Grand Committee
(10 years, 7 months ago)
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The Deputy Chairman of Committees (Viscount Ullswater) (Con)
My Lords, if there is a Division in the Chamber while we are sitting, this Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Children and Families Bill
(10 years, 7 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
““(9ZA) Subsection (9A) applies (subject to subsection (9B)) where the local authority are a local authority in England and—
(a) are considering adoption for C, or(b) are satisfied that C ought to be placed for adoption but are not authorised under section 19 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.(9A) Where this subsection applies—
(a) subsections (7) to (9) do not apply to the local authority,(b) the local authority must consider placing C with an individual within subsection (6)(a), and(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter.(9B) Subsection (9A) does not apply where the local authority have applied for a placement order under section 21 of the Adoption and Children Act 2002 in respect of C and the application has been refused.””
The Parliamentary Under-Secretary of State for Schools (Lord Nash) (Con)
My Lords, I shall speak to the government amendment to Clause 1. I start by thanking the adoption Select Committee for its invaluable contribution to the proposals under consideration today. I am also grateful to all those noble Peers who, over the summer, gave me the somewhat backhanded encouragement, “Don’t worry, everybody wants this Bill, it’s fantastic—but you’ll still get plenty of amendments”. They were right. I have also been most struck by the level of passionate, professional and rigorous scrutiny that the Bill—my first—is receiving in your Lordships’ House. The committee’s thoughtful and thorough consideration has helped to shape Clause 1 in a way that will better meet the needs of vulnerable children.
The key aspect of the Government’s adoption reform programme is to reduce delay for children needing adoption so that they are able to move in with their potential adopters earlier than they currently do. Fostering for adoption has the potential to achieve this. Clause 1 imposes a duty on a local authority to consider placing a looked-after child for whom the local authority is considering adoption with foster carers who are also approved prospective adopters. This is a fostering placement that, subject to a placement order or parental consent, may become an adoptive placement. Highly respected organisations in the adoption field, such as Coram, Barnardo’s and the British Association for Adoption and Fostering have expressed their support for this policy.
However, while we have tried to draft the clause in the way we consider most appropriate, concerns about it were raised during the debate in the other place. Many felt that the clause disapplied the duty to give preference to a placement with family and friends and that, as a result, it would encourage social workers to overlook this type of placement. Ministers made it clear that it was not the Government’s policy to exclude family and friends, whose role in caring for these children we highly value. The Government have carefully considered these comments, as the Minister for Children and Families said he would. I now seek to amend the clause to put it beyond doubt that before a local authority considers a fostering for adoption placement, it must have explored placement with relatives and decided that it is not the most appropriate placement for the child. I hope noble Lords will agree that this amendment is appropriate. I beg to move.
The Deputy Chairman of Committees
My Lords, I must advise your Lordships that if this amendment is agreed to, I will not be able to call Amendments 4 to 8 because of pre-emption.
Amendment 2 (to Amendment 1)
Baroness Hughes of Stretford (Lab)
My Lords, may I welcome the Minister to the first meeting of his first Bill Committee? I thank him for the opportunity to discuss some of these issues in advance. I hope that all of us together can build on the commitments that we made at Second Reading to make these provisions as good as possible because they affect some of the most vulnerable children.
Part 1, as we know, concerns adoption. Clause 1 would enable agencies, as the Minister said, to place a child in a fostering for adoption placement. This would apply to any child coming into care for whom a family placement is not possible and before any decision to move towards adoption has been approved by the adoption panel or the court through a placement order. We certainly share the Government’s concern that where adoption is the best option for a child, any delay in matching and placing the child should be reduced to a minimum. We share the Government’s overall intention. I am also pleased that the Government have listened to the debate on kinship care and brought forward Amendment 1 today, which addresses that issue.
In introducing the amendments from the Opposition Front Bench, I would point out that some of the amendments were placed in respect of the original Clause 1. Those are Amendments 4, 6, 8 and 9. Since then, we have seen the Government’s Amendment 1 and we have tabled further amendments, Amendments 2, 3 and 10. It is to those more recent amendments that I am predominantly speaking at the moment.
While welcoming the Government’s amendment, I still think there needs to be further improvement to the measures proposed in two important respects. The first is kinship care, by which I mean care by a relative, friend or other person connected with the child, as defined by Section 22C(6)(a) of the Children Act 1989. The requirement in government Amendment 1 to consider kinship care as a first step appears to be—I will listen carefully to what the Minister says about this—a weaker prescription than that in subsection (7) of the current legislation, which requires local authorities not just to consider, but to give preference to, kinship placements where they are possible. Furthermore, Amendment 1 still disapplies subsections (7) to (9) in their entirety. These are requirements in the current legislation to place the child near their home, not to disrupt education or training, to enable siblings to live together, to accommodate any disability the child has and to be within the local authority’s area. We think that those are all sensible requirements that enhance the stability of the placement for the child. Therefore, our Amendment 3 simultaneously requires that stronger requirement on kinship care to take preference and retains those other criteria for placement, including keeping siblings together.
However, even with the current legislation, many people share a strong belief that local authorities could do more to explore the potential for kinship care, so Amendment 10 proposes the introduction of pre-proceedings work and family group conferences, designed to ensure that, at an early stage and in a systematic way, the family is encouraged to identify possibilities for the child within the wider family network.
It is easy to understand why family members might not initially come forward at an early stage to suggest options without such structures and support. They might be concerned not to upset the parents who are—obviously, by definition—their relatives. Many often feel, certainly, that they have to wait for the decision of the court as to whether the child is free for adoption, but by then it is too late. Therefore, Amendment 10 would build into the process an early examination under professional guidance of kinship care possibilities.
Our second concern about the clause, as it would be if amended by government Amendment 1, is about the extension of fostering for adoption placements potentially for all children coming into care through whatever route. As currently formulated, Amendment 1 would require the local authority to consider a fostering for adoption placement for every child for whom kinship care was not possible.
I am very much in favour, as we all are, of reducing delay in achieving quality alternative permanent placements for children who need them. I have supported the development of concurrent planning adoption, which is the template for fostering for adoption placements. Concurrent placement has undoubtedly been beneficial for the children placed early on with foster carers approved to adopt. However, we need to be clear that concurrent planning has so far been used only for babies under two born into families where it is already well known that the parents have serious and chronic problems, such as long-standing drug addiction, which interfere with their ability to parent, and who have often already had to relinquish previous children.
In the pilot run by Thomas Coram that the Minister mentioned, 61% of the children were referred for concurrent planning placement at or at about birth and 95% were under one year old, so this is a very special group. In the 11 years of that pilot, only 59 children were placed by this method, so carefully selected are the children for very good reasons. Of those 59, two were returned to the birth family and 57 were adopted, with their original foster carers having been approved for adoption, and they had very good outcomes. However, opening up to the whole diverse range of children coming into care a model conceived specifically for a very small and tightly drawn group of babies seems to be dubious, not least because there is no evidence base as to the possible outcomes for children and families with different characteristics, particularly for older children.
Most particularly, the requirement to consider a fostering for adoption placement would apply also to children placed into care voluntarily by their parents under Section 29 of the Children Act. By definition, these parents have not relinquished their children for adoption, nor have the local authorities applied for a care order. I do not think it is appropriate even to consider placing such children on a pathway to adoption without the fully informed and independently witnessed consent of the parents, as is required by current legislation. That is why our Amendment 2 would make it clear that the requirement to consider a fostering for adoption placement would apply only to children for whom the local authority had a care order. Indeed, I think that the unintended consequences of not exempting from this requirement children who come into care voluntarily may be to deter parents in the future from approaching local authorities with a view to voluntarily placing a child into care when they are in difficulty.
Briefly, there are a number of other issues on which we should like to hear the Minister’s views before deciding whether the Bill might need further amendment on Report. The main issue is that there is still a lack of clarity, including in the draft guidance that the Minister helpfully issued last week, as to when in the process a local authority may be judged to be considering adoption. We welcome the intention outlined in the guidance to require the director of children’s services to approve a decision to use a fostering for adoption placement and to inform parents and prospective adopters in writing. However, as the draft guidance makes very clear, the local authority will be required to consider a fostering for adoption placement even when the first priority for that child is to be rehabilitated with the birth parents. I think that that is very questionable. When will considering adoption come into play? The guidance says that this will vary from case to case. That is not nearly tight enough and a defined trigger may be needed, possibly as suggested in the amendment tabled by the noble Baroness, Lady Hamwee.
Secondly, there is very little emphasis in the guidance on matching. Thinking about fostering for adoption placements, that is a very important issue. It is worth noting that under the current arrangements it is very often during the fostering phase that detailed knowledge about the child comes to light with professional and expert foster carers. They may learn additional things about a child’s disability or behavioural problems, or the child may disclose experiences to the foster carers that were not previously known, and all this goes into the matching process to try to ensure that the adoptive placement, when it occurs, is as secure as possible. I am concerned that in a fostering for adoption placement, outside of the narrow range of the babies I talked about, of whom knowledge is probably pretty full, issues may come to light during that placement that deter those potential adopters currently fostering a child from proceeding with the placement any further because of the nature of the issues that come to light.
Finally, there is an important issue of timely planning for permanency across all alternative permanent options and I regret that the Bill as it stands does not say very much about those other options. However, we look forward to hearing the Minister’s response on these issues. I beg to move
Baroness Hamwee (LD)
My Lords, we have two amendments in this group. As we are starting in Committee, I begin by declaring an interest as a patron of PAC, which deals with both pre and post-adoption support and care and the Intercountry Adoption Centre. I am joint president of London Councils—of course, local authorities have adoption responsibilities—and I have other interests that are well in the past. I have been informed by the directorship of an adoption agency, membership of a local authority adoption panel and membership of the legal group of the British Association for Adoption and Fostering.
I enjoyed both the subject and the process of serving on the Select Committee on Adoption Legislation under the chairmanship of the noble and learned Baroness, Lady Butler-Sloss. Fostering for adoption is a concept much supported by members of that committee, although we all recognised that it may be of quite limited application. The Select Committee urged the Government to widen the scope of the duty to include it in options for all children for whom adoption is the permanent plan. I appreciate that that is why the Government made an alteration to the original draft clauses, although not the alterations that the Select Committee suggested.
I appreciate that my Amendments 5 and 7 would be pre-empted if the Committee accepts government Amendment 1. However—and I say this for clarity and not too aggressively—if we are not persuaded by the response to the other points raised in this debate, I for one will want to return to the matter on Report to deal with the equivalent issues in the clause that, if we accept the government amendment, will then have been amended.
My first amendment is to probe both the meaning and the weight of the term “consider”. It is not a technical term. When I first saw it, thinking very much as a non-professional, I wondered where on a spectrum of thinking about something—from something casually crossing one’s conscience all the way to making a decision—“consider” comes in terms of considering adoption. I then discovered that many professionals were also concerned. BAAF and the Family Rights Group, endorsed by other organisations, say that there is a wide spectrum between adoption considered as one possibility when all options are open and a formal decision that a child should be placed for adoption. Things follow automatically, step-by-step, when one is in the formal process. This suggestion is made that unless we link this provision to the statutory review process, we are not centring it properly as part of that step-by-step sequence. In defining a more precise trigger point, they suggest it when the local authority considers that adoption is the likely permanence plan. I accept that I have failed to bite the bullet by not offering an alternative.
I wondered whether I was fussing unnecessarily because if one looks at new subsection (9A)(a) of Section 22C, all that will be required is for the local authority to consider placing the child with a foster parent approved as an adopter. However, and this is very central to my point, I worry that a lack of clarity or agreement across the sector as to what is meant by “considering for adoption” may lead to inconsistencies in practice between agencies. That cannot be a good thing.
Given that the Government’s amendment proposes new subsection (9ZA)(b), I am even more unclear now about the local authority being satisfied that the child should be placed for adoption. Why is paragraph (b) required if being satisfied, in the terms set out there, is different from “considering adoption” in paragraph (a)? I hope that in reply the Minister can explain the distinction between the two paragraphs in the first part of his Amendment 1.
Amendment 7 would require the matching process to have been carried out; the noble Baroness referred to this and to issues coming to light which are not necessarily initially obvious. It is a very careful process which should be reflected in the legislation. I was not reassured by what the Minister said in the Commons about this. He said that fostering for adoption should,
“be used where the local authority has not … decided”,
on a “permanence option” and that it is,
“not … appropriate … formally to match the child and carers”.—[Official Report, Commons, Children and Families Bill Committee, 12/3/13; cols. 183-195.]
He also said it would be “premature” because a fostering for adoption placement was generally before adoption was the definitive plan. If permanence is the objective, I do not follow the logic of that.
There is of course an important place for guidance in all this. I thank the Minister for distributing the indicative guidance but it does not seem to deal with this. Surely it should at least be included as an issue, even if one does not go as far as the amendments that I have tabled. What a lot of this comes down to is taking all reasonable steps to avoid placing a child in a situation where disruption or a breakdown of the placement has not been considered adequately.
I know that my noble friend Lady Walmsley will say a word about Amendment 10. I absolutely take the point about work with families being difficult. On the drafting—this is a detail—I was not sure that it was necessary for an emergency to preclude the steps which are spelt out. I also wonder how this would relate to Section 47(5)(a) of the 1989 Act, which requires the ascertainment of a child’s wishes and feelings. I suspect that everything else in that section is subject to that anyway but perhaps the noble Baroness might say a word about that.
I finish by putting on record my huge admiration—and not just mine—for both foster parents and adopters. Above all, to be prepared to foster with a view to adoption, and therefore necessarily with a view also to not adopting, is particularly admirable. In the somewhat technical approach that we may have to take to some of this, it is appropriate that we should not lose sight of the enormous contribution that these families, which are sometimes a family of one, will make.
Baroness Walmsley (LD)
My Lords, I want to add a couple of comments to those of my noble friend Lady Hamwee, with whose words I totally concur. I have a great deal of sympathy with Amendment 10, and I urge the Minister to consider it and perhaps come back to us at a later stage with some further thoughts about it.
When we are considering all this, we need to bear in mind that adoption is not the only form of permanence, and we must not lose sight of that fact. It is not appropriate for many children. When it comes to considering placement with family and friends, on whatever basis, in my view you cannot do that early enough. A briefing that I received from the College of Social Work pointed out to me—I had not realised this before—that there is currently no duty on a local authority to consider family and friends before the child is taken into care. Given the 26-week limit that we are about to bring in, it would be very wise for the Minister to consider this amendment. It would mean that family and friends were considered even before the child was taken into care, and the concern that people have raised, that 26 weeks may not give family and friends time to come forward, would be averted if family and friends were being considered even before the child went into care. This amendment has merit, and I hope that the Minister will consider it.
Baroness Massey of Darwen (Lab)
My Lords, I have two brief points. First, like the noble Baroness, Lady Hamwee, I am concerned about the issue of consideration, and I would like to know at what stage this consideration kicks in.
Secondly, I have the greatest respect and admiration for family and friends carers, who do such a remarkable job, sometimes in very difficult conditions, and I take on board the issue that the noble Baroness, Lady Walmsley, raised about timing. I am curious about the dropping of the preference for looking first at family and friends carers as appropriate to a child. I am surprised that that is not being strongly supported by the Government. I believe that something like 86% of kinship care proceedings are initiated by the prospective kinship carers themselves, not by social workers, and surely that is quite the wrong way round.
I am also surprised that the Government do not seem to consider the costs of kinship care and care by friends. I believe that a foster care placement costs something like £40,000, while the average cost of care proceedings is more than £25,000. I hope that the Government will look again at the whole issue of placing family and friends care at the head of the proposals. I am aware that it is not always appropriate and I accept that, but to have dropped the idea of preference, if appropriate, is a mistake.
Baroness Howarth of Breckland (CB)
My Lords, I have three points. I begin by saying that I believe that legislation should enhance and underpin practice. I declare an interest as being a member of the Select Committee on Adoption Legislation, along with my colleagues who have already declared that interest. It was quite clear to us that, were we able to improve practice in a number of areas, the legislation would simply not be necessary.
The Government should return to thinking about that issue, particularly in relation to the practice of social workers and the difficulties they face at the moment, and the pressures of local government. I am sure the Minister will want to concentrate on what he has before him but unless the Government take a more strategic and broader view of children’s needs, we will simply add to the legislation and the difficulties that local authority social workers are experiencing rather than meet the needs of the children.
Baroness Perry of Southwark (Con)
I am reluctant to query the noble Baroness because I am aware of her huge expertise in this area and have enormous respect for her, but in my amateur ignorance I do not see in the Bill or the amendment anything which assumes that the local authority must consider adoption. The amendment refers only to where the local authority is considering adoption; it does not say that it must consider adoption. If I have missed the wording somewhere else, I hope that somebody will put me right, but the noble Baroness’s third consideration seems not to appear in the Bill.
The Earl of Listowel (CB)
I, too, welcome the Minister to his first Grand Committee day of a Bill and thank him for his time over the summer in dealing with some of my concerns. As I listened to the debate, my mind went back to a meeting four months ago with women whose children had been taken away from them in the 1950s and 1960s. At the time, they were single women and were strongly encouraged to give their child away. Those women bitterly regretted having done so and were campaigning for an apology from government. It is unlikely that this Bill will result in women campaigning in 20 or 30 years’ time for an apology from Parliament for what is being done now, but we really have to raise our game. It is clear that if we took a more consistent approach towards to some of these vulnerable families and helped a few more parents off drugs and alcohol, as we could well do, we would not need to take their children away. We must not be too optimistic and allow children to be kept in those families and be harmed, but we see through the effectiveness of Louise Casey’s focused work with troubled families and through District Judge Crichton’s work in the family drug and alcohol court that, where a real effort is made and where central government is prepared to step up and take responsibility, we can make a difference with those families. I welcome what the Government are doing, but some of these children would not have to be taken into care if we raised the overall quality of our child and family practice.
This debate highlights the great judgment required of child and family social workers. They are in the position of making that lifetime decision: will a child stay with its birth family in kinship care or will it be removed for adoption? I welcome the huge investment that this Government and the previous Government have made in raising the status of child and family social work through the social work college, the new post of Chief Social Worker and the Munro review. Despite those all being very helpful inputs, a social worker who was training in London—an intelligent woman—said to me last week, “I was bitterly disappointed by my training. I didn’t get the feedback. Many of my fellow students felt the same way. I’m now going to Bristol to carry on my training in social work”. There is therefore an awfully long way to go in the nuts and bolts of getting the social work profession to where it needs to be to serve those families properly.
What progress are we making in the retention of child and family social workers? People are saying—I heard it said again recently—that we are getting the best young English social workers into the profession now and have seen a great improvement over the past two years, but are we succeeding in retaining those young people? Are we managing to retain experienced social workers close to the front line so that they can mentor and support those child and family social workers?
I have one final question for the Minister, which he might care to write to me about. It is a concern raised in the past by the noble and learned Baroness, Lady Butler-Sloss, and raised today by the noble Baroness, Lady Hughes of Stretford, about the outcomes for children in adoptive placements. We need robust evidence about outcomes for children in adoptive placements. We have them already for children in kinship placements. We need to compare, contrast and make good policy decisions based on those. I hope that the Minister can give an assurance that, if that cannot be produced at the moment, research projects will be put in place so that in future we know how stable those adoptive placements are. The worst outcome would be for a child or children to be placed for one or two years, to be settled, and then to be rejected again by their new family. I am sorry to have gone on so long.
Baroness Armstrong of Hill Top (Lab)
My Lords, I declare my interests. I, too, was a member of the Adoption Legislation Select Committee. I have what feels like a lifelong involvement with Action for Children, which certainly goes back to when I was very small and collecting money for the National Children’s Home, which has changed its name a few times. I think I am now an ambassador for it. I also had some experience of supervising adoptions when I was a social worker, but that was a very long time ago so I am not sure that it is really a relevant interest because the legislation and everything else was very different.
One of the things that were different in those days was that most children who were placed for adoption were babies. When I hear the rhetoric about adoption from the Government at the moment, I sometimes suspect that they still think that that is the case. The reality is that most children being placed for adoption now, before the changes, are not babies, and that if the Bill as it stands becomes law, that will be even more true.
