Minister’s assurance that there will be a national interest rate for deferred loans. That completely deals with the point raised by my amendment on interest rates and my point about Wonga rates of interest and is a tremendous breakthrough for this scheme, so I thank the Minister most warmly for that.
Moving to slightly more churlish mode, on whether we have 152 schemes or one, on balance, I buy the Minister’s arguments against having a separate national organisation imposing this or a compulsory national scheme, but that is not the proposal made in my amendment. My proposal was that the Government produce a model scheme that those who wished to could adopt. It might have some bits that could be added on or taken away as local options within the national scheme, but it would at least stop work being done 152 times over. As my noble friend Lord Warner pointed out, some people are working with this stuff for the first time because they have never brought in a deferred payment scheme. I ask the Minister, among the other things that he has kindly offered to consider, to have another look at that specially to see whether we can find some mileage in it.
I got no change on the time of introduction of the scheme, not perhaps greatly to my surprise, but I still believe in my guts that, as this process moves forward, it will become more and more apparent that it is not sensible to aim for 2015. I do not ask the Minister to comment on that now, but I give him an assurance that I—and I hope my Front Bench will do the same—will not accuse him of a U-turn if later on he finds that it is not sensible. A syndrome in government that comes up time and time again is that a Government announce a timetable and, when it is quite clear it cannot be met, go on fighting like made to preserve their original timetable. I shall not say the words “unified benefit”, but I easily could. This does not make any sense. We are all after the same thing here, and if the Minister decides—and I am sure that he will make a very good judgment on this—that it cannot sensibly be met, let him say so openly and we shall be welcoming, not critical.
My final point emerges partly from what we were just talking about: things on which the Government will possibly think again. The noble Earl very generously said that there are lots of things on which he will want to engage in discussions; at one stage he said, “at least not for the time being”, and has made many remarks of that kind. I will make a purely practical point. It is 22 July and the House will return to the Bill relatively early in October, although I do not know when, and many noble Lords are planning to be away for parts of that period. All of us want to resolve as many of these issues as we possibly can without the need for confrontation or debate in this House or, heaven forefend, Divisions, if they can be avoided. Therefore it is rather important that we all reflect on how we can set up a mechanism so that we can continue over this period to discuss the outstanding issues. I know that the Minister will reflect, but he and his officials may want to have discussions with some of us who are involved, so that by the time that we get to Report we will have made use of this Committee stage and found a way to move the House and the Bill forward without unnecessary rancour. With that, I beg leave to withdraw the amendment.
“Alternative financial arrangements
(1) Regulations may, in such cases or circumstances and subject to such conditions as may be specified, require or permit a local authority to enter into alternative financial arrangements of a specified description with an adult.
(2) “Alternative financial arrangements” means arrangements which in the Secretary of State’s opinion—
(a) equate in substance to a deferred payment agreement or an agreement of the kind mentioned in section 34(8), but(b) achieve a similar effect to an agreement of the kind in question without including provision for the payment of interest.(3) The regulations may make provision in connection with alternative financial arrangements to which they apply, including, in particular, provision of the kind that may (or must) be made in regulations under section 34 or 35 (apart from provision for the payment of interest).”
Baroness Campbell of Surbiton
My Lords, I shall speak also to Amendment 92ZZAC and Amendment 92ZZAF.
I declare an interest as a long-term user of social care services. I have lived all my adult life in the same local authority. Like other disabled and older people who use social care services, I would find it impossible to move out of my local area because I could not be sure that my needs would be adequately met. Noble Lords will be aware that I have been very keen to change this deeply discriminatory state of affairs since I moved my first ever amendment in this House in May 2008 during the passage of the Health and Social Care Bill. I have returned to the issue several times in the past five years, culminating in my Private Member’s Bill on social care portability, which I recently introduced for a second time. Therefore, I am delighted that the Government have decided to put right this fundamental flaw in our social care system. I have been privileged to be closely involved in the Government’s deliberations on this issue for nearly three years. The Minister in another place told me very recently that my Private Member’s Bill was used as a template for the provisions in this Bill. That was very flattering, but flattery will not get you everywhere, and, on this, we are not quite there yet. There are a few points to be ironed out if social care portability is to work in practice.
Lord Low of Dalston
My Lords, I am glad to add my voice in support of the amendments in the name of the noble Baroness, Lady Campbell. Unfortunately I was too late to get my name on the Marshalled List but that should in no way be taken to indicate any lack of enthusiasm for them. I do not think that I can usefully add anything to the advocacy of the noble Baroness. She is the expert in this area, and as she has told us, she has been living and breathing this for several years. She has spoken to the amendments comprehensively and with great eloquence.
Instead, I shall speak to Amendment 92ZZAFA in this group, which is a more narrowly targeted amendment. It is not unrelated to the amendments tabled by the noble Baroness, Lady Campbell, but it is more targeted. It would amend Clause 38, which deals with where a person’s ordinary residence is. Ordinary residence rules under the National Assistance Act 1948 established which local authority has a duty to fund a person’s care and support, particularly when they are living in a residential care setting outside their original local authority area and in another local authority. These rules are often disputed by local authorities, and every year hundreds of disabled people are caught in the middle of these disputes, which are mainly about financial responsibility, of course.
This is a probing amendment designed to seek clarification from the Minister about the policy which will inform the regulations accompanying Clause 38, which have yet to be published. Ordinary residence disputes are not merely academic; they affect the liability of local authorities, as I have said, but more particularly, they profoundly affect people’s lives. People who rely on significant care and support in their daily lives can change where they live only when all the arrangements are in place. As the noble Baroness, Lady Campbell, has powerfully demonstrated, they cannot afford to take the risk of a local authority refusing or delaying payment for their care, so people’s independence is put at risk and sometimes severely compromised. For example, there are people like Peter who, after three happy and productive years at a specialist college, wants to stay in the area to look for a job. He plans to live with two fellow students in supported accommodation, but he is under pressure from his home local authority to go back home. There is Lucy who has profound and multiple physical and learning difficulties. She requires 24-hour care and has been living out of area in residential care in London. She is ready to live more independently and a voluntary sector care provider is supporting her to move nearer her family on the south coast. However, her plans are in limbo because of disputes about funding her care package.
The Voluntary Organisations Disability Group—an umbrella body of more than 70 voluntary sector providers—estimates that 500 people, such as Lucy and Peter, are affected by ordinary residence disputes at any one time. A small number of disputes are referred to the Secretary of State for determination—64 in the past three years, of which 40 were dealt with. But these are just the tip of the iceberg. Not only disabled people are affected: providers too are caught up in these disputes. The Voluntary Organisations Disability Group estimates that in the past three years, voluntary organisations had to cover a gap in fees of more than £1.5 million while disputes have been resolved. That is not counting the amount of staff time involved.
Lord Wigley
I would like to put on record my support for the points made by the noble Baroness, Lady Campbell, and those just made by the noble Lord, Lord Low. I wish to speak to the two amendments in my name in this group; Amendments 92ZZAG and 107. These are probing amendments to try to get something on the record with regard to the way in which care issues covered by the Bill and which have cross-border implications between Wales and England will be handled in the future.
Although Clause 112 says that the Bill extends to England and Wales, the Bill is ostensibly to do with care provision in England only, which is why I have exercised a self-denying ordinance and not imposed my opinions on the House or the Committee in recent weeks—other than at Second Reading when I flagged up these matters, which I wish to pursue today.
There are two distinct issues although they can in some circumstances be linked. The first relates to the people who move between Wales and England and England and Wales and how differing care regimes in the respective countries will affect their entitlements. I am talking about people who move voluntarily and not those who may be placed by local authorities or a health authority. The second relates to the funds associated with this Bill and how they impact on the two respective countries, and to that extent the Bill certainly has implications for Wales, Scotland and Northern Ireland.
I first remind the Committee that the social care dimension is a wholly devolved subject, and the policy in Wales may be totally different from that in England. The National Assembly is now considering draft legislation which no doubt will lead in coming months to the evolution of a new statute in Wales. The Welsh Government have a commitment to a new system that is fair, affordable and sustainable within a Welsh context. The legislation being considered in Wales is likely to increase the number of services where people can claim a direct payment from local councils; introduce national eligibility criteria that may be different from those in England; create portable assessments within Wales that do not extend to England as I understand it, and establish a national adoption service and allow council officers greater powers in helping those suspected of being at risk.
In Wales there is a substantially greater proportion of older people—greater than any other country or region in the UK. I also maintain in that context that the GVA levels in Wales are in some areas 40% below the average levels of the UK. The financial profile against which any new policy is set will inevitably be different between Wales and England. They will also have to allow for the fact that disability levels are significantly higher in Wales. Wales has already set a cap of £50 a week on charges for home care. The Welsh Government have, wisely to my mind, waited to see the sums involved in England before deciding on the best policy for paying for care in Wales.
There has been pressure on the Welsh Government from Age Cymru and others pressing for a lower cap in Wales than in England and there has been talk of caps of £23,000 and £35,000, which is the figure recommended by Dilnot. There are serious questions about how the Care Bill in England may affect Wales and vice versa, both in terms of whether there is any full Barnett consequential accruing to Wales from the £1 billion cost of the package in England, and with regard to the entitlement of people who have moved informally—not by placement but informally—between the two countries. For example, what is the portability of assessments of need made in Wales for people who move to England and vice versa—not cross-border placements but those who move voluntarily?
To put it simply, what is the position of Mrs Jones who lives in Prestatyn and goes into residential care in Prestatyn? At the behest of her daughter who lives in Chester she moves to a residential home over the border to be closer to her grandchildren. Will the cap operational in Wales or in England be applicable? Likewise, what if Mrs Smith experiences exactly the same problem in the converse direction? Who will explain the situation and the implications of the situation to both Mrs Jones and Mrs Smith before they decide to move?
Incidentally, the definition of “ordinarily resident” in Clause 38(1) seems to be inadequate to deal with the situation of someone who may move from supported accommodation in one country to another as the location at which she or he lived prior to coming into supported accommodation might be totally irrelevant—for example, if they lived for a period with their daughter in, say, Dublin, Brussels or the Isle of Man.
There is then a question about the duty of the health research authorities covered by Clause 98 of co-operation between England and Wales. Clearly the duty of co-operation needs to be considered, not only in the context of the health authorities but in the general context of these amendments, but who will enforce that duty? What will be the fundamental long stop to ensure that Mrs Jones and Mrs Smith are not caught in the crossfire between the policies of two Governments?
I do not know whether any of the government amendments in this group have an implication for the question I am raising but I would be grateful if the Minister can address these issues so that between now and Report I can discuss them with colleagues in Cardiff to ensure that when the final legislation goes on to the statute book everyone will know exactly where they stand.
Baroness Wilkins
My Lords, I strongly support the amendments of the noble Baroness, Lady Campbell, and the noble Lord, Lord Low. The noble Baroness has been very keen in pursuing these issues for the past five years and her tenacity has been outstanding. I am sure we all recognise that. She has argued comprehensively and excellently for these amendments. We all know that there is huge stress in moving home and, if you are a person in need of care, that stress is beyond words. As the noble Baroness said, it is a monumental risk. I hope that the Committee will wholeheartedly support these amendments.
Lord Hunt of Kings Heath
My Lords, I, too, congratulate the noble Baroness, Lady Campbell, on her amendments and on her persuasive advocacy in this area. We debated the issue of equivalent services at Second Reading and the noble Earl said in his response that he felt that when people move from one local authority to another their circumstances are, in many cases, likely to change and that after a move it would not always be appropriate for them to have services equivalent to those that they had before. However, the noble Baroness has answered this point—her amendment has moved on—and she is not asking for an equivalence of services but an equivalence of outcome. That is a very important difference that noble Lords ought to mark. It is a persuasive case. Of course it is not possible to say that a new local authority must provide exactly the same services in the same way, but it must be right to strive to ensure that the outcome for the person who has moved is the same. I have a great deal of sympathy with her amendments and support those which are designed to ensure a smooth transition.
The noble Lord, Lord Low, made an interesting contribution in relation to ordinary residence and the number of disputes that currently arise in relation to it. As he said, Clause 38 and its associated regulations are welcome. However, he is surely right to seek to ensure that the regulations give absolute clarity and I would welcome the Minister’s reassurance on that.
I welcome the intervention of the noble Lord, Lord Wigley. He should not feel inhibited from intervening in Bills which he thinks apply only to England. His experience is welcome and I hope that he will continue to take part in our debates at future stages of the Bill. I have always found cross-border issues complex. No doubt the Minister will now move many amendments to deal with the issue. However, the substantive point is that, as the four countries of the UK seem to be going their separate ways in relation to health and social care, it is important that we ensure that people moving to and from different parts of the UK are able to do so without a gap in services. In that sense, I welcome the noble Lord’s intervention.
My Amendment 92ZZADA is concerned with the circumstances of carers in relation to a move from one authority to another. Essentially, the amendment requires the second local authority to provide a written explanation where the cost to the second authority of meeting the carer’s eligible needs is different from the first. That explanation should be provided to the carer, the adult needing care and any other person to whom the carer asks the authority to provide an explanation. I am seeking to mirror for the carer the requirement contained in Clause 36(10) to explain the difference in the cost of meeting the eligible needs of an adult when they move from one authority to another.
Perhaps I may probe the Minister about what would happen in a scenario where a carer receiving local authority support moves to a new local authority area but the person receiving care does not. Does the Bill cover this situation? Would a review of the support plan of the carer and the care plan of the person being cared for be triggered? Essentially, on the issue of portability, I want to ensure that the circumstances relating to carers are as well understood as they are to the person making the move. If the Minister cannot specifically respond to that point, perhaps she will write to me between now and Report stage.
Baroness Northover
My Lords, adults with care and support needs may want to move home, just like anyone else, but co-ordination between local authorities can sometimes be variable and, as a result, we often hear that people are worried that they will face gaps in the care that they need. The Bill sets out to change that. Clauses 36 and 37 set out a new process to support people moving between areas in England with a guarantee that their needs will not go unmet during the transition.
I turn, first, to the amendments tabled by the noble Baroness, Lady Campbell, who has a long-standing interest in this issue. As the noble Baroness, Lady Wilkins, and the noble Lord, Lord Hunt, emphasised, the noble Baroness has fought on this issue for years and I thank her for her gratitude to the Government for taking action in this area, even if she has some residual concerns. I hope that I can reassure her and, should she wish to move, that she will be able to contemplate a move as feasible in a way that she never felt it was before.
Amendment 92ZZAB seeks to ensure that the adult remains informed during the process. It is important, as the noble Baroness, Lady Campbell, has made clear, that this is the case so that the adult can plan for their move. Clause 36(6) requires the second authority to carry out an assessment as soon as it has established the adult’s intention to move. This requires interaction with the adult from an early stage and thus provides the opportunity to inform them of progress. We intend to clarify this area in statutory guidance and I am sure that the noble Baroness will wish to feed into this.
Amendment 92ZZAC would require the second authority to have due regard to the care and support plan provided by the previous area and Amendments 92ZZAD and 92ZZAE seek to ensure that the focus is on securing equivalent outcomes as in that plan. I fully understand that the noble Baroness is not seeking equivalent services and that this is different from outcomes, a point emphasised also by the noble Lord, Lord Hunt. Of course, when a person moves it is possible that their needs for care and support may change; for example, if they move closer to their family. The noble Baroness is right to focus on outcomes and we recognise that in the Bill. For example, Clause 25(1)(d) would include all the matters identified by the person, including the outcomes they want to achieve. We very much sympathise with these points and indeed have already revised the provisions following consultation on the draft Bill. Clause 36(7) requires the second authority to have regard to the plan or plans provided.
A further change following consultation is the introduction of Clause 25(5), which requires that when preparing to meet an adult’s needs,
“the local authority must take all reasonable steps”,
to agree with the adult how it will do so. Together, these provisions allow adequate scope for the existing plan to be reflected, so far as is agreed and appropriate, in the way in which the second authority meets the person’s needs to achieve the outcomes that the noble Baroness speaks of. I hope that the noble Baroness, Lady Campbell, agrees that the changes we have introduced will ensure that the person will be fully involved in the development of their care and support plan, and as such, can ensure that this continues to meet the outcomes they want to achieve.
Amendment 92ZZADA, in the name of the noble Lord, Lord Hunt, proposes that we replicate Clause 36(10) for carers. I will explain why this is not required. Clause 36(10) has been inserted as a result of our proposals for funding reform, which we discussed earlier in Committee. It requires the second local authority to inform the person receiving care and support if the cost of their eligible needs is different from that provided by the first authority. This relates to the individual’s care account and it is right that the authority informs the person if the amount that counts towards their cap on care costs has changed. However, carers will not have a care account as they are not eligible for a cap on costs and there is therefore no need to require the second authority to inform them of any change in the cost of meeting their eligible needs.
Where a service user is moving to a new local authority in England and the carer is also intending to move with them, the continuity of care provisions will apply to the carer in the same way as they do to the service user. I hope that this reassures the noble Lord. Where the service user is not moving but the carer is moving home to another authority, these provisions will not apply. The carer is still providing care in the original authority and it will continue to be responsible for meeting their care needs.
Amendment 92ZZAF, in the name of the noble Baroness, Lady Campbell, would require the first authority to continue to meet any needs until it has satisfied itself that the second authority has met its duty in Clause 37(1). The noble Baroness explained why she felt this was important. The continuity duty in Clause 37(1) applies from the day of arrival in the new area. From that point, it is the new authority’s responsibility to meet the adult’s needs, and the first authority’s previous duties are discharged. There should not be a gap in these arrangements. In particular, the requirement on the second authority to assess the adult before they move is intended to ensure that the necessary preparation has been undertaken so that there is no delay. Therefore, this amendment should not be necessary. Moreover, there is a risk that such a provision could act as a disincentive on the second authority to meet its obligations in a timely manner, although I heard what the noble Baroness said in regard to that. We will develop statutory guidance to support local authorities in exercising these new duties. That guidance offers a further opportunity to clarify expectations and ensure that no gap occurs.
Amendments 92ZZAG and 107, in the name of the noble Lord, Lord Wigley, concern Schedule 1, which makes provision for cross-border residential placements. I thank the noble Lord for giving us the benefit of his knowledge of Wales and note his praiseworthy restraint with regard to English provisions, although I note that the noble Lord, Lord Hunt, did not share my view. Clearly, the noble Lord, Lord Wigley, has resolved the West Lothian question but I appreciate his offer to liaise with Welsh colleagues to ensure the greatest clarity. I will give him some further information that may be of assistance to him.
The Care Bill will make provision for cross-border residential care placements so that people can be placed in care homes in other parts of the United Kingdom. This will mean that if a local authority in England places someone in residential care in Northern Ireland, Scotland or Wales, that person will remain the responsibility of the English local authority. They will not acquire ordinary residence in their new location and will continue to benefit from the protection provided by the cap. For example, if people receiving domiciliary care move from England to Wales, or people in a care home move without being placed by their local authority, they will usually become ordinarily resident in the new area and the appropriate contribution they should make to the costs of their care will be determined by the arrangements in Wales. A person moving to another Administration and requiring domiciliary care will be reassessed under the system into which they are moving. The processes being proposed in England and Wales are different and we will work with colleagues in Wales to produce guidance to look at how continuity of care can work across borders.
