Lord Hunt of Kings Heath
My Lords, this has been a very interesting debate. I open on today’s Committee by declaring interests as president-elect of GS1, chair of a foundation trust and a consultant trainer with Cumberlege Connections.
There is no doubt that the backdrop to our discussion is one of the availability of resources. As every day goes by in Committee, we have discovered new responsibilities being placed upon local authorities: the provision of information and advice; the assessment of adults’ and carers’ needs for support and the provision of that support; the implementation of the national eligibility criteria; the Dilnot proposals; and the assessment of self-funders.
I am sure that my noble friend Lord Lipsey is right. We have said a number of times, without really getting a response yet from the noble Earl, that the moment that self-funders become aware that they are essentially subsidising the people funded by local authorities, there will be an end to that. I am absolutely convinced that self-funders will express the view that they ain’t going to put up with it. I wonder whether the Government have thought through the implications of that. I doubt that they have, but those implications will have to be thought through. People will not find it acceptable to be paying above the local authority rate, then taking longer to get to the £72,000 cap, and then finding that the local authority will fund them only at its rate, with potential consequences for where they can be provided with care. It will possibly not be in the care home to which they have already been paying for their own resources. There is real concern about the financial implications of the Bill, which noble Lords all generally welcome, and the fact that the gap between the expectation and the reality could be very wide indeed.
We are of course confronted by the very difficult funding pressures that are on local authorities at the moment. Noble Lords have spoken eloquently about that. My noble friend Lady Bakewell pointed to the differential funding as a result of the Government’s change in formula as far as local authorities are concerned. That is why the Labour Party has called for £1.2 billion of NHS underspend to be transferred to social care over the next two years. However, that is just the start. We are going to see major demographic challenges, which will affect the NHS as much as social care. That is why my noble friend’s amendment has so much ingenuity in suggesting that the Office for Budget Responsibility be asked to complete a review of funding of adult social care by the end of 2014.
This has to be linked to NHS funding as well. I was very interested in a piece in the Independent this morning, emanating from Sir Bruce Keogh. It pointed out that for the NHS since 1948, the amount of money that has been made available has gone up by an average of about 4.5% a year. Now, he says, we are looking at no increase at all. I am not sure that the bodies for which the noble Earl’s department is responsible have woken up to that. For instance, NICE continues to produce guidance which, if implemented, would cost more money. The reports coming from royal colleges and the Keogh review of the 14 trusts talk a lot about staffing deficiencies, but the whole thrust still coming from these reports is to increase expenditure. There is genuine concern that we are talking up the expectation on health and social care knowing that at the moment we cannot see our way to finding where the resources are going to be. Without making this too much of a political debate, I thought that Mr Lansley’s comments in the run-up to the previous election in relation to the so-called death tax were very unfortunate in trying to get a dispassionate debate about how we are to find our way to funding health and social care in future.
This is a very interesting debate. My noble friend has done us a great service in allowing us to discuss this in depth. I hope there may be some sympathy from the Minister for the amendment.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, in some ways this is a reprise of an earlier debate we had in Committee, but none the less it has been valuable. I am grateful to all noble Lords who have contributed. I begin by saying to the noble Lord, Lord Warner, that I am in total agreement that care and support funding is vital. It is essential for the success of the reforms we have been discussing that these services are fully funded. I start by assuring the noble Lord on one key point, which is that the costs of these reforms have been clearly set out in the Bill’s impact assessment, as was our duty.
I listened with care to the case put by the noble Lord that the Office for Budget Responsibility should conduct a review of care and support funding. I do not believe that such a review would be necessary or desirable. As noble Lords will be aware, the Government recently announced the conclusion of the spending round for 2015-16. It is only right that decisions on care and support funding are taken by the Government at the same time as spending plans are set for all areas of government. It is the job of the Government to decide on priorities and what is affordable. Any further review by the OBR would clearly cut across that process.
There is also an issue about the OBR’s autonomy. The OBR performs its duties independently with complete discretion to determine the content of its publications and its programme of research and analysis. It would not be in keeping with the OBR’s duties or its independence to have the Secretary of State commission a report in the way the noble Lord, Lord Warner, suggests. The main duty of the Office for Budget Responsibility is to examine and report on the sustainability of public finances, including a statutory obligation to publish an annual fiscal sustainability report. The most recent of these was published this month and already includes long-term projections of care and support spending, taking account of the cap on care costs and the extension of the means test. A further report, such as the one proposed by this amendment, would risk duplication and repetition.
It will perhaps be helpful if I confirm that the projections set out in this OBR report are broadly in line with the department’s own, and it is on the basis of this analysis that I am in a position to say that the spending round settlement delivers the funding required for the care and support system. We have identified the financial burdens facing care and support, including those arising from this Bill and demographic pressure, and we are putting enough money in to maintain service levels. This will ensure that care and support can be protected and will allow us to deliver on the reforms set out here.
However, we need to do more than simply put more money into care and support. We also need to improve the way that health and care is delivered, and in particular how these services work together. That is why the settlement includes a £3.8 billion pooled health and care budget—the noble Lord, Lord Warner, referred to this—which will be given only on the basis that services are commissioned jointly and seamlessly between the local NHS and local councils.
This is, in many ways, a historic moment. What we intend to do represents a genuinely new departure. It will help to ensure everyone gets a properly joined-up service, with people getting the care they need from whoever is best placed to deliver it—whether that is the NHS or the local authority. Chris Ham from the King’s Fund has welcomed this, calling it,
“a much more ambitious approach to delivering integrated care and a real opportunity to improve the co-ordination of services for patients and service-users”.
We will ask local areas to work collaboratively together in drawing up plans for the use of this money, ensuring that the priorities of both the NHS and care and support are addressed. All plans will include a commitment to protect care and support, ensuring that this money goes where it is needed.
The settlement also provides the funding for the commitments and duties set out in this Bill, and factors in the growth in demand from an ageing population and a growing number of disabled people. With additional pressure on the system, we must ensure that the NHS and care and support services are working together to offer the best possible services for patients, while also addressing the growing demand on the system, which noble Lords have rightly referred to.
The creation of pooled budgets will help to achieve the more efficient use of resources in the system as a whole, driving down costs by tackling expensive pressure points in the system, like A&E, by improving preventive services, reducing unplanned hospital admissions and by allowing people to stay in their homes and live independently for longer. It is intended that £1 billion of the pooled fund will be linked to outcomes achieved, ensuring that local areas are incentivised and rewarded for achieving better outcomes, including those that could reduce financial pressure on the system.
Noble Lords have rightly referred to the pressure on local authority budgets. Of course, we recognise that the last spending round provided local government with a challenging settlement. That is why we took the decision to provide extra funding to help local authorities maintain access to services; that includes £1.1 billion in 2014-15. In fact, spending has been roughly flat over the period since 2010-11. The latest survey shows that councils are expecting a small increase in expenditure next year. The survey also shows that the vast majority of the savings that have been made have been efficiencies. Councils have largely been able to protect services. They should now, however, be looking at how they can transform care by innovating and exploring new ways of working. Many local authorities are achieving much greater integration between health and care services and thereby improving the care for those they look after.
The latest ADASS budget survey shows that only 5% of directors of adult social services believe that quality has suffered as a result of the savings they have made. Five per cent is regrettable but it is a lot less than some of the figures that we see printed in the media.
In 2012-13, bed days lost because of delays attributable to social care were nearly 50,000 fewer than in the previous year. One of the other criticisms one hears is that quality is getting worse in social care and that that is having an impact on the NHS. But if we are going to continue to make these sorts of improvements, we need radically to rethink how we deliver health and social care and move to a more integrated system.