I have worked with and still know several people who are both foster parents and adopters; some are just foster parents and some are just adopters, while others have done both. They perform a remarkable job. Far too often we take for granted the work, the commitment and emotional support that they put in and the trauma that their lives and their families are put through, and it is very important that we do not do that.
I have concerns about this issue. Even when I was a social work student, I did an adoption supervision and took it to court. I was very impressed with, and supported, the judgment and the words of the presiding judge. I know that you really have to get the law right. You have to ensure that the family understand their rights, and that the adoptive family understand not only their rights but the rights of the parents who are placing their children for adoption.
We are talking here about going to a further stage, where the parents are not placing the children for adoption but the local authority will decide that there should be permanence, and therefore fostering for adoption should be considered. That is legally a new situation. I need convincing by the Minister that the Government have done the work to ensure that the family court will not then come back and say, “Actually, we are not convinced that the rights of this child and its natural family were properly considered in your decision around permanence and therefore around placing for fostering up to adoption”. That means that when the case gets to court for adoption, the judge may then be tempted to say, “I’m not convinced that this is in the interests of the child or that the process has ensured that the rights of the child, which are expressed very clearly in all sorts of places, including the UN convention, have actually had due attention paid to them”. We would then be putting social workers and local authorities in an invidious position, and we really have to take account of that.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I want to make a brief intervention. I welcome the Minister to his current position. He is not the only new boy; I am a new boy to this subject, although not to this House. I declare an interest in that I sit as a family magistrate, and I have been doing that for about one year now so I regard myself as new to the subject.
I had not intended to speak to this group of amendments but I want to make one point: in my experience, the use of parallel planning for younger children is extremely beneficial. The far more experienced magistrates and district judges who I sit with have told me many times over the past year how effective parallel planning can be. I heard what the noble Baroness, Lady Howarth, said about the problems of extending parallel planning and how it needs to be carefully looked at, but from what I have seen there would be far more benefit in doing that. It is certainly the case, and I am sorry to have to say this, that you come across wider family groups who have a lot of experience of the family courts and—I use this expression deliberately—know how to play the system. They know how to extend it again and again before the courts make their final decision. If you can have an element of parallel planning in this, that is for the benefit of the child. I will leave it there. That is the point that I wanted to make in support of Amendment 10.
Lord Nash
I am grateful to noble Lords for their kind welcome as we start our consideration of this very important Bill. I welcome their challenges and questions as we all seek to do our very best for the children who may be the most vulnerable in our society. We have had a very good discussion and I hope that I can provide some clarification on some of the points. I am happy to write to noble Lords about any issues that I do not pick up, of which I am sure there will be a few.
Turning to the first point made by the noble Baroness, Lady Hughes, local authorities have a duty to place a child with the most appropriate placement available and one which best safeguards the child’s welfare. If a local authority is unable to make arrangements for the child to return home, then it must look for someone else who is able to care for the child. This might be through a placement with friends and family. At this point, the local authority must give preference to suitable family and friends carers.
Where there are no suitable family or friends carers able to care for the child, the local authority must make alternative plans for the child outside the family. If adoption is a possible option, then the clause requires the local authority to consider a placement with approved adopters who are also approved foster carers. They will foster the child until the court makes a placement order. In some cases, the local authority will be working to rehabilitate the child with the birth family, with adoption as the alternative if that is not successful. If it is successful, the child will leave the FFA placement and return home. The clause specifically requires that the local authority must first consider family and friends care before going on to consider FFA. At this point, the clause disapplies the duty to give preference to family and friend carers because before considering fostering for adoption, the local authority will already have considered whether the child can return home and, if not, have considered suitable family and friend carers.
However, if a family or friend carer emerges at this stage or after the child has been placed in an FFA placement, the local authority must consider them. If placement with these family or friend carers is the most appropriate for the child, the local authority must move the child. We must remember that this is a duty to consider fostering for adoption, not to place. It will not be suitable for all children but for those for whom it is right, it allows them to move in with their potential permanent family much earlier.
In Amendment 10 the noble Baronesses, Lady Hughes and Lady Jones, propose a duty to seek to identify a family or friend carer when a local authority has concluded that a child should be looked after but before applying for the care order. There is the potential that this could lead to a delay in making a care order application for a child who may be in danger of significant harm. This would be contrary to the duty of the local authority to safeguard and promote that child’s welfare. It is a principle of the Children Act 1989 that the local authority must first look to place a looked-after child with a family and friends carer, as I have said, if they are unable to be returned to their parents. It is of course right that the child should be kept safe while arrangements are made for an appropriate placement.
I agree that establishing what family support is available is essential in pre-proceedings. Family group conferences are one particular way of achieving this. This Government are committed to the use of family group conferences at all stages of the involvement of children’s services with families. We are currently funding the Family Rights Group over a two-year period to implement a framework of accreditation. However, we would not wish to make them compulsory as they will not be suitable for all families in all circumstances, not least because the families themselves must agree to one.
It is clear, and understandably so, that the noble Baronesses’ proposed clause has been prompted in part by the concern that more rapid proceedings might make it difficult for family members to put themselves forward to care for a child. However, we have put in place the necessary measures to allow for extensions to care proceedings and for them to be resolved justly. There is no limit on the number of extensions that can be granted. I hope that the noble Baronesses will feel reassured by this and consider that a new clause would not be necessary.
On Amendment 8, regarding placements with siblings, I spoke briefly about the first part of this amendment. With regard to its second part and the points made by the noble Baronesses, Lady Hughes and Lady Jones, about siblings, it might be that in some circumstances it would be in the child’s best interest to be placed with or near a sibling. However, we are talking about the placement of a child with foster parents who may go on to adopt him. It will not always be the case that adoption is being considered as an option for the child’s sibling. It may not be in his or her best interests to be adopted together with a sibling. It must be for the local authority in each case to decide what is in the best interests and what is the most appropriate placement for each child in a sibling group. I hope that the noble Baronesses will agree that Amendment 8 would therefore not be appropriate in this context.
I turn to the trigger point for the duty to consider fostering for adoption. A number of arguments have been put forward about the point at which the duty should bite. Your Lordships will have seen that the government amendment enables a fostering for adoption placement to be considered from the point when the local authority starts to think about adoption as an option for the child to the point at which the local authority is authorised to place the child for adoption with prospective adopters. We believe that this will enable local authorities to consider fostering for adoption for a child at any point during the care journey for children for whom this type of placement is appropriate. This is consistent with other early placement practices such as concurrent planning—a practice that the Select Committee recommended should be promoted more widely.
What is meant by “considering adoption”? The term comes from the Adoption Agencies Regulations 2005 and its concept is very familiar to adoption agencies. “Considering adoption” means considering it as an option for the child. A local authority may be considering adoption at different stages during a child’s care journey. In some rare cases, it might even be before the child comes into care or, as in a concurrent planning scenario, where the local authority is working with the birth parents to return the child home but has adoption as the alternative plan should rehabilitation fail. In some cases adoption will be the only option being considered and in others it will be one of several.
I appreciate the concerns raised about the term “considering adoption”, which some feel might be misinterpreted and lead to rushed decisions about whether adoption is an appropriate option before all other options have been carefully assessed. The clause requires that when a local authority is considering adoption as an option it also considers fostering for adoption. It will be for the local authority in each case to decide whether the chances of the child going on to be placed for adoption are sufficiently high for a fostering for adoption placement to be the most appropriate one for him or her. Cases where there is robust evidence and background history about the child’s birth family could support the need for such radical intervention. Using “considering adoption” as the trigger would also cover concurrent planning cases.
We have explained in more detail what is meant by the term “considering adoption” in draft statutory guidance, which the Minister for Children and Families promised to provide. We will consult on the draft guidance soon and would welcome all comments on how it could be improved. Amendments 4, 5 and 9 propose alternative trigger points. I hope that the noble Baronesses will agree that the government amendment best delivers on the objective of the policy and will agree not to press their amendments.
Baroness Hughes of Stretford
I thank all noble Lords for their contributions to the debate on this important subject, many of which were contributions from positions of considerable expertise and experience in this field, working with children, families and foster carers, and on adoptions. I will not rehearse those contributions as Members of the Committee have heard them. In concluding this debate, perhaps I may draw some threads from them.
I am very grateful for the support of the noble Baronesses, Lady Hamwee and Lady Walmsley, and my noble friends Lady Massey and Lord Ponsonby, particularly their support for Amendment 10. The noble Baroness, Lady Hamwee, asked me some specific questions about the phrase,
“unless emergency action is required”.
That is just a reference to the fact that in situations of urgent child protection it may not be possible to make these offers. She also asked me a technical question about the implications for Section 47 of the Children Act, and I would like to get back to her on that if I may.
However, I think all those contributions testify to the importance of trying to maximise the possibility of kinship care and of recognising that, while at the moment the law requires that local authorities give preference to such an option, the reality is that—often for very good reasons, as I and others outlined—those possibilities often become evident, if at all, too late in the judicial process to act upon them. That is why Amendment 10 specifies pre-proceedings work. It is important that that is done in a structured way under the stewardship of an experienced professional. It involves handling very difficult issues within the family, and family group conferencing has been proven to be the safest way to do that.
I would say to the Minister that Amendment 10 does not in fact make offering those pre-proceedings activities and family group conferencing compulsory; it would simply require local authorities to offer them in those circumstances. Therefore, it does not put a compulsion on that issue at all.
While we are on kinship care, the Minister—and perhaps he could write to me about this—did not clarify whether the Government’s wording in the amendment is a weaker prescription for local authorities than the current legislation; that is, whether the requirement for local authorities to “consider” the kinship care option is weaker than “giving preference to”, as specified in Section 22C(6)(a) of the Children Act 1989. Perhaps he could clarify for the Committee in writing whether he regards the current formulation in Amendment 1 as a weaker prescription, because that was one of our most important points.
I turn to the points about fostering for adoption. Again, I am grateful for the contributions from, in particular, the noble Earl, Lord Listowel, my noble friend Lady Armstrong and the noble Baroness, Lady Howarth. They speak from great experience. My noble friend Lady Armstrong made a point, which echoed my own, about concurrent planning. At the moment, it is restricted. You see adverts in newspapers and in the trade press from local authorities offering concurrent planning, and it is all for babies aged nought to two. Coram has a restriction of age two. In fact, the evidence that I cited showed that in practice 95% of babies who have been referred and placed through that route have been under one year old. This is not a situation in which one can imagine that a seven or eight year-old or a teenager will present the same issues. A great deal is already known about the babies who have been placed by that route. They are very young, so they are unlikely to have a lot of negative experiences as older children may have done, and there is therefore a great deal of certainty from the outset about the child whom the fostering for adoption parents are taking on. That would not be the case with older children or children who are known to have had difficult experiences.
The Minister responded to the question of whether we should have a specific trigger for fostering for adoption placements. In relation to that, one issue that we have not touched on is: what is the perspective of the foster carer approved to adopt in all this? Certainly at the moment, the foster carer approved to adopt is hoping for an adoption.
When it comes to placing children, a direction of travel and a change of culture are being signalled here. Putting all children on a pathway for potential adoption is not appropriate. It would be putting children on a pathway to adoption; that is what the adopters themselves hope will be the outcome of this. As my noble friend Lady Armstrong and the noble Baroness, Lady Howarth, have said, once cases get to court, judges will be very reluctant to disrupt a situation that they feel a child has become accustomed to and embedded in, where they have started to develop relationships.
Secondly, the Minister replied to the comment, “What does ‘consider’ mean?”, by rehearsing the arguments in the draft guidance that it can mean different things to different local authorities in relation to different children. Another way of saying that is that it can mean almost anything at any time. I worry about that, because for the local authority to have to consider a fostering adoption placement for all children, including those going into care voluntarily, is a very serious change. He said that adoption might be one of several options; there might be a list of options and adoption might be on it. Why, then, if there is a list of options, is fostering for adoption the one that the local authority has to consider first? That is the effect of the Government’s amendment.
The comment that concerned me most was what the Minister said about matching. He said—I wrote this down and I hope I have got it right—that in a fostering for adoption placement, the local authority is not required to consider matching in the same way as it does for adoption. If the fostering for adoption placement looks like it might proceed to adoption, then it will undertake the formal matching process—by which time the child will have been there for perhaps six, nine or 18 months. Given that this is supposed to be a device to minimise disruption to children and to place them early with parents with whom they may remain if they cannot return home, that seems to be totally counterproductive. I urge the Minister to think again, certainly in framing the guidance, about what is said about matching. Clearly, if children can stay in a placement that started out as fostering for adoption, then matching needs to take place right at the outset, otherwise there is a real danger that children may then be moved.
I do not feel that I can say we have had a lot of assurance from the Minister on the points raised so far. I hope that he will reflect further on the points that Members have made and on the amendments put forward, and will come back to us before Report with some further thoughts. We will be thinking about what we may want to bring forward on Report ourselves, and it may be that we can come to some consensual agreement on some of these issues. With that, I beg leave to withdraw the amendment.
Baroness Butler-Sloss
“( ) In subsection (4)(d) (matters to which court or adoption agency must have regard), after “the child’s age, sex, background” insert “, religious persuasion, racial origin and cultural and linguistic background”.”
Baroness Butler-Sloss (CB)
My Lords, I have a considerable number of interests that I need to declare, not all of which I have to say I can remember. I am a governor of Coram, a patron of BAAF and of PAC, a patron—I think—of TACT and a patron of the Grandparents’ Association. I am very involved with Barnardo’s, the NSPCC and probably many others. I was also chairman of the pre-legislative and post-legislative scrutiny committees.
I strongly support the Government on the Bill, which in principle is an excellent one. There are, however, as one would always imagine, certain points that need both elucidation and change. Perhaps I may also add how delighted I am with the extra resources that have now been offered by the Government toward the adoption process and post-adoption support. There is an area about which I wish to speak in this debate and that is Clause 2 of the Bill, where it is intended to repeal Section 1(5) of the Adoption and Children Act 2002.
The opinion of the adoption committee that I chaired was that it was right to start with the removal of the words from subsection (5). This is an issue of ethnicity—an issue of race, culture, religion and language. In Clause 2, the Government are removing it entirely from the 2002 Act. That is a step too far. In paragraphs 57 to 83 of the adoption report, we said—putting it shortly—that we agreed that the Government were right to take it out as a separate subsection of the 2002 Act. It was given too great prominence. The evidence that we received as a committee was to the effect that there was a time when social workers elevated subsection (5) to inappropriate heights and therefore they were trying to match in colour in particular where it was not appropriate and moving children from very good families who were not of the same colour, race or background. However, we also had evidence, both from social workers and from the adoption agencies, that that problem had largely receded; it had been far less obvious in recent times and there was a counterdanger that, if it were taken out altogether, the social workers who cared too much about it when it was in would care equally when it was out. They would say, “Now that it’s not in, we have to disregard it. We must not consider race, ethnicity, language, religion or culture”. That is an equally important danger. We had evidence from the social workers and the agencies that there are social workers and other people out there who might take that view. It is a danger and one that must not be disregarded.
We also had informal evidence from children; we had a group of children who had been adopted and a group of children who were looked after who came to talk to me and one or two other Peers at the request of the then Children’s Rights Director. They were extremely interesting groups of children, ranging in age from about seven or eight to about 19. The young ones were very vocal, and at least two of them said to us that the question of ethnicity was extremely important to them, and they were worried about being placed—or the possibility of being placed—with someone who would not understand their background. To me, this was very powerful evidence from the horse’s mouth. I am very concerned about the Government keeping this clause in the Bill, when in fact we made it very clear in our report how concerned we, as a committee, were. Our proposal was that it should not be set out on its own, where it has too important an effect, but in among other matters that have to be considered under Section 1(4) of the 2002 Act.
If my amendment were accepted, Section 1(4)(d) of the Act would require the court or agency to have regard to, “the child’s age, sex, background, religious persuasion, racial origin and cultural and linguistic background and any of the child’s characteristics which the court or agency considers relevant”. It is neatly packaged into a number of other matters.
As I understand it, the Government are saying that “characteristics” includes that. It does in a sense but, unless you highlight the relevant points somewhere, there is a great danger that they will be overlooked. If you look at subsection (4) it is interesting to see the various points that are spelt out because a great many of them could be covered by one word or sentence, but the legislators of the day thought it necessary to explain some of them. I urge the Government to think very carefully about including, neatly packaged in subsection (4)(d), those words as part and parcel of a larger package of what the social workers should be looking at. I beg to move.
Baroness Jones of Whitchurch (Lab)
My Lords, our Amendment 12 is on the same issue and a similar wording to that moved so eloquently by the noble and learned Baroness, Lady Butler-Sloss. We very much support the argument that she put forward and the care with which the adoption Select Committee considered this matter and other issues.
As the noble and learned Baroness pointed out, under the Children Act 2002, the court and adoption agencies must under current legislation give due regard to a child’s religious persuasion, racial origin, culture and linguistic background when making decisions. The Bill removes that wording, but we continue to consider that these are important factors.
No one wants children to be disadvantaged by delays caused by the search for a perfect match, but the evidence of the adoption committee was that while there had been pockets of poor practice in the past, this is not a widespread problem. Indeed, it heard evidence from organisations such as Barnardo’s, which believed that the current legislation was adequate, and Coram, which also argued that, while there might have been a problem in the past, the situation was improving rapidly. The committee also identified that there were several other factors affecting the placement of black and minority ethnic children, including having fewer prospective adopters, the age of the children being put up for adoption and a failure of social workers to promote their availability. We are concerned that too much of the legislation being put forward on this issue is being based on anecdote and there is in fact a paucity of evidence that the wording in the legislation is the cause of black and minority ethnic children waiting longer for placements.
The general view was that the current legislative wording was not a problem per se. We therefore think that the Government have swung too far in the opposite direction by seeking to remove any reference to ethnicity, religion and culture. That is why we believe that putting these factors in the welfare checklist, along with other considerations, strikes the right and proportionate balance in addressing the issue. It would require agencies to have regard to these factors, but they would not be paramount.
In addition, any change in this area would be in direct contradiction to the UN Convention on the Rights of the Child and, in particular, Article 20 which states:
“Children who cannot be looked after by their own family have a right to special care and must be looked after properly, by people who respect their ethnic group, religion, culture and language”.
We agree with this principle. It is important that parents understand the identity of their child and that they are able to help them feel at ease with that identity. We cannot be blind or neutral to these considerations. I very much take the point that was made in the earlier debates. We sometimes think that we are talking about babies, but we are not. We could be talking about young people—anything up to adolescents—who have a view about these things. That point was made very eloquently by the noble and learned Baroness in her introduction. They have an identity and they want that to be considered and expressed. There may have been overzealous social workers in the past, but there may also have been adoptions that failed because the complexities of a child’s identity were not properly addressed. It is important to get a balance.
The Government have argued that these issues are taken into account in the general welfare provisions in Clause 2, but in fact Clause 2 does not achieve that. It removes the express duty to give consideration to these factors, but we are concerned, in the same way as the noble and learned Baroness expressed, that withdrawing them completely will send a clear message to those involved in adoption that these factors are no longer to be considered.
In his response to the Select Committee on adoption report, the Children’s Minister argued that specifying ethnicity, language and so on would continue to place excessive emphasis on these factors and would therefore distort the way that they were applied. To be fair to the Minister, when we met him the other day he made a similar point. He said that in order to counterbalance the excessive emphasis, we had to go to the opposite extreme to ram the message home to local authorities and adoption agencies.
We do not consider that that is the right way forward. These are important and sensitive issues. Having the factors on the welfare checklist, balanced with other issues, would allow the flexibility needed to make an assessment of all the child’s needs in the proper context, which would achieve the Government’s stated aim. I look forward to other comments and the Minister’s response but we very much support the point made by the noble and learned Baroness in opening this debate and the eloquent arguments that were put in the adoption report in the first place.