Schedule 1 will end the untenable situation local authorities currently find themselves in when a person in their area who wishes to receive residential care in Wales, Scotland or Northern Ireland is unable to do so. The noble Lord’s amendments seek to delay commencement of Schedule 1 until a report is laid before Parliament outlining the issues connected with cross-border placements arising with the devolved Administrations. We believe that this would cause an unnecessary delay to enacting provisions that are long overdue.
However, we recognise the concerns about the practical challenges of cross-border working. I hope the noble Lord will be reassured that we are working with the devolved Administrations to create bespoke regulations to meet the diverse legislative and operational requirements of each Administration. The regulations will be subject to consultation and laid before Parliament. I expect the noble Lord to participate in those debates.
Lord Wigley
I do not want to delay proceedings. This is just a way of bringing focus on the issue. Can the Minister give any indication to the Committee as to whether the discussions and deliberations that have already taken place between her department and the National Assembly in Cardiff have gone well and that there is so far a meeting of minds, or are there issues over which there will be some clash? If there is a clash, how will it be resolved?
Baroness Northover
If need be, I will come back to the noble Lord with all the details because it is indeed a very complex area. There are a number of government amendments, as the noble Lord, Lord Hunt, pointed out, and these seek to address some of the issues that have arisen in trying to make sure that everything works as smoothly as possible. It would probably be most appropriate to write in detail to the noble Lord and for him to see and stress-test what is happening. I remind the noble Lord that these regulations will be subject to consultation and laid before Parliament.
I now move on to the government amendments that the noble Lord, Lord Hunt, referred to. Obviously, this is a complex area. Amendment 92ZZAFB is required to clarify the ordinary residence situation of a person who has an independent personal budget. The local authority where the person is ordinarily resident is responsible for preparing the person’s independent personal budget and keeping the care account. This amendment makes clear that if such a person is in residential care and moves to the area of a different local authority, they will be able to become ordinarily resident in that new area.
Baroness Campbell of Surbiton
My Lords, I thank the Minister for her deliberations and her reflections on my amendments. I am glad that we have cleared up that touchy word, “equivalence”. I think that we are now on the same page.
However, I am worried about whether clarifications on the exchange of information and the updating of the user will give sufficient reassurance that services will be provided from day one. I understand that the Government are still working on and clarifying some of the issues with regard to assessment and involvement, and I think we all now understand what “outcomes” means. However, clarifying in guidance does not yet reassure me, because I have many examples of services users and their local authorities and good social workers being in contact with the second authority. They know what is coming their way. I am still deeply concerned that the Dave Morris example will happen again and again.
I am not convinced by the argument that the second authority is obliged pick up the bill from day one and that, should the first authority continue to pay, this would be a disincentive to the second. The second authority will have to pay this money back. Believe me, it will be far more vociferous than any service user. Thus I do not feel that there is an adequate safety net allowing the disabled person and their carer to be confident that the bills will be paid on day one. We still have a little bit more negotiation and clarification to do. I would be far more reassured by the mention of regulation in some of these areas but, for now, I will withdraw my amendment and look to the Minister and his very good, helpful and collaborative officials to go on working with me on this issue.
I am going away in the summer but only for two weeks. I will be back on this issue before and directly afterwards; I am a bit like a dog with a bone on this one. There is more work to do, but, for now, I beg leave to withdraw the amendment.
“( ) The reference in subsection (1) to this Part does not include a reference to section 28 (independent personal budget).”
“( ) Section 22 (prohibition on provision of health services) is to have effect—
(a) in its application to a case within sub-paragraph (1)—(i) as if the references in subsections (1) and (6) to the National Health Service Act 2006 included a reference to the National Health Service (Wales) Act 2006, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Local Health Board; (b) in its application to a case within sub-paragraph (3)—(i) as if the references in subsections (1) and (6) to the National Health Service Act included a reference to the National Health Service (Scotland) Act 1978, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health Board or Special Health Board;(c) in its application to a case within sub-paragraph (4)—(i) as if the references in subsections (1) and (6) to a service or facility provided under the National Health Service Act 2006 included a reference to health care provided under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health and Social Care trust.”
“(1A) Where a local authority in Wales is arranging for the provision of accommodation in England in the exercise of its power under section 22 of the Social Services and Well-being (Wales) Act 2013—
(a) the adult concerned is to be treated for the purposes of that Act—(i) in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in England, as remaining within that area;(ii) in a case where the adult was outside but ordinarily resident in the local authority’s area immediately before being provided by the local authority with accommodation in England, as remaining outside but ordinarily resident in that area, and(b) the adult concerned is not to be treated for the purposes of Part 1 of this Act as ordinarily resident anywhere in England (unless the adult was so ordinarily resident immediately before being provided by the local authority with accommodation in England).”
“(2A) Where a local authority in Wales is arranging for the provision of accommodation in Scotland in the exercise of its power under section 22 of the Social Services and Well-being (Wales) Act 2013—
(a) the adult concerned is to be treated for the purposes of that Act—(i) in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in Scotland, as remaining within that area;(ii) in a case where the adult was outside but ordinarily resident in the local authority’s area immediately before being provided by the local authority with accommodation in Scotland, as remaining outside but ordinarily resident in that area, and(b) no duty under Part 2 of the Social Work (Scotland) Act 1968 or sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 applies in the adult’s case.(2B) But paragraph (b) of sub-paragraph (2A) does not prevent a duty mentioned in that paragraph from applying in the case of an adult who was ordinarily resident in Scotland immediately before being provided by the local authority with accommodation in Scotland.”
“(3A) Where a local authority in Wales is arranging for the provision of accommodation in Northern Ireland in the exercise of its power under section 22 of the Social Services and Well-being (Wales) Act 2013—
(a) the adult concerned is to be treated for the purposes of that Act—(i) in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in Northern Ireland, as remaining within that area;(ii) in a case where the adult was outside but ordinarily resident in the local authority’s area immediately before being provided by the local authority with accommodation in Northern Ireland, as remaining outside but ordinarily resident in that area, and(b) no duty under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009 to provide or secure the provision of accommodation or other facilities applies in the adult’s case.(3B) But paragraph (b) of sub-paragraph (3A) does not prevent a duty mentioned in that paragraph from applying in the case of an adult who was ordinarily resident in Northern Ireland immediately before being provided by the local authority with accommodation in Northern Ireland.”
“6A (1) In section 86 of the Social Work (Scotland) Act 1968 (adjustments between authorities providing accommodation), in subsections (1) and (10), after “a local authority in England or Wales” insert “and to a Health and Social Care trust in Northern Ireland”.
(2) In subsection (2) of that section, after “the ordinary residence of a person shall” insert “, in a case within any of paragraphs 1 to 4 of Schedule 1 to the Care Act 2013 (cross-border placements), be determined in accordance with paragraph 5 of that Schedule; and in any other case, the question shall”.
(3) In section 97 of that Act (extent)—
(a) in subsection (1), for “sections 86 and 87” substitute “section 87”, and(b) after that subsection insert—“(1A) Section 86 of this Act shall extend to England and Wales and to Northern Ireland.”.”
“( ) In paragraph 2—
(a) the references in sub-paragraphs (1), (2) and (3) to discharging a duty under section 21 of the Social Services and Well-being (Wales) Act 2013 by arranging for the provision of accommodation are to be read as references to providing residential accommodation under Part 3 of the National Assistance Act 1948; (b) the references in paragraph (a) of each of those sub-paragraphs to the Social Services and Well-being (Wales) Act 2013 are to be read as references to Part 3 of the National Assistance Act 1948; (c) sub-paragraphs (1A), (2A) and (3A) are to be ignored; and(d) in sub-paragraph (5), the references to sub-paragraph (2A) and paragraph (b) of sub-paragraph (2A) are to be ignored.”
Baroness Hollins
Baroness Hollins
My Lords, I declare an interest as the family carer of an adult man who has publicly funded care and support.
My noble friend Lord Rix and I have tabled eight amendments in this group which together aim to strengthen the safeguarding section of the Bill, Clause 41 and accompanying Schedule 2.
I know that Mencap and others welcome the focus that the Bill gives to safeguarding. At Second Reading, my noble friend said that he regretted the lack of a duty on providers or relevant partners to inform the local authority when they suspect that an adult is at risk. The Minister replied:
“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 … where it appears, ‘that an adult may have needs for care and support’”.—[Official Report, 21/5/13; col. 830.]
However, Mencap and others remain concerned about the lack of a duty on all providers and relevant partners to advise the local authority that there is a need to assess.
We need not look too far into the past to find examples of failings. The serious case review looking at the deaths of Francesca Hardwick and her mother Fiona Pilkington found that safeguarding procedures had failed. Likewise, at Winterbourne View hospital, it took a whistleblower with a hidden camera to expose the abuse and get the authorities and police to take action. We need to get this right and, while the Bill improves on what we have, these amendments would create watertight legislation that provided the level of protection that vulnerable people need.
Baroness Greengross
My Lords, I shall speak to several amendments in this group. I strongly welcome the clauses in the Care Bill that relate to adult safeguarding. It is right that the abuse of vulnerable adults should be placed on a statutory footing, alongside domestic abuse and child abuse. However, these clauses primarily address a minimum safeguarding infrastructure, and in the main seek to meet the requirements of professionals. My proposed amendments focus on the needs of victims.
The prevalence study into elder abuse, funded in part by the Department of Health and published in 2007, indicated that at least 500,000 older people experience abuse at home; abuse that is, sadly, often perpetrated by family members and others whom the victim should be able to trust. Research by the charity Action on Elder Abuse—I declare an interest as one of its founders—indicates that fewer than 10% of the victims come to the attention of adult safeguarding systems. We clearly must do better than that. However, we must also recognise that there are more victims than just the older person. No matter what the circumstances, when someone's mother or father or sister or brother is abused or neglected, it is not unusual for relatives to blame themselves—to feel that somehow they should have known or should have done something. Even when they could not have done so, there are many more victims of elder abuse than just the older person. We know that many victims of elder abuse are elderly people who are attacked by their son or daughter, perhaps because of a long history of domestic violence. However, they are very reluctant to call the attention of the police or anyone to those crimes because they see themselves as having failed as parents.
The amendments go to the heart of what is most cruel about elder abuse. Too many older people are locked away in back rooms, imprisoned by those who choose to exploit them, and unable to seek assistance. Theirs is a silent scream that we must hear, and to which we must respond. We cannot allow abusers the right to deny access to their victims. We must ensure that we do everything possible to find and support the 90% of older victims who currently are unsupported, and we must encourage agencies to work together, as the noble Baroness, Lady Hollins, has said, to report their concerns about possible victims. We must also ensure that those who ill treat or neglect vulnerable people are held to account, because victims and their families deserve to know that elder abuse will not be tolerated and that abusers will be held to account.
Amendment 92ZFC deals with the need for a power of access for confidential interview, to occur only when the reasonable suspicion of a social worker or other practitioner is tested by application to a court, which would consider whether or not to authorise such access. As we have heard, such access is available under the Scottish Act and is proposed in the Welsh Bill through application to a justice of the peace.
Amendment 92ZFD relates to safeguarding adults at risk of abuse and neglect and introduces a duty to report adults at risk of abuse. There is currently no duty on agencies to notify a local authority if they believe an adult may be at risk of abuse. A local authority cannot be expected to identify all abuse by itself. It has to rely on the good will of others to make referrals. There is a need to underline the responsibility of all agencies to report if they have a reasonable belief that an adult is at risk.
As we have heard, the Welsh Bill proposes:
“If a relevant partner of a local authority has reasonable cause to suspect that a person is an adult at risk and appears to be within the authority’s area, it must inform the local authority of that fact”.
A relevant partner is proposed to be the police, another local authority, the probation service, a local health board, an NHS trust, Ministers, or anyone else that regulations may specify.
Amendment 92ZFE is proposed because there is currently no specific offence to protect adults with capacity who are the subject of neglect or abuse but who are not covered by the Mental Health Act or the Mental Capacity Act. The view is that, in such circumstances, they can be covered by the inherent jurisdiction of the courts only, which is time-consuming, costly and not widely used in such circumstances. The Law Commission report noted the gap in the law relating to protecting adults at risk who were being ill treated or neglected but who were not subject to the powers of the Mental Health Act or the Mental Capacity Act. Police officers had suggested that prosecutions were being dropped in practice because doctors could not confirm, or had not documented, that a person lacked capacity.
Additionally, the extent of abuse and neglect uncovered in hospitals and care homes has caused anxiety and outrage throughout the UK. Current systems and law have been insufficient to deter abuse, and too often the few perpetrators who reach the courts have sentences that the public consider far too lenient.
Amendments 92ZFF and 92ZJ are about safeguarding adults at risk of abuse and neglect. I welcome the proposals in the Bill to put safeguarding adults boards on a statutory footing. However, along with the College of Social Work, I believe that the Bill should ensure that social workers are appointed to supervise safeguarding inquiries because they alone have the theoretical, legal and policy knowledge to undertake complex, politically charged and sensitive pieces of safeguarding investigative work that may require co-operation and co-ordination with other professionals and organisations.
Baroness Byford
My Lords, I have two amendments in this group. While the previous amendments have looked particularly at the risk of abuse to individuals, my amendments are to do with finance. I looked carefully through the Bill but did not see where they would fit and I therefore proposed that they be considered at this stage.
Amendment 92ZFA asks that an,
“investigation may be instigated following a complaint from a person with power of attorney for an adult having needs for care and support”.
My second amendment, Amendment 92ZFB, is an accountancy measure to ask that,
“care services shall have a duty to follow specific accounting guidelines”.
As we have heard, increasing numbers of elderly people require care and support, an increasing proportion of whom rely on someone who has power of attorney to act on their behalf, particularly in financial matters.
I am aware that a range of service providers, from banks to shops, from online businesses to public authorities, have difficulty when faced with one of these attorneys. A solicitor acting for the person in need of care sets up the power of attorney and holds all the certification. The person with the power is normally given a number of certified copies of the warrant to use in fulfilling the role. However, there seems to be conflict in the minds of many service suppliers between the need to comply with requests from the holder of power of attorney and the need to protect their original customer under the rules of the Data Protection Act. There was an example of a major chain which acknowledged a request to stop a credit/debit card and then, three years later, billed the customer for a three-year subscription. The warrant holder could not resolve the position because the enterprise would neither contact the solicitor direct nor accept a certified copy of the warrant. A number of letters and a great many telephone calls were used to remedy the situation. Then there was the example of the high street bank that lost two certified copies of a single warrant—to say nothing of the media company, the card protection company and a different bank, all of which have refused to deal with someone with power of attorney.
People in care suffering, for example, from dementia, rely heavily on those who act for them. Difficulties of the kind just outlined take a lot of time and effort to resolve. There is a high cost, too, which is particularly important when the warrant holder is neither being paid nor charging expenses. I am especially concerned about the plight of the spouses of those in care. They are often elderly, physically infirm and hard up. They are often unaccustomed to opposing the will of large organisations, nor do they necessarily know their way around officialdom. Warrant holders who are unrelated to the person in care have severe problems also, in that they may be ignored simply because they are no relation. Alternatively, how does someone with power of attorney cope with demands for family top-up fees from a care home where the managers will not accept that there is no family? Warrant holders have a statutory responsibility and must be scrupulous in their dealings. Businesses will not understand situations that create unnecessary difficulty.
My Amendment 92ZFB refers to care homes and fees. The Bill already concerns itself with the funding of care homes, and the Care Quality Commission has recently been given explicit responsibility to ensure that such homes have adequate funding to carry out their functions. My concern is with residents’ funding, to which I can find no reference in the Bill. Indeed, if I have missed it, the Minister will no doubt point me to it.
I have received complaints about how care home residents and those with power of attorney on behalf of such residents, are billed, bamboozled and in some cases bullied. Examples that I have been told about include over-invoicing which, when challenged, has resulted not in an apology and a credit note but a computer printout, without headings to any of the columns, and no possibility of agreement on the overdue balance. Requests for credit notes are ignored, and the resident or the person acting on their behalf cannot therefore maintain normal books. Mistakes by the local authority are visited upon residents in the form of extra charges that are not cancelled when the original error is corrected. The Care Quality Commission refuses to get involved, I understand, on the grounds that it has no duty to examine residents’ funding. The local authority had come upon similar problems before, but had no power to intervene. Board members of the newly constituted clinical commissioning group advised that the only thing to do was query the figures, ensure the local authority payments were up to date, and never give in.
It appears that the financial side of the care home business can be totally removed, physically and organisationally, from the home itself. No one has a duty to examine, audit or report on it. I feel that the Bill should carry that responsibility, and have a simple outline of the procedures to be followed to ensure accurate billing for services rendered, so that residents and their carers may be certain of their financial situation. At the moment it is unclear. I hope that the Minister’s response will clarify these situations, because in some cases those holding power of attorney are really at a loss to know how to resolve the situation.
Lord Touhig
My Lords, I speak in support of Amendment 92A, which stands in my name and that of the noble Baroness, Lady Greengross. The amendment concerns corporate responsibility for neglect. In speaking to this amendment, I acknowledge that the Bill introduces England’s first primary legislation to protect adults at risk of abuse and neglect. Similar legislation is in place in Scotland, and is in the process of being enacted in Wales.
The Bill as it stands places a duty on local authorities to investigate abuse or neglect, and introduces statutory requirements around safeguarding adults boards and safeguarding adults reviews. Substantive regulations on assessment and eligibility, published as secondary legislation, should also make provision to consider whether the person is at risk of abuse or neglect, and if this risk is sufficient to provide support.
I welcome the Government’s decision and the publication of a consultation on how to ensure that the directors of organisations are personally held to account. This may provide some redress, which our amendment seeks to secure. Given that this consultation closes in September, when the Minister responds to the amendment perhaps she could give some indication of when, in the latter stages of the Bill, the Government might decide whether they will enact some of these changes. The Government’s own consultation document acknowledges that there is a loophole in the system, allowing providers responsible for appalling failures in care to escape prosecution. This is what our amendment seeks to address. I am grateful to the noble Earl, Lord Howe, for writing to me about the Government’s consultation.
In south Wales, Operation Jasmine uncovered appalling treatment of older people in residential care. The police investigation into neglect of old people in care homes lasted more than seven years, and cost more than £11 million. Over 100 potential elderly victims were indentified; 75 police officers were involved in the inquiry, and more than 4,000 statements were taken. Yet the nursing home owner, a local GP, suffered brain damage during a violent burglary at his home in September 2012, and in March the court case against him, his company’s chief executive and their company collapsed. I understand that the company is still operating some care homes.
When I served in the other place, I saw for myself some terrible photographs of elderly people who had been neglected, and who had what I can only describe as holes in their bodies where bedsores had been left untreated. A number of people died, and the Commissioner for Older People in Wales, Sarah Rochira, said:
“I don't really know any other way of describing it other than a catalogue of failure”.
Detectives were unable to bring prosecutions for serious offences such as manslaughter and wilful neglect. The then-deputy chief constable of Gwent, Jeff Farrar, said:
“Where you are seeing people who have got pressure sores which are corroded down to the bone; people vomiting faeces they are so constipated; or so dehydrated, it is a significant cause of their death”.