Baroness Wilkins
The noble Earl says that that transition funding has been taken into account. Can he also confirm that that is for beyond one year? Or is it only for that one year?
Earl Howe
I will come back to the noble Baroness on that question.
I take the point of the noble Lord, Lord Hunt. It could clearly be a source of resentment on the part of a self-funder if they find out through the transparency of the arrangements that we are putting in place that they are paying more than the cost of somebody else’s care. I can tell the noble Lord that we have given thought to that. It has been discussed with the LGA. I would be happy to flesh out the substance of our discussions, but we want to avoid a situation that gives rise to that kind of resentment.
The noble Baroness, Lady Wilkins, asked what plans the Government have to make sure that service users and carers are able to contribute fully to the consultation on funding reform. We intend to arrange a series of consultation events around the country to engage with those who use services, their carers and their families. We will also work with stakeholders to make the best use of their networks and local groups to make sure that we consult as widely as possible.
The noble Baroness, Lady Bakewell, asked a particular question around what she termed the “postcode lottery”, and, of course, I understand the force of that phrase. She asked whether the funding of the Bill adequately addresses the disparity of care and support across the country. The short answer is that the Care Bill provides for national eligibility criteria. That, of itself, will provide greater transparency and consistency for people across the country. I do not think that we will ever completely get away from variation in what local authorities are prepared to consider adequately meets the needs of individuals and we will see some independence of decision-making, whatever we do. However, I firmly believe that the Bill brings us much closer to greater consistency and fairness.
On top of the spending-round announcements, I believe that the Bill will have a positive effect on the NHS by strengthening joint working between health and care and support. For example, Clause 3 requires local authorities to exercise their functions with a view to ensuring integration between health and care. In addition, Clause 2 creates a clear legal duty on local authorities to ensure the provision of preventive services. We want a service that reduces dependency, as well as supporting those who already need care and support, rather than just waiting for people to reach a crisis point. By slowing and preventing the development of care needs, the onset of health conditions or the loss of independence, we believe that preventive care can increase quality of life for individuals, while having the potential to provide longer-term financial savings to the public purse. It is only with this greater focus on prevention and integration that both the NHS and care and support can respond to the financial pressures of an ageing population.
The noble Lord, Lord Lipsey, took us forward to 2025 and beyond and referred to the shortage of workers in the social care workforce predicted by the King’s Fund. Of course, we agree that reforming care and support to make it sustainable for the future will require more capacity and greater skills in the workforce. That is why we stated our ambition in the Caring for Our Future White Paper to double the number of apprenticeships in social care to 100,000 over five years. We are now working with stakeholders to make that ambition a reality.
The noble Baroness, Lady Campbell, speaking powerfully about the areas that she knows best, said that disabled people feel that they are losing their independence as a result of funding cuts, and, indeed, there is a fear that the country unwittingly may be breaching Article 13 of the UN Convention on the Rights of Disabled People. A local authority’s overriding duty under the Bill is to promote well-being. This includes control by individuals over their day-to-day lives, including the way in which care and support is provided. We are confident that the well-being principle captures the outcomes that affect an individual’s independence. We should always keep going back to that principle, not least in the context of the rights that people feel they have—and do have—under the UN convention.
In so far as I have not answered questions from noble Lords, I will, of course, follow up this debate in writing. For the time being, I hope that, for the reasons I have outlined, the noble Lord, Lord Warner, will agree to withdraw his amendment.
Lord Warner
My Lords, this has been a helpful debate and I am grateful to all noble Lords who have spoken in it—overwhelmingly, I should add, in support of my amendment. I take great confidence from that.
The noble Earl has made not a bad job of answering my four questions about the £3.8 billion. I am feeling generous and so will give him a B minus for his attempts. At least he has come clean that only half the money is new money, which is a helpful clarification, and that only half of the £1 billion of the rest will be paid up front, while the rest is dependent. Therefore, to some extent my point has been made that that £3.8 billion looks a little less glossy than when it was announced in terms of what new money people will get in 2015-16. I notice that the noble Earl did not answer my question about the base budget, which took up much of my speech. The bottom line in all this is that the base budget is very deficient. The local authorities which will take on these new roles are starting, essentially, from a deficit position.
The noble Earl is always one of the most plausible Ministers and has done a good job of explaining efficiencies and productivity. However, the people who gave evidence to the Joint Select Committee just do not believe that this has all been achieved through efficiencies. They are seeing cuts in services and tougher eligibility criteria. The interesting mini-debate we had about the difference in payments for publicly funded people in care homes and self-funders illustrates that local authorities have been cutting the rate for the job for those who they pay for. We will see more of that. Until we face up to this base budget issue, we will have a problem.
I do not doubt that the Government have done a pretty reasonable job of costing the new provisions in the Bill. However, it will be introduced on the basis that the underlying base budget is too low. No one has yet answered my question with very much confidence about the fact that we are talking about a base budget deficit, which is in the Dilnot report, and which in broad terms has risen two and a half times since this Government came to office. That is the nub of this issue.
The noble Earl also glided over with his usual elegance the issue of why the Government are so preoccupied with this rather strange way of giving money to local government. First you see the Department for Communities and Local Government take money away and then local authorities have to cut other services if they want to prop up social care. Then Health Ministers, almost in desperation and worried about the implications for the NHS of what is happening to social care, long before they were betting the farm on integrated care, are—perfectly understandably—starting to slide money across to prop up social care. That is what is going on. If I were a director of social services these days, I would find it rather difficult to plan my service response to a kind of resource allocation system based on that kind of approach. That is a real problem for central government, which is expecting local authorities to plan well for these new changes. It is a pretty messy way of giving money to people at the local level.
I will read very carefully what the noble Earl has said in this debate. I am not convinced that we do not need an impartial review. If it is not the OBR I will think of somebody else. I might try a few on the noble Earl during the Recess—the Institute for Fiscal Studies comes to mind. We need a hard look by somebody who is not party pris. If my own party wins the 2015 election, it will need that hard look as well. I will think about it further, but in the mean time, I beg leave to withdraw my amendment.
Lord Hunt of Kings Heath
My Lords, subject to later comments about funding and the issues raised by my noble friend Lord Beecham, I have a great deal of sympathy with my noble friend Lord Dubs in wanting to have some kind of transparent appeal decision. It is clear from our debates on the Bill that local authorities will be called upon to make decisions which will have a fundamental impact on people living in their local authority area—eligibility, care plans, personal budgets, support for carers, self-funders baseline assessment and many more. We know that this will be hard for many people and their families to navigate. At the moment, it appears that the Government are relying either on local authorities themselves to develop their own mechanism, which might not enjoy public confidence, or on referrals to the Local Government Ombudsman. As my noble friend Lord Dubs says, that would be on the basis of maladministration rather than, perhaps, on the facts of the case.
Judicial review is hardly an option for many people. The reduction in legal aid will have an impact on the ability of places such as law centres to take JR cases forward on behalf of clients. I am the patron of Birmingham Law Centre, which has had to close its doors. In the last few years, the law centre was able to undertake a number of JR cases but it is no longer there to do that. The availability of a simple, low-cost appeal system would command some support.
When I was DWP Minister, I attended a day at the Birmingham tribunal centre looking at how cases were conducted. I was impressed at the ability of the three-person panels to allow the complainant to put their case across in a fairly informal setting with decisions made pretty rapidly. We know that these tribunal systems have been used more frequently with the introduction of the new arrangements. They command some public confidence. While I do not want to add to the financial burden on the system as a whole, I wonder whether it would be cost effective, as my noble friend Lord Warner says, for there to be a simple, fast, low-cost system. This will give people some confidence that, where they felt that the local authority had not made a reasonable decision, there would be allowance for it to be reconsidered. I am sure that this is a matter for discussion between Committee and Report and perhaps the noble Earl would be prepared to meet with my noble friend to discuss this further.