Baroness Young of Hornsey (CB)
My Lords, like many others, I see many good intentions in the Bill and, along with others, I welcome the aim of speeding up the rate at which adoptions take place and are completed. But I also very strongly support my noble and learned friend Lady Butler-Sloss in this amendment.
When we talk about a person’s identity—this will come up a number of times in other amendments that we are due to consider, and some noble Lords have raised this issue already—it is a multifaceted affair. It has many constituent parts. It seems like an anomaly to try to say that “characteristics” or “background” could encapsulate all the things that we might mean by identity and which might influence the way in which we feel we are being brought up or looked after by people who are standing in for our biological parents.
I do not understand the argument that there is somehow an excessive emphasis if you mention it. That does not make sense to me, given that we live in a society where there is still racism and discrimination based on religion, cultural background and language. How can it be excessive when we are having to deal with all those different forms of discrimination? We do not have a society where we have the luxury of saying that we do not need to talk about this because it does not matter and it is not something that people consider or talk about.
Last year, I hosted a round-table discussion that had been organised by the NSPCC. It took place while the Select Committee on adoption was still gathering evidence so we were not influenced by what the committee was saying. Present at that meeting were adoptive parents, adults who had been adopted as children, academics, researchers and representatives from major charities and local authorities—everyone working in the field of adoption. We focused on racial origins, transracial adoptions and ethnicity. We referred to case studies and experiences in the UK and overseas, and some DfE officials were also present. By and large, that group of about 20 people also came to the view that it was both important and necessary to consider ethnicity, racial origins and culture when seeking to place for adoption. That is not to say that anyone present thought that transracial adoption should never be undertaken. However, it was considered that in our society cultural identities are key factors that ought properly to be taken into account when a child is to be adopted.
Baroness Lister of Burtersett (Lab)
My Lords, my noble friend Lady Jones of Whitchurch made reference to the UN Convention on the Rights of the Child. We have heard some very powerful arguments in support of these amendments. I simply want to support what has been said with reference to what the Joint Committee on Human Rights said on this, and I speak as a member of that committee.
My noble friend and others have questioned the evidence base for the Government’s position. The Joint Committee looked at the evidence and we asked the Government what evidence they were using. We came to the conclusion that the evidence simply did not support the Government’s position. There is clear evidence of problems with delay. We share the Government’s concern about that and I do not think that anyone is arguing that we do not need action to deal with it. However, the evidence to which the Government referred did not show that these delays were due to ethnic matching. Therefore, we concluded:
“We are … not satisfied that the Government has demonstrated by reference to evidence that the statutory provision it proposes to repeal has been responsible for delays in the adoption process to the detriment of children from ethnic minority backgrounds”.
Perhaps the Minister could explain to the Committee what this evidence is, because what the Government have provided so far is not convincing. The committee continued:
“Even if there were evidence showing that the ‘due regard’ requirement … has led to disproportionate weight being given to a child’s ethnic background”—
and as I have said, we do not think that there is—
“we fail to see why it would be necessary to remove from the legal framework all reference to ‘religious persuasion, racial origin and cultural and linguistic background.’ We do not follow the logic in the Government’s argument that including those considerations in the welfare checklist would still lead to them being accorded disproportionate weight”.
I am completely bemused. A lot was said about this at Second Reading. I do not understand why the Government are so resistant to the very sensible recommendation from the adoption committee that it simply should be part of the checklist. No one is arguing that it should be given disproportionate weight any more; that has been accepted. The very fact of taking it out, though, as has already been said, in a sense is giving disproportionate weight to the other view that, “Clearly, we mustn’t take any account of it at all because the Government said that it must not be part of the list”. I cannot believe that that is what the Government want to achieve. Perhaps the Minister will explain why they are so resistant to that simply being part of a list that gives equivalent weight to other factors. The committee stated:
“In our view, removing from the legal framework any reference to ‘religious persuasion, racial origin and cultural and linguistic background’ risks those considerations being regarded as no longer matters to which due regard must be paid, which would be incompatible with Article 20(3) UNCRC”.
There could be a challenge to that with reference to the UN convention.
The noble Baroness, Lady Young of Hornsey, referred to the need for other actions. The NSPCC suggested that legislation of itself will not address the problems of delay. The Government therefore need to commit to other actions such as paying attention to the need to actively recruit more adoptive families from a range of minority ethnic backgrounds; to give more support to adoptive parents and social workers to aid their understanding of the needs of minority ethnic children and improving long-term stability for minority ethnic children who are looked after; and, as has already been said, to consider how to boost permanency for such children beyond adoption, particularly through a consideration of guardianship, kinship care and long-term foster care.
I endorse what has already been said but I am completely at a loss as to why the Government are so resistant to this proposal from the adoption committee, which the Joint Committee on Human Rights has also endorsed.
Baroness Hamwee
I too have my name to Amendment 11. It seems that these issues of religious persuasion, racial origin and cultural and linguistic background have been the subject of a pendulum that has swung considerably backwards and forwards over the years. It may be that these issues are not everything but they are certainly not nothing. As other noble Lords have said, the Government have recognised that these issues should be considered along with all other relevant factors.
I thought what the noble Baroness, Lady Young, had to say about identity was so powerful that I do not want to pursue the issue myself because I could not say it as well. I just wrote down the word “identity” with big marks against it when I was making my notes for this debate. We must not suppress these issues. Our society comprises a huge variety of combinations of these different matters, and an increasing variety as people from different ethnic backgrounds marry one another and different mixes appear. There should not be excessive emphasis.
The noble Baroness, Lady Jones, used the phrase, which I think the Minister also used, “ramming the message home”. It is not for legislation to ram a message home; legislation should get the measure right rather more calmly. There is a danger that the message that will be taken is that these issues should now be ignored, when what really matters, as other noble Lords have said, is a placement with adopters who understand the issues and can support the child. You might come from exactly the same ethnic origin or religious background but not be able to support the child; they are not the same thing. The indicative guidance that we have received recognises this. I think that it talks—and if it does not, it should—about the need to recruit adopters from a range of backgrounds.
I do not think that there is a difference of view between what we are all saying and what the Government are thinking; it is not about the “what” but more about the “how”. The noble Baroness, Lady Lister, said that she was at a loss. I do not think that I am at a loss. There has been an oversensitivity, if I can put it that way, to what some parts of the media regard as “political correctness”, and there are better ripostes to that attitude in the media than the change in legislation that is proposed. I strongly support the amendment.
Baroness Howarth of Breckland
My Lords, I would like to say something about where I think this all came from. We should remind ourselves that in the 1980s racism was rife. When I was working at that time in local authorities, we had people called “race advisers”, some of whom were not the most helpful people. Some changed the whole attitude to racism; some made social workers take a particular view of race. I know that because I was the head of a social work department and was battling to get something rational, while the irrational was being pressed on the workers.
I make this point because I think that this Bill has so much of value and would hate to see one dogma replaced by another, but that is what is happening here. As the pendulum has swung, as the noble Baroness, Lady Hamwee, said, so the Government are feeling that we can stop all this and get placements moved on. However, we need to think about the issues—those points have been made eloquently and I shall not repeat them—and I hope that the Government take a rational rather than a dogmatic view of this issue because it is important for the children. I, too, have talked to young people whose ethnicity is extraordinarily important to them, even though they were placed, and have grown up, in white homes. They need to understand their ethnicity and their links. I hope that the Minister will accept that the welfare checklist is a very straightforward document and that this could be included without any difficulty.
Baroness Perry of Southwark
My Lords, the UN convention quoted by the noble Baroness, Lady Jones, asks for respect for a child’s ethnicity and cultural, linguistic and religious background. If I were putting down an amendment to the Bill, which I am not doing, I would want something that emphasised that. That does not mean that adoptive parents have to be of the same ethnicity or religious conviction as that of the child being adopted, but they have to be the kind of people who genuinely respect that. If I may be allowed an anecdote, although we have just been told not to rely on anecdotes, I can tell the Committee that I lived through such a thing in my own family. When I was a very little girl, my parents “adopted” a child of the Kindertransport. Her parents had sent her away from Hitler’s Germany just before the outbreak of the Second World War and my parents, as Christians—my father was a minister—decided that they would open our home and our family to this little girl, Marrianna, who became my sister to all intents and purposes for several years until her own family was able to take her towards the end of the war. I remember well my parents straining every muscle to allow that little girl to keep her religious identity—we learnt in our family to respect all the Jewish customs and festivals—and they were determined, although Christians themselves and very powerfully so, that they would do that. What we are surely asking for is that kind of genuine respect for the child’s religious, cultural or ethnic background, and not for someone who has to be the same. The rationale of the noble and learned Baroness’s amendment reaches towards that, but I would like something that emphasised the wording of the UN convention, which is “respect for” rather than “the same as”.
Baroness Walmsley
My Lords, I would like to make two points. First, I agree with the noble Baronesses, Lady Lister and Lady Jones, about the danger of transgressing the UN Convention on the Rights of the Child. I will address the point made about respect by the noble Baroness, Lady Perry, when I come to my second point.
I am going to give the Committee an anecdote. I am sorry, but this is why I am so passionate about believing that the well balanced solution of the noble and learned Baroness, Lady Butler-Sloss, to the perceived problem is much better than taking the issue out altogether. It is the fact that my son and his wife, in addition to having their own two white, blond boys, have adopted a Chinese daughter. Cathryn is a wonderful little girl and she is much loved by the whole extended family. For the past seven years, she has been very successfully adopted and I very much hope that it continues that way. Of course, when going out in public with her family she might as well have a big sign on her forehead saying, “I am adopted”, because she clearly looks different. It was so important that her adoptive parents were sensitive to difference and its importance, and to the importance of cultural, racial and ethnic identity. They are approaching the adoption of their little Chinese daughter with all that in mind. That is why I agree with the noble Baroness, Lady Perry, that we must ensure that where there is transracial or transethnic adoption, the matching is right. That is more important than the child and the parents having the same skin colour.
I would also say to the Committee that ethnicity really matters; I absolutely agree with the noble Baroness, Lady Young. That is why it is important that you find the right adoptive family. If the race, culture and ethnicity are different, they have to understand, be sensitive to and take account of that as they help the child to develop into a fully fledged grown-up with an understanding of their ethnic and cultural background. To throw it out altogether puts the Government in great danger of the pendulum swinging in the opposite direction and no account being taken at all of the difference in ethnicity. If they did that, they would be in danger of finding adoptive families who, although they were very well intentioned, did not have that sensitivity to difference and to the importance of the cultural identity of the child.
That is so important when you have a transnational, transracial, transcultural or transethnic adoption. The fact is that we are going to have some of those because there is a mismatch between the pool of children of ethnic majorities who are waiting for adoption and the ethnicity of families who are prepared to adopt them. Until we get equal numbers in those two pools, we will have transracial and transethnic adoptions. However, the important thing for the success of the adoption is that the matching is right. The danger is that if you take out reference altogether instead of putting it in the checklist, as has been so sensibly suggested, you will get a mismatch and have unsuccessful adoptions. Alternatively, the adoption will complete until the child is an adult but that adult will be damaged by the lack of consideration having been given to their background.
This is terribly important. I can tell your Lordships that it can be very happy and successful—because I have personal experience of that—and I very much recommend that it happens where a child needs a loving family. Those considerations really matter, though, and we must not throw the baby out with the bathwater.
Baroness Benjamin (LD)
My Lords, I support the amendment. Living in Britain as a culturally diverse person can be very challenging and you need to be well prepared to face the challenges and adversities, which can be never-ending, even if you are living with your birth family. When you are different, you have to be confident about who you are as a person.
Since I spoke about this issue at Second Reading, I have been contacted by those who are for and against my stance that “due consideration” of a child’s religious persuasion, racial origin and cultural background when being placed for adoption should not be removed but should be included as an important part of the Bill.
We all agree that adoption between races adds another invaluable dimension to the adoption experience which cannot be ignored, because living in a loving family is priceless. However, the evidence points to ethnic background being a significant factor which cannot be ignored, and this has been said to me over the past few months by both children and adults who have been adopted. That is why I believe that social workers need to ensure that prospective carers can respond positively to the ethnic background of the child and consider what implications this may have as they grow up, especially during their adolescence, reflecting on their identity and heritage.
The British-Chinese adoption study by the British Association for Adoption and Fostering in 2012 found that this was an important consideration among young Chinese people who were placed with families with whom they could not identify, unlike the story that my noble friend has just told about the little girl whom her family has adopted. If a child experiences racism or rejection because of their religion or culture, they may feel isolated and not able to share this with anyone within the family. Being visibly different from family members can also result in a sense of feeling as though you do not belong, along with a loss of confidence, which I mentioned earlier.
I know that the Government recognise this as an important factor, but I believe that we are in dangerous territory if we remove consideration of it altogether from legislation. Do we really understand what the impact of these changes would be? Do we really understand what would happen and the message that we would be sending out? Nothing that has been said to me can convince me that such consideration by a court or adoption agency when coming to a decision relating to the adoption of a child is not important. Social workers need to be sensitive to this factor and to work with parents, who need to be able to understand the identity of the child they are adopting. This should not be a stand-alone but should be included in the child’s welfare checklist along with religion, culture and language, as so passionately put by the noble and learned Baroness, Lady Butler-Sloss, and as recommended by the House of Lords Select Committee on Adoption Legislation. It should not be the be all and end all, and nor should all the emphasis be placed on it, but it should be considered.
Equally important is the need to encourage more diverse families to become adoptive parents. That is not something that many people from diverse backgrounds consider, but there are ways in which we can make people realise that they can play an important part in our community.
We also need to improve the long-term stability for culturally diverse children by helping to boost permanence for these children beyond adoption, and the consideration of kinship care and long-term foster care. That is why I believe that everyone needs to support this amendment, for the sake of the well-being of the children whom I speak about who feel that they want to be part of this society and feel as if they belong.
Lord Nash
My Lords, a number of moving contributions have been made to this debate, particularly by my noble friends Lady Perry and Lady Walmsley. I know that we are all trying to find the right way forward in a difficult area. The noble and learned Baroness, Lady Butler-Sloss, is vastly experienced in these matters, and I hesitate to gainsay her. The noble Baroness, Lady Young, asked for some evidence. I would like to provide some, underline what is behind the Government’s position and reaffirm that my department’s main aim is to ensure that all children, whatever their background or race, achieve the best start in life.
The Government’s concerns about this can best be summed up in the simple equation that once they have entered the care system, white children are three times as likely to be adopted as black children who have entered the system. Some 6% of white children in care are adopted while 2% of black children are adopted. This is a fact.
Lord Nash
Six per cent of white children in care are adopted while 2% of black children in care are adopted. That is a fact that should make all of us angry. The average length of time that it takes for a child to be adopted from entering the care system is two years and seven months, but for black children it is three years and eight months. That statistic of course conceals the fact that many children are never adopted at all.
It is worse than that, though, because all the evidence is that, generally, the younger a child enters the care system, the more likely they are to be adopted. Black children in fact enter the care system four months earlier than white children, on average as babies, contrary to what the noble Baroness, Lady Jones, said about the age of children entering the care system. We believe that with the best intentions in the world, social workers are trying too often to make perfect matches and taking the aspect of ethnicity too much into account. As a result of this, the system is leaving—
Baroness Young of Hornsey
I am sorry to interrupt. I just want to get this clear, because the Minister seems to be saying that the provisions around ethnicity in the 2002 Act are virtually the sole or main reason why black and mixed-heritage children are being left behind in the adoption queue. I would still argue, as have other noble Lords, that there is little if any evidence to suggest that that is the case—that there is an exact, identifiable causal relationship between the provisions of the 2002 Act and the lack of progress for black children.
Lord Nash
I am grateful to the noble Baroness for enabling me to clarify this point. I am not saying that it is the sole cause at all. It is one of a number of factors and we believe that our approach will be one element in helping to address this imbalance, which is leaving ethnic minority children short-changed.
Social workers will of course continue to pay considerable regard to ethnicity as they and the courts will be required to have regard to,
“the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant”,
as part of the welfare checklist. These will obviously include ethnicity. We do not accept that our approach means that this will no longer be considered at all, as the noble Baronesses, Lady Lister, Lady Hamwee and Lady Benjamin, suggest. Indeed, in her speech the noble Baroness, Lady Walmsley, referred specifically to background. “Background” and “characteristics” must include ethnicity. That is a matter of plain English.
There is unequivocal evidence about the negative impact on their development of delay in placing children for adoption. Children need to form attachments with one or two main carers to develop emotionally and physically. There is also clear evidence about delay caused by practitioners seeking a “perfect” ethnic match. Professor Elaine Farmer, in An Investigation of Family Finding and Matching in Adoption, found that of the BME children in the sample who experienced delay, attempts to find a family of similar ethnicity was a factor in delay for 70% of them. A study by Julie Selwyn—
Baroness Butler-Sloss
Forgive me for interrupting, but I wonder if I could have the date of Elaine Farmer’s report.
Lord Nash
The noble and learned Baroness will get that information in a second.
A study by Julie Selwyn, Pathways to Permanence for Black, Asian and Mixed Ethnicity Children found that “same race” placements often dominated the child permanence report over and above other needs and that some social workers were so pessimistic about finding ethnically matched adopters that there was little family finding. She said:
“We found that local authorities were much quicker at changing the decision away from adoption for minority ethnic children than they were for white children. There were a great number of minority ethnic children for whom no families were found and the decision was changed away from adoption”.
Whatever the child may want, would they rather not be adopted at all or adopted late in life so that they cannot form those early attachments that we all know are so important?
The answer to the noble and learned Baroness’s question is 2010.
Amending Section 1(5) of the Adoption and Children Act 2002 does not mean that ethnicity should not be considered. A child’s adoptive family needs to be able to meet the child’s needs throughout his childhood, having regard to all the factors provided for in Section 1(2) and 1(4), rather than simply matching his or her ethnic background or not matching at all. We have published draft regulations on this for your Lordships’ consideration.
We recognise that practice is very important. That is why we are developing a range of training materials and other tools to support the continuous professional development needs of children’s social workers, supervising social workers, team managers and independent reviewing officers working in fostering and adoption. This is part of the Government’s drive to ensure that social workers working in the care and adoption systems have the knowledge and skills they need to get decisions right and weigh the impact of delay appropriately in the decisions that they make about placements for children in care.
Of course, we need more adopters from all ethnicities. That is why we have allocated over £150 million this year to help adoption agencies respond to the pressing needs of children awaiting adoption and a further £16 million over the next two years to expand the sector.
The UN Convention on the Rights of the Child does not require children to be placed with someone who shares exactly the same ethnicity but someone who respects it. Section 1 of the Act, as amended, will not prevent this. Many children in our society live with natural parents who do not entirely share their ethnicity. I urge the noble and learned Baroness to withdraw her amendment.
Baroness Butler-Sloss
My Lords, I thank all those who have spoken on this amendment with a unanimity of support for it. I acknowledge, however, that Amendment 12 is more accurate since it recognises the different position of Wales, whereas my amendment was entirely devoted to the question of what was taken out and did not address the rest of the subsection, so I apologise for that. I think it should probably be Amendment 12 rather than Amendment 11.
The question of ethnicity, culture and so on is not just a question of black, white or brown. I happen to know Kenya quite well and there are 45 tribes and, I think, 47 languages there. It is totally different from Ghana or Nigeria, and so different from Jamaica. It would be very difficult to put a black child from Kenya with a black family from Jamaica. It would be much easier to put them with a white family. I have experienced the difficulties of a black family of whom the son, who is mixed race, is my godson, of whom I am extremely proud, and his black mother in the Cayman Islands had a very rough time because she came—according to the people in the Cayman Islands—who were black, from the trees. So when we are talking about ethnicity, we are not talking about black, white or brown, or indeed people from south-east Asia, whether they are Vietnamese, Malaysian or whatever it may be. What we are looking at is their cultural background, their ethnicity—and the ethnicity, as I say, of one black tribe. Indeed, those who come from certain parts of the United Kingdom are very different from other parts of the United Kingdom or other parts of Africa or Asia. It is important that we recognise that.