Those responsible for this terrible degree of neglect should be brought to justice. At the moment they cannot be, and that is why we need an amendment of this sort. The Care Quality Commission’s report on Winterbourne View care home and the Equality and Human Rights Commission’s inquiry into home care also uncovered serious, systematic threats to the basic human rights of those receiving care services.
Amendment 92A seeks to strengthen protection by ensuring that registered providers of health and social care have duties, similar to those placed on local authorities, to report suspected abuse and to inform the safeguarding adults boards. Then, crucially, if abuse is found to have an element of corporate responsibility, where the systems or approaches taken by the care provider were a contributory factor in the abuse or neglect, a new offence is created, allowing prosecution of a registered care provider. This does not undermine the individual responsibility of staff members or the registered care provider, but would add corporate responsibility where a culture of neglect or abuse has been allowed to flourish.
Lord Low of Dalston
My Lords, I shall speak to Amendment 92AA, which is at the end of this group. It concerns what is potentially one of the most powerful instruments for protecting people against neglect and abuse: the Human Rights Act. Amendment 92AA would insert a new clause after Clause 46 to make all providers of social care services regulated by the CQC subject to Section 6 of the Human Rights Act 1998. The Act applies to all public authorities and to other bodies when they are performing functions of a public nature. Under Section 6 such bodies are under a duty to act in a way which is compatible with the human rights protected by the Act. This duty does not simply arise as a result of litigation in the courts or dispute resolution, but means that human rights are part and parcel of the development and delivery of public services.
However, as a result of the case of YL v Birmingham City Council in 2007, a loophole opened up which meant that care home services provided by private and third sector organisations under a contract with the local authority were not considered to fall within the definition of public function under the Human Rights Act. This decision, that private and third sector care home providers were not directly bound by the Human Rights Act, meant that thousands of service users had no direct legal remedy to hold their providers to account for abuse, neglect or undignified treatment. Though the public body commissioning services remained bound by the Human Rights Act, this was of little practical value to the individual on the receiving end of poor or abusive treatment.
Following a sustained campaign the then-Labour Government, with cross-party support, accepted that the loophole created by the YL decision needed to be closed. Section 145 was included in the Health and Social Care Act 2008 to clarify that residential care services provided or arranged by local authorities are covered by the Human Rights Act. The operative words are “provided or arranged”. If the noble Earl is responding to this debate, he will no doubt remember giving his support to the amendment from the opposition Front Bench.
Age UK and other organisations are concerned, however, that the Bill risks returning the situation in England and Wales to that at the time of the YL decision. Section 145 of the Health and Social Care Act refers specifically to those placed in residential care under Sections 21(1)(a) and 26 of the National Assistance Act 1948. However, it is expected that these sections will now be repealed under Clause 107, meaning that Section 145 will no longer have anything to bite on. This amendment seeks clarification from the Government as to how they propose to deal with this and an assurance that there will be no regression in human rights protection.
However, this is not the only point. The organisations supporting this amendment have long been concerned that Section 145 of the Health and Social Care Act does not cover all care service users or even all residential care service users. Rather, as I have said, it protects only people placed in residential care under the National Assistance Act 1948. Having accepted the argument that primary legislation was required to clarify that Parliament intended the Human Rights Act to extend to residential care services provided by private and third sector organisations under a contract with a local authority, it is anomalous not to treat residential care provided under other legislation and domiciliary care in the same way.
The Government’s view, as stated in a note submitted to the Joint Committee on the draft Care and Support Bill, is that all providers of publicly arranged care and support services,
“including private and voluntary sector providers, should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998 and not to act in a way that is incompatible with a Convention right”.
The Joint Committee acknowledged that this is the Government's position but concluded that,
“as a result of the decision in the YL case, statutory provision is required to ensure this”.
This must surely be right. The words,
“should consider themselves to be bound”,
are not enough. It needs to be a matter of law, not just of honour. I have seen a letter in which it is stated that the Government’s position is that care providers are covered, and should not just consider themselves bound. However, the House of Lords said in YL that they were not covered and the Joint Committee was not convinced either. Given such uncertainty, it is surely essential that the matter is put beyond doubt in legislation.
The Government consider that there are dangers in doing this as it is felt that it would risk creating doubt about the interpretation of the Human Rights Act in other sectors. They stated in their note to the Joint Committee:
“Each time specific provision is made with respect to a particular type of body, we weaken the applicability of”,
the existing provision,
“and raise doubts about all those bodies that have not been specified explicitly in the legislation”.
Against this, it needs to be said that the legal situation following YL is already one of significant legal ambiguity, which is unsatisfactory for both service providers and the users of public services. It forces service users to litigate on a case-by-case basis to seek clarification.
The proposed amendment would bring the necessary legal clarity by deeming that all those providing social care services regulated by the CQC are exercising a public function for the purposes of Section 6 of the Human Rights Act. Without the direct, positive obligation to protect an individual’s human rights conferred by Section 6, human rights abuses of care service users are a frequent occurrence in private and voluntary sector provision. That is something which other noble Lords have highlighted and which is also highlighted by a succession of inquiries and reports such as the EHRC’s inquiry into home care, which uncovered serious and systemic threats to the basic human rights of those receiving care services.
This amendment also seeks to include those who are eligible for care but who, due to means testing, have to arrange and/or pay for their own care—the so-called self-funders—and who therefore currently lack the full protection of the Human Rights Act. To date it has been the case, at least for those who were found to be eligible for care in their own home, that the obligation for the local authority to arrange care regardless of the person’s resources provided them with a degree of protection under the Human Rights Act. The local authority’s duties to arrange care are subject to that Act, even though the provider might not be.
However, the changes to the system for arranging care to be introduced by the Bill weaken the protection. The Bill introduces a single system for arranging care, whether it takes place in a residential setting or the recipient’s own home. Under these proposals, where people are deemed eligible for care but are found after means testing to be responsible for paying part or all of the cost of that care, they will be able to request that the local authority arranges their care but may have to pay it to do so. This new system is likely to reduce the coverage of the Human Rights Act because people who are entitled to local authority care in their own home but have to pay for it will no longer be automatically protected by the Act unless they request that the local authority arranges their care. Many will not make such a request, either because they will not be able to afford to pay for having the local authority arrange their care on top of the cost of the care itself, or because they will simply not be able to cope with the bureaucratic hassle.
The Joint Committee on the draft Care and Support Bill recommended:
“The draft Bill should be amended to ensure that private and third sector providers of care services regulated by public authorities are deemed to be performing public functions within the meaning of section 6(3)(b) of the Human Rights Act 1998”.
The amendment that I bring to the Committee today follows this approach and, if accepted, would provide equal protection to all users of regulated social care, regardless of where that care is provided and who pays for it. The Government believe, as the notes to the draft Bill make clear, that protection under the Human Rights Act extends to care arranged by a local authority even if it is self-funded. The Joint Committee does not accept that this does not require explicit statutory provision. However, regardless of this view, the committee made the point that this does not address the situation of self-funders who arrange their own care and support. It said:
“The Government will need to consider whether it is right that, of all adults in need of care, only this group should lack the protection of the Human Rights Act, solely because there is no public sector involvement in arranging or paying for their care”.
There are those who argue, as their Lordships did in YL, that the right approach for protecting human rights is not an extension of the Human Rights Act. An alternative, often suggested, is that regulation can be better used to target specific issues. The CQC is under a duty to have due regard to the need to protect the human rights of those using care services in performing its functions, which include inspecting all care homes and registered home care providers. It is argued that this gives self-funders human rights protection, but without a credible prospect of litigation against the care provider itself, there is reduced pressure on it to respect and safeguard the human rights of service users.
I fully accept that bringing all regulated social care services within the scope of Section 6 of the Human Rights Act will not alone solve the problems of undignified care and human rights abuses in care settings. Improved regulation, additional safeguarding legislation and better training must also play their part. However, the evidence continues to mount that without direct application of the Human Rights Act and the proactive approach to promoting and protecting rights that it demands, abuse, neglect and undignified treatment are commonplace occurrences. The status quo is not acceptable. The proposed amendment offers a simple, effective and lasting solution to this long-standing problem. The Human Rights Act can provide an essential safety net for social care recipients who find themselves in highly vulnerable situations. The Government must not deny them this protection.
Lord Hodgson of Astley Abbotts
This is my first intervention on this Bill. It is not an area of government policy in which I have historically taken a lot of interest so I am some way outside my comfort zone. However, when I saw that my noble friend Lady Byford had put down two amendments about financial records and appropriate billing, both areas I have taken an interest in, I felt I should support her and put my name to them.
I fear that if I could glance over at the speaking note prepared for the Front Bench on Amendment 92ZFA, I would see the words, “Resist on the grounds that this is unnecessary and the clause already provides for it”. That may be so, but if you read the Explanatory Note to Clause 41 carefully, at paragraph 230, I am not sure that it actually places a duty on the local authority to follow up complaints where they are made by external parties, such as one holding a power of attorney, as my noble friend mentioned in her opening remarks. If would be helpful if my noble friend on the Front Bench could give some reassurance on this point and also for the record confirm, as I am sure must be the case, that people holding powers of attorney are “representatives” as defined in this clause.
The new clause inserted into the Bill by Amendment 92ZFB is a much more significant development. If the Minister’s officials were to call for and examine a range of the invoices sent to individual residents or patients by different companies for the provision of care services, she would see a considerable variation in the quality and, above all, the clarity of how the charges are laid out and calculated. To be fair to the companies, it is not easy to do because it becomes quite complex, quite quickly. For example, local authority rebate periods do not always coincide neatly with the charging periods of the individual care homes. Then there are the charges for extras over and above normal care. In the vast majority of cases these are entirely legitimate but, if you look at the records and the way they are laid out, all too often they are not clearly itemised and often a one-line entry, “Additional Charges” on an invoice received perhaps a month later makes it very hard to verify the accuracy or otherwise of the charge.
We need to keep at the forefront of our mind the fact that these invoices are addressed to elderly people who perhaps are more easily confused or may be browbeaten. In particular, if they have no relatives or representatives to help them, they may be over-ready to accept the invoices at face value and pay them. I particularly support my noble friend’s amendment because it seems to address three important objectives. First, it encourages the emergence of best practice among care homes and the way they lay out their charges. Secondly, it helps individuals and their families understand what is being charged and whether it is accurate. Thirdly, and possibly most cynically, it reduces any temptation to pad invoices with additional items. I do not suppose for a moment that the precise wording of this amendment meets the standards required by parliamentary draftsmen. However, I hope when my noble friend comes to wind up she will consider it an idea worth following up.
Lord Pannick
My Lords, I add my support to Amendment 92AA to which the noble Lord, Lord Low of Dalston, spoke so powerfully a few minutes ago. I declare an interest—or, more accurately, a regret—in that I represented YL in the Appellate Committee of your Lordships’ House and failed to persuade a majority of that committee that those who operate care homes under a contract with a local authority are performing a public function for the purposes of the Human Rights Act and therefore are obliged to comply with human rights principles. The complexity of the legal issues was such that the much lamented Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale of Richmond, both dissented from the views of the three judges in the majority.
As the noble Lord, Lord Low, has mentioned, Section 145 of the Health and Social Care Act 2008 addressed the issue by bringing some care home providers directly within the scope of the Human Rights Act, providing direct legal protection for residents of such homes. However, important gaps in the law remain. Duties under the Human Rights Act are not owed by the person who provides residential care to persons who pay for it themselves—that is, when the local authority is not paying—and the provider of care services, when that provider is not a local authority, has no duties under the Human Rights Act when providing care in a person’s own home.
I share the concerns of the noble Lord, Lord Low, that, in the light of the changes to be introduced by this Bill, it is important that the law should clearly address liability under the Human Rights Act. I agree with the noble Lord, Lord Low, who made a very powerful case, that the vulnerability of the person receiving care, and the risk of abuse, mean that the law should now impose duties on the provider under the Human Rights Act in all these circumstances to encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases. It is really no answer for the Government to say, as they have previously indicated, that it is undesirable in principle to specify the scope of the Human Rights Act in relation to public functions. The YL judgment already does that in a deeply unsatisfactory and narrow manner.
I accept, of course, that improved regulation and proper training will play an important part in protecting the interests of those receiving care. However, I ask the Minister to accept that the principles and the remedies under the Human Rights Act will add a significant and necessary further dimension to the obligations of those providing care and to the rights of those receiving it. I hope we will receive a positive response from the Minister this evening to the amendment from the noble Lord, Lord Low, and the noble Baroness, Lady Greengross.
Lord Warner
My Lords, I follow the noble Lord, Lord Pannick, with some trepidation but I do so as a member of the Joint Select Committee that recommended a change to the Bill along the lines asked for so eloquently by the noble Lord, Lord Low. I remind the Minister of an individual case which demonstrates the lacunae in the current legislation. It was the case of a lady over 90, who wholly self-funded in a private nursing home. This lady expressed her views—I suspect rather trenchantly—about assisted dying. She did not ask them to do anything about assisted dying but merely offered her views—though probably, as I say, quite trenchantly—but the home owner and members of staff took great exception to those views. She was pretty much immediately given four weeks’ notice to quit. We are talking about an elderly person who was very vulnerable. Her son took counsel’s opinion, which seemed to be remarkably similar to the views expressed by the noble Lord, Lord Pannick. We are faced with a situation where you can fall down on two grounds: on the grounds that you are in a privately provided home, and on the grounds that you are a self-funder. Whatever the arguments, and we have been over this ground several times in this House, the reality is that vague requirements on the CQC to observe the requirements of the Human Rights Act do not safeguard elderly people in the kind of case that I have posited.
We have to look at this again, which is why, when the Joint Committee looked at this issue, we took advice from our adviser, who is legally qualified. If I may remind the noble Lord, the noble and learned Lord, Lord Mackay, was a member of the committee, which went along with that recommendation. The Government have to move away from the rather brushing-off response that they gave to the Joint Committee’s recommendation and think again, particularly in light of the powerful case made by the noble Lord, Lord Low, and strongly supported by the noble Lord, Lord Pannick.
Baroness Howarth of Breckland
My Lords, I had not intended to speak today. I support the amendment, but in a rather different context. I welcome the work that the Government have done on the safeguarding clauses. Those of us who work in this area find that extremely helpful. However, the tone of today’s discussion has been very negative about providers, so I am probably outside my comfort zone, even more than the noble Lord, as a provider. I declare my interest as the president of Livability; I chair both its providing committee and its safeguarding board.
Throughout the sector there are large numbers of organisations that run their own safeguarding boards within the organisation, where they review every single incident that occurs within it. Quite properly, they already refer to the local authority those cases where they think it should be informed, and indeed to the CQC. In the not-too-distant past I had conversations with the Charity Commission about its role in these areas as well as those of the providers and the regulators.
It would be a pity if we did not recognise the huge amount of work that was going on already on safeguarding, and that we can learn a great deal from it. I would be pleased to support the amendment that says the Secretary of State should collect any report, because we could then look at trends. There is not a single provider that would object to being controlled by the Human Rights Act; I think that we all see ourselves as already being controlled by that Act, because we work under contract to the local authorities and see that as a clear extension of it. If it were direct, we would not operate any differently from how we do already.
I apologise for taking the time of the Committee today because I have not intervened very often, but it needs to be on record that there are thousands of elderly people and disabled people being significantly cared for by very good providers in conjunction and partnership with their local authority.
One of the issues that I would really like to have supported is the amendment from the noble Baroness, Lady Greengross, saying that you have to change the culture. What will make the difference—this has made a difference in the organisation where I work, where we extended our services—is a culture of no blame. The sense that I have had here today is rather one of blame, but having no blame brings people forward and makes them report incidents that you can then look at. In my role, I am really concerned when no one comes forward and reports an incident.
I welcome what the Government are doing, but I hope that whatever else comes is not so draconian that it actually prevents people coming forward and making it clear that they want to report incidents in their organisation.
Lord Patel of Bradford
My Lords, I had not intended to speak on these amendments, but they present something of a dichotomy in one of the areas in the Bill, particularly Amendment 92ZFC from the noble Baroness, Lady Greengross, on the powers of access. Last year I was invited by the manager of the local Bradford safeguarding social work team, a Mr Robert Strachan, who had already thought about this issue and had had extensive consultation with some of his colleagues, social work professionals and strategic managers in Bradford. He told me that opinions varied. At that time, no one had had a problem pulling together a protection plan for a vulnerable adult within the existing legislation, although people felt, when they were pushed to the limit, that such a power could be quite useful. I was gently persuaded by that.
However, when talking to Mind, the mental health charity, which has recently done an extensive consultation with its network, I found that it believes that this power is disproportionate and unnecessary. Its members have been clear that they would consider it intrusive and contrary to the European Convention on Human Rights, and that this would undermine the trust between social workers and service users. Mind has sought the views of its network of people with experience of mental health problems, and was clearly told that there is a mistaken but prevalent belief that people with mental health problems do not have the capacity to make decisions about their own safety. Because of that, many have had negative experiences of intervention, compulsion and detention, all of which reduce choice and control and can undermine trust in statutory authorities. Mind argues that introducing powers of access for social workers is likely to further undermine trust in statutory authorities and lead to extremely difficult working relationships between social workers and service providers. I am of course sympathetic to these views. However, I am also extremely sympathetic to the views expressed in the arguments from the noble Baroness, Lady Greengross, so I am a little torn.
The only way in which I can look at this is by case example. Let us assume that an elderly lady is being cared for by her son, who has some behavioural problems, like the case that we recently had in Bradford where the grandson actually killed his grandmother. Neighbours report their concerns to social services, who dutifully go around and visit. However, they never get further than clacking the front door; the son tells them that everything is fine and he is looking after his mother. Further reports of shouting and banging reach the authorities via the neighbours, but still they are refused permission to enter and see the older lady. What do you do? The police have no powers of entry but clearly there are some major concerns. How, therefore, to proceed and establish even that the lady is dead or alive? Powers of entry, in such extreme circumstances, would allow professionals to access the house and see the person, as in cases involving domestic violence or children. I would therefore be broadly inclined to support the powers, which would add something that is not currently in place.
However, the trick would be in the execution of those powers. For example, it would not be sufficient merely to gain entry. What would you do next—convey the lady to a place of safety or take the son away? If you did not, you would be exposing the victim to further and sustained abuse. This would need thinking through carefully. The question of how the powers would be controlled and executed would be difficult but not insurmountable. I look forward to the Minister’s arguments to persuade me either way on this one.
Baroness Barker
My Lords, I support the amendments of the noble Baroness, Lady Greengross. They go straight to a gap that exists for older people who have capacity but are physically dependent upon people who may be abusing them. With all respect to the noble Lord, Lord Patel—whose arguments I listened to very carefully because they were very thoughtful, and I would not want to disregard what Mind has found in its consultation with its members—I point out to him that members of Mind are likely to have protection under either the Mental Health Act or the Mental Capacity Act. The people to whom the amendment tabled by the noble Baroness, Lady Greengross, is addressed do not have that protection. For me, that swings the argument.