Earl Howe
My Lords, I am pleased that this important issue has been raised. I hope that I can provide the noble Lord, Lord Dubs, with at least a measure of reassurance relating to his concerns. As he has explained, the purpose of Amendment 104ZE is to include in the Bill provision for adults to make an appeal to the First-tier Tribunal if they disagree with the local authority about its decisions relating to matters such as eligibility, financial assessments, care and support plans and other obligations under this Bill. Often the individuals who access the care system are some of the most vulnerable in our society and it can seem daunting to challenge the decision of the local authority. I entirely agree that it is important that such people have the opportunity to make their voice heard if they feel that the local authority has reached the wrong decision in their case and that their argument is given the fullest consideration before a transparent, fair outcome is reached. The changes which the Bill would bring about will result in many more people being brought into contact with their local authority. This is why it is appropriate that we are now reviewing the current arrangements regarding complaints.
The current complaints arrangements for adult care and support were reformed in 2009 and are set out in regulations. The regulations require the local authority to have a publicised arrangement for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedure for dealing with complaints. Each local authority will have a different process, and we appreciate that local variation may result in varying user experiences.
If a complainant is not satisfied with the response from the local authority, they are then able to refer the case to the Local Government Ombudsman, as has been mentioned. The Local Government Ombudsman is independent of the local authority. It can investigate complaints about whether the decision-making process has been conducted appropriately and can make a recommendation to the local authority.
Earl Howe
Certainly, I anticipate that the results of the review will be available before the Bill has concluded its passage through Parliament. I stand to be corrected on that but I think I am right. In any case, changes to the way in which complaints are handled can be made through regulations under existing legislation, so I think that provides the necessary flexibility.
Lord Hunt of Kings Heath
Would the noble Earl find it helpful if, on Report, we introduced an order-making power in the primary legislation that is specifically built around the Bill?
Earl Howe
That might prove helpful but I will take advice on it. We do not want to duplicate powers that already exist in legislation. However, if we decide that changes are needed, we need to make sure that they can be expedited properly. I am advised that the consultation will close in October this year and that the review of complaints arrangements, of which the consultation is a part, will conclude in the winter. Therefore, if changes need to be made to the Bill, they will need to be made in another place.
The noble Lord, Lord Dubs, said that in our response to the Joint Committee it is vital to consider redress. Of course, the principle of that is not in dispute. Our review of complaints arrangements is in line with our response to the Joint Committee’s recommendation, as I hope he acknowledges. In answer to the noble Lord, Lord Warner, I agree with him that there are likely to be teething problems as this system is established. That is precisely why we felt the need to review the current system. We will aim to ensure that any new mechanisms are in place before implementing the new system, as I have already indicated.
With that, I hope that I have provided at least some reassurance to noble Lords opposite that we take this issue seriously. We understand the concerns that have prompted this amendment and will certainly give further consideration to the noble Lord’s idea of a tribunal system in the light of the outcome of the consultation. I hope therefore that for the time being he will feel content to withdraw his amendment.
Lord Dubs
I am grateful to the Minister and I am interested in what he has to say. First, I thank my noble friends who have contributed to the debate and for the useful suggestions that they made, some of which, however, have been overtaken by what the Minister has said. My noble friend Lord Hunt talked about a simple, low-cost appeals system. That is very much in line with what the Minister said. The only issue is what chance we have to discuss further the outcome of the review and the Government’s further proposals.
I think the Minister said that either it will be possible in the Commons to consider any proposals the Government put forward as a result of their review; alternatively, it may be done by order, in which case we would all have a chance to look at it. In any case, that takes us quite a lot further. I am grateful to the Minister for what he has said and I beg leave to withdraw the amendment.
Baroness Northover
My Lords, we understand and respect the desire of the noble Lord, Lord Patel of Bradford, to achieve the best that he possibly can for people with severe mental disorders and pay tribute to his many achievements in the mental health field over many years. We are indeed, as he said, on the same side. We recognise the special vulnerability of this group, and I listened very carefully to what he said.
The Government’s view is that our proposed definition of aftercare services meets the objective of providing clarity on the duty to ensure such provision. That will give greater certainty to those needing or providing aftercare so that it can be provided when it is needed. The inclusion of a definition of aftercare services followed a recommendation by the Law Commission that aftercare services should be defined in accordance with a two-limbed definition from the Mwanza case. This case law defined the services to mean services necessary to meet a need arising from the person’s mental disorder and aimed at reducing the likelihood of the person’s readmission to hospital for further treatment of the disorder.
The Government’s definition of aftercare services builds on the definition recommended by the Law Commission. That was the starting point for the definition. We accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. The clause now clarifies that the Section 117 duty requires services to be provided to meet needs arising from or related to the person's mental disorder, as well as reducing the risk that the person’s mental condition could deteriorate, requiring their readmission to hospital.
Following public consultation, the Government expanded the proposed definition to put it in the Bill in what we feel is a much improved form. The noble Lord’s amendment omits the first limb of the Government’s definition while making changes to the second. In particular, his amendment weakens the connection between the services required to be provided under Section 117—I assure the noble Baroness, Lady Wheeler, that we are fully committed to continuing those—and the specific needs linked to a mental disorder, meaning that the scope of the definition would be unclear.
The Government are concerned that this amendment may confuse rather than clarify the circumstances in which aftercare services should be provided. That would run counter to the purpose of introducing a new definition. If there are disputes over the aftercare services to be provided, the wait that some people would have to endure before the aftercare services would be in place to enable them to leave hospital could be prolonged, something which the noble Lord wants to avoid. In our view, given that it omits the criterion that services must have the purpose of,
“meeting a need arising from or related to the mental disorder of the person concerned”—
I can assure the noble Lord that the definite article does not simply mean something singular but encompasses the plural as well, something to which he briefly referred—the amendment is likely to give rise to more disputes and administrative uncertainty than would be the case with the clause as it stands. Examples of disputes arising under the current Section 117, with no definition, highlight why a statutory definition will add clarity. As highlighted by the Law Commission, having no definition means that the interpretation is left to case law, which has provided varying interpretations.
Nothing in Clause 68 will change the guidance in chapter 27 of the code of practice. It covers housing, employment counselling, and cultural and spiritual needs. The professionals involved include mental health professionals, GPs, employment experts, independent advocates and others. The proposed definition sets out the essential elements and requirements for services to fall within Section 117. The Government do not wish to be more prescriptive as aftercare services should be agreed by health and social care professionals as guided by the code. I hope that that reassures the noble Lord. This has to be done, of course, in the light of each patient’s particular needs.
Finally, the current clause introduces a purpose for Section 117 services to reduce the risk of deterioration in a person’s mental condition, which the noble Lord’s amendment leaves out. I found myself looking at his examples as he went through them. I could not see that they would be excluded by the definition in the Bill, so we see no compelling reason to alter the definition of aftercare from what has been proposed, which is based on research and consultation by the Law Commission and the Government. Perhaps I should propose to the noble Lord that we meet between now and the Report stage to discuss his concerns and make sure that they are not well founded. I am very happy to take this forward and see whether we can involve my honourable friend Norman Lamb in those discussions. I hope that, on the basis of this response, the noble Lord will be happy to withdraw his amendment.