One of the most important points that were made in the speeches was about the issue of identity, and that follows very much from what I have just said. It was well put by the noble Baroness, Lady Young, to whom I am grateful. It is underlined by the United Nations Convention on the Rights of the Child. I very much liked what the noble Baroness, Lady Perry, said about respect. I am not quite sure how easy it would be to put into a list of what a judge must have regard to. I am not entirely sure whether we could require a judge to have regard to respect, but it was a very attractive idea and one that we should be looking at.
I take issue with the Minister: we are not suggesting for one moment that there should be a sameness of ethnicity, such that a Kenyan child would always have a Kenyan family. That is impossible and not even desirable. What is needed is an understanding by each of those who would wish to adopt of the cultural differences between them and the child whom they may adopt: the origins, language and culture of the child, as well as racial differences. These need to be understood and recognised, and that is the point of these two amendments.
If the Minister thinks that I am talking about same ethnicity—which is what he has just said—then I hope he will read what I have said in Hansard, both now and in my opening speech, because in no way did I intend that to be. There is a real danger, as has also been said, in replacing dogma with dogma—“I pick it up and adopt it with enthusiasm”—because that, I fear, is what this Government are proposing to do. Having come to the view, which I totally understand and with which I agree, that in the past there have been efforts to put a black child with a black family, regardless of their ethnicity, they are now saying that we must not consider it at all. That is a step too far, and I am very concerned about it. I am grateful to the Minister for saying that the Elaine Farmer report was from 2010, but we had evidence last year that that problem with social workers has largely disappeared.
If the amendment is not given the prominence of being in Section 1(5) but is neatly packaged away, as I have suggested, in subsection (4)(d), it will not get undue prominence. I must say respectfully that the Government are wrong in not listening to the unanimity of this Committee in what has been said today. I hope that they will go away and at ask at every level—not only at the level of junior Ministers but right to the top—whether we are really all wrong. I respectfully say that we are not. I shall bring back the amendment on Report and hope that everyone will support me on that occasion if the Government will not listen, but for the moment I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) Directions under subsection (1) shall be given in writing setting out the Secretary of State’s reasons which shall be in accordance with regulations.
( ) A local authority to which directions have been given under subsection (1) may at any time—
(a) request the Secretary of State to review the directions,(b) appeal against the Secretary of State’s decision to the High Court.( ) The Secretary of State may at any time rescind directions given under subsection (1).”
Baroness Hamwee
This and other amendments in the group take us to Clause 3, which deals with the recruitment, assessment and approval of prospective adopters. That is the heading for the clause, at any rate, but it is in fact about the Government’s possible power to give directions to local authorities to restructure the way in which they deal with adoption matters.
The Government accepted the recommendation by the Adoption Legislation Select Committee in responding to proposals for a government power of direction. Looking back at the report, I thought that the language used by the Select Committee was really very mild, but then we endeavoured throughout to be as constructive, dignified and helpful as possible. We said:
“We … urge local authorities and partners to work together to make progress on these issues”—
that is, recruitment and so on—
“particularly in light of concerns that outsourcing adopter recruitment”—
which is what this would be—
“risks isolating adoption from other services for looked-after children. We strongly encourage the Government to allow sufficient time for the sector to develop viable and achievable alternative proposals, before using the new power”.
That was the bit that I thought was very mild.
The Government state in their response—and I agree with an awful lot of this—that a lot is happening in the sector, with lots of new, good things going on, and that they have invited the sector to consider further how to address its concerns. They further state that they,
“will continue to work with the sector over the coming months to monitor the impact and implementation of their commitments. The Government has told the sector that it will reach a decision in January 2014 about any further action it intends to take”.
If we had not had that date, which is now three months away, I would have felt more optimistic about how the Government might regard this provision. It seems very heavy-handed—a sort of legislative sword of Damocles.
There is anxiety among local authorities, and I shall come back to that, but I have heard that the voluntary sector, too, is anxious about the prospect of the Secretary of State giving directions that would transfer functions, or certainly action—“functions” might not be quite the right word in the context—to the voluntary sector. We might think, “Well, local authorities are going to object to this. They would object, wouldn’t they?”, but for the voluntary sector to be concerned fleshes out the issue. It is concerned about its capacity.
Local authorities recognise the need to recruit more prospective adopters, and there has been an increase in the number of adoptions, as we know. Eighty per cent of adopters are recruited by local authorities, so for the Secretary of State to exercise this power would be very significant. I believe that the Government, too, recognise the sector-led improvements, and I shall quickly mention some of them.
In London, local authorities are working together across the city to identify and implement improvements with both regional and sub-regional partnerships, and that includes partnerships with the voluntary sector. Similarly, outside London there are consortia of local authorities. We heard about some very interesting approaches to work when we were taking evidence on the Select Committee. In north London, the consortium has put together a single point of contact for initial inquiries and a joint database, it has collocated the adoption teams, it has consistent timescales and it is sharing training and publicity and marketing strategies.
As I said, the Select Committee had very good examples of joint working, although it identified some barriers to it as well. However, I do not believe that this is a simple matter of psychology—that a threat of directions will itself lead to improvement. The Minister has said, rightly, that the Government will listen carefully to the points raised on this. I quoted the words used in the response to the Select Committee, but lifting the sword of Damocles for a further three months—I am not even sure that this legislation will be through by January 2014, but that is another matter—does not seem to be the acknowledgement that its other words would indicate.
Amendment 13, which is in my name and that of my noble friend Lady Walmsley and the noble Baroness, Lady O’Loan, would require the Secretary of State to give reasons for exercising this power of direction and the reasons would be in accordance with regulations. There is a real lack of understanding about just what criteria the Government are setting and what they would expect local authorities to have achieved so as not to be at risk of such a direction. Local authorities need to know what they are doing wrong, if they are doing things wrong, and they need to know what they are regarded as doing right.
It follows from that—this is the second limb of Amendment 13—that there should be a right to request a review and a right of appeal against the Secretary of State’s decision. I understand the Government to be saying that this is not heavy-handed and that in fact it is a very precise response to the problems in particular local authorities. I am therefore a little puzzled as to why the Secretary of State would need to be able to give directions to all local authorities.
The noble Baronesses, Lady Hughes and Lady Jones, have amendments that deal with some of the concerns that I have expressed. I think that that is one of them. My noble friend Lord Storey and I are very concerned about this, but we are happy to look at amendments and to debate issues around this matter and how the provision might be ameliorated. We have an underlying feeling that it will be very hard to get this to a position that would leave us feeling satisfied, which is why we have also given notice of our intention to oppose the question that the clause stand part of the Bill. There is a single group of amendments for debate today plus the stand part. I start this debate in moving Amendment 13.
Baroness Hughes of Stretford
My Lords, I shall speak to Amendments 14 to 17 in my name in relation to Clause 3, which, as we have heard, grants the Secretary of State a new power to direct local authorities to outsource their adopter recruitment services to another local authority or to a registered adoption agency by amending the relevant part of the Adoption and Children Act 2002. We understand that the driver for the Government seeking these powers is to tackle the shortage of people approved to adopt. Certainly, we share this starting point with the Government.
I listened with great interest to the points made by the noble Baroness, Lady Hamwee, and it is clear that there is deep concern about these provisions and where they might be taking adopter recruitment services in the future. For me, that is the key issue, as I will explain. I have no disagreement in principle with the power for the Secretary of State to intervene in individual underperforming local authorities as in subsection (3)(a) of new Section 3A under Clause 3. As a Minister, I issued many such directions. Indeed, my first point is that there already are substantial powers of intervention, including the ability of the Government to outsource services when local authorities are underperforming. Perhaps the Minister will explain why these powers in subsection (3)(a) are necessary.
However, it is difficult to see how intervening in an individual local authority can solve or address the wider problem of the national shortage of potential adopters, which brings me to the powers under subsection (3)(b) and (3)(c) and where our concerns lie. Those powers would give the Secretary of State the power to remove responsibility for adopter recruitment either from entire categories of local authorities or from all local authorities at a stroke completely.
There are both practical reasons and reasons of principle why those two powers are problematic. First, on the practical reasons, local authorities currently recruit and approve about 80% of adopters. Moving many or all local authorities from this task would seriously compromise the adoption system when there is already an acknowledged shortage of adopters.
Secondly, as the noble Baroness, Lady Hamwee, elegantly pointed out, the voluntary and not-for-profit sector has made it clear that it does not have the capacity to take on the recruitment of the numbers of adopters that would be needed. The third reason is very important. Given that local authorities would retain responsibility for the placement of children and for seeing them through to adoption, it seems to me to be wholly undesirable that they should have no stake in the adopter recruitment process. We actually want local authorities to be more willing to use adopters approved by other agencies. This is more likely to happen if local authorities retain some responsibility for recruitment and are still part of the adoption system so there are some strong, practical reasons that I would like the Minister to address.
In discussion with the Minister this week, he said that the problem of adopter shortage was not in any case primarily one of underperformance by individual local authorities. In his view this was system failure at the national level, particularly because of the disincentives for local authorities to recruit more adopters than they need for their own individual populations and the reluctance, as he perceived it, of agencies to work collaboratively. Again, there have been really positive moves in that direction, as the noble Baroness, Lady Hamwee, pointed out, albeit perhaps recently. That might be so: it might be system failure, as the Minister said, and if the Government wish to review adopter recruitment and propose a radically different system, they are of course entirely free to do so. But if the Government wish to come forward with a new system that would take responsibility for adopter recruitment away from local authorities and give it to some new or different kind of agency, I put it to the Minister that they should come to Parliament with those proposals now for wider scrutiny and debate.
My objections to subsections (3)(b) and (3)(c) are therefore fundamentally ones of principle. It seems quite wrong to go partway along that path to pave the way for wholesale outsourcing or privatisation of adopter recruitment through the negative resolution procedure set out here without spelling out for Members what the endgame here is. I asked the Minister whether he had a vision of where he would like these services to end up and he said no, he did not. However, I cannot see the point of the power in subsection (3)(c) unless the Government have at least some desire, if not the intention, to move towards providing the recruitment of adopter services in a very different way.
In our view, the powers in subsections (3)(b) and (3)(c) are a step too far unless the Government set out their further vision. Our Amendment 14 would delete them from the clause. Amendments 15, 16 and 17 would address the issues that the noble Baroness, Lady Hamwee, raised were the Government to retain the ability simply to intervene in an individual authority by instituting: that it should be by the affirmative resolution procedure; for the Secretary of State to give reasons for direction and to allow the authority to ask for a review; and for the Secretary of State to revoke any direction should he desire so. Amendment 17 would address the point that the direction should be based on the quality or performance of the local authority in providing these services.
With those amendments, this would be a reasonable and proportionate mechanism for the Government to use when they believe a local authority could do much better at adopter recruitment. They would take away the possibility that the Government could slide through an entirely new system on the back of a negative resolution procedure in relation to subsection (3)(c).
Lord Storey (LD)
My Lords, it really is important that we do what is best for the potentially adopted child or young person. If we consider this carefully, we can see where some—I would use the word “some”—local authorities have been very poor in this respect. That is in the amount of time taken, the lack of care and attention to detail and the way things are organised. Quite frankly, that is not good enough but it is a very small proportion of local authorities. As we have heard, 80% of placements are carried out by local authorities, which themselves recognise the need for changes to be made in how some of them operate. Many have been hallmarks of good practice and have been highly praised by the Government and the voluntary sector. So the notion that the Secretary of State is given the power to say that all local authorities should cease placement is concerning to me, and I wonder why it is there.
I am not sure that I agree with the noble Baroness, Lady Hughes, that this is some plot by the Government to privatise adoption—surely they would not—or push everything to the voluntary sector, because we know that the voluntary sector has said, “No, we don’t want to do that, and even if we did we wouldn’t be able to cope with it”. I am surprised that the noble Baroness would even consider such a daft notion. No, I think that this is about the Government. I well remember David Cameron, our Prime Minister, saying in the early days, “Look, I am concerned at the time that some potential adopters have to wait before all the paperwork and the processes are carried out”, and he was right to say that. This part of this wonderful Bill addresses that issue by saying, “Yes, we need to ensure that the amount of time taken is proportionate”.
Still, the notion that you give the Secretary of State—maybe Michael Gove’s successor in two, three or five years’ time—the power to come along with these draconian powers is quite concerning, and actually not in the best interests of children. I hope that, if we want to ensure changes, the Government will look at how we learn from best practice in local authorities and in the voluntary sector—not all the voluntary sector is perfect in this, of course; we think that because the tag is “voluntary sector”, they must be fantastic, but not all the voluntary sector is. We must learn best practice from the voluntary sector and from local authorities, and constantly lift the bar and learn and disseminate those best practices so that we do what is best for our children and young people.
Baroness Butler-Sloss
My Lords, I endorse what the noble Baroness, Lady Hamwee, said. I shall read out again one sentence from the conclusion of the adoption committee:
“We strongly encourage the Government to allow sufficient time for the sector to develop viable and achievable alternative proposals, before using the new power”.
Having said that, I have to say that I am not entirely opposed to the Government having this power. However, it should be a power of last resort, not a power that would be up front. The various amendments, if I may respectfully say so, are overly elaborate. I would have thought that it would be a good idea, if the Secretary of State had to give a direction, that such a direction gave the opportunity to the local authority to judicially review the Government if it thought that the direction was out of order under administrative law proposals. So I am not at all happy about these current amendments. I believe that the Government should have some power, but I do not like the way in which the power is framed at the moment. I hope that some sort of compromise might come on Report.
Baroness Walmsley
My Lords, for a number of reasons, I support my noble friends in their Amendment 13 and on clause stand part, failing the amendment—or something—getting through. I think that this is an excellent Bill in many ways, and I am very proud of it and welcome it. It would be a pity if it were spoilt by one particular little bit that, if implemented, would result in complete chaos in the system.
If new Section 3A(3)(c) were implemented, there would be complete chaos in the system and increased delays in the time that it took for a child to be adopted, because the voluntary sector simply does not have the capacity to take up the other 80%, and could not do so in the foreseeable future either. The Government are going too far too fast, particularly in the light of the changes that are currently being made in the adoption system. I would put a caveat next to that comment, because I think that we all believe that an extra month taken to find the “forever family” for a child waiting on the adoption list is a month too long. We do not want to increase delays; indeed, we want to shorten the period as much as possible, while at the same time getting it right. In the light of the fact that so many changes are taking place—local authorities are working together and the Government have already put changes in place—the clause as it stands should not be implemented until those changes have been allowed a reasonable amount of time to bed in. Subsections (3)(b) and (c) need to be taken out.
The Earl of Listowel
My Lords, I have listened with great interest to this debate. I remember the last days of the previous Government, when there was a great deal of concern from the Minister responsible at the lack of uptake by local authorities of voluntary adoption agencies. She repeated on several occasions, “The evidence is there; the outcomes are better; but it seems that local authorities have the perception that going down that route is more expensive”. Again, there was some debate about the research, but I think it pointed to the fact that in fact it was no more expensive than using local authority adopters. This is just a detail, but I would be interested to know what progress has been made—maybe the noble Baroness mentioned this and I may have missed it in what she was saying—in making better use of voluntary adoption agencies. There has been a huge amount of change in this area.
In the back of my mind, I also have an idea that it might be helpful for a one-page summary of all that has been done by the Government about adoption since they came into office. Maybe I just need to look back at the Second Reading debate; it is probably all there already in the Minister’s opening speech.
Baroness Benjamin
My Lords, much of Clause 3 is perfectly reasonable. It would allow the Secretary of State to take action against local authorities that were failing in their duties to recruit adopters by removing those powers from them—quite rightly, too, as long as that is done in a fair way and takes account of steps that local authorities might be taking to improve. There is, after all, an adoption crisis in the country, which the Minister has pointed out, and some local authorities are not stepping up to the plate.
However, children’s charities such as Barnardo’s—I declare an interest as one of its vice-presidents—as well as the Local Government Association have concerns about the fact that the Bill as it stands would allow the Secretary of State to remove responsibility for adopter recruiting from all local authorities. This proposal has caused alarm, which could lead to chaos in the adoption system. There is no guarantee that external providers would be able or willing to take on these services immediately, and any delays across the system will severely damage the chances of some of the country’s most vulnerable children of being adopted. Of course local authorities should be held to account; it is right that the Government can intervene if they are not doing their job properly. However, Clause 3 as it stands effectively allows the collective punishment of local authorities, and this punishment, as Barnardo’s and others have pointed out, would not even solve the problem but would make it worse. I urge the Government to consider Clause 3 very carefully and remove it from these provisions.
Viscount Eccles (Con)
My Lords, there are fundamental problems with this clause. As has been said, there is no appeal against directions; the recipient must comply, and promptly. There is no parliamentary scrutiny of directions, and for these reasons directions are usually confined to failures in administration, a point made by the noble Baroness, Lady Hughes. I think we all understand that the Treasury is very good at setting out directions about how you should write your accounts. There is not much point in arguing with the Treasury about that matter of administration, but in my view directions are not suitable to implement a change in policy of this type. That is exactly what this clause empowers the Executive to do—change policy. The point has already been made that there is therefore a point of principle here, and I would be grateful for the Minister’s response. Given everything that has gone on, the dissatisfactions or doubts that might emerge between central government and local government could and should perfectly well be settled in the normal course of business. As has been said, Clause 3 goes one step too far, and I could not support it.
Lord Nash
I begin with the proposal to remove the clause, but most of what I will say is also relevant to all the amendments. I think that we would all agree that we have an undoubted problem in the narrow but important function of recruiting, assessing and approving a sufficient number of prospective adopters. The statistics are stark. As I have already said, the average length of time that it takes for a child to be adopted from entering the care system is two years and seven months, and of course this conceals many children who do not get adopted.
My noble friend Lord Storey said that there is poor performance by local authorities in only a minority of cases, but I respectfully suggest that the figure of two years and seven months denies that. However, I agree with him that there is good practice: in West Berkshire, for instance, the figure is a year and a month. I question why many if not all local authorities cannot do the same.
At the end of March this year, there were 6,000 children with placement orders waiting to move in with a permanent family. This is 15% higher than a year previously. When compared with the 3,980 children adopted from care last year, one can see that this is a very significant backlog. Indeed, one cannot conclude from this backlog anything other than that the system is broken and we are facing a real crisis.
In order to find families for all the children waiting to be adopted, we have estimated that we would need around 2,000 more adopters than are currently approved and waiting to be matched. We would then need at least a further 700 additional adopters each year to meet the growing demand from children waiting. Ofsted data tell us that in the year ending March 2012 just over 25,000 enquiries about becoming an adopter were received, but these resulted in only around 4,000 applications to become an adopter—a 16% conversion rate, which I suggest is very low.
The size of the recruitment gap requires us to take radical and immediate action to resolve the underlying problems within the system. These were set out in our January publication, Further Action on Adoption. We currently have around 175 adoption agencies, many operating at too small a scale to be efficient, yet they have no incentive to expand and meet the needs of children outside their local area. Even worse, some local authorities turn away prospective adopters because they do not need them themselves.
A further problem is that, while some local authorities work in constructive partnerships with voluntary adoption agencies, too many commission from them only as a last resort. In large part, this is a consequence of local authorities acting as both a provider and commissioner of adoption services. By this, I mean that they are trying to find or commission adoptive parents on behalf of the child while simultaneously trying to recruit or provide those same parents. There are also issues around the level of fees that are paid to voluntary adoption agencies.
These underlying problems have resulted in a system that fails us in national terms; a system that is unable to make best use of the national supply of potential adopters or respond effectively to the needs of vulnerable children waiting for a loving home and a system that provides no incentives to individual organisations to address a national shortage of adopters. These problems are not the fault of the individual adoption agencies concerned. Indeed, many are doing their best to rise to the challenge and we know that there are some good examples of partnership working between different agencies:
Harrow, Kent and Cambridgeshire, for example, have all contracted elements of their adoption service to the voluntary adoption agency Coram. Oxfordshire has brought in the Core Assets Group to run its adopter assessment process. Three boroughs in London—Kensington and Chelsea, Westminster and Hammersmith and Fulham—and three unitary authorities in the north-west, Warrington, Wigan and St Helens, have merged their adoption services in order to save money while improving quality.