Elder abuse has a rather odd standing in the general consciousness. It does not have the same profile as the abuse of children. It goes up and down the public agenda depending upon whether there has been some scandal or an awful case in the papers. People’s reactions to it vary enormously. When people are polled on their views about this, the phrasing of the questions in any consultation can have a profound impact. Were we faced with a question that said: “Would you like social workers to have the power to intrude into your house?”, most of us would say no, but if we were asked, “Do you think that somebody ought to be able to look out for people who are extremely vulnerable and may not be able to get out and tell anybody?”, we would say yes. That goes straight to the consultation that the Government have already held, and the reason for some of its findings. Professionals who have had experience of dealing with people and operating under the law have said that they think there needs to be a greater degree of protection, albeit with brakes and conditions, such as the necessity of getting the agreement of a JP—not just social workers barging in because they feel like it.
Taken together, the amendments tabled by the noble Baroness, Lady Greengross, get the right balance. They are not about empowering bossy professionals to wade in regardless of what people want but they are quite important, not least because of something the noble Baroness, Lady Greengross, said, which was of tremendous importance: the largest percentage of people who abuse vulnerable elderly adults are family members. The consequence of that is that very often people who are being abused are highly reluctant to do anything about it because they fear that there will be repercussions against their family members. That is why it is necessary to have a bit more legal force behind some of this than we would otherwise think we should, and I think that, on balance, the noble Baroness’s amendments are right and proportionate.
Finally, there is a very good case for the Government to accept the amendments or something like them within this legislation. They should do it now when we are not making decisions in the shadow of a scandal and when we can talk about best practice in neutral terms.
Baroness Hollins
My Lords, I shall speak briefly in support of my noble friend’s Amendment 92ZFC because it applies to people with learning disabilities—particularly people with mild or moderate learning disabilities who may not meet the eligibility criteria for care and support in a situation where someone has befriended a person with a learning disability, moved in with them and concerns have been raised by neighbours that the person may be being abused. This is not about family carers; it is a mate crime. It is the sort of crime of which Steven Hoskin was a victim. He was subsequently murdered. Somebody moves in, and the local authority is unable to speak to the adult with a learning disability to check whether they are okay because the other person always answers the door and will not let anybody in. This power of access would change that, and I support my noble friend.
Baroness Wheeler
My Lords, when the Committee considered the Clause 2 duty on preventing needs for care and support, the noble Lord, Lord Rix—who I am sorry cannot be in his place today—put forward a strong case for ensuring that safeguarding is explicit in the Bill alongside the other duties of prevention relating to adults and carers. We gave strong support to that. The focus on safeguarding vulnerable adults should not just be on protection once abuse or neglect has taken place. Local authorities, and agencies on their behalf, should also be obliged and guided proactively to prevent abuse occurring in the first place.
We welcome placing safeguarding on a statutory footing in the Bill and the establishment of statutory safeguarding adults boards. This builds on legislation, regulations and advice on principles and frameworks for safeguarding adults and children that Labour established up to 2009 and which the Government are taking forward in the Bill. We were, however, always cautious about bringing adult and children’s safeguarding together under one structure as some councils have done. Adult and children’s safeguarding issues are not the same, and I would be grateful if the Minister will comment on the Government’s approach to this in future.
The amendments tabled by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, include important issues which we support to ensure that safeguarding is properly identified, reported and investigated in all health and social care settings, not just social care, which is particularly important in the light of the appalling neglect and abuse that happened to people with learning difficulties at Winterbourne View. In this vein, the intention behind Amendment 92ZF to place a duty on providers or other relevant partners of the local authority to report when they suspect an adult is at risk of experiencing abuse or neglect is also important, as local authorities will not be able to identify all situations where people are at risk.
We also support the need to ensure that an adult has access to support and advocacy during a safeguarding investigation; the need to specify in the Bill areas of abuse, as set out in the No Secrets guidance, in addition to the reference to financial abuse; and the need for abuse to be recognised as abuse whether it is perpetrated as the result of deliberate intent, negligence or ignorance. These are all strong areas of concern expressed by noble Lords today and by key stakeholders. I also underline the vital need, when so much care is now contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister inform the Committee how the Government intend to ensure this happens?
Amendment 92ZFC, tabled by the noble Baroness, Lady Greengross, puts forward a comprehensive case for the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. As the Government’s recent consultation response on this issue shows, there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions and patients and user organisations on this sensitive and complex issue, although we have to remember that the consultation response was relatively low in terms of local authority and NHS trust participation and that many of the responses appeared not to have fully understood the proposed limitation of the power to situations where the third party is denying access, not the individual.
It is clear that there is a significant gap in the current legislation for dealing with third-party denial of access to some of the most vulnerable adults—women subject to abuse by violent partners or a person with a learning disability being bullied by a friend who has moved into their home—which the Bill needs to take the opportunity to address. The noble Baroness’s amendment is strongly supported by, among others, the Equality and Human Rights Commission, the College of Social Work, Mencap and Age UK, and sets out a tight framework and the limitations and restrictions that would apply. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone is in danger of abuse. The Equality and Human Rights Commission argues, as have noble Lords, that alongside the proposed duty of local authorities to make inquiries set out in Amendment 92ZFD, the power of access will enable more intervention in response to allegations or suspicions of abuse or neglect and get the balance right, as the noble Baroness, Lady Barker, said. The critical point of the power of access is to enable the local authority to access the person and speak to them alone to assess the situation. It is not about entering someone’s house for no good reason. It is a last-resort power and is by no means presented as a solution in itself.
On balance, we support the case for inclusion in the Bill of the power of access by a social worker and the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment tabled by the noble Baroness, Lady Greengross. However, we of course recognise the strong concerns of Mind on this issue and of the Royal College of General Practitioners, which would prefer the use of other options, such as working with the sector to coproduce best-practice guidelines. Will the Minister explain to the Committee how the Government propose to address that denial of access by a third party to a potentially vulnerable adult without dealing with this issue in the Bill?
The issues raised by the noble Lord, Lord Low, in his Amendment 92AA on the need to clarify the application of the Human Rights Act to regulated care services are familiar to the House, as we thoroughly debated and aired similar grounds during the passage of the Health and Social Care Act. There are now concerns that amendments to that Act and the National Assistance Act in the Care Bill have set the clock back on the application of the HRA to private and voluntary sector residential care home providers. The noble Lord, Lord Low, has set out these concerns clearly, this time powerfully supported by the noble Lord, Lord Pannick. I hope that the Minister will respond positively to the pleas from noble Lords to think again on this matter.
Baroness Northover
My Lords, I am very grateful to noble Lords for tabling amendments on such important issues. I am sure that noble Lords will agree that if we are to claim to be a civilised society, it is critical that we safeguard those people who are most vulnerable to abuse and neglect. In particular, the Bill places local authorities under a duty to make inquiries or cause inquiries to be made in suspected cases of abuse or neglect of adults with care and support needs who are unable to protect themselves because of those needs.
This is a very important moment—the first time any Government have placed adult safeguarding in primary legislation. I thank the noble Baroness, Lady Greengross, the noble Lord, Lord Touhig, and the noble Baroness, Lady Wheeler, for recognising this. It is in line with the recommendations of the Law Commission’s report on adult social care. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. It also requires local authorities to establish safeguarding adult boards, which will include key representatives of the NHS and police and any other persons considered appropriate.
Such boards will have three statutory duties. A board must publish strategic plans each financial year, following local consultation, which set out how it is to help and protect adults with care and support needs in its area who may be at risk of abuse or neglect. At the end of each financial year it must publish an annual report that sets out what it and its individual members have done to achieve and implement this objective. It must arrange for any safeguarding adult reviews of serious cases of abuse or neglect where there is a concern about how persons relevant to safeguarding worked together to protect the adult in question, so as to identify and apply any lessons learnt to future cases and prevent such incidents arising again.
Noble Lords have tabled a number of amendments that rightly press the Government on the robustness of the clauses. We believe that the points they make are covered by our proposals and I will try to outline why. I take this opportunity to say that although these clauses are the result of significant experience and consultation, we accept that we need to be flexible and adapt to experience of implementation. Our approach of covering much of the detail in statutory guidance allows this flexibility.
I turn to the first of the amendments that we are considering. Amendment 92ZZAH in the names of the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, seeks reassurance that adult safeguarding applies regardless of location. I am happy to confirm that this is the case. Clause 41 will require a local authority to make inquiries or cause them to be made where abuse and neglect are suspected in respect of an adult with care and support needs, regardless of the particular setting where the abuse or neglect is suspected to have occurred.
Amendments 92ZB and 92ZD are also tabled by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins. The first aims to ensure that the voice of the individual is heard in any safeguarding inquiry and that the individual is properly supported. We agree that these factors are of utmost importance, which is why those principles are enshrined in the Bill, beginning with Clause 1, on promoting individual well-being. If a person does not have capacity to take part in a safeguarding inquiry concerning them, the local authority should involve any person appointed to act on their behalf, or, where there is no such person, the local authority must itself act in the person’s best interests. We believe that statutory guidance is the best place to cover this in more detail, with practical examples to illustrate the point. As regards the second amendment, on defining abuse, we have taken the approach of relying on the natural meaning of “abuse” to keep the scope of the duty to make inquiries as wide and flexible as possible. The joint pre-legislative scrutiny committee itself stated:
“Abuse is an ordinary English word, capable of being understood without being defined. It might not however normally be thought of as including financial abuse, and it is right that”,
the clause,
“should put this beyond doubt. But to attempt an exhaustive definition always has the danger of omitting something which, as subsequent events make clear, should have been included”.
However, turning to Amendment 92ZA, I agree with the noble Baroness, Lady Barker, who tabled that amendment and who seeks assurance that a person should not be considered as suffering abuse or neglect if they have refused medical treatment. We agree with that, and there is no intention of doing so. That is an important principle of law and ethics.
In Amendment 92ZC, the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, are concerned with ensuring a more consistent, timely and transparent process for adult safeguarding. This is one of our central aims, which we will address this in statutory guidance. We want to pre-empt the risks arising from the overly bureaucratic safeguarding process that Professor Munro discovered in her review of children’s safeguarding. It is vital to focus on the outcomes that people want and how best to achieve them rather than overprescribing and focusing on processes.
I have a note that says that I wanted to add something at this point, but I cannot find the notes in question so I will turn to Amendment 92ZE, in the name of the noble Baroness, Lady Hollins. We agree that it is extremely important to ensure that inquiries are made into cases of suspected abuse or neglect regardless of the motivation behind the action, and that is what the Bill as drafted achieves. This important point links to Amendment 92ZFA, in the name of my noble friend Lady Byford. Her first amendment is about who can report abuse; in this case it focuses on financial abuse. The local authority must make inquiries in respect of safeguarding concerns, no matter how they come to its attention—whether it is from someone with power of attorney or anyone else. For the first time, local authorities will have such an express duty in statute.
My noble friend Lady Byford spoke about the problems that those with power of attorney may encounter. This is a very familiar concern. We know that the provisions of the Mental Capacity Act are implemented variably. This House currently has a committee undertaking post-legislative scrutiny of the Act. It will have views about the implementation of the Act, and the Office of the Public Guardian, which is in charge of registering and supervising powers of attorney, is establishing improvements in the training and oversight of those with power of attorney and of their deputies. The Court of Protection also has a critical role in protecting the affairs of those who lack capacity. I am sure that this matter will get further post-legislative scrutiny.
My noble friend Lord Hodgson supported my noble friend Lady Byford on the way in which people are charged for care. We agree that services vary and that the charges that are applied reflect the varying cost of providing care. It is important that people know what they will pay before agreeing to purchase a service, and what the charges do and do not cover. Clause 4 requires local authorities to make available information and advice relating to care and support services. Clause 5 requires local authorities to shape a diverse, high-quality and sustainable market that meets people’s needs.
The second amendment in the name of my noble friend Lady Byford, Amendment 92ZFB, raises the critical issue of protecting people from having to overpay for the care and support services they need. My noble friend is absolutely right that people should know in advance, and in writing, what will be included in the fees they pay, and what, if any, elements will be covered by others, including the council or NHS. That is why it is in the registration requirements of the Care Quality Commission. We can also include this, if necessary, in the guidance we produce.
I turn to other amendments tabled by the noble Baroness, Lady Hollins, and the noble Lord, Lord Rix. Amendments 92ZG and 92ZH are about ensuring that organisations take action and report it when they are found to be wanting in their adult safeguarding arrangements. We recognise this gap and have placed adult safeguarding reviews on a statutory footing for the first time. Paragraph 4 of Schedule 2 sets out detailed requirements for the annual reports of boards. In particular, the report must include the findings of all reviews and must set out what the board has done to achieve its objective. This would include implementation of those findings. The Bill places a duty on safeguarding adult boards to publish their annual reports. The report will be publicly available, and this will ensure transparency in the way that they work. I am sure that not drawing conclusions from those reports would face a challenge, given the train of events that I laid out. I hope that these points will reassure the noble Baroness.
Amendment 92A is very timely, given the appalling failures of care that we heard about recently. We absolutely agree with the noble Lord, Lord Touhig, and the noble Baroness, Lady Greengross, that providers that allow abuse and neglect to go unchecked should face serious consequences, including potential prosecution. This has not been the case to date. We agree that this is a problem. The Government believe that the best way to take this forward is through the introduction of fundamental standards in a revised set of requirements for registration with the Care Quality Commission. It was appalling to hear what the noble Lord, Lord Touhig, said. The Care Quality Commission has started consulting on those fundamental standards. The noble Lord asked about the timescale. We expect to consult on draft regulations in the autumn. The standards will ensure that the CQC will be able to take action against providers for unacceptable standards of care, including abuse and neglect.
Of course, we understand the concerns expressed by the noble Baroness, Lady Greengross, and the noble Lord, Lord Low, in Amendment 92AA, about protecting and promoting the human rights of those requiring care and support services, many of whom are very vulnerable to abuse and exploitation. We discussed this in detail recently in your Lordships’ House, on 13 March 2012, during the passage of the Health and Social Care Act 2012. The matter was debated extensively and voted on, and the Government won the vote with a substantial majority. We are not aware of anything having changed in the past nine months that would cause us to change our position.
Lord Warner
Perhaps I could suggest that the Minister should have another conversation with the noble and learned Lord, Lord Mackay. After the quotation to which she referred, the noble and learned Lord signed and agreed the Joint Committee’s report that made the recommendation. The Minister might like to have a discussion with him about whether he has changed his position.
Baroness Northover
That is a very interesting point. This is a very serious area. We want to make sure that the Human Rights Act applies in the way that we think it does, and in the way that the noble Lord’s Government brought in and thought that it did apply. I have a feeling that this is an issue that we will revisit. I remember the discussions last year on this between the noble Lord, Lord Low, my noble and learned friend Lord Mackay and others. I would not be at all surprised if there were further discussions.
The important point here is to protect people, to make sure that the law protects them and to do nothing that undermines the effect of the Human Rights Act in other areas. The Government’s position has been that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves to be bound by the duty imposed by Section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the convention rights. The CQC, as the regulator, is subject to the HRA, which may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. As noble Lords will know, the Ministry of Justice is concerned that every time you add a provision, you may inadvertently have an effect on the umbrella application of the Act.
The noble Lord, Lord Low, asked about the repeal of the National Assistance Act. I assure the noble Lord that there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation. He will also be able to set in context that change, in the light of the discussions we had earlier.
I point out that there are strong regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements which are compatible with the provisions of the European convention. This applies to all providers of regulated care to people who use care and support services, whether publicly or privately funded.
As to Amendment 92ZFE, we agree with the noble Baroness, Lady Greengross, that people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution where an offence has been committed. This should also be read in the light of the discussion on the Human Rights Act. The Bill does not seek to duplicate existing law. Civil law currently provides redress for cases of neglect, and criminal law prohibits assault, which would include much of what is sought in this amendment. We therefore believe that there are already adequate provisions in place to deal with such cases.
My noble friend Lady Barker spoke of the potential creation of a new offence of abuse and neglect of somebody who has capacity. There is legislation that protects those with capacity, and there are powers that local authorities and the police can use. These include the Anti-social Behaviour Act 2003 and the Crime and Disorder Act 1998, and the police also have wide powers to enter premises for specific purposes with or without a warrant. The inherent jurisdiction of the High Court ensures that there is no gap.
Where an adult lacks capacity, there is an existing offence of ill treatment or neglect by a person who has care of the adult or is authorised to act for the adult under the provisions of the Mental Capacity Act. In our view, this is a case where an offence is justified because of the evidence that such people are highly vulnerable to abuse, neglect and exploitation.
I turn to Amendment 92ZK, in the name of the noble Baroness, Lady Greengross. We all want local authorities to foster an open and honest culture in which employees feel able to express genuine concerns without fear of repercussions. However, we do not feel that this amendment is necessary. As I think we would all agree, the law on its own cannot change organisational culture. We need to work with and through local authorities to consider what barriers exist to the type of open and honest environment that we want to see. This is something that we have debated a great deal and there has been much emphasis on leadership. However, legislation can have an effective role in setting parameters and reinforcing expectations, which in turn impact on culture. In this regard, the Government have already confirmed their intention to introduce an explicit duty of candour on providers of health and care and support. This will be introduced as a CQC registration requirement and will mean that providers will have to ensure that staff and clinicians are open with patients and service users where there are failings in care.
I turn to the need to be able to gain access to a person suspected of experiencing abuse or neglect where that access is denied by a third party. The Government carried out a full consultation on a potential power of entry, very similar to the access order proposed by the noble Baroness, Lady Greengross, in Amendment 92ZFC. We received no compelling evidence to warrant such a power and, indeed, there was and remains considerable opposition to it from members of the public and some third-sector organisations. We have heard some of the concerns expressed by the noble Lord, Lord Patel, and the contrary view expressed by my noble friend Lady Barker and the noble Baroness, Lady Wheeler. We recognise that this is a sensitive and complex area of work, but we believe that understanding what positive work by skilled professionals can achieve and promoting that is a more desirable, effective and sustainable route to take. As with all the new duties and powers in the Bill, we will pay close attention to implementation and address any issues that arise.
Perhaps I may mention to the noble Baroness, Lady Wheeler, that, although the consultation has ended, we have continued to get written correspondence from both members of the public and third-sector organisations petitioning the Government not to introduce a power of entry. They are particularly concerned that such a power would be used as a quick fix that would neither resolve the problem nor improve good professional practice where the intention is to try to build trusting relationships. From what noble Lords have said, it is very clear that trying to get the balance right and focusing on the protection of the individual can be very challenging in such circumstances.
We understand the concerns that lie behind Amendment 92ZF, tabled by the noble Baroness, Lady Hollins. It is of course imperative that anyone—but especially those in the NHS and local authorities—who suspects abuse or neglect knows what action to take. Organisations should make their procedures clear and boards should widely publicise information on this issue.
Amendments 92ZFF and 92ZJ, tabled by the noble Baroness, Lady Greengross, emphasise the need for the involvement of social work-qualified staff in boards and reviews. We understand what the noble Baroness is saying. In Schedule 2, we make it clear that both the chairs and members of boards must have,
“the required skills and experience”.
We will elaborate on that in guidance and ensure that the importance of social work is recognised and supported. Guidance will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.