Lord Patel of Bradford
I suppose the only bit of that I was pleased about was the proposal that we should meet. Unfortunately, I disagree with everything the Minister has said. The Law Society, the Mental Health Lawyers Association, Mind, and the Care and Support Alliance—an alliance of over 70 organisations—agree with me that the Mwanza case is completely unique and off the wall. It concerned someone who was sectioned nine years ago and had nothing to do with Section 117 services, but his lawyers were trying to use that as a basis to get free accommodation.
Baroness Northover
Does the noble Lord accept what I have just said: that it was doubt over cases like that which led the Law Commission to come up with a recommendation that there should be a definition as a starting point for where the Government would then take this?
Lord Patel of Bradford
I still have a problem because the definition is very clear, as the noble Baroness has said. It is about being related to “the mental disorder”. I know that the Minister said that this is standard legislative language and that it is not intended to be a singular disorder, but I disagree. First, the definition does not give us a sense that aftercare should be holistic and thus in line with the underlying well-being principle. Secondly, the use of the definitive article in “the mental disorder” is completely out of keeping with the Mental Health Act. I can give a couple of examples from some of the trigger sections of the 1983 Act. Section 1 of that Act defines mental disorder but Sections 2 and 3, which refer to mental disorder, have no definite article. The wording is completely separate from that of the Mental Health Act, so officials should go back to the drawing board and look at it a bit more carefully. It is very unclear and it poses huge legal arguments, as people will say that this is about “a mental disorder”.
Baroness Northover
Under the Interpretation Act 1978, words in the singular may include the plural.
Lord Patel of Bradford
I completely agree that legally that is what it means, but the 1983 Act does not use the word “the” in front of “mental disorder” in any of its important trigger sections. What is important is that it is not in keeping with the 1983 Act at all. Moreover, we have already seen local authorities trying to use this case. We should be dictating what happens. I am not sure whether the judge in that case—I do not know if I should be saying this—was by any stretch a mental health expert. I think he was a family court judge, so it was completely different. The Stennett case, which was appealed to the House of Lords, clearly stated a definition that was very different from this. We should not be dictated to by that; Parliament should dictate. The Bill will dictate what aftercare services are.
I am prepared to look at the definition I have crafted and without doubt there might be something that we can improve on. However, I agree with the noble Baroness, Lady Barker, that this is crucial because it is the only piece of statutory provision we have to make sure that statutory health services, the voluntary sector and social services work together. Time after time over the past 30 years local authorities have used any opportunity they can not to provide Section 117 aftercare services. It goes to legal action and then they back off. Why do it when we can resolve this? We do not need the first bit that says “the mental disorder”. Why introduce that level of doubt? We are on the same side and we can move forward on this, and we do not need to introduce any doubt. I am pleased that we have something to think about and to work together on and I am sure that between us, as we did last time, we will come to an amicable conclusion. In the mean time, I beg leave to withdraw the amendment.
Baroness Northover
“( ) In its application to an adult who is residing in any other premises because a requirement to do so has been imposed on the adult as a condition of the grant of bail in criminal proceedings, this Part has effect as if references to being ordinarily resident in an area were references to being resident in premises in that area for that reason.”
Baroness Northover
My Lords, the Government have tabled a number of amendments in relation to prisons to help clarify the interface between local adult safeguarding boards and prisons. This group of government amendments serves two purposes. Amendments 129 to 136 further clarify the relationship between prisons, approved premises and local safeguarding adults boards. Obviously prisons and approved premises retain a duty of care towards and responsibility for the safety of all their detainees. Mechanisms are already in place to hold them to account if there are concerns about the care or safety of prisoners.
Prisons have their own safeguarding procedures, so we believe that it should be left to local discretion to determine whether it is appropriate for a governor or other prison staff to become members, rather than a statutory duty. This is the intention of the first part of subsection (7), which we believe should remain. As such, local safeguarding boards will not conduct inquiries or serious case reviews in relation to incidents occurring while someone is in prison or approved premises with care and support needs. However, we want there to be open dialogue between prisons and approved premises and local safeguarding adults boards so that the prisons and approved premises receive the information and advice which the board can provide for the benefit of prisoners and residents. This would not be possible with the draft clause as it stands. It is therefore our intention that safeguarding adults boards will be free to invite governors or other prison officers to sit on the board and, whether or not a member, governors, directors or controllers of prisons will be able to approach a safeguarding adults board to ask for advice and guidance in improving their safeguarding arrangements. I hope I have made the Government’s position in relation to prisons and safeguarding clear through these proposed government amendments.
I now turn to the remaining government amendments to Clause 69, Amendments 129 and 137 to 141, which clarify other matters. They make clear that a temporary absence from prison or approved premises will lead to someone continuing to be treated as detained in prison or residing in approved premises or other bail addresses for the purposes of this clause. The amendments also ensure that the rule in subsections (1) and (2), regarding which local authority is responsible for an individual’s care and support needs, applies to people bailed to addresses other than approved premises. Finally, the amendments remove the paragraphs which deem that once an individual has been sentenced to prison they are to be treated as detained in prison for the purposes of this clause. On reflection, the Government believe that these deeming provisions are not necessary. That also removes the unintended consequence that those given a suspended sentence would be treated as detained.
I now turn to government Amendments 105V and 105T. These would implement the recommendations set out by the Delegated Powers and Regulatory Reform Committee in its first report of Session 2013-14 in respect of regulations under Clause 22(2)(b), Clause 49(10), Clause 50(1) and (4) and Clause 59(2). The committee recommended that regulations made under Clause 22(2)(b) should require the affirmative procedure and that regulations for the remainder should require the affirmative procedure on the first exercise of the powers. We are happy to accept these recommendations and I beg to move.
Baroness Wheeler
My Lords, this is largely a group of government technical amendments, interspersed with amendments from noble Lords probing important aspects. On Clause 69, my noble friend Lord Patel’s Amendments 105AA and 105CA would ensure that local authority safeguarding inquiries do apply to adults in bail accommodation and, in respect of Safeguarding Adults Boards, would enable prison governors or other prison staff to be members of the board.
Government Amendments 105B and 105D address those issues. On safeguarding inquiries, the Government’s proposal to allow SABs to provide advice and assistance to persons in bail accommodation is a compromise. My noble friend has argued that that is not good enough and we strongly support that view. How can local authorities have premises in their areas where abuse or neglect could occur and not have a duty to conduct a safeguarding inquiry?
On prison governors being members of Safeguarding Adults Boards, my noble friend is exploring ways in which governors and prison staff can best participate in and learn about the board’s role and work. I look forward to the Minister’s response on how she thinks the Government’s amendments best facilitate this.
The remaining Clause 69 government amendments include a number of tidying-up measures which we support to reduce the burden on local authorities, such as clarifying local authority ordinary residence rules in relation to bail accommodation, explicitly exempting prisons and bail accommodation from local authority safeguarding adults reviews, and minor technical amendments to change the general language relating to the clause.
Under Clause 71 and Amendment 105Q from the noble Baroness, Lady Browning, we return again to the Secretary of State’s powers in relation to local authorities and NHS bodies. Both the noble Baroness and my noble friend Lord Touhig make a strong case for statutory guidance previously in place to continue to apply under the new legislation until the Secretary of State declares otherwise. The noble Lord and noble Baroness, as usual, speak strongly on autism and the Autism Act being embedded in the new legislation. However, there is a wider issue of ensuring that the Secretary of State retains ultimate responsibility, arguably more important than ever with the tendency of our current Secretary of State to hover above it all and act as if everybody else is responsible but him.
Amendment 105R of the noble Lord, Lord Low, to Clause 72 seeks to prevent a local authority from being able to delegate functions on its behalf under this part of the Bill. He is right to be cautious about how the local authority powers under this clause are used. I look forward to the Minister’s response to the amendment.