The problems result from the flawed way in which the current system is structured and operates. We therefore require a structural solution that tackles these systemic problems; a solution that incentivises and enables the recruitment of a far greater number of adoptive parents. Clause 3 provides for such a solution.
Baroness Hughes of Stretford
I have been accused of being rather unkind to the Minister in thinking that there might be some plans already as to how to do that. He said that this needs a structural solution to address a national problem and that Clause 3 of itself is that solution. In fact, Clause 3 of itself is not that solution. Clause 3 would pave the way for a solution but we do not yet know what that solution and change of policy might be, as the noble Lord said. Can the Minister indicate the kind of solution that Clause 3 would pave the way for so that we might have some indication of the Government's thinking?
Lord Nash
Yes, I did say that Clause 3 provides for such a solution. It is not a solution in itself. As I said to the noble Baroness earlier this week, there is no dark plan and no end game. The fact is that the system is working poorly and erratically. There is good practice and there is clearly bad practice. Adopter recruitment could clearly be done more efficiently and on a greater scale, which may involve working more closely together. Of course, the sector may take time to develop and recognise that, which is why we have funded voluntary adoption agencies substantially in order to stimulate them. The power is necessary to stimulate change and I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for supporting the Government in having a power.
Turning to Amendments 14, 16 and 17, Clause 3 is not therefore intended to tackle cases of poor performance or service failure within individual local authorities. Our recruitment problem is not the result of individual failure and, if it was, the Secretary of State already has substantial powers to intervene. We therefore do not consider that the amendments, which would effectively use Clause 3 as an additional intervention power for a small number of local authorities, are necessary.
I am aware that the structural change proposed under Clause 3 would be substantial. I also acknowledge the view of the Delegated Powers and Regulatory Reform Committee concerning the delegation of a power of such scope. With respect to all the amendments, and with particular reference to Amendments 13 and 15, I would therefore like to reassure the Committee that I am keen to continue to listen to views as to how this power could best be used. In due course, the Government will then bring forward their own amendment which is likely to provide greater clarity about the process by which the power might be exercised.
When I write to Members of the Committee following this debate, I will provide a summary of the many steps that the Government have taken to support voluntary adoption agencies, as the noble Earl, Lord Listowel, requested. Briefly, we have invested £150 million in local authorities through the adoption reform grant and recently announced a £16 million boost package for voluntary adoption agencies which will help to recruit and approve more adopters. In terms of stimulating the system generally, as the Committee will know, we have introduced the national gateway. I therefore urge my noble friends Lady Hamwee, Lady Walmsley and Lord Storey, and the noble Baronesses, Lady Hughes, Lady Jones and Lady O’Loan, not to press their amendments.
Baroness Hamwee
My Lords, it is quite distressing—in a Bill that, as noble Lords have said, by and large we welcome very much—to find oneself at the end of a debate even more worried than at the start of it. I do not say that flippantly. Of course I welcome the Government’s assurance that they will be looking to put forward an amendment to give greater clarity about the use of the power but, as others have said, that is only part of the story. I make clear to my noble friend that that was not a pun. A direction may be given, but we are not at all clear—I am certainly not—about what would be put in place if that direction was given. That is the very essence of the problem.
Clause 3, as has been said, is not the solution to the problem. If the Government are going to reach a decision in January about further action, I hope that the Minister will be able to share with the Committee what that action might be before we are legislatively committed to giving them an opportunity to take that action, whatever it is.
The noble Earl, Lord Listowel, referred to concern about the cost of using voluntary agencies. That indeed seems to be an issue that is around, but it is one that I hope has been satisfied when discussions have been had about it. It may well be that it is a function of the way in which local authorities operate that one budget holder is concerned about an expenditure that at the moment is effectively being covered by another budget holder but, if you looked at the totality of it, you would see that it was cost-neutral.
Perhaps I can have a discussion with the noble and learned Baroness about her response to the amendment. I should know, but I do not, whether other powers of intervention that might be comparable with this require reasons to be given and involve a right of appeal. I am not immediately sure about judicial review—I know that the Government are actually trying to reduce the use of judicial review rather than increase it—or whether it would be appropriate. Its origins were more about process, although it has been used very imaginatively recently. I am not sure.
Generally, the points that have been made about transparency and a better understanding of what the Government have in mind are hugely important. None of us endorses poor practice or failures, but this is certainly something that we will have to return to on Report. For now, however, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, this is a small amendment but it concerns an important point. Clause 4 takes us to adoption support services and the proposal for personal budgets. It requires a local authority to prepare a personal budget if asked to do so by the recipient of adoption support. My amendment would simply say: if asked to do so “at any time”. That is because I wanted to put before the Committee the possibility that problems may arise at any time and may manifest themselves at any time—for instance, when a young person who has been adopted as a child reaches adolescence. There are Members of this Committee who are far better qualified than I am to describe this sort of circumstance. My drafting is not very good and I acknowledge that the clause as drafted does not limit the timeframe, but I wanted to raise the issue and to ask the Minister what reassurances he can give with regard to support being available for as long as it is needed.
While I am speaking, perhaps I could comment on Amendment 19, which either the noble Baroness, Lady Jones, or the noble Baroness, Lady Hughes, is about to speak to, on the use of prescribed agencies. This amendment proposes regulations regarding agencies from which adoption support services can be purchased. I wondered whether that might be—while showing an understandable concern about quality, which I assume is what this is about—a bit too prescriptive. Personal budgets are about choice and personal responsibility and I was not very clear whether this actually fitted with the philosophy of personal budgets. I also wondered whether paragraph (i), which deals with the conditions that have to be complied with on direct payment, might not cover their concerns. Personal budgets are increasingly used in various areas of social care, but they are still developing as a way of working. It is also right to put on record that the Local Government Association is concerned that the clause is not commenced until findings from pilots are available. I beg to move.
Baroness Jones of Whitchurch
My Lords, we have two amendments in this group, Amendments 19 and 270. Amendment 19 is about the principle of personal budgets. Endorsing the view of the noble Baroness, Lady Hamwee, we welcome the overall approach of making personal budgets available to empower families and adopted children. The idea of personal budgets has been common and has been extending in care packages for children with disabilities for some time. When properly funded and organised, they have the capacity to give families greater flexibility and reduce the administrative burden on local authorities, so we see their advantages.
Our amendment was attempting not to be too prescriptive but to widen the scope of the use of the budgets. I am happy to go away and make sure that we have the correct wording in that respect. We were concerned to ensure that barriers would not be placed by local authorities on how the budgets could be used. While agreeing that this is a positive proposal, we are seeking clarification in new Section 4A(4) as to where the services can be bought from. Many voluntary adoption agencies offer adoption support services to their own adoptive families and presumably to local authority services. Sensibly, Clause 4 would allow these services to be bought by local authority adopters or by voluntary agencies. As it stands, new Section 4A(4)(e) refers to,
“the description of adoption support services to which personal budgets … may (and may not) relate”.
While this indicates that no restriction is intended, it would be clearer and more reassuring if specific reference were made to the use of non-public sector agencies. Again, just for clarification, that is what we are intending to do—to extend the provision. We believe that that would provide greater flexibility and choice for adopters, which is exactly the point that is being made. We will be very happy to look again at the wording at later stages.
Of course, while the use of personal budgets is welcomed in a broader sense, it does not in itself address the lack of adequate available support, which can of itself lead to adoption delays. For example, TACT has been in contact, telling us that it knows of adopters who have delayed seeking a final adoption order as they are unhappy with the support that they will receive afterwards. While the child remains in the care system, they have access to services that are not available after adoption. Therefore, this remains a separate challenge that needs to be addressed.
I echo the point that the noble Baroness made about the pilots that are taking place in other areas of social care. We believe that it is important to take the time to evaluate the impact of the pilots and to see how those lessons can best be applied to adoption services. Therefore, while we have tabled our amendment as a point of principle—we want to offer more choice—we think that time needs to be taken to learn from the pilots. I hope that the Minister can reassure us that a decision on commencing these clauses will not be taken until the findings from the pilots are available and are able to inform the implementation.
We have also tabled Amendment 270, but it very much mirrors the amendment from the Government on this matter, which takes on board the concerns of the Delegated Powers Committee. I think that both amendments attempt to address that issue. We are satisfied that the government amendment achieves what was asked for on that occasion, so we support that amendment.
Baroness Northover (LD)
My Lords, before I respond to the important points that have been raised, I should like to explain government Amendment 20, which will ensure that the first set of regulations made in relation to personal budgets is subject to the affirmative resolution procedure. I thank the noble Baroness, Lady Jones, for her welcome of this.
We tabled this amendment after listening carefully to the Delegated Powers and Regulatory Reform Committee, and we are very grateful to the committee for its consideration of this matter. It recommended that the affirmative procedure should be used the first time the power in Clause 4 is used. We agree, which is why we have tabled this amendment.
I take seriously the point made by my noble friend Lady Hamwee and the noble Baroness, Lady Jones, about learning from the pilots. Indeed, these pilots will inform the way the regulations are drawn up.
I turn to Amendment 270, tabled by the noble Baronesses, Lady Hughes and Lady Jones. I welcome the fact that the noble Baroness, Lady Jones, feels reassured by what we have put forward.
I should now like to speak to Amendment 18, tabled by my noble friends Lady Hamwee and Lady Walmsley. Local authorities are under a duty to carry out an assessment of a person’s needs for adoption support once it has been requested. A request for an assessment can be made at any time. I hope that that reassures my noble friend Lady Hamwee.
The right to a personal budget is a consequence of the local authority’s decision to provide a person with adoption support, following an assessment of need. Clause 4 as drafted therefore enables those persons being provided with adoption support to request a personal budget at any time after the local authority’s decision to provide support. My noble friend is right to point out that support might be needed at a later point, and this follows from that kind of procedure.
Baroness Hamwee
My Lords, on the “at any time” amendment, the concern in my mind is that local authorities are bound to be increasingly reluctant as years go on to contemplate having to find funds to deal with a situation that has made itself manifest many years on from a placement. That is just a fact of human nature; I am not imputing any ill will. I wonder whether there might be a place to reinforce the point in the guidance, but I shall just leave that thought there.
On pilots, I appreciate that my noble friend has been involved in the Bill for about 24 hours, so I will leave this question with her as well, rather than expecting an answer. She said that pilots will inform the regulations, and it would be helpful to know whether the Government have any indicative timetable for publishing the regulations and commencing this scheme so that those who have made the point to us about the need to learn from the experience of pilots can be reassured that they will have the space to do so. I wonder whether I might ask her to come back to me following this debate. I see that she assents to that. I beg leave to withdraw the amendment.
Baroness Northover
“( ) On the occasion of the first exercise of the power to make regulations under this section—
(a) the statutory instrument containing the regulations is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament, and(b) accordingly section 140(2) does not apply to the instrument.”
Baroness Jones of Whitchurch
My Lords, we have Amendments 21 and 24 in this group and I shall address them both. Amendment 21 arises from our continuing concern that children could be rushed into adoption prematurely. It echoes some of the concerns that we raised in the debate on Clause 1 relating to fostering for adoption and, in particular, the concern that a number of noble Lords expressed about what being considered for adoption means.
We are concerned that the government amendment to the Adoption and Children Act register would allow children to be added to the register before a formal decision was made about their future. That goes back to them being only “considered” for adoption. It is our view that if we are not careful this could add unnecessary stress and anxiety to the families and the children. As we said earlier, we are not necessarily dealing here with babies; we could be dealing with children and adolescents who may well know what is happening to them and that these actions are being taken on their behalf. They may be concerned and distressed if this is happening in a way that they consider to be premature. In other words, our amendment would require local authorities to be satisfied that it was the appropriate action to take and that they had the appropriate authority to do so by putting the children on the register. This would ensure that speed was not at the expense of the child’s interests.
I know that we all acknowledge the importance of stable and caring relationships, and we all understand that too many children are waiting too long in temporary care. They also develop significant parenting relationships with their temporary carers, only to be disrupted, sometimes after many months or years, when they are moved on or subject to a number of temporary placements. We understand the need for fast action where that is appropriate.
Where adoption is the proposed plan for the child, there are particular issues centring on the legal severance of the child from their birth family, which of course has major significance. It is a central principle of current law that only the court can authorise the action of a local authority to place a child for adoption without parental consent and that the local authority should not take any action that might anticipate the judgment of that court. This is to ensure that the welfare of the child remains central to decision-making, and part of the welfare considerations has to include the stability and care of that child.
We are concerned that the Government moving children on to the adoption register more quickly will be disruptive and cause stress, and might perhaps raise questions and concerns when the issue comes to court. Therefore, we seek that the Government reconsider this point. We do not doubt that reconciling the need of the child to be placed in a long-term caring environment in a timely way, with the issues raised in the court, can be challenging and complex. However, we are concerned to ensure that this is done in the proper order and in the proper way, and we do not believe that the Government’s proposals achieve that. Our aim is to provide the child with as much certainty and stability as possible amid the emotional upheaval that surrounds the whole process. We say that it is wrong to place children on the adoption register prematurely.
Amendment 24 deals with the Delegated Powers Committee. We briefly touched on this issue in our debate on the previous clause. On this occasion, the Government have not gone quite as far as the Delegated Powers Committee recommended. The committee took the view that it was not,
“appropriate to characterise the provisions made under section 128A as being operational, administrative or procedural”,
which is how the Government have described it. It continued:
“We believe it constitutes an important change to the operation of the Register in that it will allow access to personal and sensitive information which otherwise only adoption agencies have access to.”
The committee was concerned about the issues raised here. We believe that our amendment goes further and follows the proposals of the Delegated Powers Committee rather than what is proposed by the Government. I therefore hope that noble Lords will support Amendments 21 and 24.
Lord Nash
My Lords, I will speak first to Amendment 21, tabled by the noble Baronesses, Lady Hughes and Lady Jones. I understand their concerns and must make it clear that these fostering for adoption placements will be fostering placements, not adoptive placements. This clause seeks only to improve the likelihood of local authorities finding a potential fostering for adoption placement for children for whom such a placement has not been found locally. It will remain the case that a child cannot be placed for adoption without parental consent or a court making a placement order.
I reassure noble Lords that the details of children being considered for a fostering for adoption placement will be held in a separate section of the register. This is to ensure that their details can be seen only by the register staff, social workers and approved prospective adopters who have expressed a willingness to care for a child on a fostering for adoption basis. Noble Lords may recall that the 2002 Act provides for the register to assist with placing children for purposes other than adoption, as well as for adoption. The inclusion of children who are being considered for adoption in the register is one way in which this original design can be realised. I hope that the Committee will be reassured by our proposals and I therefore urge the noble Baronesses to withdraw their amendment.
On Amendment 24, which was also tabled by the noble Baronesses, Lady Hughes and Lady Jones, I can understand the desire to ensure that there is a parliamentary debate before the regulations are made enabling approved prospective adopters to search information on the register. The Delegated Powers and Regulatory Reform Committee recommended that regulations made under proposed Section 128A in Clause 6(4) should be subject to the affirmative procedure. The Government have listened to the concerns of noble Lords. We have responded to the recommendation from the committee by introducing government Amendment 22, so that the affirmative procedure is used to make regulations for the first use of the power. The safeguards relating to arrangements for approved prospective adopters to access the register are included in the first set of regulations that we intend to make, which I have published for your Lordships to consider. This means that under the Government’s proposal, noble Lords will have the opportunity to debate them in full.
The Government believe that any subsequent changes to these regulations should be subject to the negative resolution procedure because those changes should be minor in nature and will not represent significant reforms. The reforms that we are introducing are in fact an extension of arrangements already in place elsewhere in the adoption system. Approved prospective adopters are already able to access the details of children through hard copy and online publications such as Be My Parent, published by the British Association for Adoption and Fostering, or Children Who Wait, published by Adoption UK. Professor Elaine Farmer’s investigation into family finding and matching identified that in 30% of cases, delay was associated with unwillingness to seek a family outside a local authority’s own group of approved prospective adopters. We believe that these improvements to the register, which allow approved prospective adopters to be actively engaged in the matching process, will lead to a greater number of matches being made more quickly, particularly for those children who may be harder to place. The register already generates around 10% of all matches nationally.
The DPRRC has today indicated that is not persuaded that restriction to the first set of regulations, where we are content to use the affirmative procedure, is sufficient. This is because the DPRRC considers that substantive changes may be required in the light of the pilots. We will consider this advice and return to the matter on Report. I therefore ask the noble Baronesses not to press their amendment.
Finally, I would like to return to Amendment 21. The Committee will be aware that we gave an undertaking to Parliament that we would introduce access to the register by approved prospective adopters on a piloted basis initially, to ensure that the process worked effectively in practice. This minor amendment will ensure that the regulations to be made piloting approved prospective adopters’ access can apply only to discrete areas. I hope that noble Lords will agree that the amendment is necessary and I urge the Committee to accept it.
Baroness Jones of Whitchurch
I think I understood the Minister to say that the Government were taking the delegated powers point away to have another look at it, which I welcome. I listened carefully to what the Minister said about Amendment 21. We have common ground, in that we all want to speed up the process of adoption, but our concern is that if children are being placed on the register when no final decision has been made, for those children there may be a period of stress and unhappiness that premature decisions are being made on their behalf. I am not sure that the Minister really addressed that matter. It is about the psychology as much as the organisation of the register. We are keen to make sure that people know their rights, are clear that decisions are being made appropriately and at the right time and are being followed through in the right way. We may want to return to this matter and explore it in further detail. I want to have a look at what the Minister said in Hansard. For the moment, I am content to beg leave to withdraw the amendment.
“( ) On the occasion of the first exercise of the power to make regulations under this section—
(a) the statutory instrument containing the regulations is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament, and(b) accordingly section 140(2) does not apply to the instrument.””
“( ) In section 140(7) (power for subordinate legislation to make different provision for different purposes) after “purposes” insert “or areas”.”
Baroness Hamwee
“Pre-commencement adoptions
(1) Section 98 of the Adoption and Children Act 2002 (pre-commencement adoptions: information) is amended as follows.
(2) For paragraph (a) of subsection (1) substitute—
“(a) assisting—(i) persons adopted before the appointed day,(ii) the descendants of persons adopted before the appointed day,who have attained the age of 18 to obtain information in relation to the adoption of the adopted person,”.”
Baroness Hamwee
I am sorry that we are coming to this amendment late on the first day. I understand that we started at 3.45 pm and intend to finish not before 7.45 pm. I am sorry, but not so sorry that I will cut down very drastically what I want to say because this is the moment to say it.
The amendment would introduce a new clause and I am grateful to be noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, for adding their names to it. The issue of information available or not available to the descendants of adopted persons was a matter brought to the attention of the adoption legislation Select Committee. We recommended that the Government amend legislation in order to bring direct descendants of adopted persons within the scope of the provisions that allow access to information or, more accurately, to intermediary services related to seeking information about the adoption.
Those who are entitled to seek information cannot simply go straight to the records without advice about the possible implications and the impact of their having information. They are required—and there are regulations dealing with this—to seek the services of an intermediary agency. Quite a lot of people can seek intermediaries’ services—a lot of relatives, but not necessarily those who are close to the adopted person. The birth mother’s half-sister and her husband can seek information and so can the birth mother’s stepfather and the birth father’s wife, when that wife is not the birth mother, but not an adopted person’s child.
The noble and learned Baroness and I first became aware of this from the situation of a lady in her 60s who discovered that her father had been adopted. She discovered this after his death when she found his birth certificate. She realised that it gave no details of his parents or the place of his birth, saying only “England”—a so-called amended certificate. Her reaction was to sympathise with him, as he had probably found out that he was adopted very late in his life, but she also felt annoyed and cheated,
“as if my relationship with him had been a lie”.
She said:
“Why hadn’t he told me? Why hadn’t he told my mother? She’d been married to a man for 50 years she hadn’t really known. I felt I owed it to her to find out”.