This has been a very important and wide-ranging group of amendments concerning a new step that we are taking to try to ensure that vulnerable adults are offered the best protection. We welcome noble Lords’ probing of the Government. We are all trying to secure the same outcome, and we need to be challenged on how best to achieve that. I hope that noble Lords will have taken on board our reasoning behind doing things as we are and that they will be reassured that we are indeed delivering through this Bill what they are seeking. I hope that they have been reassured that their concerns have been carefully considered and addressed and, on that basis, I hope that the noble Baroness will withdraw her amendment.
Baroness Hollins
My Lords, I thank the noble Baroness for her characteristically thoughtful comments in response to these amendments. I am reassured by many of the points that she has made, although one issue that I felt she did not fully address is the need to clarify thresholds for reporting abuse. I am also disappointed with her response to the amendment proposing a power of access, which I strongly support for its relevance to people with learning disabilities. Going by the feelings that have been expressed in the Committee, I think that a number of people would welcome an opportunity to discuss some of these matters a little further and perhaps to bring them back on Report. However, I beg leave to withdraw the amendment.
“( ) Subsection (6) does not apply if section (Section 47: cross-border cases) (cross-border cases) applies (see subsection (3) of that section).”
“(aa) must, in meeting needs under that subsection which were being met under arrangements all of part of the cost of which was paid for by another local authority by means of direct payments, co-operate with that authority (in so far as it is not already required to do so by section 6);”
“Section 47: cross-border cases
“(1) This section applies where, in a case within section 47, immediately before the registered care provider became unable to carry on the regulated activity, some or all of the adult’s needs for care and support or the carer’s needs for support were being met by the carrying on of that activity by the provider under arrangements made—
(a) by a local authority in Wales discharging its duty under section 21 or 26, or exercising its power under section 22 or 29, of the Social Services and Well-being (Wales) Act 2013,(b) by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003, or(c) by a Health and Social Care trust under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 or section 2 of the Carers and Direct Payments Act (Northern Ireland) 2002.(2) This section also applies where, in a case within section 47—
(a) immediately before the registered care provider became unable to carry on the regulated activity, some or all of the adult’s needs for care and support or the carer’s needs for support were being met by the carrying on of that activity by the provider, and (b) all or part of the cost of the accommodation or other services provided by the provider to meet those needs was paid for by means of direct payments made—(i) under section 34 or 36 of the Social Services and Well-being (Wales) Act 2013,(ii) as a result of the choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or(iii) by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.(3) The local authority which is required to meet needs under section 47(2)—
(a) must, in meeting needs under section 47(2) which were being met by the authority which made the arrangements referred to in subsection (1), co-operate with that authority;(b) must, in meeting needs under section 47(2) which were being met by the provision of accommodation or other services all or part of the cost of which was paid for by an authority by means of direct payments as referred to in subsection (2), co-operate with that authority;(c) may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question; (d) may recover from the adult or carer the cost it incurs in meeting those of the adult’s or carer’s needs other than those referred to in paragraph (a) or (b) (as the case may be).“(4) Any dispute between a local authority and a local authority in Wales, a local authority in Scotland or a Health and Social Care trust about the application of section 47 or of this section is to be resolved in accordance with paragraph 5 of Schedule 1.
“(5) “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 8 of Schedule 1.
(6) The references in paragraphs (a) to (d) of subsection (3) to an authority are references to a local authority in Wales, a local authority in Scotland or a Health and Social Care trust (as the case may be).”
“Temporary duty on local authority in Wales
(1) This section applies where a person registered under Part 2 of the Care Standards Act 2000 in respect of an establishment or agency—
(a) becomes unable to carry on or manage the establishment or agency because of business failure, and(b) immediately before becoming unable to do so, was providing an adult with accommodation or other services in Wales under arrangements made—(i) by a local authority meeting an adult’s needs for care and support or a carer’s needs for support under Part 1 of this Act,(ii) by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003, or(iii) by a Health and Social Care trust under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 or section 2 of the Carers and Direct Payments Act (Northern Ireland) 2002.(2) This section also applies where a person registered under Part 2 of the Care Standards Act 2000 in respect of an establishment or agency—
(a) becomes unable to carry on or manage the establishment or agency because of business failure, and(b) immediately before becoming unable to do so, was providing an adult with accommodation or other services in Wales all or part of the cost of which was paid for by means of direct payments made— (i) under this Part of this Act, (ii) as a result of the choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or(iii) by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.(3) The local authority in Wales in whose area the accommodation is situated or the services were provided must for so long as it considers necessary meet those of the adult’s needs for care and support or the carer’s needs for support which were being met by the registered person by the provision of the accommodation or other services.
(4) A local authority in Wales which is required to meet needs under subsection (3)—
(a) must, in meeting needs under that subsection which were being met by the authority which made the arrangements referred to in subsection (1)(b), co-operate with that authority;(b) must, in meeting needs under subsection (3) which were being met by the provision of accommodation or other services all or part of the cost of which was paid for by an authority by means of direct payments as referred to in subsection (2)(b), co-operate with that authority;(c) may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question.(5) Any dispute about the application of this section is to be resolved in accordance with paragraph 5 of Schedule 1.
(6) “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 8 of Schedule 1.
(7) The references in paragraphs (a) to (d) of subsection (4) to an authority are references to a local authority, a local authority in Scotland or a Health and Social Care trust (as the case may be).”
“Temporary duty on Health and Social Care trust in Northern Ireland
“(1) This section applies where a person registered under Part 3 of the Health and Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 in respect of an establishment or agency—
(a) becomes unable to carry on or manage the establishment or agency because of business failure, and(b) immediately before becoming unable to do so, was providing an adult with accommodation or other services in Northern Ireland under arrangements made—(i) by a local authority meeting an adult’s needs for care and support or a carer’s needs for support under Part 1 of this Act,(ii) by a local authority in Wales discharging its duty under section 21 or 26, or exercising its power under section 22 or 29, of the Social Services and Well-being (Wales) Act 2013, or(iii) by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003.(2) This section also applies where a person registered under Part 3 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 in respect of an establishment or agency—
(a) becomes unable to carry on or manage the establishment or agency because of business failure, and(b) immediately before becoming unable to do so, the person was providing an adult with accommodation or other services in Northern Ireland, all or part of the cost of which was paid for by means of direct payments made— (i) under this Part of this Act, (ii) under section 34 or 36 of the Social Services and Well-being (Wales) Act 2013, or(iii) as a result of the choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013.(3) The Health and Social Care trust in whose area the accommodation is situated or the services were provided must for so long as it considers necessary meet those of the adult’s needs for care and support or the carer’s needs for support which were being met by the registered person by the provision of the accommodation or other services.
(4) A Health and Social Care trust which is required to meet needs under subsection (3)—
(a) must, in meeting needs under that subsection which were being met by the authority which made the arrangements referred to in subsection (1)(b), co-operate with that authority;(b) must, in meeting needs under subsection (3) which were being met by the provision of accommodation or other services all of part of the cost of which was paid for by an authority by means of direct payments as referred to in subsection (2)(b), co-operate with that authority;(c) may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question.(5) Any dispute about the application of this section is to be resolved in accordance with paragraph 5 of Schedule 1.
(6) “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 8 of Schedule 1.
(7) The references in paragraphs (a) to (d) of subsection (4) to an authority are references to a local authority, a local authority in Wales or a local authority in Scotland (as the case may be).”
“( ) Section 20 of the Social Services and Well-being (Wales) Act 2013 (how to meet needs) applies to meeting needs under section (Temporary duty on local authority in Wales)(3) as it applies to meeting needs under section 21 of that Act.”
“(6A) Sections 30 to 33 of the Social Services and Well-being (Wales) Act 2013 (exceptions to, and restrictions on, duty to meet needs) apply to meeting needs under section (Temporary duty on local authority in Wales)(3) as they apply to meeting needs under section 21 of that Act.”
“( ) Pending the commencement of Part 4 of the Social Services and Well-being (Wales) Act 2013—
(a) a reference in section (Section 47: cross-border cases) or (Temporary duty on Health and Social Care trust in Northern Ireland) to making arrangements to meet needs under section 21 or 22 of that Act is to be read as a reference to making arrangements or providing services under—(i) Part 3 of the National Assistance Act 1948,(ii) section 45 of the Health Services and Public Health Act 1968,(iii) section 117 of the Mental Health Act 1983, or(iv) Schedule 15 to the National Health Service (Wales) Act 2006;(b) a reference in section (Section 47: cross-border cases) or (Temporary duty on Health and Social Care trust in Northern Ireland) to making arrangements to meet needs under section 26 or 29 of that Act is to be read as a reference to providing services as referred to in section 2 of the Carers and Disabled Children Act 2000;(c) a reference in section (Section 47: cross-border cases) or (Temporary duty on Health and Social Care trust in Northern Ireland) to making direct payments under section 34 or 36 of that Act is to be read as a reference to making direct payments by virtue of section 57 of the Health and Social Care Act 2001;(d) subsection (6A) is to be read as if there were substituted for it—“(6A) Sections 21(1A) and (8) and 29(6) of the National Assistance Act 1948 apply to meeting needs under section (Temporary duty on local authority in Wales)(3) as they apply to the exercise of functions under sections 21 and 29 of that Act by a local authority in Wales (within the meaning given in paragraph 8 of Schedule 1).”
“( ) Pending the commencement of section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013—
(a) sections (Section 47: cross-border cases)(2)(b)(ii) and (Temporary duty on local authority in Wales)(2)(b)(ii) are to be read as if there were substituted for each of them—“(ii) under section 12B of the Social Work (Scotland) Act 1968,”, and(b) section (Temporary duty on Health and Social Care trust in Northern Ireland)(2)(b)(iii) is to be read as if there were substituted for it—“(iii) under section 12B of the Social Work (Scotland) Act 1968.”.”
Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013
(11 years, 4 months ago)
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Lord McNally
That the draft order laid before the House on 18 December 2012 be approved.
Relevant documents: 15th Report from the Joint Committee on Statutory Instruments, Session 2012–13, 25th, 32nd and 35th Reports from the Secondary Legislation Scrutiny Committee, Session 2012–13, 2nd and 7th Reports from the Secondary Legislation Scrutiny Committee, Session 2013–14
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, before starting my speech it would be remiss of me if I did not pay tribute to the late Lord Newton. He was passionate about administrative justice and provided rigour and challenge in your Lordships’ House to the proposals contained in the Public Bodies Act. We will all feel his presence and spirit with us in today’s debate.
The purpose of this draft order is to abolish the Administrative Justice and Tribunals Council using powers provided in the Public Bodies Act 2011. Before setting out further details on the order, I will briefly explain some of the background. The AJTC is an advisory, non-departmental public body, not a tribunal or any other form of judicial body. It does not exercise powers that relate to judicial independence or judicial decision-making. It was created before much of the reform of recent years was implemented—crucially before a unified tribunal structure was put in place.
The Government announced proposed reforms to public bodies on 14 October 2010. It was considered that the oversight of the administrative justice system and development of policy was properly a function of government, and also that the AJTC’s oversight functions with regard to tribunals were no longer required, given the governance and oversight arrangements that exist within HMCTS. The AJTC was therefore included for abolition in the Public Bodies Bill. A public consultation, including the proposal to abolish the AJTC, was launched on 12 July 2011 and closed on 11 October 2011. The Government’s response to the consultation was published on 15 December 2011. After considering all the responses to the consultation, the decision was that the AJTC should be abolished. Following further policy development and discussions with the devolved Administrations during 2012, the draft order was laid before Parliament on 18 December 2012.
Noble Lords will no doubt be aware of the scrutiny given to this draft order by both the Justice Committee in the other place and the Secondary Legislation Scrutiny Committee in this House. The Secondary Legislation Scrutiny Committee has fulfilled its role in that regard with its customary thoroughness, but that is not to say that I am in agreement with all its conclusions. Section 8 of the Public Bodies Act provides certain criteria that Ministers must consider have been met when making an order under the Act. Taking each of these in turn will give a full account of how the order meets the requirements of the Act.
On efficiency, abolishing the AJTC will remove duplication of functions and ensure that the state provides only what is necessary to support the administrative justice and tribunals system. The reforms of recent years mean that the vast majority of the system is now administered by HMCTS and so is managed independently of the departments whose decisions are being challenged. I believe that this is a vital point. I know that in a debate on the Public Bodies Bill the noble Lord, Lord Pannick, expressed concern that the Government are often defendants in tribunal proceedings. This in no way compromises the independence of the tribunals judiciary which determines cases impartially and acts independently. This independence is also reflected in the governance of HMCTS which has an independent, non-executive chair and has two judicial representatives on its board. It also has a dual reporting line to both the Lord Chancellor and the Lord Chief Justice. For those limited number of bodies that are outside the oversight of HMCTS, Ministry of Justice officials already work with the relevant departments, the bodies themselves and others to identify and share good practice as well as tackle areas of concern. This is an approach that works well. It is solution focused and one that the department is keen to build on.
The Administrative Justice and Tribunals Strategic Work Programme, published in December 2012, sets out the areas on which the Government will focus until 2015. Objectives include improving initial decision-making by government and making systems and processes more accessible and proportionate for users. The noble Lord, Lord Borrie, commented at Report that there will no longer be a group coming together and discussing important issues of administrative justice. The Government listened to such concerns and in May 2012 established the Administrative Justice Advisory Group, which provides an expert and critical forum to review the system from a user perspective against the strategic work programme. The advisory group supports and guides this by informing policy development from the perspective of users of the system. For instance, members from the group contributed to the development of the strategic work programme ahead of its publication. The group is also able to form sub-groups to look at specific issues, such as improving user guidance. To date the advisory group has been chaired by a director from the MoJ. Having reflected on concerns raised by your Lordships’ Secondary Legislation Scrutiny Committee, my right honourable friend the Secretary of State for Justice has decided to appoint an independent chair to the advisory group on abolition of the AJTC. Whoever fills the post will have responsibility for ensuring the group’s collaboration to give robust, evidence-based challenge; building consensus and ensuring that the different representative bodies work together; galvanising action to inform improvements to the system in line with the MoJ’s principles of efficiency, fairness and accessibility; providing strong leadership to the group and representing its views to Parliament; and ensuring that the group delivers on its aims and objectives, as set out in its terms of reference.
On economy, those opposed to abolition have cited the modest or insubstantial savings involved and questioned the estimates provided by the ministry. Let me be clear on both counts: the AJTC currently costs £700,000 per year to operate. While this represents a reduction from its 2010-11 budget of £1.2 million, it is still a significant amount of money at this time. Based on a revised closure date of late August, which allows for a four-week orderly close-down period following parliamentary approval to the order, we estimate gross savings of around £1.2 million across the remainder of 2013-14 and 2014-15. Costs of closure are estimated to be around £0.6 million over the same period. This includes £300,000 for possible redundancies at the AJTC and £300,000 for reimbursements to the Scottish and Welsh Governments for the creation of interim non-statutory bodies to replace the AJTC in Scotland and Wales. This means net savings of around £0.6 million over the rest of this spending review period and, of course, this would represent a long-term saving well beyond the spending period. No further costs are estimated from our successor arrangements. The advisory group is supported using existing resources within the policy group in MoJ. The costs of recruiting and remunerating the independent chair of the AJAG are negligible—some £10,000 to £15,000—and will be met from the budget required to implement policy changes.
I now turn to securing appropriate accountability to Ministers. The abolition of the AJTC will not result in any loss of accountability. Ministers are, and will remain, ultimately accountable for the administrative justice system and for HMCTS as an executive agency of MoJ. HMCTS is responsible for the performance of the unified system. A minority of tribunals sit outside HMCTS and remain accountable to Ministers through their respective departmental channels. MoJ will re-examine the case for bringing these remaining existing tribunals into the unified tribunal system. Where they are not brought into the unified system, MoJ will still, as it does now, keep their administration and performance under review.
On the removal or loss of protections, rights and freedoms, the abolition of the AJTC will not result in the removal of any necessary protection and no person will be prevented from exercising a right or freedom that they might reasonably expect to continue to exercise. Abolition does not prevent anyone from accessing a tribunal or an ombudsman to vindicate or protect their rights or freedoms. Tribunal users can still make their voices heard by raising concerns with their elected representatives or through the user groups that exist in most HMCTS tribunal jurisdictions. Concerns may also be raised by their elected representatives with the Parliamentary and Health Service Ombudsman.
I stress that no part of the administrative justice system currently included under the AJTC’s overview remit will be left out under the new arrangements, including those tribunals and bodies currently outside the unified tribunal system. There is no “hiatus” in oversight as has been mentioned in scrutiny reports. HMCTS’s governance structure, with its strong judicial representation, provides a clear level of protection to the public in respect of its oversight of the unified tribunal system.
Parliament will also have an important role to play in scrutinising the work of the department. In his response to the Public Administration Select Committee report on the future oversight of administrative justice in May 2012, the Lord Chancellor agreed, following the AJTC’s abolition, to report annually to the Public Administration Select Committee on the following: details of the resourcing of the department’s administrative justice function; actions taken by Ministers and officials to improve the operation of the system; details of how the views of users of the administrative justice system have been sought and addressed; and details of work undertaken with other departments, devolved Administrations and local government to improve administrative justice for the citizen. Parliament will therefore have the means of ensuring that the Government are held to account for oversight in this area and provide a further layer of protection for the public.
It is important to have had this opportunity to set out in some detail the Government’s plans for oversight of the administrative justice and tribunals system following abolition of the AJTC. What we propose is about delivering real improvements, based on ministerial priorities and on evidence gathered by capable and experienced officials working with colleagues and experts from other departments and from across the system. We disagree that oversight has always to take place at arm’s length from Ministers and departments. It is absolutely in the interest of government to reduce demand on the system, get decisions right first time and make the system accessible and proportionate to users. This, I think, we are doing. I commend this draft order to the House. I beg to move.
Lord Beecham
At end to insert “but that this House regrets the proposed abolition of the Administrative Justice and Tribunals Council, which will remove independent oversight of the justice and tribunal system at a time when it is undergoing major change”.
Lord Beecham
My Lords, the amendment in my name would add to the Motion moved by the Minister that,
“this House regrets the proposed abolition of the Administrative Justice and Tribunals Council, which will remove independent oversight of the justice and tribunal system at a time when it is undergoing major change”.
I am grateful to the Minister for so clearly outlining the Government’s thinking and the details of their proposals.
Of course, the fate of the AJTC was debated at length during the passage of the Public Bodies Bill, which lit the torch for the Government’s proclaimed bonfire of the quangos. Deep concern was expressed in all parts of the House, led by the late and much lamented Lord Newton, to whom the Minister rightly paid tribute, and endorsed by the noble and learned Lords, Lord Mackay of Clashfern, Lord Woolf and Lord Howe, among many others.
Lord Newton had served with great distinction for 10 years as chairman of the Council on Tribunals, a non-departmental public body attached to the MoJ with oversight of the tribunal system, which in turn was replaced by the AJTC. Administrative justice as a feature of our legal system has grown in importance over the years in response to the need to offer an accessible means of redress for citizens wishing and needing to challenge the decisions of public bodies in a wide range of contexts. This changing landscape, incidentally, is another example of why, with justification, the original scope of the civil legal aid and advice scheme widened over the years, much to the apparent distaste of the present Government, who have in effect withdrawn administrative justice from what remains of legal aid.