Finally, under government Amendment 105V in this group, I again raise an issue that I spoke of during last week’s safeguarding debate on the provider failure provisions under Clauses 47 to 49, designed to address responsibilities and actions in any future provider collapse, such as we saw most recently with Southern Cross residential care homes. The Lords Delegated Powers Committee expressed concern at the Bill’s failure to define what is meant by both “business failure” and “market failure”. Although I got an answer in passing in the following debate when the noble Earl the Minister responded to a question about provider failure from the noble and learned Lord, Lord Mackay, I would appreciate the Minister explaining today in more detail why the Government have chosen regulations to address these two issues, which are fundamental to the operation of the provider failure provisions of the Bill, rather than include the definitions in the Bill.
Baroness Northover
My Lords, I thank noble Lords for tabling the other amendments in this group on these very important issues. On the amendment in the name of the noble Lord, Lord Patel of Bradford, we agree that a person with care and support needs should be protected against abuse or neglect wherever they are. As I have already set out, prison governors and directors have in place procedures to follow in response to allegations of abuse or neglect. Governors and directors will provide assurance to the National Offender Management Service and Her Majesty’s Chief Inspector of Prisons, through their inspection regimes, that those procedures and their implementation provide similar protection to that available in the community. The Prisons and Probation Ombudsman will investigate individual complaints and incidents. I can assure the noble Lord, Lord Ramsbotham, that the Ministry of Justice and the NOMS have acknowledged that there is a need for improved directions to the Prison Service and probation trusts in this area. They will be working with officials from the Department of Health and stakeholders to develop instructions and guidance that will give clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. In addition, prison governors and other prison staff will be able to approach their local Safeguarding Adults Board for advice and assistance in improving their arrangements. The MoJ was, of course, fully consulted on the provisions relating to prisons in the Bill and will be working with the Department of Health and NOMS to develop detailed guidance so that people who are concerned about the safeguarding issue will know exactly how to raise it and get advice on how to approach it. The MoJ is fully involved in the development of all parts of this clause.
The noble Lord, Lord Ramsbotham, also raised the issue of a statutory obligation on the senior management of prisons to take responsibility for the care and support needs of prisoners. The governor or, in the case of contracted prisons, the director, has the primary duty of care for prisoners and is the appropriate first point for reporting concerns. There is an investigations procedure in place for cases in which prisoners suffer significant harm. Prisons are monitored by a range of inspectorates, including the CQC.
Lord Patel of Bradford
I just want to get this point on record and then perhaps we can come back to it. I understand that prisons have a whole range of safeguarding measures in place. When there is a real problem that a prison has not resolved, why can a local authority not have an inquiry for a person who is vulnerable and at risk? That is my first question. If somebody is in approved premises, such as a bail hostel, and living in the community like anybody else, and they have been abused or are neglected or at serious risk, why should a local authority not have an obligation to have a safeguarding inquiry? I just cannot fathom why such a person would be excluded.
Baroness Northover
The point is that if local authorities must also conduct inquiries in prisons and approved premises, we run the risk of duplicating inquiries. Prison governors and directors have the primary responsibility for preventing abuse or neglect of prisoners with care and support needs. Prison governors already have a duty to care for and safeguard prisoners. If we duplicate this responsibility, we run the risk that the lack of clarity will mean that safeguarding concerns fall between agencies. Noble Lords will be extremely familiar with how this has happened in the past in other sectors. Therefore, a decision has to be made as to where the expertise is and where the primary responsibility is. The decision made in discussions with the MoJ and NOMS is that the primary responsibility is with the prisons. We have to make sure that they carry forward that responsibility. Obviously, they will draw on advice in the way that I described, but we need to make sure that there is one body with ultimate responsibility.
We agree that prison staff should have access to local safeguarding expertise if, in their particular circumstances, it would be useful, so we agree that the second half of the subsection, from the second “officer” onwards, should be removed. However, because prisons have their own safeguarding procedures, we believe that it should be left to local discretion to determine whether it is appropriate for a governor or other prison staff to become members of safeguarding boards rather than a statutory duty. That is the intention of the first part of subsection (7).
I now turn to Amendment 105Q, in the name of my noble friend Lady Browning and the noble Lord, Lord Touhig. It raises important issues about how future statutory guidance will be issued under the Bill and how it may interact with existing guidance. The noble Baroness, Lady Wheeler, also asked about this. We intend to develop a single, consolidated bank of guidance for local authorities covering all their care and support functions under this part of the Bill. We will replace all existing guidance that covers this territory to remove the potential for future misunderstanding. Current statutory guidance for local authorities is issued under Section 7 of the Local Authority Social Services Act 1970. Future guidance on adult care and support will be issued under Clause 71 of the Bill. The amendment also proposes to require a consistent application of the definition of an “NHS body”. We agree, of course, that definitions must be clear and consistent in guidance and regulations and we will keep this in mind in drafting regulations and guidance to ensure that key terminology and definitions are consistent. I can assure the noble Baroness, Lady Wheeler, that guidance remains in place until it is superseded by new guidance.
My noble friend Lady Browning and the noble Lord, Lord Touhig, referred to guidance for people with autism. As they said, unlike other statutory guidance related to care and support, this is issued under a specific requirement included in the Autism Act 2009. I can assure noble Lords that it is not our intention to repeal these provisions by this Bill. The duty to issue guidance on autism will continue. I hope noble Lords are reassured by that.
I now turn to Amendment 105R, to which the noble Lord, Lord Low, spoke. The Government believe it is right to allow local authorities the flexibility to delegate their care and support functions to third parties. However, when a local authority chooses to delegate any of its care and support functions, this must not be a way of relieving itself of its responsibilities for how those functions are carried out. This clause does not absolve the local authority of its legal obligations with respect to care and support functions. However, we believe it is necessary that, when a local authority arranges with a third party to carry out a public function, the local authority should have contractual recourse against that third party for breach of contract. Subsection (7)(a) ensures that this is the case. It is not a limitation of the local authority’s ultimate responsibility for the performance of its functions.
The noble Lord, Lord Low, asked to be reassured about the application of the Human Rights Act. I can assure him that the Human Rights Act applies to the discharge of public functions, so even when a local authority delegates its public function to a third party, that function must still be carried out in a way that complies with the Human Rights Act. Local authorities retain legal responsibility for anything done or not done by the third party when carrying out the function. It follows that any failure to carry out the function in a way that is compliant with the Human Rights Act will be considered a failure by the local authority. We do not think that this needs to be specified in law as it is covered. The function must be carried out in a way that is compliant with the Act. By specifically referencing the Human Rights Act in legislation there is a risk that this could imply that the Human Rights Act does not apply in relation to various other pieces of legislation where it is not specifically referenced. I hope that the noble Lord is reassured.
Lord Low of Dalston
Can I just make sure—does that mean that the third party to whom the care function may be delegated is also liable under such legislation as the Human Rights Act?
Baroness Northover
What I have written here is that when the local authority delegates a public function to a third party, the function must be carried out in a way that is consistent with the Human Rights Act. It appears—I will clarify for the noble Lord if it is not the case—that the local authority has to abide by the Human Rights Act, but clearly, if it delegates something to a third party, which does not adhere to it, the third party is not adhering to its obligations to the local authority. By that device, the Human Rights Act would end up having an effect on what those third parties could do, even if they were not themselves directly responsible. However, I will clarify that if I am wrong.