This lady started a very energetic search, all of which led to dead ends. She made an application to the court that the Registrar-General should disclose the information. The judge was very sympathetic—I have read the judgment—but, because of how the law stands, was unable to grant the application. She started a support group.
I have warned the Bill team that the Minister’s answer to this amendment is going to be considered very keenly by a lot of people outside this House who are affected by this situation—far more people than I think anybody had expected when this issue started to raise its head. I am obviously not going to give the Committee all the examples that I could of how people are affected but I shall mention one which came to me yesterday.
It concerns a social worker working with a man in his early 30s who has no birth information in relation to his father. His father died unexpectedly a few years ago aged only 48. He had started the process of looking into his adoption but died before he was able to access any information, and his stepmother had cleared out all the paperwork. I am told that in the light of the father’s unexpected death, this young man would like to continue the search on his father’s behalf, and he would also like to access any medical information. Of course, there are a lot of reasons why someone might want to have information. It is not just that adoption has become much more transparent over fairly recent years—it used to be a case of “leave well alone”. It is understood not just that there are practical or medical reasons but that the understanding of one’s relationship with one’s parent is very important. Family dynamics are important, and it is important to be able to pass on a proper family history to one’s children. We talked about identity earlier this afternoon; this is an issue of identity as well.
BAAF, the British Association for Adoption and Fostering, is very supportive of a change. The social worker who supported the lady to whom I have referred, who made an application to the court and gave evidence herself, said:
“Descendants can benefit a great deal from accessing information about their genetic origins. It can help people feel more connected and rooted, and provide a sense of belonging, helping bridge the past, present and future. It can help them understand why they have certain physical attributes and particular skills and abilities. It can also help people understand some of the adversities they have faced in life, for example, if someone suffered from depression and learned that their great grandfather committed suicide”.
The change that the amendment proposes is supported by many agencies, including major ones such as Coram, Barnardo’s and the Salvation Army. In 2010, BAAF asked the Law Commission how various aspects of adoption information—and this was one of them—might be considered by the commission. I understand that the commission saw it as a worthwhile project but lacked the resources to undertake the work.
I asked a Written Question earlier this year and the Answer from the Minister was that he understands why descendants of adopted people want to find out about their relatives’ history, but that there is a need to balance this against the rights and wishes of adopted adults and the adults’ birth family. It is a complex and sensitive issue which needs careful consideration before any change in legislation is considered. Let me emphasise again that I am not seeking direct access to information; I am seeking access to intermediary services, which will be provided on a case-by-case basis.
Before today’s debate, I sent the Minister and other noble Lords a question and answer sheet provided by BAAF, which I will not attempt to read into the record. However, I asked him to tell the Committee of any points that they have made with which the Government disagree. I suspect that one of those may be the numbers who will be involved. The Government at one stage estimated as many as 2 million people. BAAF has set out the calculation it has made, which falls far short of that figure. I would be grateful, therefore, if the Minister could tell the Committee whether the Government have an authoritative basis for the numbers that might be involved or a best guess. I accept that this is a question of cost, although the applicants will bear the cost by paying for the services.
Just as the Minister responded to me, in response to the Select Committee the Government referred to the sensitivities involved. It would be helpful if the Minister could spell these out and, in particular, how they differ from those already managed by the intermediary agencies providing intermediary services.
Finally, the Government have referred to the possibility of the Law Commission including the issue in its next programme of law reform. Reference to the Law Commission would not be unwelcome but, however sympathetic it may be, am I right in thinking that the Government cannot guarantee that the Law Commission will take on this work? I am sorry to have taken up the Committee’s time late in the day, but I think it was important to spell out a good deal of what lies behind this amendment. I beg to move.
Baroness Butler-Sloss
My Lords, I put my name to this amendment. In paragraph 274 of our post-legislative scrutiny committee we said:
“We believe that the exclusion of descendants of adopted persons from the definition of relatives in section 98 of the Adoption and Children Act 2002 creates an unfair anomaly in the legislation. This can be a cause of significant distress”.
Indeed, we had evidence to that effect. We continued:
“We recommend that the Government amend section 98 of the Act to bring within its scope the direct descendants of adopted persons. The Adoption Information and Intermediary Services (Pre-Commencement Adoptions) Regulations 2005 should be amended accordingly”.
As the noble Baroness, Lady Hamwee, has already said, there are a number of people in respect of whom this small but important amendment really matters. It came to my attention through a friend of mine who is a lawyer—he is actually present in this Room. He wrote to me including the letter from the lady to whom the noble Baroness has referred. There are others out there; it may be that there will be a number of people who will benefit from this, and we know there are. There may be cost implications, except that they will be likely to pay so it would be their cost.
Perhaps more importantly, this is an anomaly. Other people out there who are related to those who are adopted, and to birth parents and so on, have the right to this information. The issue is not whether it is sensitive or whether people should know. It is why so many groups should be allowed to find out and this group not be allowed to find out. The amendment cuts through this sensitivity and complexity. There is actually no complexity; it is an anomaly which requires to be put right. For the Government to hide behind reasons of sensitivity and complexity when all the information is there anyway for everybody else seems at the very least disingenuous. I strongly support the amendment.
Baroness Howarth of Breckland
My Lords, I think that most of the points have been made, but I want to go back to the days when some of us were engaged in the 2002 legislation. The noble Baroness, Lady Walmsley, will remember that when we were trying to get some of these provisions through, this cohort of people were among those who had not been prepared in the same way as those who have been prepared thereafter. However, the world has changed significantly since 2002, particularly in relation to health information, as both my colleagues have pointed out. It is a human right for an individual to know about their genealogy and therefore to be able to trace issues relating to health. This will be particularly true of girls and breast cancer, when different kinds of medical intervention will be available. Although I understand the sensitivities, we are not asking for access for absolutely everybody, as the noble Baroness, Lady Hamwee, pointed out; we are asking for an intermediary. When that route is not taken, individuals attempt to find out by other ways. I have a story of a man turning up at the gate of his birth father—a very eminent man—and saying, “I am your son”, having found out by other ways, and being told, “You may be, but I don’t want to know you”. One can see how an intermediary could have made a real difference to that relationship and the hurt that can come from that kind of situation.
This anomaly needs to be put right. It is absurd that everyone else can find out except the descendants—so you can go and get someone else to do it for you. It just needs ironing out, and the arguments that I have heard so far have passed.
Lord Nash
I thank my noble friend Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, for bringing this important matter to the Government’s attention, both earlier this year through the report of the Lords Select Committee on Adoption Legislation and through this proposed clause.
I entirely understand why the descendants of adopted people may want to find out more about their biological heritage, particularly where there may be a hereditary medical condition. The Government are open to the possibility of reform in this area, but we believe that more detailed thought is needed about the implications and practicalities of any legislative change. For example, we must think carefully about how more information might be provided to descendants, and we need to balance this against the rights and wishes of the adopted adults themselves and their birth families.
This is a complex and sensitive area which needs careful consideration before any change to legislation is considered. That is why the Government are exploring with the Law Commission whether this issue might be included within a possible project as part of the commission’s 12th programme of law reform.
The amendment would enable descendants of an adopted person to find out about the adopted person’s background. It applies to those adopted before commencement of the 2002 Act. Such adoptions were carried out privately and secretly, with very little information shared with the adopted child or his or her birth parents. If a mother, who may never have told anyone about an adoption, was approached out of the blue by her son asking about his adoption, that could have a devastating effect on the individual and the whole family.
We fully appreciate the wishes of descendents and there will be examples—
Baroness Butler-Sloss
I apologise to the Minister. Under this proposal, there is no suggestion that there should be any direct relationship between the person seeking the information and the person who has been adopted. It would be done through an intermediary, which is the whole purpose. I urge the Minister not to go down that line because that is not what we are asking for.
Lord Nash
I assure the noble and learned Baroness, Lady Butler-Sloss, that we are not seeking to be disingenuous about this and we do regard the issues as complicated. My noble friend Lady Hamwee asked what evidence the Government have to suggest that if we make this provision it could open the floodgates or that the new clause would lead to unwelcome contact. The answer is that we do not have any evidence, which is why we would like the Law Commission to consider it and are prepared to provide funds. I hope that I have provided sufficient reassurance on the amendment and I therefore urge the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, perhaps I may reinforce, if it is necessary because I think that it will be clear enough in Hansard, the point made by the noble and learned Baroness. The Minister’s scenario is exactly that which we are seeking to avoid with this amendment. I am sorry that the Minister has not been able to explain the points about sensitivity and complexity on which the Government are relying. He has told the Committee that the Government will give the issue more detailed thought. I think I have got it right that the Government will consider how detailed information should be made available to the descendant of an adopted person. I do not believe that it is for the Government to think and advise how information should be made available to that person. Quite rightly, in 2002, the Government set up the structure of involving an intermediary.
Of course, I cannot press the matter to a vote tonight because we do not do that in Grand Committee. It would be remiss of me not to ask the Minister if it might be possible for me to meet him following this stage to reinforce and perhaps explain better than I was able to do in what I appreciate might have been a rather rushed introduction. Perhaps we may meet before Report to see if there is a way in which we can work with him to be as persuasive as possible to the Law Commission, if that is the way it is to go, that it should take on this work. I do not know what private as distinct from public communications there may be with the Law Commission. I certainly would not ask the Minister to say so tonight, but it is morally and practically wrong not to sort out what the noble and learned Baroness so rightly describes as an anomaly.
Baroness Hamwee
I am very grateful for that and on that note I am happy to withdraw the amendment.
Baroness Northover
This may be a convenient moment to adjourn the Committee and to suggest that we meet again on Monday 14 October at 3.30 pm.
House of Lords
(10 years, 7 months ago)
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Introduction: Lord Mendelsohn
(10 years, 7 months ago)
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NHS: Health and Social Care Act 2012
(10 years, 7 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what assessment they have made of the cost to clinical commissioning groups and other parts of the National Health Service of tendering and legal fees in the commissioning of services under Part 3 of the Health and Social Care Act 2012.
Lord Hunt of Kings Heath (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and draw the House’s attention to my health interests in the register.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, Part 3 of the Act does not change the requirements on clinical commissioning groups when they tender health services. The rules are the same as under the Public Contract Regulations 2006, introduced by the previous Administration, and as set out in the rules for commissioners.
Lord Hunt of Kings Heath
My Lords, the noble Earl will recollect our debates on the Health and Social Care Act 2012, when repeated assurances were made by Ministers that clinical commissioning groups would not be forced to tender out services. However, all the evidence to NHS England and the advice which clinical commissioning groups are getting from their lawyers suggests that under Section 75 of the Act, they have to do so. Does the noble Earl agree that that is an awful waste of money and effort, and that all it is doing is fragmenting services?
Earl Howe
My Lords, commissioners do not have to use competitive tendering for all services. First, acute elective care—which represents the vast majority of NHS services—is not secured through competitive tendering at all, and that will continue to be the case. Secondly, a single-tender action may be justified on the basis that there is only one provider able to meet the clinical quality and safety standards that the commissioner requires. There will be guidance coming out on that, and draft guidance has already been published. Any confusion that exists among commissioners should be clarified by that means.
Lord Winston (Lab)
My Lords, would it be fair to say that the noble Earl is somewhat between Scylla and Charybdis on this issue? On the one hand tendering is certainly more expensive but, on the other, if tendering does not take place, is there not a real risk that services will be offered at the price that the market will bear rather than the one that it really costs the health service? The health service has not always managed to cost out its treatments effectively.
Earl Howe
The noble Lord makes a good point. There is, I think, a desire on everybody’s part not to see competition result in a race to the bottom on price. That is why we have specified that commissioners must make clear what standards they expect and apply those consistently to whoever is tendering for the service in question at a price which reflects a fair value. We believe that the current rules protect the NHS but also protect those bidding. I emphasise that competition will not be pursued as an end in itself; it will be pursued as a means to drive up quality.
Lord Alderdice (LD)
My Lords, it is quite clear that there are certain kinds of services that benefit from being grouped together and provided by large providers who can do so economically but to a high quality. However, there are other services that are better provided locally by people who know the circumstances and are often working in relatively small charitable bodies; for example, in the mental health sector. It is very difficult for these to tender in the way that larger companies can. Can my noble friend give me some reassurance that the Government recognise this dilemma and are trying to find ways in which smaller, local, charitable providers in certain areas can be protected, facilitated or encouraged, so that we are not simply taken over by larger corporations, which may not be in the best interests of patients?
Earl Howe
My noble friend makes an important point. I think that it is common to all sides of the House that charities and social enterprises play an important part in providing NHS care. They have done so for many years, and give patients more choice of where and how they are treated. We have a set of rules which, at least in theory, should protect those groups of providers. If a commissioner fails to take account of providers who are capable of providing a service and simply, for example, rolls over an existing contract, then it is open to the provider in question to complain to Monitor, which will be the adjudicator of any anti-competitive conduct.
Baroness Pitkeathley (Lab)
My Lords, with reference to the last question, would it be possible to give voluntary and charitable groups that wish to provide services in some kind of consortia financial help and encouragement in order to help them form those consortia? These do not just happen because people want them; they need time and effort to be formed.
Earl Howe
My Lords, that has already happened to an extent, not least under the previous Government, who made sure that the nascent social enterprises that were formed out of transforming community services were set up on a sustainable basis. However, we have built into the 2012 Act a provision which prevents active discrimination in favour of one sector or another, so government help specifically for a particular sector is, I am afraid, not legally possible.
Lord Walton of Detchant (CB)
Is the noble Earl satisfied that the commissioning processes under NHS England relating to the commissioning of highly specialised services will take full account of the important necessity of concentrating these highly specialised services in a smaller number of major centres? Is he also satisfied that the interests of the Rare Disease Consortium under the Rare Diseases Advisory Group of NHS England will be fully recognised in the processes to which he is referring?
Lord Naseby (Con)
Surely my noble friend can confirm that, broadly speaking, the tendering processes under the Act have gone well and are broadly within budget. Although there are various dimensions to the tendering process as raised by my noble friend from the Liberal Democrat Benches, nevertheless, in broad terms, we are well satisfied with the way that it has gone. If there are differences and small amendments are necessary, will my noble friend confirm that those will be looked at speedily?
Licensing Act 2003
(10 years, 7 months ago)
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Viscount Falkland
To ask Her Majesty’s Government whether the aims and objectives of the Licensing Act 2003 have been adequately met with regard to the control of social disorder resulting from late night drinking in residential areas.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)
My Lords, the Government have rebalanced the Licensing Act 2003 to give local communities stronger powers to achieve the Act’s objectives, including reducing crime and disorder. For example, licensing authorities can now raise a contribution from premises that supply alcohol late at night towards the costs of policing and wider action. Newcastle is scheduled to be the first area to introduce a late-night levy, as it is called, on 1 November.
Viscount Falkland (CB)
My Lords, I thank the Minister; that was a more encouraging reply than I had expected. I am glad that the scenario that he describes is likely to cover all of England. The dossiers that have been compiled on matters that concerned both Houses of Parliament in 2003 are very surprising. It was a major concern of the two Houses that there would be proper protection for residents in areas where they might find their peace damaged as a result of late-night licences. In my area the offences have been quite extraordinary. If, when I spoke during the Bill’s passage, I had thought that there would be behaviour of this kind between midnight and 3 o’clock in the morning in my area in south London, I would have been much more active about it. Is there is a way to protect older and vulnerable people from the disorder that comes from late-night drinking, particularly after people come out of venues? People who live in almshouses near me tell me that their lives have been made quite impossible.
Lord Taylor of Holbeach
There may be particularly vulnerable people, of course, and old people are among them. One of the things that we have done with the existing licensing laws is to rebalance the Licensing Act so that there is a vicinity test; as long as evidence exists within a local community concerning the disruption that can be caused by late-night drinking, it is able to submit this to the licensing authorities. I can give the noble Viscount more encouragement: Milton Keynes has also voted in favour of a late-night levy, which is likely to come in next year. The Anti-social Behaviour, Crime and Policing Bill will also encourage the noble Viscount it is making its way through the Commons and will shortly arrive here, and will greatly empower communities in this regard.
Lord Avebury (LD)
My Lords, the Government’s alcohol strategy puts the cost of alcohol harm to the economy as a whole at £21 billion. That includes £3.5 billion for the health service, where overstressed A&E departments, for example, have to cope with an influx of people after midnight who have drunk far too much. Has my noble friend any estimate of the benefits, in terms of reduced costs, of the Government repealing the 2003 Act altogether?
Lord Taylor of Holbeach
No, that calculation has not been made, but I can give my noble friend the figure for the cost to the health service: £7.3 billion for alcohol-related incidents.
Lord Brooke of Alverthorpe (Lab)
My Lords, I acknowledge that the Government have made some changes. However, is the noble Lord content that the rebalancing has moved sufficiently? Many people believe that it has not. During the debates in the Commons on the Bill to which he has just referred, there have been attempts to extend the way in which licensing authorities can take into account public health issues. Given the Government’s commitment to devolution on public health issues, why will they not move on this front, in the way that the Scottish Government are now moving?
Lord Taylor of Holbeach
The noble Lord has taken a great interest in this subject. I have always valued his contributions and look forward to his contribution to the debates we are likely to have on this Bill. I am sure that these arguments will be presented when we have the opportunity. Meanwhile, I am grateful for his acknowledgment of the progress that the Government have made in this difficult area.
Baroness Browning (Con)
Will my noble friend continue to liaise with the Department of Health to ensure that we reduce the number of people admitted to A&E departments who are clearly the worse for drink—often as a deliberate ploy, having had what they regard as a good night out? If we could tackle it from that end, perhaps we could help to move the culture change on even further.
Lord Taylor of Holbeach
Noble Lords will know that there have been a number of ideas on this issue. Chief Constable Adrian Lee from Northamptonshire suggested the idea of drunk tanks, which I had to read about to understand. This has generated some public debate; it is the sort of thing which clearly the Government will look at, because anything that can relieve the burden on hospitals must be a good thing.
Lord Condon (CB)
My Lords, I declare my usual interest. Is the Minister aware of the excellent project in Ipswich, Suffolk, that has been going on over the past year? On a voluntary basis, retailers, major supermarkets and off-licences, working with police and others, have withdrawn the sale of the strongest canned and bottled beers and lagers. On that voluntary basis, it seems to have had a beneficial effect on the quality of life for people, particularly in the centre of Ipswich, and has reduced anti-social behaviour. Does the Minister agree that this should be encouraged in other city centres?
Lord Taylor of Holbeach
Yes, I would certainly vouch for that. There has been a lot of co-operation from the retail trade. I met representatives of the Association of Convenience Stores at the Conservative party conference, where they had a meeting. They are very supportive of retail initiatives of this sort. This morning I met Richard Antcliff, the chief anti-social behaviour officer in Nottinghamshire, and I went to Nottingham to see the work being done in that city to reduce alcohol abuse. Communities can do an awful lot on this issue and the Home Office would encourage any such initiatives.
Baroness McIntosh of Hudnall (Lab)
My Lords, following on from the last question, does the noble Lord not agree that although there are obviously deficiencies in the way that the 2003 Act has operated, which give rise to some of these difficulties, one of the main problems is the enormously wide availability of alcohol at very low prices? Do the Government have any plans at the moment to address that?
Lord Taylor of Holbeach
Licensing of alcohol in retail outlets is, of course, in the hands of licensing authorities, but the pricing has been challenged—and, indeed, I have been challenged by noble Lords in this House on this issue. The Government have announced the policy on this; there will be a policy whereby drink cannot be sold at cost plus duty plus VAT, which in effect puts a floor on cheap sales of alcohol. I think that that should be encouraged.
Housing: Under-Occupancy Charge
(10 years, 7 months ago)
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Lord Knight of Weymouth
To ask Her Majesty’s Government whether they have any plans to suspend the under-occupancy charge.
Baroness Hollis of Heigham (Lab)
My Lords, on behalf of my noble friend Lord Knight of Weymouth, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.