The proposal to abolish the council evinced little response other than hostility both inside and outside Parliament. Having established three tests by which the status of public bodies was to be charged—namely, whether the body is needed in order to “perform a technical function”, whether it needs to be politically impartial and whether it needs to,
“act independently to establish facts”.
The Minister in the House of Commons, giving evidence to the Public Administration Select Committee, avowed that the council failed all three.
The Public Administration Select Committee, on the other hand, thought that,
“it could be, and has been, argued that the AJTC in fact meets all three of them”—
a judgment with which I profoundly concur.
The committee pointed to the high level of successful appeals across the system, with higher rates when legal representation was available, declaring:
“This poor decision-making results in injustice to individuals and cost to the taxpayer on a scale that PASC finds unacceptable. The role of the AJTC in providing an independent overview … is therefore one of vital national importance … overseeing a system that protects the rights of millions of citizens every year”.
It concluded that,
“oversight by an entity independent from Government is valuable and should be continued”.
The Justice Select Committee, in its eighth report for the previous Session, echoed many of these concerns and, while conceding that certain functions might be transferred to the Ministry of Justice, stated that it did not,
“believe that the abolition of the AJTC satisfies the statutory tests”,
set out in the Public Bodies Act,
“in respect of efficiency and effectiveness”.
I note in passing that, interestingly, in evidence to the Public Administration Select Committee, the Minister in the other place did not seem to rely on these tests. The Justice Committee concluded by recommending,
“that the Government reconsiders its decision to abolish the Council”.
The Minister, Helen Grant, rejected this recommendation in a brief letter which did not address the concerns raised by the committee, and which was copied to the Scottish Parliament Justice Committee, of which the Justice Committee knew nothing until its attention was drawn to it by the Scottish committee—clearer evidence of the woeful incompetence of the Ministry of Justice could hardly be imagined.
The Government’s proposals, affecting as they do some 650,000 people a year who appear before tribunals, sit oddly with the retention as non-departmental public bodies of the Civil Justice Council, when only 63,000 cases, roughly 10% of those appearing before tribunals, come before the civil courts, and the Family Justice Council.
Moreover, as Lord Newton pointed out, administrative justice is not confined to tribunals. It extends to local authorities and important areas of administrative justice,
“including, in education, school admissions and exclusion appeals”.
He went on to say that,
“it also includes the whole area of decriminalised parking … They have nothing to do with the Ministry of Justice but they amount to important areas of administrative justice”.
For an essentially gentle man, Lord Newton went even further, declaring:
“The Ministry of Justice knows nothing—and, frankly, as far as I can judge, cares less”,—[Official Report, 28/3/11; col. 993.]
about these latter issues.
In debates on the Public Bodies Bill and subsequently, Ministers have shifted the basis of their argument to one of cost, yet the amount of the savings they predict are, even on the scale of the MoJ’s budget, let alone public expenditure as a whole, trivial—all of £700,000 a year, as the Minister has confirmed. The council’s running costs have already been reduced from £1.2 million in 2010-11 to that figure.
Where is the evidence that the MoJ, of all government departments, has the capacity to deliver the work hitherto carried out by the council and to press on with the work of improving the system, securing better decision-making and reducing the need for appeals, as opposed to putting obstacles in the way of appeals by withdrawing legal aid and advice or—as in the case of employment tribunals, which we debated last week—imposing fees which will deter claimants from using them? This, after all, is the department responsible for the fiasco of the interpretation service, for the problems of the single court issue of money claims, and for the recently exposed disaster of the electronic tagging contracts. This is the department that is pushing ahead with untested proposals in relation to the probation service and payment by results and which refuses FoI requests for information about pilot schemes that it abandons. Dickens would have rejoiced at the opportunity to satirise a department that combines all the vices of the Court of Chancery in Bleak House and the Circumlocution Office of Little Dorrit.
There is a more fundamental point. How can the Government, who are enacting legislation, promulgating regulations and changing structures in these important areas of administrative justice, and at the same time hugely reducing legal aid and advice, justify the absorption of an independent body with a remit to oversee the whole system and advise government? The Administrative Justice Advisory Group, which the department has set up, is in no way a satisfactory alternative, having, in the words of evidence given to the Public Administration Committee, no status, standing or budget of its own. It lacks a chairman and a secretariat, it is dependent on MoJ policy staff and it meets only twice a year.
What is the Government’s response to the nine recommendations made in the final report of the AJTC on ways to,
“maximise the robustness of this body”,
which, at the moment, has all the attributes of a watchdog equipped with neither bark nor bite? What is the position of the devolved Administrations in Scotland and Wales? Hitherto they have been represented on the AJTC. Will they establish their own councils once the AJTC disappears and, if so, what will be their relationship to the MoJ on areas of administrative justice covering non-devolved matters such as welfare or employment law?
The House will wish to pay tribute to the members and staff of the council who have been on organisational death row for three years but have managed to continue to discharge their responsibilities with exemplary fortitude. It is worth quoting further from the final report. It refers to the predicted nearly 100% increase in First-tier Tribunals for social security and child support to 807,000 cases a year by 2015-16 as illustrating the pressures with which the system will have to cope, exacerbated by the wholesale reduction of access to legal aid and advice, which we have so often debated.
The council questions, with reason, whether HMCTS, which is reducing the publication of performance data, is able to or has the independence to monitor performance. Its final report poses several questions about the role of HMCTS. I will quote from that report. The AJTC rejects,
“any suggestion that HMCTS is independent of government. HMCTS is not a judicial body”—
although it may have judicial representatives upon it—
“and it does not operate on an arms-length basis from its sponsor department. Rather, we believe that HMCTS as an executive agency of the Ministry is ‘as much part of government as the MoJ itself’, with MoJ Ministers being accountable within Parliament for what HMCTS does in the same way as they are for what their departmental officials do”.
The council concedes that,
“the constitution of the HMCTS Board provides some independence in the governance of the agency”,
although not its role. The council points out that,
“whatever the correctness of our view on the independence of HMCTS, such is not relevant to the separate question of the existence of and need for a body to offer independent advice to government, which is currently offered by the AJTC and in future could only possibly be offered by”
the advisory group, with all the limitations to which I have referred. The council raises a series of other points about the performance and the future of HMCTS, which are surely germane. The council makes the point that:
“The task therefore of ensuring effective scrutiny will be many times more difficult in future than it has been … Cutbacks in the availability of advice and legal aid and the introduction of fees … are likely to act as even greater barriers and disincentives to redress than restrictions in the availability of judicial review”—
about which there is also great concern—and, tellingly, that there are,
“disturbing signs that MoJ explicitly sees the use of fees as a mechanism to reduce demand on the tribunals system”.
Can the Minister deny these serious charges?
I conclude with a final quotation from the council:
“There is an inevitable risk that those who have access to the levers of power may yield to the temptation to use them to exclude or restrict challenges. And even if that temptation on occasion is resisted there will always be the suspicion that it may not be resisted on others. Effective oversight is necessary both to ensure that temptation is resisted and also to create confidence amongst citizens that it will be”.
I wholly endorse that view and I suspect that I am not alone. I beg to move.
Lord McNally
My Lords, considering that this is the third time today that the noble Lord, Lord Beecham, and I have faced each other across the Dispatch Box—admittedly the other two times were in the Moses Room—he is in fine and feisty form. But his speech revealed what I think is the abiding problem of the Labour Party when looking at these matters: savings are always trivial and can be dismissed; always look for the firewall of a committee to get between a Minister and responsibility; and, if in doubt, appoint a consultant or, even better, a tsar. It is a philosophical difference between us. I really do believe that this is where responsibility lies and that the effective oversight he called for should be oversight in Parliament by parliamentarians to Ministers at the Dispatch Box. We will have to disagree on some of these matters, but I will try to answer a number of the points that he made.
The noble Lord mentioned the AJTC’s report on the Future Oversight of Administrative Justice. This final report was published on 17 July and the department has not yet fully considered the recommendations in detail. However, we thank the council for its constructive recommendations. We are already tackling many of the issues raised, such as the need for good-quality information and signposting, and the Right First Time agenda. We also welcome the AJTC’s invitation to parliamentary committees to take an enhanced role in scrutinising the work of the department in this area. We will consider the report’s recommendations as we progress our strategic work programme and build on the principles of fairness, efficiency and accessibility.
The noble Lord also asked about administrative justice in reserved sectors in Scotland and Wales. We are focused on ensuring that users of the system can expect consistency of service and adjudication, no matter where they access it. The MoJ has agreed to support the Governments in Scotland and Wales to complete their reform programmes. We believe that the change in approach will be beneficial to users by encouraging closer working between the bodies actually responsible for developing policies and implementing reforms. We have draft formal protocols between the UK Government and each of the devolved Administrations to oversee the system. These will include examining and addressing issues for users in Wales, Scotland and Northern Ireland accessing reserve tribunals.
Lord Beecham
My Lords, needless to say, I am not persuaded by the Minister’s argument. Indeed, one could go on to examine further the problems with a system administered by HMCTS, not least in the context that that organisation itself will presumably be subject to some reorganisation or privatisation of some of its functions. I do not accept that that can offer an independent service, nor that independent agency is superfluous. It is very important for public confidence that there should be an independent body as effective as the council and its predecessor have been. However, it is clear that the Government are going to proceed with this. There is not a massive attendance in the House tonight and there is therefore no prospect of my amendment being carried were I to put it to the vote. In any case, it would not be fatal. In the circumstances, I beg leave to withdraw the amendment.
Care Bill [HL]
(11 years, 4 months ago)
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Lord Patel of Bradford
Lord Patel of Bradford
My Lords, I shall also speak to Amendment 92AZ. I welcome the aspects of the Bill that are aimed at securing the sustainability of the social care sector and social care provision. It is particularly important to put measures in place setting out the action to be taken to protect people from the negative impacts of business failure in adult social care. However, I have some concerns about the key clauses that relate to provider failure and market oversight. I refer specifically to Clauses 47 to 54, which specify the criteria for the application of market oversight, determine whether criteria apply to a care provider and cover the assessment of financial sustainability of care providers.
Amendment 92AY focuses on the financial regulation of providers. The Bill currently allocates to the Care Quality Commission responsibility for maintaining quality care services, mitigating risk to business sustainability and ensuring continuity of care for any person who receives care services. These steps will include obtaining regular financial and relevant performance information, working with the provider to develop a sustainability plan to manage any risk to the organisation’s ongoing sustainability, using powers to commission an independent business review to help the provider to return to financial stability and requiring information from the provider to enable the CQC to support local authorities to manage provider failure.
I concur with the view that all providers of care and support services should be subject to thorough financial checks which may indicate that a care organisation might be unable to fulfil its obligations as a provider of services in the future. However, plans to allocate responsibility for financial regulation to the CQC appear to be poorly thought through and Monitor, as the current financial regulator for health services, should assume this role. The pressures facing the CQC as part of its expanded remit for regulating quality across the health and social care sectors have already been eloquently highlighted in previous debates on this Bill by many noble Lords, including the noble Lord, Lord Sutherland, and my noble friends Lord Hunt and Lord Campbell-Savours.
We are all aware that the CQC is undergoing significant structural change and it does not have the capacity and organisational expertise to take on responsibility for assessing the financial stability of care providers. This is being proposed because of the belief that service users would benefit from having a single regulator, specifically the CQC, to oversee care and support services and provide an overall assessment of performance, combining quality and financial data. I am also aware that the Francis report highlighted the importance of simplifying the quality and financial regulation regime for health providers to eradicate overlap and minimise the gaps between the functions of the different organisations and regulators. This included changes to the current division of regulatory responsibilities between Monitor and the Care Quality Commission.
However, the noble Lord, Lord Sutherland, in a previous debate, specifically highlighted the key concerns—which I share—about giving the CQC additional responsibilities for financial assessment. He stated, and I agree, that the CQC is not prepared for these additional responsibilities. I would question whether it has the specialist staff, skills, experience and, most importantly, expertise required to decide whether care providers have financial sustainability.
Alongside all the other demands it faces, the CQC will also be pressured into developing a rushed financial accountability system, without proper consultation and checks and balances. These additional responsibilities for financial regulation place added pressure on an organisation that is already undergoing significant change and faces a greatly increased workload as part of its expanded duties for quality assurance. The development of a poor-quality financial accountability system will only affect its credibility further and I therefore question the rationale for designating the CQC as a financial regulator for the care and support sector.
In fact, under the Health and Social Care Act 2012, Monitor became the economic regulator to promote effective and efficient providers of health and care, promote competition, regulate prices and safeguard the continuity of services. Monitor can license providers, work with NHS England to set prices for NHS-funded services, prevent anti-competitive behaviour and work with commissioners to ensure continuity of services when providers get into financial difficulty. I would therefore argue that Monitor already has its own robust financial oversight regime for healthcare providers that can be adapted and applied to the social care sector; and the Government should use these existing powers as a means to effectively regulate the sector in the future. My amendment to Clause 52, on the assessment of financial sustainability of care providers, simply replaces the CQC with Monitor. I hope that the noble Earl will agree that this is a sensible and helpful amendment.
I now turn to Amendment 92AZ on the accountability of commissioners. As many noble Lords have commented throughout the Committee stage, the focus in the Bill on greater integration between health and social care services is to be welcomed. As services between health and social care become more integrated, it is essential that the plans of local authorities face the same levels of scrutiny as clinical commissioning groups and have clear lines of local and national accountability.
However, there is at present no effective regime in place to oversee and monitor the standard of local authorities’ commissioning of care and support services. The annual performance assessments previously undertaken by the Care Quality Commission to evaluate the quality of councils’ commissioning of adult social care services were scrapped in 2010. Of course, the Minister may argue that the scrutiny of commissioning plans is now covered under the provisions of the Health and Social Care Act 2012 and that additional oversight is not therefore required.
I know that that Act contains a number of duties that focus on aligning the plans of clinical commissioning groups and health and well-being boards to ensure that clinical commissioning groups take into account the joint strategic needs assessments when preparing their commissioning plans. Equally, I am also aware that health and well-being boards are expected to have a key role in bringing together local authorities, clinical commissioning groups and local Healthwatch to assess the health and care needs of local populations through joint strategic needs assessments and joint health and well-being strategies.
However, recent cases such as those at Winterbourne View and Southern Cross have demonstrated the devastating impact on vulnerable people when commissioners, commissioning systems and processes are found wanting. Winterbourne View was set up as an assessment, treatment and rehabilitation centre for people with learning disabilities and autism, but the review into Winterbourne View found that it had “strayed far” from this purpose and stated that the commissioners, as well as the owners, Castlebeck, were to blame for this. The primary care trust commissioners who placed people at Winterbourne View did not set performance targets for the company or effectively check the progress of patients, despite being charged an average of £3,500 a week for places. Their reviews were clearly flawed, completely ineffective and did not bring to light either concerns about the quality of assessment and treatment or the detail of abusive practices. Strategic health authorities also did not effectively performance-manage primary care trusts in their commissioning of placements for this client group. The review concluded that closed establishments such as Winterbourne View would benefit from a more prescriptive approach. This includes far more effective planning processes, and performance management and monitoring systems by commissioners.
That is why I am proposing a new clause that focuses on the accountability of commissioning organisations that would give NHS England a duty to scrutinise the commissioning plans of local authorities for adult social care services to ensure that they are upholding the safety and care of vulnerable people, and the efficient and effective operation of a market. Equally, notwithstanding my previous comments, I would be content if the noble Earl thought that the CQC rather than NHS England would be able to provide that scrutiny. I beg to move.
Lord Warner
My Lords, I intervene briefly to make a couple of observations and put a question to the Minister on this set of amendments. I must confess that I am not thrilled by the idea of NHS England being asked to supervise the commissioning of local authorities. I think that it may struggle to supervise the commissioning of 211 clinical commissioning groups, or however many we have this week, without our turning it loose on 152 local authorities as well. There must be some doubts about whether it is the right body to supervise local authority commissioning.
My noble friend Lord Patel of Bradford makes a very fair point in asking where we will get some sort of overview of the quality of local authority commissioning. It may not be NHS England, but we could perhaps have some idea of the Government’s thinking on how they will be satisfied that the commissioning is of a reasonable standard across 152 local authorities. If the Minister could tell us this evening which quality assurance mechanism the Government have in mind, that would be a useful insight.
The other point was about whether it should be Monitor rather than the CQC. This is an area where I have struggled quite a lot, because I think that there is a problem with what is going on with the financing of adult social care. Who actually bankrolls the providers in this sector? I question whether, without a lot more expertise, either Monitor or CQC are well placed to penetrate some of the private equity models of financing adult social care provision. These models are being brought in almost as we speak.
The financial complexities of this sector are very considerable. The providers of residential and nursing home care within the adult social care sector have moved on a long way since my days in local government as a director of social services. People are assembling packages of money to buy groups of homes, and they put groups of homes together in what is often basically a hedge fund or private equity-type process, essentially consolidating providers in this sector. The days of mom and pop homes seem to be passing quite quickly, as the sector tries to secure greater financial capability to respond to the buffets of a market system.
In this extraordinarily complicated market, it is not clear to me how the Government will equip any regulator—or help it equip itself—to secure the expertise to actually raise the money to buy and merge groups of residential and nursing home providers. It is not a very transparent system. Either CQC or Monitor will require a lot of expertise. It will have to go into territory into which few of us are equipped to go, and find out what is actually going on, if we are not to have another Southern Cross experience.
I suggest that the risks of that happening again are becoming greater as the funding systems for these organisations become less transparent. They are not publicly quoted companies, and in many cases they are hidden behind a rather mysterious cloak of financial allocations. Without making adverse comments, I suggest we look at what happened with Four Seasons, which was taken over by Terra Firma. Where are the loyalties? Are the loyalties of that organisation to the people receiving care, or are they to the people who are creating the funds for the purchase of that organisation? I would like some reassurance that CQC or Monitor—I do not feel strongly doctrinal, one way or the other—will have the expertise to penetrate some of these rather opaque organisations that are now involved in funding providers in this sector.
Lord Mackay of Clashfern
My Lords, when this issue was discussed previously I had the feeling that Monitor had at least some claim to having the kind of expertise which goes some distance in this area whereas, as far as I could understand it, CQC did not seem to. I entirely agree with the noble Lord, Lord Warner, that what either of them has at the moment is probably unequal to the task of seeking out exactly what is going on and seeing how great the risks are. It is pretty obvious that to understand the risks in these financial transactions is a very difficult task. We have seen examples, not particularly in this area but in others, where serious risks have emerged which were not suspected until very close to the time of their emergence.
I also agree with the view that one great factor in the care regime is the number of local authorities that are to be involved. Some degree of understanding at least the variation across these 152 authorities is essential. During the workings of the Joint Committee, I was impressed by the skill of some of the local authority representatives we had before us but they were in quite a particular position in relation to their work. I am not sure that their knowledge, expertise and feel for the situation necessarily goes right across the sector. I do not at all decry the valuable work that local authorities do but the variety of tasks assigned to them is very great and the care situation must be among the most difficult of their responsibilities.