Lord Low of Dalston
I am very grateful for that further clarification. It is reassuring to hear that the third party is under an obligation to carry out its functions in a manner that is compliant with the Human Rights Act. However, it would offer further reassurance if we were told that there was a remedy against the third party to which the function was delegated as well as against the local authority. I appreciate what the noble Baroness has said about a remedy against the local authority. However, as appeared when we talked about the application of human rights legislation a week ago, for remedies to have a practical effect so far as third parties carrying out delegated responsibilities are concerned, it is desirable—this was the view of the Joint Committee—that there should be a remedy against the third party to which responsibilities were delegated as well as against the local authority. In this instance that is, if I may put it this way, little more than a backstop. The remedy bites much more effectively if it can be seen to bite on the third party, to whom the responsibilities are delegated, and not just on the local authority. I hope that that further clarification of my point will make it easier for the noble Baroness to come back to me when she has looked into the matter further.
Baroness Northover
I will certainly write to the noble Lord and spell it out. Given the local authority’s responsibility for complying with the Human Rights Act, it is very unlikely that it would form a contract with a third party without ensuring that it knows that it will need to carry out whatever responsibility has been passed to that third party in the light of the Human Rights Act, otherwise the local authority will end up in court. I will write to the noble Lord in detail to explain how this operates.
The noble Baroness, Lady Wheeler, asked why the Government have chosen regulations to address the issues relating to provider failures. There is no simple definition of business failure and—we have some very interesting handwriting here; it is worse than a doctor’s. My best bet is to write to the noble Baroness.
To return to summing up on this group of amendments, I hope that I have reassured noble Lords about their amendments in this group, that they will feel able to withdraw their amendments, and that I have persuaded noble Lords that the government amendments I have outlined here should be accepted.
“(6A) An SAB’s objective under section 42(2) does not include helping and protecting adults who are detained in prison or residing in approved premises; but an SAB may nonetheless provide advice or assistance to any person for the purpose of helping and protecting such adults in its area in cases of the kind described in section 41(1) (adults with needs for care and support who are at risk of abuse or neglect).”
Lord Hunt of Kings Heath
My Lords, that was a pretty persuasive case, to which I hope the noble Baroness will be sympathetic. The noble Lord made the particular point that early intervention will lead to better outcomes. That could be a message that relates to this Bill as a whole. The noble Baroness knows that we were not able to have our debate on services for deaf people last week because of the lateness of the hour. I wonder whether, between now and Report, she would be prepared to write to me about how she thinks this Bill might specifically relate to deaf people. Clearly, some of the issues the noble Lord has raised are apposite to deaf people in terms of early identification and assessment. I would not expect her to answer that point today, but it would be extremely helpful if she were able to write to me on it in advance of us coming back to the QSD in the early autumn.
Baroness Northover
My Lords, I thank the noble Lord, Lord Low, for his amendment. It raises some important issues. He emphasises that local authorities need to follow up those who have been newly certified as sight-impaired or severely sight-impaired in a timely manner where they have indicated that they wish to be registered or to have an assessment of their needs for care and support. Indeed, we have great sympathy with his concerns. We accept that people who have acquired a visual impairment should have an early opportunity to have access to information and advice so that they can adapt to their situation as quickly as possible and obtain any aids and support that will help them to manage their lives better.
As we have discussed, Clause 4 requires local authorities to make available universal information and advice on care and support, which will of course be relevant here. But people who lose their sight suddenly can also need more time to come to terms with their loss and engage with the support that might be available to them. If that is the case, it might be more appropriate to have a greater degree of flexibility around the timescales for when that support is offered or re-offered. Individuals differ in the way that they respond. We therefore believe that it would be better if the detail of this was covered in guidance, as it is for deaf-blind people, rather than in the Bill or in the regulations. In response to the noble Lord, Lord Hunt, there may well be a parallel here for deaf people, I am happy to write to him in answer to his questions.
Covering this in guidance would allow greater flexibility to update and adapt the arrangements. I can assure the noble Lord, Lord Low, that officials intend to work closely with the RNIB and other stakeholders to ensure that the guidance is as comprehensive as possible. He is absolutely right that the person needs to be at the heart of that guidance. In the light of what I have said to both noble Lords, I hope that the noble Lord, Lord Low, will be happy to withdraw his amendment.
Lord Low of Dalston
I am very grateful to the noble Baroness for her response, and also to the noble Lord, Lord Hunt of Kings Heath, for his support. On what the noble Baroness had to say, I am very glad to hear that the Government propose to work with RNIB on refreshing the guidance. That will be very welcome. On that basis, I shall certainly want to withdraw the amendment. However, I would like to make a couple of points. The noble Baroness drew a parallel between the guidance on visual impairment and that for deaf-blind people. The Law Commission was in favour of upgrading the guidance for deaf-blind people to regulation status. Perhaps when the Government look at that question in respect of deaf-blindness and vision impairment, they may like to revisit it and consider whether guidance or regulations are the best vehicle.
I agree about flexibility, but the fact that somebody may need longer to adapt to sight loss or may need help for longer simply argues, to me, that they need help longer, not that they do not need prompt intervention. Even if you are going to need longer, or take longer to adapt to sight loss, you probably still require prompt intervention and early contact from the local authority to determine as quickly as possible what your needs are to put in place as quickly as possible what is appropriate to be put in place quickly, and to put in place what is needed over a longer time period as and when required.
With those observations, I beg leave to withdraw the amendment.
Earl Howe
My Lords, I thank the noble Lord, Lord Warner, for tabling these amendments which bring us to an important and sensitive set of issues. The Government have great sympathy with these concerns and I hope that I can reassure the Committee on them.
Amendment 105P would give the Secretary of State a power to introduce regulations for two specific but related issues—a right for NHS patients to die in the place that they regard as their home and an exemption from local authority charges for care and support for adults who are in the final six months of their lives. The Department of Health’s End of Life Care Strategy provides a blueprint for improving quality and choice in palliative and end-of-life care, and NHS England, which is now responsible for end-of-life care, is pressing on with its implementation, including aspects relating to the pathway to which the noble Baroness, Lady Emerton, referred.
We made a commitment in Liberating the NHS: Greater Choice and Control to move towards a national choice offer to support people’s preferences about how to have a good death. This is not an easy task and it cannot be done overnight. For example, commissioners need to be sure that the right services are available in the community to support people to be looked after at home. A lot of work is needed to make choice in end-of-life care a reality. We shall take all the evidence into account and review progress this year to see how close we are to being able to introduce a national offer on the choice to die at home. The noble Lord, Lord Warner, rightly pointed out that there are variations across the country as regards people’s ability to die in the place of their usual residence. I take that point completely. However, if we are to solve that disparity, it is important that we do not act prematurely. If an area is not ready to roll out a better system for palliative and end-of-life care, it will serve no one’s purposes, so we must take the necessary time to do this.
On the issue of palliative care funding, as the noble Lord is aware, in the Care and Support White Paper, published in July 2012, we stated:
“We think there is much merit in providing free health and social care in a fully integrated service at the end of life”.
This followed the report of the independent Palliative Care Funding Review in July 2011, after which the Government set up seven adult and one children’s palliative care funding pilots. The pilots are running for two years, with the aim of having a new funding system in place by 2015, a year sooner than the review proposed. From April 2013, we gave responsibility for this work to NHS England. We need to analyse the evidence from the pilots thoroughly before the details of the new funding system are finalised. Any changes to social care palliative care funding could be made by secondary legislation under Clause 14(1) in due course and will not require an amendment to the Bill.
My noble friend Lady Jolly referred to the cost savings in hospital admissions at the end of life and suggested that this might cover the cost of nursing care at home. This is a point made cogently by Marie Curie. The issue we need to bear in mind here is the readiness of the service to cope with sudden changes in services that an amendment would entail, so we still think that it is better to gather the evidence, as the pilots are now doing, and allow services to be properly planned for.