The Parliamentary Under-Secretary of State, Department for Work and Pensions (Lord Freud) (Con)
My Lords, there are no plans to suspend the removal of the spare-room subsidy policy. A formal evaluation of the policy is being carried out; this has already commenced and will be conducted over the next two years. To support people transitioned to this reform, we have more than trebled the discretionary housing payment fund to assist those facing extreme difficulties.
Baroness Hollis of Heigham
My Lords, two-thirds of the families affected are disabled—fact. Half of those in a recent sample are already in arrears—fact. Most local authorities are limiting discretionary payments to three months only—fact. Furthermore, there are no smaller properties to move to—fact. So disabled families cannot work, pay, obtain financial support or move. When will the Government have the guts to admit that their policy is impossible as well as cruel and follow our commitment to repeal it?
Lord Freud
My Lords, there were a lot of issues buried there. I will just point out that, when you look at the disabled figures, and if you look at the people on DLA, which is an independent measure, the figure comes down to 27% of the total. For those with the higher rate of DLA, it is 17%. I also remind the Opposition that this is a substantial saving measure. Some £500 million has to be found, and there is a degree of cynicism about whether you can find that through closing tax loopholes. I also ask the Opposition a question—
Lord Freud
I suggest to the Opposition that they think about the challenges that they will face when they extend their extra-bedroom policy to the private rented sector, which will cost them another £500 million and rising.
Lord Forsyth of Drumlean (Con)
Will my noble friend explain why the Opposition are so opposed to the changes that are being proposed on the subsidy, when it will undoubtedly help people suffering from chronic overcrowding in social housing and will help young people who find it impossible to get single accommodation? Will not the effect of removing the subsidy be to correct the market failure in social housing?
Lord Freud
My Lords, my noble friend is absolutely right. I have talked before about the 250,000 people living in overcrowded accommodation, with 1.8 million people on the waiting list. But the economic signals going on in the social rented sector are very odd. The demand from single people and couples represents each year 61%, for the latest year we have—and it has not changed much. The number of homes provided that have single bedrooms comes to only 13%. Over the past decade, the social rented sector has built virtually no new single bedrooms, at 30,000; that compares with the private rented sector, which has produced in that period 280,000. There is a real economic mismatch going on in terms of what we are encouraging the social rented sector to build, and we need to make sure that we are building the type of accommodation that people in this country actually need.
Lord Foulkes of Cumnock (Lab)
My Lords, the Minister is paying no attention to the effects on the people involved. Has he seen the report in the Daily Record, which says:
“The Tory minister in charge of the bedroom tax has told Scots with motor neurone disease to take in a lodger or have their benefits cut.”?
Will he apologise for this insensitivity and rethink this measure, that being just one of its many iniquities?
Lord Freud
My Lords, I have not, of course, made any specific recommendations to people. Let me just go through the point. We are monitoring this change very closely. It is in its early stages as people start to adjust. We have put in a lot of discretionary housing payments; the total is £180 million this year. The early returns—and I stress they are early returns—show that local authorities are either managing those well or are underspending at this particular time.
Baroness Sherlock (Lab)
My Lords, does the Minister accept that last week the courts ruled that a woman with multiple sclerosis was entitled to have a bedroom separate from her husband because otherwise her human rights were breached? The courts have now ruled that disabled children and disabled adults can have their own rooms. These savings are vanishing before our eyes, and there are no rooms for people to move into because there are no smaller properties. Do the Government accept that the National Housing Federation has described this policy on its six-month anniversary as being a “cruel failure”? Is that not right, and will the Government not change their mind now?
Lord Freud
First, I congratulate the noble Baroness on moving to her new position. I look forward to many constructive exchanges with her, although perhaps not this one. We are currently moving to ensure that disabled children who need spare rooms will have them, and regulations on that are going through consultation. In the case of disabled adults where there was a judicial review, the judges decided that the policy was appropriate and did not breach any equalities duty.
International Day of the Girl
(10 years, 7 months ago)
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Baroness Hussein-Ece
To ask Her Majesty’s Government what action they are taking to promote the education of girls around the world ahead of International Day of the Girl on 11 October.
Baroness Northover (LD)
My Lords, the UK Government place a high priority on girls’ education. In 2012-13 UK aid supported 2.8 million girls in primary education and helped 270,000 to go to lower secondary school. In addition, the UK’s flagship Girls’ Education Challenge will help a further 1 million of the world’s most marginalised girls to receive an education.
Baroness Hussein-Ece (LD)
I thank my noble friend for the informative Answer. However, she will be aware that 67% of illiterate people in the world are women and girls. Many have been denied access to education due to forced child marriage. This is a violation of girls’ basic rights and can lead to terrible consequences, such as death in childbirth. What is being done to ensure that Governments, particularly those in the Commonwealth and those in receipt of aid, are working to eliminate this appalling practice?
Baroness Northover
My noble friend is right in what she says about child marriage. It is of course a reflection of the low status of women and girls, which is why investing in education and the long-term cultural changes that result from it is so important. Evidence shows that education may be the single most important factor in reducing child marriage. We address this explicitly, for example in our programme in Ethiopia, and we have other programmes in development in the DRC, Yemen and Zambia, because we recognise the importance of this issue.
Baroness Crawley (Lab)
What is the Government’s ongoing policy on ensuring equal treatment of girls and boys a little nearer home, in our own state-funded free schools in this country?
Baroness Northover
As the noble Baroness knows, we have the Equality Act, by which the law protects the equal status of girls and boys in the United Kingdom.
Baroness Deech (CB)
Will the Minister tell us what measures are being taken in this country to make sure that girls under 16 are not removed from school and sent abroad during the summer vacation for arranged or forced marriages? Will there be check-ups on girls to see who has not returned to school in the autumn term after such a practice?
Baroness Northover
The noble Baroness is right to highlight this issue. This is something that has come increasingly to our attention. There have been programmes of engagement with schools—she may know of the one in Bristol—and there is engagement elsewhere. Teachers have been asked to look out for girls who travel in the holidays and may not return, because it is extremely important that this issue is tackled.
Baroness Jenkin of Kennington (Con)
My Lords, perhaps the House would consider it appropriate to congratulate Malala on her extraordinary contribution to this debate. I would be grateful if my noble friend could update the House on the Girls’ Education Challenge, which is designed to help up to 1 million of the world’s poorest girls access education.
Baroness Northover
I echo the support for Malala. Friday is the International Day of the Girl Child. That is the day when the Nobel prize in question may be announced. Of course, many of us hope that Malala’s contribution will be recognised. She has been extremely brave in maintaining her position, and has done so very eloquently. My noble friend mentioned the Girls’ Education Challenge. In the United Kingdom we have the world’s largest global fund dedicated to girls’ education, which will reach more than 1 million girls in the world’s poorest countries. That is extremely welcome and shows that we recognise the importance of investing in girls’ education.
Baroness Uddin (Non-Afl)
My Lords, the noble Baroness will accept that no one will have been unmoved by Malala’s address to the UN. Malala talked about the fact that she was not the only young girl who lacked education or who was campaigning for education. How far is the noble Baroness’s department working to ensure that Malala’s and other girls’ dreams are realised, particularly in Afghanistan? Is her department supporting two of the girls who were attacked at the same time as Malala Yousafzai?
Baroness Northover
Malala has, indeed, emphasised that there are many others in her situation. It is those girls whom we wish to help. The noble Baroness will be well aware of the investment by DfID in both Pakistan and Afghanistan, particularly in education and especially in girls’ education. Often in poor families it is the sons who are sent to school first, if anyone is sent at all. One of the areas that DfID has been working on is ensuring that girls, too, go to school; that there are bursaries; that girls are safe in school and on their way to school; and that their education is then supported.
Lord Loomba (LD)
My Lords, thousands of young girls are the victims of trafficking in south Asian countries. They miss out on school and never get the education that is their birthright. How can the UK Government help these poor and helpless girls?
Baroness Northover
I pay tribute to my noble friend Lord Loomba for his work in this area. He will know that DfID works particularly in fragile states where girls are most likely to be in marginal communities. Those countries are very much recipients of our assistance.
Baroness Afshar (CB)
My Lords, is the noble Baroness aware that in England, as well as elsewhere in the world, girl pupils are not choosing science and mathematics for further studies? This is a new turn, and what is extraordinary is that it is usually girls from minority communities who prefer these options. Is there something about attitudes in the classroom and of those teaching science and mathematics that discourages girls?
Baroness Northover
We are very much encouraging girls to go into the so-called STEM subjects. It is extremely important both for them and for the future of the country that those subjects are supported. If there is a particular problem in terms of particular groups not heading in that direction, I will look into that and get back to the noble Baroness.
Badgers
(10 years, 7 months ago)
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Baroness Royall of Blaisdon
To ask Her Majesty's Government whether they support the extension of the badger cull licences in Somerset and Gloucestershire and how long they would anticipate such extensions to last.
Baroness Royall of Blaisdon (Lab)
My Lords, I beg leave to ask a Question of which I have given private notice.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con)
My Lords, the Somerset pilot cull concluded on 6 October and current indications are that the pilots have been safe, effective and humane in delivering a reduction in the badger population of just under 60%. Natural England is considering an application from Somerset for a short extension of the culling period, as provided for under the agreement with the company there. In doing so, Natural England will take into account the practicalities on the ground. It expects to make a decision later this week.
Baroness Royall of Blaisdon
My Lords, I declare my interest as a resident of the cull area, where the excellent police force is hugely overstretched as a consequence of the cull. The House will be aware that the Government have been unable to see the wood for the trees on this issue, ignoring their own scientific advice that a cull would be both costly and ineffective in tackling bovine TB, and I dispute the Minister’s statistics. As we now have new evidence that this ill thought-through policy is not working, does the Minister agree that extending the cull will only compound the Government’s error of judgment?
Lord De Mauley
The purpose of the cull trials was to establish that this could be undertaken safely, humanely and effectively. The judgment on these will be made by an independent panel but our initial view is that they have been met. The contractors have worked under difficult conditions and considerable provocation and have been scrupulous in their attention to safety, which is the absolute number one priority. A figure of 60% is a significant achievement and the Chief Veterinary Officer endorses that this will lead to a reduction in the disease in cattle.
Lord May of Oxford (CB)
My Lords, this cull went ahead against the balance of advice from the scientific community, in particular that such a limited experiment was unlikely to yield much in the way of useful information. Does the Minister agree with me, however, that we have indeed learnt something important? We have learnt that those responsible for this so-called experiment are so incompetent that they could not even make a reliable estimate of the number of badgers.
Lord De Mauley
My Lords, I simply cannot agree. I repeat what I said in answer to a similar question earlier this year. The report following the visit to the United Kingdom by the European Commission’s bovine tuberculosis subgroup in March 2012 stated:
“It is however of utmost importance that there is a political consensus and commitment to long-term strategies to combat TB in badgers as well as in cattle ... There is no scientific evidence to demonstrate that badger vaccination will reduce the incidence of TB in cattle. However there is considerable evidence to support the removal of badgers in order to improve the TB status of both badgers and cattle”.
Lord Hamilton of Epsom (Con)
My Lords, is it not very early days to be saying that this experiment is not working? The trial has only just begun. Surely we have to wait until some time after the cull has ended to see whether the incidence of TB in cattle has dropped. At that stage, will the Government also look at other forms of wildlife and see whether there is a recovery in the numbers of hedgehogs and ground-nesting birds which have been ravaged by badgers in the past?
Lord De Mauley
My noble friend makes an important point. As I said in answer to the noble Baroness, Lady Royall, these judgments will be made by an independent panel. However, as I also said, our initial view is that so far the humaneness, safety and effectiveness tests have been met. I am grateful to my noble friend for his suggestions.
Lord Winston (Lab)
Will the Minister give an assurance that hedgehogs do not encourage tuberculosis in cattle?
Lord De Mauley
That is an extremely interesting and important question, so much so that I will have to write to the noble Lord. I thank him for raising it.
Baroness Parminter (LD)
My Lords, the Minister said that the culls can be regarded as a success because they have met the criteria of being “safe, humane and effective”, but they have not been effective. The pilot culls have now failed one of those three in that they were set up within six weeks to meet the legal licensing target. What evidence do the Government have that any extension of the cull could increase TB infection, which would add weight to the calls to abandon these pilot culls?
Lord De Mauley
No, my Lords, I am aware of no such evidence. Indeed, as I said just now, the Chief Veterinary Officer endorses that what has happened so far will lead to a reduction in the disease in cattle, and that any more we can do will further contribute to a reduction.
Lord Elystan-Morgan (CB)
My Lords, I accept that badger-borne bovine TB is the despair of the agricultural industry, but has the ministry ever made any calculation of how much bovine TB is non badger-borne? If it has not, how can it possibly indulge in detailed experiments, including culling, unless this information is to hand?
Lord De Mauley
I am grateful for that question because it gives me the opportunity to say that work by Professor Crystl Donnelly has shown that as much as 50% of the incidence of TB in high-risk areas can be attributed to badgers.
Baroness Symons of Vernham Dean (Lab)
My Lords, does not the Minister have to reflect on the point raised by the noble Lord, Lord May? We were told by the experts that there were 2,700 badgers in the area concerned, and we are now told that the experts think there were actually fewer than 1,400. If the experts who supported the policy got the numbers so wrong in the first place, does that not undermine public confidence in the policy as a whole?
Lord De Mauley
I do not think that it should. Our policy is evidence-based and we have taken every opportunity to acquire the latest and most up-to-date information from the pilot areas to refine the estimate of the badger population. All wildlife population estimates have uncertainty around them. Appropriate steps were taken to audit the process, including data checks and independent audits of these figures.
Lord Rotherwick (Con)
My Lords, does my noble friend recognise the vulnerability of deer in deer parks? Does he agree that they have to be looked at separately from the way that you look at cattle that succumb to TB? You cannot lock up deer from a deer park in a shed and humanely shoot them; they have to be slaughtered by high-powered rifles. What is my noble friend doing about the situation regarding the vulnerability to TB of deer in deer parks?
Lord De Mauley
My noble friend asks a specific question and I will, if I may, take it away to consider the point about deer in parks. As regards the suggestion that deer may be a reservoir of TB in wildlife as well, we have established that badgers are a particularly good—if I may use that word—host for TB. They are the part of wildlife on which we really have to focus.
Lord Clark of Windermere (Lab)
My Lords, will the Minister confirm that there is general scientific agreement that the badgers that are left after a cull have a greater propensity to carry over and pass on TB to cattle and that it is a fine balance between the numbers killed and those that survive? Is he aware that there is deep concern that the figures we are provided with are not robust and that the result may be an increase in TB, not a decrease?
Lord De Mauley
My Lords, with the greatest of respect, I do not think that the noble Lord’s proposition is correct. The randomised badger-culling trials showed something quite different, which was that above a certain percentage of badgers culled—indeed, the first-year trials in the randomised badger culls were in the 30s of per cent—there was nevertheless a significant effect on the incidence of TB in cattle.
The Earl of Erroll (CB)
My Lords, can we add the humble bumble bee to the list of animals and creatures that are being threatened by the badgers? Bumble bees nest underground, are a great source of delight for the badger to eat and are under threat.
Lord De Mauley
I am very interested in what the noble Earl has said because he will know that we will be launching a national pollinator strategy later this year. Perhaps we can discuss what he suggests in the context of that.
Cohabitation Rights Bill [HL]
(10 years, 7 months ago)
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Care Bill [HL]
(10 years, 7 months ago)
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17:41 - Division on Amendment 11 - Ayes: 206 / Noes: 224 - Amendment 11 disagreed.
Lord Hunt of Kings Heath
“( ) The Secretary of State in making regulations or issuing guidance under this Part must have regard to the general duty of local authorities, in exercising a function under this Part in the case of an individual, to promote that individual’s well-being.”
Lord Hunt of Kings Heath (Lab)
My Lords, as this is the start of Report, I declare my interests as chair of an NHS Foundation Trust, a consultant and trainer with Cumberlege Connections, and president of GS1 UK.
I am sure that the House would wish me to congratulate the noble Baroness, Lady Jolly, on her appointment to the Government and to the health team as a government Whip, and to thank the noble Baroness, Lady Northover, for her services.
The Bill places a responsibility on local authorities to promote well-being in the way in which they implement the provisions of the Bill locally. However, if the Secretary of State were to issue regulations without regard to the promotion of well-being, there is a risk that such regulations—or indeed guidance—could conflict with that well-being principle. That would put local authorities in an impossible position. This matter was the subject of considerable discussion and report by the joint scrutiny committee and we also discussed it in Committee. The Government have now responded to the points put by many noble Lords and I welcome the amendment moved by the noble Earl, Lord Howe. I also welcome Amendment 4, in the name of the noble Baroness, Lady Barker. I beg to move.
Lord Hamilton of Epsom (Con)
My Lords, I have added my name to the amendment in the name of the noble Baroness, Lady Barker, to add the words “and spiritual wellbeing”. This is an amendment that has been resisted in the past by my noble friend the Minister and I am somewhat confused as to why that should be. In 2002, the National Health Service was more than happy to add spiritual well-being as one of the conditions that should be applied to care that was given. I do not understand what has changed since. Has the NHS come to regret having these words in its remit? Does it find that spiritual wellbeing does not fit within the National Health Service today? Are people of faith who find that having an NHS that regards their spiritual well-being as important somehow more difficult to handle than atheists and people who have no faith at all? I should have almost thought that the reverse is true. When we come to what is euphemistically called end-of-life care, I should have thought that people of faith have something to look forward to, rather than atheists who, if they follow Richard Dawkins, are faced with a great black hole of oblivion. They might find that the end of life is rather more forbidding than do those who have faith.
I am very confused, therefore, as to why the Government find it necessary to resist this very minor and rather innocent amendment. It seems to merely add comfort to people of faith of all religions and could be inserted into this Bill without causing the Government any difficulty whatever.
Lord Deben (Con)
My Lords, I support what my noble friend has just said. I have to say to the Minister that this amendment is rather necessary because there is a generalised belief that forces in our society are determined to marginalise that which has actually made our society and has had such an influence on the provision of healthcare for our people. The history of healthcare in Britain shows that it was fundamentally founded by those of faith. That does not say anything about anyone else, but it does say that if we want holistic medicine—I am not a great believer in anything other than orthodox medicine, so I am not encouraging all kinds of what I consider to be alternatives, which are best left alone—we have to understand that it is about the whole person, and for many people this is a most important part of the whole person. For this not to be in the Bill will be seen by many as another example of society specifically seeking to marginalise an important section of our community on whom we depend widely for many of our voluntary activities, and certainly on whom we have depended and do depend for our health services. I hope very much that the Minister will take this point seriously.
Lord Cormack (Con)
My Lords, I would like very briefly to support what my two noble friends have just said. Surely this is not the Government conceding to a secular society and surely they recognise that for many sick people, the spiritual dimension is extremely important. It is not a question merely of healing physical ills and curing physical diseases, it is a question of recognising that many people, particularly as they near the end of their lives, have a great need to fall back upon their faith, and that should be recognised and encouraged. For the life of me, I cannot see what the Government are doing here and I hope that my noble friend will be able to give us a satisfactory answer. I am only sorry that the Bishops’ Benches appear to be empty this afternoon because one would have liked to have heard a contribution from them.
Lord Harries of Pentregarth (CB)
My Lords, as someone who remains a Bishop, on behalf of my old friends on the other side of the Chamber, I would like to support this amendment. As the Bishop of Oxford, I remember visiting one of the brand new universities, which thought of itself in very secular terms. Nevertheless, the university was adamant that it should have a chaplain because it believed in whole-person care, and an essential element of whole-person care was the spiritual dimension. We need to take that into account.
We also need to take into account the fact that we now live in a multifaith society, and for those of some religions in particular, it is very important that they have someone with religious authority in contact with them in the final stages of their life. There are good reasons for supporting this amendment.