Lord Hunt of Kings Heath
My Lords, this is an important debate and the collapse of Southern Cross has brought it home to us how the risk of financial failure is likely to be a continuing problem in this sector. That is why it is important to understand whether the regulatory regime that the Government are proposing will be robust enough and whether it will have access to the kind of information that will enable the regulator to take a view on the viability of those companies which seek to do business in this area.
We are going back partly to our earlier debates when we discussed the new failure regime. At that time, I referred to the Department of Health factsheet that we were given, which said that the new failure regime will give regulators clear roles in tackling failure. However, I do not think that is actually so in practice. According to the department, the Care Quality Commission will focus on exposing problems and requiring action while Monitor and the NHS Trust Development Authority, which deal with non-foundation trusts, will focus on intervening if a poorly performing provider is unable to resolve the situation by working with commissioners. As we have heard today, the CQC retains enforcement powers for social care, general practice and independent sector providers. This whole picture is very confusing and in his Mid Staffordshire inquiry Robert Francis made it clear that regulatory complexity can contribute to system failings.
I am still unclear about the interrelationship between Monitor, CQC and the NHS Trust Development Authority so as to know whether they are going to work together to ensure that problems are acted on. I am still unclear whether when Monitor and the NHS Trust Development Authority are asked to intervene as a result of the CQC’s concern about findings in relation to safety and quality, they simply carry out the instructions of the CQC or have to go through the same process to satisfy themselves as public bodies with specific statutory duties—certainly in the case of Monitor—whether they share the concern about quality or simply take the CQC’s word on trust. As the actions of these regulators are likely to be tested in the courts, one way or another, clarity at this stage would be very welcome indeed.
My noble friend makes the case that, because of its expertise and experience, Monitor would be a better bet for looking at financial issues to do with care providers. It is very difficult to understand why bits of the system have been dealt with differently and the CQC is considered acceptable in relation to private care providers for adult social care and so on but not for NHS foundation trusts. The Government have brought a rather curious mish-mash to your Lordships’ House.
On my noble friend’s second amendment, I share his view and am not sure that NHS England is the right body to have a duty to scrutinise the commissioning plans of local authorities. However, I very much agree with my noble friend that it is very important that there is a method of checking on the performance of local authorities in their commissioning of adult social care services. My noble friend mentioned Winterbourne View as an example of where a number of local authorities placed clients but having placed them paid no attention to their experience. That was a salutary warning about the problems of local authority commissioning.
I wonder whether the CQC ought to be the body which undertakes that responsibility. Clause 5 sets out that the local authority is responsible for promoting diversity and quality in provision of services. The local authority clearly has responsibility for ensuring that there are sustainable providers in the market. I also refer my noble friend to Clause 80 which sets out the CQC’s responsibilities in performance assessment and performance ratings. My noble friend will see that under Clause 80(2) the proposed new Clause 46(3) of the Health and Social Care Act 2008 sets out that:
“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social service provided or commissioned by the authorities as may be prescribed”.
My reading is that the CQC is given powers to do what my noble friend wants. The question—we debated this when we debated Clause 5—is the extent to which the Government are so going to prescribe. I would like to hear from the noble Earl, if possible, that the Government have reflected on our earlier debate and have come to the view that it would be a very good thing to prescribe that all local authorities should have their commissioning performance reviewed by the CQC as a matter of priority.
My noble friend raised the question of Winterbourne View. We debated the problem of the contracts local authorities have set with private providers where they are contracting staff on very low rates of pay. These are the same providers which in some cases are giving 15-minute periods of service, with staff on zero-hour contracts and often having to pay the cost of their travel. I do not believe that those are the right circumstances in which a quality service could be given. That is why I believe that the CQC should prioritise the commissioning responsibilities of local authorities. If it did, it would answer the question posed by my noble friend.
Earl Howe
My Lords, I begin with an observation that I hope is incontrovertible: it is unacceptable for care users to be left without the services that they need, particularly where the interruption of those services, or the worry that this might happen, could badly affect their well-being and place unacceptable stress on them and their families, friends and carers. As the noble Lord, Lord Hunt, rightly observed, the collapse of Southern Cross in the autumn of 2012 highlighted the importance of this principle. Although no one was ultimately left without the services they needed, many people suffered from a considerable amount of stress and anxiety as a result of worries over whether the services that they, their friend or their relative relied on would stop being provided. At the time, there were no formal mechanisms for the Government to ensure that that was the case.
The Government are therefore introducing, through the Bill, a new system of financial oversight of the 50 to 60 providers of care and support that are the most difficult to replace. The system will provide local authorities with early warning that one of those providers is likely to fail or could fail, and will support authorities to ensure that, if a provider does fail, the continuity of care is maintained. The Care Quality Commission will assess the financial sustainability of all providers that are part of the regime, ensure that providers are taking adequate steps to tackle any risks to the sustainability of their business and support local authorities to tackle the risk of individuals suffering gaps in the services that they rely on when providers fail.
I sympathise with the arguments set out by the noble Lord, Lord Patel of Bradford, in favour of this function being undertaken by Monitor. He should be under no misapprehension: the decision about which regulator should undertake this role was a finely balanced one. This would have been a new role for either regulator. For the CQC, although its existing powers extended to some financial issues, it had not in practice used them significantly. For Monitor, this would have been an extension into a new market and type of provider with which it had had no previous experience. In the end, we came to the view that the CQC was the most appropriate body to perform this market oversight function, for three key reasons. First, this approach ensures that there will be a single regulator for care and support providers. The financial performance of a provider, whether exceptionally good or exceptionally poor, can be a leading indicator of serious quality failures. The CQC will be able to integrate quality and financial information and assess both together.
Secondly, the CQC is better placed to implement this regime because of the existing working relationships that it already has with providers through its current role. This should also contribute to minimising the regulatory burden on providers by ensuring that they have to work with and provide information to only one regulator rather than two. Thirdly, the CQC already has established working relationships with local authority commissioners. The main objective of this regime is to support local authorities in managing the failure of a difficult-to-replace provider. The CQC’s existing relationships will be invaluable in assisting it in performing this function effectively.
The noble Lord, Lord Hunt, questioned that rationale and pointed particularly to the advantages of Monitor undertaking the role, not least because of its current functions. I am the first to accept that Monitor has existing expertise in financial regulation, but it does not have experience in the care and support services market. The nature of Monitor’s licensing regime differs from this market oversight role in two key ways.
Lord Hunt of Kings Heath
Is the Minister satisfied that the CQC will be able to have access to sufficient information about the ownership of these companies? To pick up the point made by my noble friend, ultimately, when a home is at risk of going down, there is a danger that the interests of shareholders are put before the interests of the residents. Clearly, issues to do with ownership become very important there.
Earl Howe
The noble Lord makes an extremely important point, and one that has not been lost on us. We recognise that ownership structures can be extremely complex and that true ownership can be hidden from normal view. It is one of the factors that we will have to build into our discussions with the CQC. I do not pretend that there is an easy answer because some businesses quite consciously and deliberately set themselves up to ensure that it is very difficult to probe the true state of their financial affairs and their true ownership. As and when I can come back to the noble Lord on where we are with that, I will be very happy to do so.
Lord Mackay of Clashfern
My Lords, I crave my noble friend’s indulgence. I am concerned about the warnings in advance of a collapse. That seems to be an area of very considerable importance, and I wonder whether Monitor is supposed to be responsible for trying to forecast that. Secondly, if that is correct, obviously the discussions will need to ensure that it has the necessary expertise to do that and, as the noble Lord has said, that is a pretty difficult task.
Earl Howe
My noble and learned friend is, of course, right. That goes back to a question posed in an earlier group by the noble Baroness, Lady Wheeler, about what the definition is of business failure. We propose to define in regulations circumstances in which a provider can be deemed to have failed. Those circumstances may include a situation in which a provider is struggling to service its debts as they fall due or has breached its financial covenants under loan agreements, or an administrator, liquidator or receiver has been appointed—which is a clear-cut case of failure. As I said, this will be defined in regulations because we want to capture these various different scenarios where a business can be deemed to have failed. We will, of course, consult on the regulations before they are laid. No doubt what I have just said will be refined and augmented during that process.
Lord Warner
The Minister mentioned that the Government will look very closely at some of these ownership issues and their opacity. Will he be willing to look at some of the other sectors which have been regulated? I would cite water and the electricity and gas industries, where we are already seeing the emergence of a clear conflict between the rights and needs of shareholders and those of consumers. There are lessons to be learnt from these other sectors, which now have a lot of experience of regulators trying to hold the balance between those who invest and those who are receiving the services from the providers of those services. Consolidation has also taken place in those industries, particularly in the energy sectors.
In this sector, we are seeing the early stages of consolidation, which is moving apace. Given the vulnerabilities of the people who live in these homes, it is conceivable that some ownership patterns could simply not be acceptable in this particular sector because of the high risk that they pose for the users of the services. Will the Government look at those other sectors and at that issue as they start to consider this? I am the last person to want to stop new entrants coming into a market, but Southern Cross was a wake-up call for us. We have to see whether certain ownership patterns have too much of a conflict of interest between the investor and the user of the services for us to be able to be comfortable that they could ever deliver the bacon in a satisfactory way.
Earl Howe
The noble Lord is absolutely right. We are entirely open to looking at the lessons to be drawn from other sectors and the regulators of other sectors. I am sure that important messages will come from such sectors of the kind the noble Lord describes—no doubt not just the energy and water sectors but others, too.
I will move on to the question of whether there should be central oversight of local authority commissioning practices. I wholeheartedly agree with many of the arguments that have been expressed this evening. Commissioning practices which risk undermining personal dignity and lowering quality are simply not acceptable. That is why Clause 5 of the Bill introduces a duty on local authorities to shape high-quality, diverse and sustainable markets in care and support services. Clause 5(4) requires local authorities to have regard to this duty when commissioning services. As I said when the Committee discussed Clause 5, we are aware that there are examples of poor commissioning practice across the country. We need to move away from overly prescriptive commissioning that focuses only on price or time slots, to consider how it can do things differently and deliver better outcomes in quality care.
In relation to the option of central oversight of local authority commissioning that the noble Lord, Lord Patel of Bradford, suggested, the Bill leaves open the possibility of the CQC conducting reviews of local authority commissioning. However, by enabling the CQC to review local authority commissioning, if it is prescribed in regulations, the Bill gives us the opportunity to discuss this option further. In particular, we are considering whether the new chief inspector, who will work with local authorities that commission care and support, should have a formal role in assuring the performance of those authorities, building on the strength of the current programme of improvement activity and peer assurance led by councils.
I emphasise at this stage that if there is to be central oversight of commissioning, the CQC, as a consequence of its links with the chief inspector and its existing relationships with, and expertise in, the social care sector, will be the most appropriate body to undertake this function. Although we have not closed our minds to the option of central oversight of local authority commissioning, the fundamental problems underlying poor commissioning practices are cultural and structural. Central oversight on its own will not necessarily tackle these issues.
The noble Lord, Lord Warner, asked how we could be satisfied that local authorities’ commissioning will be of a suitable quality. It goes without saying that it is for local authorities to decide the most appropriate way for them to fulfil their duty of commissioning and of shaping local markets, responding to local needs and circumstances. They will be accountable locally for those decisions. However, we are working with local authorities to support them to develop their capacity to shape local markets. We launched a programme of support last year and intend to continue working with local authorities to improve commissioning practices. We are committed to working with the sector to support local authorities to shape diverse and high-quality markets, including through improving commissioning practices, through the recently announced homecare challenge and through a programme to support the authorities in their market-shaping capacity.
In conclusion, I fully understand and sympathise with the issues raised by the two amendments. However, I hope that I have been able to shed some light on why the Government have come to their view on the issues. In so doing, I hope that I have provided a measure of reassurance to the noble Lord, Lord Patel of Bradford.
Lord Patel of Bradford
My Lords, I thank the Minister for his detailed response. On the first amendment, which deals with financial regulations, he singled out three issues that were relevant to why the CQC was chosen: having a single regulator, better relationships with local authorities and better relationships with commissioners. That goes some way towards reassuring me, but I still feel, coming back to the comments of my noble friend Lord Warner, that this is not necessarily about relationships and capacity but about the expertise and skills required in a very complex financial arena. That is the key.
If I were naive, we lived in an ideal world and I was providing care homes, and either my accountant was not very good and I did not know that I was going bankrupt or I wanted to carry on and would do everything possible to keep the company running, regardless of my relationship with the CQC, that is where somebody with the real financial expertise required in this day and age could come in and spot what was happening. I am not 100% reassured that the CQC will have that capacity or expertise. I suppose that I recognise that Monitor does not understand the social care sector as well but it has the financial expertise that I think is invaluable. I may want to return to this issue again and to have a further discussion about it.
However, I am far more reassured by the response that the noble Earl has given me on central commissioning. I suppose that I stipulated NHS England in the amendment because I could not think of another body. Having said that the CQC does not have the capacity to do this, I could not say that the CQC should be doing it. However, I am reassured that the potential is there for central oversight through regulations and other areas. In the mean time, I beg leave to withdraw the amendment.
Lord Patel
“(1) When a child receiving services reaches the age of 14, or a local authority receives a request from the child, or a parent or carer of the child, to assess the child’s needs for care and support (whichever is sooner), the authority must, if the consent condition is met, assess—”
Lord Patel
My Lords, I shall speak also to my Amendments 92C and 92D, 94 to 100 and 101 to 104 concerning Clauses 55, 57 and 59. I also support Amendment 92BA, which is in a similar vein to my Amendment 94, and Amendment 104ZA in the names of the noble Baronesses, Lady Browning and Lady Tyler of Enfield, and the noble Lord, Lord Touhig, which is similar to my Amendment 92C. I also support government Amendment 93A. I thank all noble Lords who have added their names to my amendments, for which I am very appreciative.
My amendments deal mainly with the problems experienced by extremely vulnerable children as they transit from children to young adults, then adults and adulthood, by placing a duty on local authorities to assist this group of children. There are about 45,000—I repeat: 45,000—children or young people from newborns to the age of 19 who have long-term health conditions which will eventually end the lives of most of them and for which they may require palliative care. Medical advances mean that more young people with a range of different conditions are living into adulthood than ever before. The greatest increase is among those aged 16 to 19, who now account for 4,000, or one in 10, newborns to 19 year-olds needing palliative care.
The majority of young people who may require palliative care have a range of severe disabilities and complex health needs. Cancer represents just under 14% of diagnoses. Many young people have cognitive impairments, meaning that they lack capacity, and many are cared for over long periods by parent carers. Many young people with life-limiting or life-threatening conditions who are more cognitively able struggle to achieve independence or to enter education or employment because plans are not made for them. Those who are unlikely to be cured by treatment are offered palliative care. Transition for children after their 16th birthday is complex. Successful transition needs to address the transfer of responsibility for young people from children to existing adult social care, health and education services, and the development of new adult services tailored to young people’s additional needs.
It needs to be planned years in advance, but sadly the reality is that transition planning is too often disjointed and poor. As a result, many young people and their families find transition daunting. All this happens at a time when young people’s needs may be greatest, as many chronic, progressive conditions reach a crisis during late adolescence and young adulthood. Given the situation, these young people and their families cannot afford to wait and adult agencies need to ensure that their responses are timely and appropriate.
Together for Short Lives is a consortium of charities that looks after these children as a transition task force. It sought the opinions of young people who need palliative care. The view of young people is that the adult services they need are inadequate. They want services that enable them to lead ordinary lives, including a social life. They want a feeling of freedom, and not to be overwhelmed or bossed around by adults, while at the same time to be offered appropriate support. The young people’s frustrations with transition are shared by their parents.
I recognise that the Government have included Clauses 55 and 63 with the intention of ensuring better planning for young people who need to transition. I welcome the powers that local authorities will have to assess young people under the adult statute ahead of the young person’s 18th birthday. Despite the Government’s good intentions the clauses as they stand will not offer the certainty and reassurance that young people with very complex needs, and their families, desperately seek. On Second Reading, the Minister stated:
“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”.—[Official Report, 21/5/13; col. 828.]
However, in only giving powers and not duties to local authorities to undertake a child’s needs assessment, the wide variation in the quality of transition planning will simply remain in those cases where children and their families do not request an assessment. Local authorities will face particular financial pressures.
My Amendment 92B would ensure that no young person misses out on a child’s needs assessment. It would replace the power for a local authority to undertake a child’s needs assessment request with a duty. Setting the age threshold for a child’s needs assessment at 14 is based on existing statutory requirements for every young person in year nine—that is age 14 to 15—with a statement of special educational needs to have a transition element. The amendment merely mirrors that.
Amendment 92C sets out the existing legislation underpinning the services that a young person who needs palliative care receives. The amendment would ensure that a local authority would be obliged to carry out a child’s needs assessment for a young person receiving the services specified over a long-term period up to the age of 14.
If 14 is the age at which transition planning should begin for a young person who needs palliative care by the age of 16, every young person who is likely to need adult health or social care when they reach 18 should have received a child’s needs assessment. That would ensure that the assessment happens in good time before the transition to adult services takes place. My Amendment 92D would mean that this is the case.
Amendment 94 would ensure, by putting a duty on local authorities, that if a child’s needs assessment finds that a young person is likely to need health or social care when they reach adulthood, a statutory five-year rolling transition plan should be prepared for the child or young person by the time they are 16. Amendment 94 has a number of other important features. It would mean that children, parents and carers are involved in the transition planning process. It would ensure that transition plans are maintained until the young person reaches the age of 25.
Like all young people, many of those who need palliative care want to strike out on their own and establish their independence. It should be remembered that these are children who are on longer-term palliative care. They hope to go into further or higher education, get a job, move into their own home and develop a social life. Amendment 94 would ensure that young people’s aspirations to move into their own homes would be included in the transition plan. Tragically, as a result of lack of planning, many are unable to do so. Too many of these young adults die while they are waiting on housing lists.
One of the provisions included in the Children and Families Bill is to introduce an integrated education, health and care plan—EHC plan—for young people who have special educational needs. This will include many, but crucially not all, young people who need palliative care. When a young person stays in education and training, they will be eligible for an EHC plan until the age of 25. I recognise that an EHC plan could fulfil the functions that I intend a transition plan in my amendment to do. Indeed, an optimal position would be where EHC plans are available to all young disabled people up to the age of 25. In lieu of that, this amendment is necessarily lengthy—I apologise for that—to ensure that a statutory plan is put in place to provide similarly joined-up transition provision for young people who need palliative care but do not have SEN.
Amendments 95, 96 and 97 aim to ensure that transition planning is maintained for young people who need palliative care and who move from one local authority area to another. They mirror Clauses 36 to 40 in the Bill, which place duties on local authorities to ensure continuity of social care when adults move from one area to another—so why not for these vulnerable children?
Amendment 97 would provide for the Secretary of State or an appointed person to step in to resolve any disputes about where that young person lives with regard to assessing the child’s needs and preparing a transition plan. The amendment would provide for the continuation of a young person’s transition plan where such a dispute arises. In considering young people who need transition from children to adult services, it is vital that we take into account the needs of those who care for them. Again, I recognise and support the Government's aspiration to do so in the Bill. However, as with the clauses relating to planning for young people’s needs on transition, I believe that we need to go further in order to ensure that planning for carers also happens in practice.