I turn to Amendment 105PA. The Bill allows local authorities to treat a person’s care and support needs as urgent, as set out in Clause 19(3). We believe that in end-of-life cases a person’s needs would be highly likely to be considered “urgent” and therefore should be fast-tracked so that needs are met as quickly as possible. We do not believe that the Bill should set out a list of urgent situations where a local authority can meet an adult’s needs without having yet carried out a needs or financial assessment, or made an eligibility determination. The problem is, as we have debated on many occasions in the past, that such a list could never be exhaustive and might suggest that only certain situations could be treated as urgent. Local authorities must have the flexibility to determine themselves which situations they consider to be urgent, depending on the facts of each individual case. The wording of Clause 19(3),
“which appear to it to be urgent”,
enables this. However, I can say that we intend to refer to end-of-life cases specifically in statutory guidance.
I can readily identify with the questions asked by the noble Baroness, Lady Pitkeathley, about carers and the need to support them after the death of the person they have been caring for and to make sure that they are informed about the stages at the end of life, the additional pressures that may be placed on them and the need to plan. The duty on a local authority to provide information and advice in Clause 4 very definitely includes information and advice relating to support for carers, including in these circumstances.
The noble Baroness, Lady Wheeler, asked about end-of-life care for BME groups in particular and the need to address the low use of palliative care services among those groups. She asked how we are addressing that. I shall write to the noble Baroness on that point, as I do not have information in front of me on whether the pilots are collecting those data specifically. However, I agree that it is a material issue. The noble Baroness also asked whether the palliative care funding pilots had been impacted by the transition to the new NHS system and whether we would meet the timescales. I can reassure her that the work of the pilots is on track.
I hope I have demonstrated that the Government are committed to offering patients the support to facilitate their dying at a place that they regard as their home, when the system is able to meet this commitment and where this is the person’s wish. I hope that the noble Lord, Lord Warner, will be sufficiently encouraged to withdraw his amendment.
Lord Warner
I am grateful to all noble Lords, across the Benches, who spoke in support of this amendment. I will, of course, consider carefully the noble Earl’s points in his constructive response. I will discuss them with my co-signatories and the voluntary sector. However, I want the noble Earl also to ponder something. The idea of giving people a right to die where they choose is one of the major social right breakthroughs. It is on a par with some of the other things that Parliament has spoken on and passed legislation about. In my view, it is more than about waiting for the bureaucracies to give their blessing that there is a state of readiness for this change to take place. This is an issue where the political parties and Parliament should show their willingness to press on as a top priority. I will certainly consider what the noble Earl has said, but I hope he will consider what I have said. We did not have everything ready when Parliament decided to ban smoking in public places and the workplace. It thought it was the right thing to do and it did it. This issue of people’s right to choose where to die is in the category where Parliament should say, “It is the right thing to do and we are going to get Governments to do it”.
I may be wrong. The Government may bring forward these changes in good order. But I take a different view from the noble Earl about the issue of local variation. They need to put a marker in legislation to make jolly sure that those parts of the country actually deliver the goods on a similar timescale to everybody else. I do not think that we could rely on strong messages from NHS England necessarily to deliver that. In the meantime, I will consider carefully and I beg leave to withdraw my amendment.
Lord Hunt of Kings Heath
My Lords, very briefly, I support my noble friend. In a sense, we have already had two debates on the employment practices of providers that are contracted by the local authority. The first was on Clause 5, regarding the local authority’s market-making role. We have also discussed under Clause 80 whether the Government, through regulations, will ensure that the CQC’s oversight of local authorities’ commissioning will be treated as a major priority.
The challenge for us on Report will be to deal with this issue by bringing it all together. There is no doubt that there is real concern about the employment practices of a number of companies that work in the adult social care sector and the lack of monitoring by local authorities in their commissioning. One way or another, the Bill will be very much enhanced if we can get to grips with this problem of poor employment practice. I have no doubt whatever that the general use of zero-hours contracts and the fact that those workers who are often low-paid have to pay the cost of travel themselves and are not paid for the time they take to travel from client to client leads inevitably to an impact on the quality of care, however worthy those people are. We will have a great opportunity on Report to do something about it and we will do so.
Earl Howe
My Lords, these are indeed serious issues and I am grateful to the noble Lord, Lord Warner, for raising them. Those who work directly providing care and support play a vital role in helping and supporting vulnerable people. Organisations that provide care must do all that they can to make sure that their workforce provides compassionate care and that people are treated with dignity, consistent with well-being principles.
Although the majority of care and support provided is good, I am aware that in some cases the practice of both providers and commissioners of care risks a negative impact on the well-being of those cared for. For example, the recent report of the Low Pay Commission has warned of lack of compliance with the national minimum wage, such as by not paying for travelling time between appointments. I am also aware that some local authorities’ contracts with care providers may lead to inappropriate practices, such as very short visits.
I agree entirely with the noble Lord’s intent to see a move away from such practices, which can undermine well-being, independence and dignity, as well as disempower those responsible for providing care and support. The question is how to do that. I believe that addressing these issues requires a broad range of approaches, some of which are already included in the Bill, but I am doubtful that further legislation is appropriate.
The terms and conditions of care and support workers, including pay, are set by employers within the existing requirements of employment legislation, with the same enforcement through HM Revenue and Customs, penalties and sanctions as in other sectors. All providers must, of course, pay at least the national minimum wage. This is law, and failure to meet the requirement is never acceptable. However, the law need not be repeated in the Bill or, indeed, in separate regulations that effectively duplicate those that we already have.
Where care and support is funded by the state, it is allocated through local authorities, which must ensure that the providers they commission from offer good value for money and a high-quality service. Clause 5 establishes a new duty on local authorities to promote a sustainable, diverse and high-quality market for care and support in their area, and is clear that an authority’s own commissioning practices must be in line with this duty. The Department of Health is working with the Association of Directors of Adult Social Services, the Think Local, Act Personal partnership and local authorities to embed this duty and improve commissioning generally.
We are providing firm leadership in this area. The Minister of State for Care Services, my colleague Norman Lamb, recently announced a home care challenge, whereby we will work with the sector to generate new ideas around improving quality in home care services and local authority commissioning. The department is also offering support to local authorities to develop their market-shaping capacity, and encourage high-quality provision and an understanding of market capacity and capabilities.
I am sure that the noble Lord, Lord Warner, will appreciate, without my needing to say this, that wages and associated employment practices are not the only determinant of service quality and a range of factors affect care workers having the right attitude, values and skills. The Department of Health is working on a number of initiatives with partners to develop a code of conduct and a recommended minimum training standard. Further work includes supporting workforce training through a workforce development fund and working with Skills for Care and the National Skills Academy for Social Care to improve the capability and skills of care workers. For the first time, this will now include support and training for personal assistants as well as people working for more formal providers. The department is also working with Skills for Care to develop a sector compact to promote culture change and skills development in the sector.
More broadly, through registration and monitoring, the Care Quality Commission enforces standards in this sector. The CQC requires that employers ensure that staff are well managed and have the opportunity to develop and improve their skills. Once services are registered, the CQC continues to monitor and inspect them against essential standards.
Lord Hunt of Kings Heath
I have never really been able to tempt the noble Earl to comment on the priority to be given by the CQC to the role of the providers and the responsibilities of local authorities in commissioning services. Can I tempt him to say more? Clause 80 clearly states:
“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social services provided or commissioned by the authorities”.