Amendment 98 would place a duty on local authorities to assess the likely care needs of those caring for a child who is likely to need services as an adult. Under the current wording in the Bill, local authorities would have the power to conduct a child’s carer assessment but would not be obliged to do so. That has the potential again to create unnecessary variations in transition planning for carers in local areas.
As I proposed in Amendments 92D and 98, 14 is the age at which transition planning should begin for a young person who needs palliative care and their carer. The young person’s and the carer’s needs should be assessed by the time the young person is 16. This would ensure that the assessments happened in good time before the transition to adult services took place. Amendment 100 would ensure that that is the case.
Amendments 101, 102, 103 and 104 are consequential to Amendment 100. Amendments 101 to 104 further strengthen the Bill by making sure that local authorities are duty bound to meet a child carer’s need for support.
I repeat that my amendments seek to put a duty on local authorities to assist 45,000 of the most vulnerable children whose lives will be short because of their conditions. The amendments will give them an opportunity to have a semblance of normal, enjoyable life with appropriate support and care. It is neither organisationally nor financially a great deal to ask.
I realise that my amendments are lengthy and I am sure that the Bill team could do a better job with much abbreviated amendments to meet the same needs. If the Minister feels that the amendments are too wide in scope, I will be pleased to be of assistance in narrowing them down to focus particularly on these vulnerable children. I beg to move.
Baroness Pitkeathley
I rise to speak to my amendments in this group and to support the amendments of the noble Lord, Lord Patel, to which my name has been added.
I have tabled Amendments 93B, 100A and 104ZZA because I am concerned about the wording in Clauses 56 and 61, which may risk preventing the provision of services, and that the references to families and friends or others suggest a reliance on carers that is inconsistent with other provisions in the Bill and with the intention that a decision on eligible needs should be carer blind. That the provision should be carer blind is an important and welcome commitment by the Government in this part of the Bill.
My amendments seek to remove the reference to assessment of the capabilities of a child, a child carer and a young carer and the support that family members could provide to meet a child’s need for care in Clause 56, a parent’s need for support in Clause 58, and a young carer’s need for support in Clause 61. Similar amendments tabled by the noble Lord, Lord Hunt, were debated when we discussed Clauses 9 and 10.
The references to the capabilities of a child, a child carer or a young carer and any support likely to be available to the child from friends, family and others should be removed. There could be an undue reliance on family and friends to provide care and support, and voluntary support from family and friends will not be properly planned for or sustainable and will not be subject to checks or review. Family and friends may not be willing and able to provide support but there is a risk that they will be relied on regardless of their own wishes. There is no check in the law and there are no provisions for this in the legislation. Carers could easily be pressurised to provide care and the vital contribution that they make may not be recognised. Those of us who deal with carers all know how often they are pressurised, sometimes quite subtly. The implication is, for example, that they will have to give up their job in order to provide care for the particular person needing care.
I am also concerned, as a member of the Joint Select Committee, about Clauses 56, 58 and 61. They were not part of the consultation on the draft Bill and this is quite a substantial departure from the process set out in it and recommended by the Law Commission. The new parts which have been added to Clauses 56, 58 and 61 blur the distinction between consideration of needs and ways of meeting needs, other than through services at the stage of assessment, before any decision about whether the child, child carer or young carer have eligible needs. The assessment process should show what the needs for care and support are before consideration is given to how those needs will be met.
Carers UK—I declare an interest as its vice president—has tested the wording of these clauses on a number of front-line workers and their belief is that practice will be adversely affected. The distinction is important because if consideration of needs does not precede consideration of ways to meet those needs, there is a danger that needs will be defined with regard to whatever support is available and could result in children, young carers and parent carers finding it more difficult to access statutory care and support as a result of assumptions being made about the informal support that is available. These amendments seek to remove any risk that family and friends will be unduly and inappropriately relied on to provide care and support to the child, child carer or young carer, and to ensure that care and support needs are properly met following an assessment of needs and before considering the potential input of others.
The amendments tabled by the noble Lord, Lord Patel, to which I have added my name, emphasise the importance of the transition period to parent carers and disabled young adults and the vulnerability of both groups. I have little to add to his very eloquent presentation. It is sometimes remarkably difficult to focus the attention of policy-makers on the needs of parent carers. I have often been puzzled as to why that is. I think it may be about the very decided views that we all have about parental responsibility.
However, we must understand that the responsibility we gladly take for our non-disabled children is very different from what we expect from the parents of a child with special needs. These parent carers can find themselves providing care for many years and often at the very heavy end of caring—for example, someone who has severe mental and physical disabilities may need lifting and continence care—and for 24 hours a day. Do I need to point out that keeping such people engaged in caring by giving them enough support to stop them breaking down makes very sound economic as well as moral sense? At no point is this support more important than the transition stage, as the noble Lord, Lord Patel, has so eloquently reminded us.
Baroness Tyler of Enfield
My Lords, I will speak to Amendments 92BA and 104ZA. My noble friend Lady Browning and the noble Lord, Lord Touhig, whose names are also attached, are not in their places.
I welcome the attempt in the Bill to tackle the issue of transition from children’s services to adult social services and to try to make it work for young people. Clauses 55 to 63 undoubtedly present an important step in the right direction. However, some improvements are needed to ensure that the Bill provides the appropriate legal basis for the smooth transition for young people from children’s services to adult services that I am sure we would all like to see, and to remove the cliff edge that has been referred to in this and previous debates.
First, Amendment 92BA relates to Clause 63, which is about the continuity of services and is designed to ensure that if adult care and support is not in place by the time the child reaches 18, the services they receive under other legislation will continue until adult care and support is put in place. The potential for this change to benefit young disabled people making the transition to adulthood is very much to be welcomed. However, the benefits outlined in Clause 63 apply only if a request has been made for a child’s needs assessment by the time that child turns 18. The concern remains that some young people will not be able to benefit from this protection because they or their parents or carers will not be aware that they need to request an assessment by the time they are 18. Therefore, the amendment would ensure that every child who is receiving support under the relevant legislation and is likely to continue to have a support need after the age of 18 receives that assessment and the benefits that flow from it.
With regard to Amendment 1042A, as I have said in some of our earlier debates on the Bill, there is an overlap in the jurisdiction between this Bill and the Children and Families Bill, which specifically relates to social care for young people entering adulthood. The proposed new education, health and care plans, which the Children and Families Bill sets out to introduce, are at the very centre of this debate. If the aim of the current legislation is to create a better, joined-up system—as I think it should be and I am sure that other noble Lords agree—it is vital that the Care Bill makes reference to these EHC plans.
I will briefly explain that important link between the two Bills. At the same time as the Care Bill aims to bring adult social care into the 21st century, the Children and Families Bill aims to create a new joined-up system of support for children and young people with special educational needs between the ages of nought and 25. Plainly, with the Care Bill applying to adults from the age of 18 and the Children and Families Bill setting out the framework for children and young people up to the age of 25, there is an overlap in the 18-to-25 age range. It is vital that these plans are able to talk to each other if we are really to have the sort of integrated system that we all want, and if we are to achieve that desired goal of a one-stop shop of services that young people can access when they need them.
I support many of the other amendments in this group, but shall not spend time going through them.
Lord Adebowale
My Lords, I support Amendments 92B, 92C and 92D, which are also in the names of the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Patel, who have spoken eloquently on this matter. I declare an interest as the chief executive of Turning Point, which provides health and social care to many young people in the process of transition. I know, as we all do, that transition can be a very delicate process if not done well. Young people slip through the net between children’s and adult services and begin their adult lives without adequate care and support, which risks deterioration of physical and mental health, and the escalation of need to the point of crisis. That is both immoral and expensive.
The Bill goes a long way to improve the current situation. I am pleased to hear that Ministers informed the House during an earlier session that discussions between the Department of Health and the Department for Education about the links referred to between this Bill and the Children and Families Bill are already taking place. These transition amendments offer an opportunity for us to go further—it is quite rare for a Bill to offer an opportunity to do something quite brilliant for young people—and to ensure that all young people receive support under other legislation. That support is likely to continue after young people reach 18 and they will receive an offer of a needs assessment from their local authority. Importantly, this process will begin in good time.
This includes those young people—or their families and carers, as has already been mentioned—who have not themselves requested an assessment. It is an important addition to recognise that there may be cases, as mentioned by the noble Baroness, Lady Tyler, where a family just does not realise that they need to request an assessment. Good transition is about helping to ensure that local authorities are better prepared to meet the needs of young people. If assessments can be conducted earlier, so long as this is what young people and their families want, care and support can be in place sooner, and there is less risk of people’s needs escalating to the point of crisis.
I hope that the Minister will agree that the assessment process needs to begin in good time, and that he can assure the House that those who do not themselves request an assessment will also be able to benefit from the improvements that this Bill offers.
Lord Warner
My Lords, I will make two quick points, the hour being late. The Government need to look again at the way this Bill works with the Children and Families Bill. These arrangements look clunky for those moving from childhood into adulthood. The real problem is that this Bill does not seem to work on the basis that many, if not most, of these children will be known to the same local authority. Why, then, is this Bill framed as though they are strangers coming into the system, in which the local authority is permitted to involve them? The local authority should have an obligation to make seamless the move from childhood to adult services. The Bill does not really deliver that. The Government need to look again at that transition point, and reconcile the Children and Families Bill and the Care Bill, because they do not work together as well as they might.
Lord Patel of Bradford
My Lords, I have put my name to Amendment 94 in the name of the noble Lord, Lord Patel. I do not think that I can add to the detailed and clear exposition that the noble Lord has provided. I know that the amendment is slightly lengthy, but it is also very logical and clear—I understood it very clearly, so that is a bonus. I welcome the intention behind Clauses 55 to 63, which enable parents and young people to request a child’s needs assessment. Clause 56, on requirement’s for a child’s need assessment, states:
“A child’s needs assessment must include an assessment of … (a) the outcomes that the child wishes to achieve in day-to-day life”.
What is the intention behind “outcomes”? What outcomes are we looking at?
Lord Hunt of Kings Heath
My Lords, it was remiss of me not to declare an interest during our debate today as president-elect of GS1, chair of a foundation trust and consultant trainer with Cumberlege Connections.
Perhaps I, too, may raise the connection of this Bill with the Children and Families Bill. As my noble friend Lord Warner said, with the Care Bill applying to adults from the age of 18 and the Children and Families Bill setting the framework for children and young people up to the age of 25, there is a clear overlap in their jurisdiction in the context of social care provision. Education, health and care plans under the Children and Families Bill also include an assessment of a child or young person’s social care needs, which means that young people between the ages of 18 and 25 may be eligible both for an EHC plan and an adult care and support plan. That seems to reinforce my noble friend Lord Warner’s comments.
My understanding—perhaps the Minister could confirm this—is that the Government are considering bringing forward amendments to the Children and Families Bill to make sure that the two link together. If that is so, the problem that we have is that the Children and Families Bill will not go into Grand Committee until we come back in October, whereas this Bill should have cleared the House by about the fourth week in October. It would be very disappointing if we, in debating this Bill, were not able to see the changes that the Government were going to make to the Children and Families Bill so that we could make sure from our perspective that the two hung together. Can the Minister assure us that, if the Government are contemplating some amendments, we could see them so that we could debate them within the context of this Bill?
Earl Howe
My Lords, I thank Members of the Committee, and especially the noble Lord, Lord Patel, for a debate which illustrates the significance of transition to young people and their families and the need to get the legal framework right for them.
As we have heard, these amendments cover a range of issues. In respect of Amendments 92D, 98 and 100, I have listened with interest to concerns about the absence of a requirement that transition assessment should take place at a particular age. We are in agreement that the timing of assessment is crucial, but this is essentially a question of approach.
The Care Bill proposes that two tests be used to ensure that assessment takes place at the right time for each young person or carer. We believe that this is preferable to rigid timescales which take no account of an individual’s needs or circumstances. First, a local authority may assess a young person, their carer or a young carer where it appears to the local authority that the child or carer is likely to have needs upon the child turning 18. This is to be used in conjunction with the second consideration, whether assessment would be of “significant benefit”. This recognises that a one-size-fits-all approach is not in the best interests of young people or their carers.
Amendments 92B and 92C would limit the group of young people who can benefit from transition planning to those who are already in receipt of services. We would not wish to impose any such restriction. Indeed, this restriction was removed following public consultation and pre-legislative scrutiny, because transition planning may equally benefit those who are not currently in receipt of services.
I have heard the concerns expressed that local authorities are not under a duty to assess in every case. This is indeed true, and for very good reason. Some young people will not have needs for care and support after the age of 18. It will not be appropriate, nor indeed will it be in a young person’s interests, to assess in every case.
I listened with interest to concerns about provision for carers of children. We need to be clear about this. Support should be available where it is needed. The question is the source and nature of that support. Clause 59 provides a power, rather than a duty, for local authorities to provide support because existing children’s legislation already includes provision for support to a child’s carer. Duplication of existing legislation may cause confusion and is unnecessary. This power is intended to enable support to be provided under adult legislation where a certain service is available only locally via that route.
I turn now to planning for transition and Amendments 92BA and 94. Provision for transition assessment is focused on the outcomes that the individual wants to achieve. I can reassure the noble Lord, Lord Patel, that such outcomes may include employment, education or housing. I also share the noble Lord’s expectation that, when a child has an education, health and care plan, any assessment under these clauses should take the EHC plan into account and the assessment should be integrated into that plan.
The Care Bill and the Children and Families Bill include provision that assessment can be joint, including joined-up assessments in relation to an EHC plan. These issues will be addressed by both the guidance supporting the Care Bill and the Department for Education’s SEN code of practice.
In respect of Amendment 94, I briefly add two further points. First, when a young person over the age of 18 has an EHC plan, and as such the care part of that plan is provided under this Bill, we would expect co-operation between adult and children’s services in relation to any review of the plan under Clause 6(5)(a) and (b). Such co-operation for those under 18 who are in transition is provided for by Clause 6(5)(c). This would include co-operation with the preparation, maintenance and review of the EHC plan as provided for by the Children and Families Bill, in respect of children. Guidance can ensure that this is clear.
Secondly, requiring a local authority to make arrangements to secure provision for children and young people with a transition plan would not be appropriate. Services to children cannot be provided under the Care Bill. Children’s legislation provides for this. Services to young people over the age of 18 would be provided, if necessary, under provisions earlier in Part 1.
In relation to Amendment 104ZA, I agree on the need to ensure continuity of care. However, we must avoid creating overlap or confusion with local authorities’ existing duties in relation to children, including rights to assessment and support under the Children Act 1989. For this reason, it would be preferable for the young person to request assessment as they see fit and for the local authority to initiate this conversation with the child. The request itself is not envisaged as a formal process. Indeed, for some young people the request will form part of a conversation the local authority initiates about transition to adulthood. Guidance can be used to make this point.
Young people and their families will need information in order that they can understand the adult care and support system and, crucially, that they are aware of their right to request assessment. Clause 4 requires local authorities to establish and maintain an accessible system for information and advice including information and advice about how to access the care and support that is available.
Through Amendments 95, 96 and 97, the noble Lord, Lord Patel, the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Patel of Bradford, have also expressed concern that there should be provision to support children with care needs to move between areas, without the fear of experiencing a gap in their care and support. I agree. Provision for people over the age of 18 already exists at Clauses 36 and 37 and provision for children with an Education Health and Care plan exists in the Children and Families Bill. If a young person under the age of 18 who has had an assessment under the provisions of Clauses 55 or 60 moves to a new area, the general duties of co-operation, in particular with other local authorities under Clause 6(6)(b), would also apply.
I should like to reassure the noble Baroness, Lady Pitkeathley, in relation to Amendments 93B, 100A and 104ZZA that consideration of “other matters”, a person’s own capabilities and the other support that may be available does not exclude the provision of more conventional care and support services where needed. Indeed, when the child becomes 18, if the individual’s needs are eligible, the local authority must meet them, in accordance with Clause 18, if the adult wants the authority to do so, and those requirements are not diminished by these three paragraphs. The intention is to recognise that, in order to make the right connections to the local community and the variety of support available, the local authority should consider how these matters, along with more formal care and support provision, could be of benefit in achieving the adult’s outcomes.
The noble Baroness suggested that carers might be pressurised by these provisions into providing care. It is certainly not our intention that pressure is put on carers. The clauses make it very clear that a carer must be willing and able to provide support and that the impact upon carers’ well-being must be considered.
She flagged up the concern that the new provisions in Clauses 56, 58 and 61 are departures from the draft Bill and asked why that was the case. The Bill as introduced includes greater clarification as to the nature of the assessment that should be carried out and what should be considered. It is largely for drafting reasons that we split the subsections relating to children, children’s carers and young carers into two subsections for each group.
The noble Lord, Lord Warner, pointed out that, in his view, the Bill is framed as though young people are strangers to the local authority. The Bill makes provision both for those who are receiving children’s services and are known to social services and for those who are not currently receiving care and support. Clause 6 provides a duty to co-operate, including within the local authority. In particular, in relation to children transitioning to adulthood, there is a duty for those internal discussions to take place. The request mechanism in the Bill is not intended to be a formal or bureaucratic process, as I mentioned earlier.
The noble Lord, Lord Hunt, asked me to confirm whether the Government are considering bringing forward amendments on carers, and expressed his concern that the timing of the Children and Families Bill relative to this Bill is unfortunate. I can tell him that my noble friend Lord Nash, at Second Reading of the Children and Families Bill in your Lordships’ House, said:
“As my honourable friend the Minister for Children has said, we are considering how the legislation for young carers might be changed so that rights and responsibilities are clearer to young carers and practitioners alike. We will also look at how we can ensure that children’s legislation works with adults’ legislation to support the linking of assessments, as set out in the Care Bill, to enable whole-family approaches”.—[Official Report, 2/7/13; col. 1201-02.]
The Minister for Children and Families and the Minister for Care and Support have met the National Young Carers Coalition to discuss the key principles for taking this work forward over the summer, as well as how we can most effectively involve the NYCC during this period.
Finally, the government amendment in this group will ensure that the provision added to Clauses 58 and 61, following consultation and pre-legislative scrutiny, specifying that a needs assessment must include an assessment of the impact of the adult’s needs for care and support on their well-being, is also added to Clause 56.
We have had much discussion recently about the need to ensure that services are organised around the needs of individuals. I hope that I have been able to explain how this legislative framework for transition is focused on meeting that aspiration. I hope, too, that I have provided some reassurance about the approach we are taking to smooth the transition to adult care and support. I hope that the noble Lord, Lord Patel, will feel able to withdraw his amendment.
Lord Patel
My Lords, I thank the Minister for his response, which was as detailed as my amendments. I am reassured by some of the things that he has said, and how the Bill addresses those issues. Although the Minister does not agree with me, there is an issue about specifying the age of 14 as the time of assessment for this small number of vulnerable children. There is a need to do so. However, at this point I do not wish to prolong it. I beg leave to withdraw the amendment, but I hope that we will have further discussion outside the Chamber.
“( ) the impact on the matters specified in section 1(2) of what the child’s needs for care and support are likely to be after the child becomes 18,”