Would the Government be willing to say to the CQC, “We will prescribe regulations that make it clear that this will indeed be a priority”? I have long felt that the way to deal with this is through the CQC’s own monitoring of how local authorities commission those services. It would be a way through if the Government were prepared to say that. The more I listen to our debates, the more I begin to think that this ought to be, of all the things that the CQC does, its number one priority.
Lord Warner
Supplementary to that, my simple view of the world is that if the situation is so bad, the CQC ought to be able to deregister someone who persistently engages in these kinds of employment practices. Do the Government share that view?
Earl Howe
My Lords, I am the first to agree that these are very important issues. I cannot do justice to explaining where we are with them at the moment and I ask both noble Lords for their indulgence. I will write to both of them and provide more information on this subject.
I was referring to the role of the CQC, which has the power to act in response to any concerns and to take enforcement action where services are failing people. Failure to comply with the requirements is an offence and, under the Health and Social Care Act 2008, CQC has a wide range of enforcement powers that it can use if the provider is not compliant. These range from issuing a warning notice and fines through to cancelling a provider’s registration. The new Chief Inspector of Adult Social Care will be in post from October and will provide additional focus on quality issues in care and support.
I repeat my reassurance to the noble Lord, Lord Warner, that the Government fully agree with the intention behind the amendment—that employment standards and workforce issues are fundamental to quality care—but I hope I have demonstrated that there is a wide range of activity bearing down on poor practice and that the variety of existing law and other non-statutory approaches mean that further legislation is not required. I hope the noble Lord will feel reassured enough to withdraw the amendment on that basis.
Lord Warner
I am grateful to the noble Earl for his reassurances. However, like my noble friend Lord Hunt, I am still uneasy about the extent to which there is, if I may put it this way, a clunking fist that could be used to stop such practices in their tracks, possibly by the regulator.
It would be helpful if before Report we could meet, perhaps with David Behan or someone from the CQC, to satisfy ourselves that, possibly by using guidance and advice from the department to the CQC, enough priority will be given to this issue and systems will be put in place to take action swiftly when concerns are raised. However, in light of the possibility of further discussions, I beg leave to withdraw the amendment.
Baroness Barker
My Lords, I return to this subject yet again, having discussed it every time it has come before your Lordships’ House. I take a very different view of this proposal not because I wish in any way to denigrate people who care, but because a fundamental flaw and a serious danger lurk within it. Let us remember that it originally came from organisations such as the Christian Institute, as part of its continuing campaign against civil partnerships and same-sex marriage. It is not a proposal which emanated from the carers’ movement. I have spent 15 years in this House discussing various pieces of legislation which apply to carers. This did not arise. This has never arisen from the carers. It is very much part of a different campaign.
The proposal equates two fundamentally different sorts of relationship: those entered into freely and voluntarily as adults, and consanguine, family relationships. Those two types of relationship have always been treated differently in law, for very good reason. You cannot choose your family, you are born into it. You have relationships with people in that family which are wholly different, and your obligations to those people are wholly different, from those in the families which you create. That is why you do it. Also, you cannot leave a family into which you are born in the same way that you can divorce a partner to whom you are married.
That is important because behind this lie two key questions. First, if there are several siblings, how do you choose which two people enter into the relationship and benefit? Secondly and more importantly—the question which the noble Baroness, Lady Deech, has not answered although the noble Baroness, Lady Howarth, and I have put it every time this issue has arisen—how do you stop weaker members of the family being put under duress and compelled to protect the family property by stronger ones? Within that lies the potential for gross and horrible abuse.
I understand that the noble Baroness, Lady Deech, has weakened her proposal this time by asking for no more than a review. If there is a review and report which does not address that issue, it will have done the citizens of this country a disservice. I hope that at that stage, if not now, we can put an end to this campaign.
Carers already have recognition in ways that matter. We have carer’s allowance. We have attendance allowance. We have all sorts of things which recognise the particular status of carers without tying them into relationships around property which are very difficult to disentangle. If this is a way of dealing with the inequities of inheritance tax, so be it, but it is one containing dangers which should be appreciated before we go ahead with it.
Baroness Northover
My Lords, I thank the noble Baroness, Lady Deech, for tabling this amendment. This would place a duty on the Secretary of State to arrange a review of legal and financial rights and obligations of adult carers, adults they care for and codependent adult family members who share a house, with a view to considering the establishment of a specific legal status for such people that would include rights and obligations arising at death of one of the adults concerned.
The noble Baroness, Lady Deech, and my noble friend Lady Hooper emphasised the human side of this challenge, and of course one sympathises with the cases that they mention. Noble Lords will remember that we had an extensive debate recently on these issues both for the Marriage (Same Sex Couples) Bill, and in 2004 for the Civil Partnership Bill, as my noble friend Lady Barker has set out. In the recent debate, the noble Baroness, Lady Deech, sought to include carers and cohabitees in the proposed review of civil partnerships. We had some debate then about the Government’s support for carers. The point was also made that this was in essence a tax point.
I note that during the debate we recently had, the noble Baroness, Lady Deech, said that, having studied the Care Bill, she had not seen in it a hook on which to hang such a review. We believe that interpretation was correct. Such a review would be enormously complex and range much further than the provision of care and support.
As the noble Baroness, Lady Hollis, stated in Committee on the Marriage (Same Sex Couples) Bill, inheritance advantages on death would need to be balanced by responsibilities and financial dependencies during lifetime. There would need to be a fundamental root and branch review of social security and pensions policy and the provision of means-tested benefits, as well as a review of rights and obligations on death. Such questions about legal rights and responsibilities, arising from specific family relationships and friendships, are not related to the subject matter of the Care Bill. Nor do they fall within the responsibilities of the Secretary of State for Health. Indeed, Carers UK has said that forming some kind of formal legal relationship between a carer and the person they care for is not the right way to solve the challenges that carers currently face, a point that my noble friend Lady Barker has emphasised.
Parents, children and siblings already have a legally recognised relationship to each other that affords certain rights—for example, in the laws of intestacy. The Government, of course, value the contribution of carers in supporting family members and friends, recognising that they may often be caring for many years. That is why the Care Bill provides for significant improvements for carers in terms of offering them support in their caring role and in having a life of their own alongside caring. The noble Baroness, Lady Pitkeathley, in Committee on 3 July, said of the attention given to carers in the Bill:
“In the history of the carers’ movement, with which I have been associated for nearly 30 years, it is truly the most significant development that we have seen”.—[Official Report, 3/7/13; col. 1311.]
She said today that it is all she could have dreamed of in terms of the rights of carers. The noble Baroness, Lady Greengross, said that it is one of the best Bills we have seen in a long time. New and simplified assessment procedures will focus on the impact of caring on individual carers and families, on how to support carers to look after their own health and well-being and on the outcomes carers wish to achieve in their day-to-day life, including employment.
We also intend to provide carers with similar rights to support as those for whom they care. This new duty has been warmly welcomed as providing parity of esteem with those who need care and support. They will, of course, benefit from other provisions within the Bill, including the provisions that a local authority must promote an individual’s well-being in all decisions made with and about them and the requirements on what local authority information and advice services should include so that people understand how the care and support system works, what services are available locally, and how to access those services. The cap on eligible care costs will help to reassure everyone that they have a level of protection if they or members of their family have the most serious needs and incur very high care costs. I hope that I have reassured the noble Baroness of our support for carers.
“(ca) regulations under section 22(2)(b) (services or facilities which a local authority may not provide or arrange);”
“( ) sections (Section 47: cross-border cases), (Temporary duty on local authority in Wales), (Temporary duty on Health and Social Care trust in Northern Ireland) and 49 (provider failure: temporary duty in relation to cross-border cases);”