Baroness Barker (LD)
My Lords, I apologise for not being in my place for the start of this debate. As noble Lords will know, on these occasions such amendments are often tabled by myself and the noble Lord, Lord Hunt of Kings Heath. We do so because we support the right of Christian Scientists to have their beliefs respected, in particular their right to refuse treatment. That said, when we discussed this matter in Committee, while at that point the Minister was as sympathetic as always, he failed to draw a distinction that is important to people of faith, which is that between the use of the words “emotional” and “spiritual”. People of faith believe that matters which are spiritual are of a different order from those matters which are emotional. I have a degree of sympathy with their view. However, I also have a degree of sympathy with the Minister, who does not wish to put things into legislation that are unnecessary. I hope that he will, in this case, perhaps be a bit more sympathetic to the arguments that are being put forward.
The noble and right reverend Lord, Lord Harries of Pentregarth, is right that as a society not only are we becoming much more diverse, but in our everyday life we understand the importance of faith and spiritual matters to other people. For example, we would not for a moment think it acceptable to present somebody with a diet that was not reflective of their cultural and religious beliefs. In our modern day health and social care services we are increasingly adept at recognising people’s differences and accommodating them. All told, this is a small amendment which costs nothing but means an awful lot. I hope that the Government will be able to take it on.
Lord Warner (Lab)
My Lords, as the chairman of the All-Party Group on Humanism, I am not sure that I should actually be following the previous speakers. However, Amendment 5 in this group is in my name and I want to be nice to the Minister instead of telling him off. The Minister has listened to the concerns that we expressed in Committee about applying the requirement to pursue the obligation on local authorities in Clause 1 to the Secretary of State in his actions, particularly regulations and guidance, to promote well-being.
I congratulate the Minister on listening to those concerns and tabling government Amendment 138, which effectively meets the concerns that we have. I suspect that my co-signatories, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Greengross, would say that the Minister’s amendment may not be quite as elegant as ours, but we are not going to have a competition about aesthetics; he has met the point and I thank him very much for what he has done.
Lord Mackay of Clashfern (Con)
I warmly support that. I am happy with the parliamentary counsel’s draft, which is what the Government are going to move, and we have to understand that some lawyers are better than others at making drafts.
So far as the amendment of the noble Baroness, Lady Barker, is concerned, I hope that the Government will pay considerable attention to what has been said about it.
Baroness Tyler of Enfield (LD)
My Lords, I rise briefly to speak to government Amendment 2 on dignity and respect. I know that it was implicit in the well-being clause in the earlier versions of the Bill that we looked at, but I am very pleased that the need to ensure that all people are treated with dignity and respect has been brought out so explicitly. These are words that the man and woman in the street really understand; they get to the heart of some of the concerns about the type of social care that has sometimes been provided, which has fallen well below those standards, and caused some of the scare stories that we have heard so much about recently.
The noble Lord, Lord Bichard, and I raised this issue in Committee, but as he is unavoidably unable to be in his place today, I thank the noble Earl, Lord Howe, on behalf of both of us, for listening and for bringing this amendment forward.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I am grateful to all noble Lords who have spoken and for the opportunity to discuss once again this important new well-being principle set out in Clause 1. The amendments in this group cover three important issues. The first of these relates to the application of the duty to promote well-being to the Secretary of State. In Committee we debated the link between the role of the Secretary of State and the duty of local authorities to promote the well-being of individuals. There was clear strength of feeling in the Committee that the Bill should make explicit reference to the Secretary of State having regard to the duty on the local authority to consider the well-being of the individual. An amendment in this regard is not essential because the local authority well-being duty is in any event a relevant factor for the Secretary of State to take into account when issuing guidance or regulations. However, I do recognise the strength of feeling and I am happy to clarify the position.
In response to the concerns, I have tabled Amendment 138, which explicitly requires the Secretary of State to have regard to the local authority well-being duty when issuing regulations and guidance. This achieves, I hope, the same ends as intended by the amendments tabled by the noble Lords, Lord Hunt and Lord Warner, and I trust that they will support the government amendment.
The second issue relates to the focus on dignity, to which my noble friend has just referred. In Committee, noble Lords expressed concern that personal dignity was not adequately reflected in the well-being principle, in spite of the change that the Government made to this effect following consultation on the draft care and support Bill. Let there be no doubt that the Government place the utmost importance on dignity and respect in care. These factors must be central to the well-being principle. In order to ensure that dignity is given due prominence in primary legislation, I am pleased to have been able to table Amendments 2 and 3, which give greater emphasis to personal dignity and respect as components of well-being.
The third issue in this group relates to another constituent part of individual well-being: spiritual well-being. My noble friend Lady Barker’s Amendment 4 would include an explicit reference to spiritual well-being in Clause 1(2). We debated a similar amendment in Committee. I said then, and I emphasise now, that the Government recognise the importance of spiritual well-being as a concept and understand the particular significance that it can have for some people, especially at the end of their life. We would absolutely not want an approach that excluded spiritual well-being from consideration where that was clearly of consequence to the individual concerned.
However, it is important to understand that that is not the approach which the Bill sets out. The factors included in Clause 1(2) contain high-level matters which should be interpreted broadly to fit the individual case. Spiritual well-being should be considered where it is relevant to the person’s overall well-being. Moreover, spiritual well-being is likely to be closely related to other matters, such as emotional well-being, which are listed in the clause.
In addition, local authorities must also consider the person’s views, wishes and feelings, as set out in Clause 1(3)(b). This provides a further clear direction to local authorities to have regard to personal matters, which could well include beliefs or other views that would promote an individual’s spiritual well-being. Although it is not explicitly mentioned, spiritual well-being is nevertheless accounted for.
I hope that I have reassured in particular my noble friends Lord Hamilton, Lord Deben and Lord Cormack, and indeed the noble and right reverend Lord, Lord Harries of Pentregarth—
Lord Hamilton of Epsom
Will my noble friend explain why the NHS has actually changed its policy on this? In 2002, new Department of Health guidance on NHS chaplaincy said that all NHS trusts should make provision for the spiritual needs of all patients and staff from all faith communities. It strikes me that the NHS is now rowing back on a previous commitment.
Earl Howe
First, we are not dealing with the NHS; we are dealing with local authorities and adult social care. Secondly, the NHS has not rowed back on this. We have debated hospital chaplains on many occasions and I have made very clear the Government’s view that hospital chaplains perform an important role in the spiritual context. So on the NHS front, I want to reassure my noble friend that here we are dealing with local authorities and adult social care. I was trying to explain that the way in which this Bill is framed is perhaps different from how my noble friend has construed it.
Lord Deben
If it does not make any difference to add this to the Bill, why cannot the Government accept that many people would feel much reassured by its addition?
I have been in my noble friend’s position—and he knows with how much respect I view him—and I cannot remember an occasion when I have said, “This does not make any difference” that it did not quite mean that. What worries me here is that it does not quite mean that. I should be much happier if he would please look again at this, because it is a matter which does concern people. If it makes no difference, surely we can do these things in order that people should not be concerned? Their not being concerned would make a difference.
Lord Cormack
If this is explicit for the National Health Service, why can local authorities not be treated in precisely the same way?
Lord Warner
I am trying to help the Minister. If he does agree to provide the assurances sought by noble Lords to look again, could he see whether if he moved in the direction they suggest, he would be discriminating against humanists?
Earl Howe
I can do no other than to look at this again, but I want to reassure my noble friends that their concerns are groundless because of the way that this clause has deliberately been framed. It is framed in terms of high-level principles. It is not designed to exclude any form of well-being whatever. It is designed to look at the person holistically and to ensure that no aspect of well-being is overlooked. I shall of course have a fresh look at this question, but I ask my noble friends, and the noble and right reverend Lord, Lord Harries of Pentregarth, to understand that this clause has been framed in a particular way quite deliberately, not to exclude any form of well-being but to encapsulate all forms of well-being.
In other words, the provisions allow consideration of this and indeed many other matters where relevant. I hope that with these assurances the noble Lord will feel able to withdraw his amendment, and indeed to support the amendments which I have tabled.
Lord Hunt of Kings Heath
The noble Baroness, Lady Barker, will respond to the point in relation to Amendment 4. Part of the confusion arises because the Department of Health seems to equate spiritual well-being with emotional well-being. I do not think that that would be generally held to be appropriate. Whether you have a faith or none, it does seem to me that by classifying spiritual belief within emotional well-being, the department has fallen into a pit of its own digging. I hope the noble Earl will indeed go back, and I assume that means this could be debated at Third Reading. Clearly noble Lords would wish to come back to it.
Whether this is for the noble Baroness, Lady Barker, or for the noble Earl, taking up the point raised by my noble friend Lord Warner, the chairman of the All-Party Humanist Group, my assumption would be that the duty on a local authority in relation to spiritual well-being would apply only when a person had a belief. Whether one defines humanism as spiritual I do not know—we are getting into deep waters here. I assume it is not intended that a person of no religion be required to be treated by the health service or local government as having a spiritual need.
We welcome Amendments 2, 3 and 138, and I beg leave to withdraw Amendment 1.
“( ) personal dignity (including treatment of the individual with respect);”
Baroness Pitkeathley
“( ) For the purposes of this section, “an individual” includes a person with parental responsibility for a disabled child.”
Baroness Pitkeathley (Lab)
In the unavoidable absence of the noble Baroness, Lady Finlay, and at her request, I shall move Amendment 6 and speak to Amendments 8 and 9 tabled in her name and mine, and speak to my Amendments 46, 47, 48 and 58.
The first group of amendments concerns parent carers. The Care Bill is drafted to apply only to adult carers of adults. This means that the new rights for carers included in the Bill will not apply to adults caring for disabled children or to children caring for disabled adults. The Government have committed to address this disparity for young carers by bringing forward very welcome changes in how they will join up this Bill and the Children and Families Bill to meet the needs of young carers and their families. This is extremely welcome, but it will leave parents of disabled children as the only group of carers whose rights to assessments and support will be left behind.
Carers UK and other carers organisations have been deeply disappointed that parent carers’ rights are not being given the same recognition as other carers’ rights and that the legislative technicality of their rights falling under the remit of children’s rather than adults’ legislation risks them being left with inferior rights. These amendments include parent carers in three key places in the Bill in order to probe the Government’s intentions regarding parents of disabled children and how they intend to address the disparity with the rights of parent carers. The Government have put forward an approach which joins up the Care Bill and the Children and Families Bill for young carers—which is very much to be welcomed and on which the Government are to be congratulated—and these amendments call for them to do the same for parents of disabled children. If nothing is done about this, parents of disabled children will be left with lesser and inconsistent rights to assessment and support. The rights of certain groups of carers will be left at different levels in different pieces of legislation, which will be confusing for many people, and parents of disabled children, who already have difficulty accessing support, will find it even harder to participate in work and their community in any way at all.
In this Bill, the Government are improving the rights of carers for adults by removing the need to provide regular and substantial care in order to receive an assessment, removing the need to request an assessment of their needs, placing a duty on local authorities to provide services to the carer following assessment when they meet the eligibility criteria, and introducing a new well-being principle. All this is very welcome, but parents of disabled children also need support. They have often struggled to establish rights as individuals on a par with other carers, and they are at particular risk of having their own rights overlooked as individuals. Too often, they are seen only as parents and their needs as carers are not identified or supported. This was summed up for me this weekend in a conversation I had with a parent carer known to me. He and his wife have been caring for their 30 year-old, very disabled son who is physically and mentally disabled. They have been caring for him for more than 30 years and have had the usual struggle in trying to find any support. When trying to access respite care when the wife, who has diabetes, was severely ill, they were told, “But you’re not carers. These rights don’t apply to you. You’re only parents”. They are not only parents. Normal parents do not have to look after their child and do everything for him for 30 years.
It is three times more costly to bring up a disabled child than a non-disabled child. Parent carers are more likely to be reliant on income-based state support, and 34% of sick or disabled children live in households where there is no adult in paid work. They are also more likely to suffer relationship breakdown and divorce, and they are three times more likely to suffer ill health and health breakdown than parents of non-disabled children. They are also commonly very isolated and unable to get support that fits the whole family.
The Law Commission, I remind the House, recommended that existing duties to assess parent carers should be amended to make them consistent with the adult social care statute. The Government, I am afraid, have so far failed to act on this recommendation. I tabled similar amendments during the Committee stage of the Care Bill and the Minister responded. However, the Government’s response did not address the disparity that will arise for parent carers, who will have lesser rights to an assessment of their need for support and will not have the same rights to support services as other carers.
These amendments try to address that. In brief, they include parent carers in the well-being clause. The intention of the first amendment is to include the parents of disabled children in the duty placed on local authorities by Clause 1 to promote the well-being of individuals. They also want to prevent parent carers’ need for support arising in the first place. Too often parent carers reach crisis point, leading to high-cost interventions. In addition to the negative impact on outcomes for the whole family caused by mental or physical breakdown in the parent, relationship breakdown and unemployment, there are also substantial costs to local authorities, commissioners and indeed to the economy. The costs of mental ill health, as we all know, are rocketing. The cost of family breakdown is estimated to range from £20 billion to £40 billion every year.
The other amendment includes parent carers in the duty to make the assessment. The Bill is making it easier for adults to receive a carer’s assessment by creating an automatic right to one and removing the requirement that they provide regular and substantial care. When I see that in legislation I want to stand up and cheer. That is a great development. However, unless similar changes are brought forward for the parents of disabled children, they will still need to request a carer’s assessment from their local authority and do not have a right to one unless they are providing regular and substantial care. This disparity means that parent carers will be the only carers to have these additional barriers to support in front of them. This amendment seeks to include parents of disabled children in the duty on local authorities in the Care Bill to assess carers, which creates a lower bar to assessment than the current legislation.
I hope that the Minister will look favourably on these amendments. Will the Government give assurances that parents of disabled children will not be left with lesser rights? How will the Government ensure parity of rights for parents of disabled children and how will the Government act to join together the Care Bill and the Children and Families Bill—being considered in the Moses Room as we speak—to ensure that the families of disabled children are able to access support? Will the Minister commit to working with the Children’s Minister to ensure that the rights of parent carers are not left behind? Will the Minister assure me that, having worked so effectively with the Department for Education to strengthen the rights for young carers, he will do so again to strengthen the rights of families with disabled children?
My Amendments 46 to 48 and 58 are about charging for carers’ services. They are supported by Carers UK and the Carers Trust. The current law includes the power to charge for meeting the needs of carers but very few local authorities use this power. As well as continuing to give local authorities the power to charge carers, the Bill includes a power to charge carers for arranging services for them. Local authority adult and social care budgets are under ever-increasing pressure and we must be concerned that carers may be looked to as a source of revenue. Carers already contribute a huge amount, often at great personal cost, as caring has a negative impact on their finances, health and well-being, and opportunities to engage in work and education. I make no apology for repeating the figure that I have quoted many times in your Lordships’ House—Carers UK has calculated that the contribution of carers is worth £119 billion a year in savings to the Exchequer. Charging a carer for support to meet their needs, often in order to help them continue in caring, risks being counterproductive by preventing carers accessing services and may even discourage carers seeking support. As a result, the adoption of charging policies would result in additional costs to local authorities.
Baroness Wheeler (Lab)
My Lords, I am pleased to speak to our Amendments 7 and 10 and will speak mainly about young carers, as my noble friend Lady Pitkeathley has spoken strongly on parent carers for disabled children and the other key issues covered in this group. In Committee, we were deeply concerned at the very real danger and risk of young carers’ rights and their need for support failing to be addressed in either the Bill or the Children and Families Bill, so it is with great relief that we will be dealing today, now and later, with significant amendments relating to adult care assessments and young carers, local authorities’ duties to identify young carers and ensuring young carers are supported and are not forced to undertake inappropriate caring roles.
On young carers, it is somewhat frustrating that the Government amendments, which are an integral part of the package on young carers that locks in the links between the Bill and the Children and Families Bill, are to be taken in a later group. We need to see the picture on young carers as a whole to be reassured and clear about how the two Bills interact to secure young carers’ rights on support and assessment. Under the two Bills, the Care Bill links adult assessment where a young carer is supporting an adult with the young carer’s assessment, which will be undertaken under the Children and Families Bill. The ministerial Statement on the latter from the Department for Education sets out how it sees this working in practice, and we broadly support this. Our Front-Bench team on the Bill will be probing this further in Committee, which, of course, commences today.
We welcome all these developments. We have worked closely with the excellent National Young Carers Coalition and it has led calls for key changes in the two Bills. I am sure the Minister will agree that the NYCC has done a great job of bringing the plight of young carers to the attention of the House and to Ministers. I am pleased that the Government have now taken steps to ensure a twin-track, joined-up approach between the two Bills.
As the Bill has progressed, we have heard extensively why children and young people caring for a family member, parent or sibling can be so vulnerable to losing out on their education and on the things that they want to do with their lives and how their health can suffer as a result of having to undertake significant caring responsibilities. However, it is a shocking fact that too often young carers do not get the help they need. One of the reasons for this is that, under the current assessment process, the person they are caring for does not receive enough support and the needs of the whole family are often not taken into consideration.
We must remember that this can have a devastating impact on both the young carers and the cared-for person. As a trustee of our local carer support group in Elmbridge, I can say that we see this from both ends. Many of our registered young carers are delivering hands-on support and may be the only other person in the house. For example, if their parent has mental health problems—very often the most hidden of caring roles—the child may have to look after themselves on a daily basis, make their own meals and get off to school, as well as being supportive of the parent and carrying out tasks for them. At the same time, a disabled parent does not want to see their child overburdened with caring duties; they feel desperate and guilty when they require care and support that is not forthcoming as part of the care package, and the child just has to help—and usually wants to anyway. That is a dilemma.
That is why we sought to amend the Bill in Committee so that adults with care and support needs are assessed in relation to the presence of a young carer, so adult needs are met sufficiently and children are prevented from undertaking levels of caring that put their well-being, health and development at risk. The government amendments now put this into effect in the Bill and we fully endorse them as part of the package of changes that are needed.
That is also why our Amendment 7 to Clause 2 must be an important part of the package. We believe that the Care Bill is the right place for the law to be clear that adult services need to assess and meet adult needs first, but with a view to whether a child may be caring for them and providing the support as required. Children should not be picking up the pieces and left to provide part of the care package as a result of the failure of adult services to see and support them alongside children’s services.
Our essential aim has been to ensure that local authorities provide or arrange services to prevent young carers from developing needs for care and support, as well as preventing and reducing needs for adults and adult carers. We cannot have a situation where people have unmet care and support needs, which results in children and young people having to meet those needs.
Our Amendment 10 specifically deals with the issue of local authorities’ duty to identify young carers. We know that currently, adult social care services and health services routinely fail to identify children who may be caring for an adult, even when the adult is assessed, and that also applies to schools. As a result, children can continue to undertake harmful caring roles and end up developing needs for care and support themselves. The lack of a co-ordinated response between children’s and adult services remains an ongoing difficulty for young carers and their families. I hope that the noble Earl will recognise the need to address this problem.
On the other amendments in the group, we strongly support the intentions of Amendments 6, 8 and 9, which seek to emphasise parent carers of disabled children, both in respect of the well-being principle and in terms of preventing them undertaking inappropriate caring. Amendments 46, 47 and 58, in the name of my noble friend Lady Pitkeathley, seek to address the very real fears of carers and their organisations over carers being charged for key services that they are not currently charged for. My noble friend’s amendments represent an excellent opportunity to put carers’ minds at rest on this issue once and for all, and I hope that the Government will be sympathetic to this.
Finally, my noble friend’s Amendment 48 addresses the important issue of carers generally—not just young carers—being required to undertake inappropriate caring. We dealt with this issue in relation to the assessment process extensively in Committee and we strongly support this amendment. Support from family and carers should be considered as a way of meeting needs rather than as a reason for deciding that the person does not have needs or is not eligible for care. Carers must not be pressurised to provide care that they do not feel able to provide. I look forward to the Minister’s response on this.
Baroness Tyler of Enfield
My Lords, I rise very briefly to speak to Amendment 34 in my name. The purpose of this amendment relates to the definition of a carer, to ensure that it could include a young person as well as an adult. I wish to explain that I tabled the amendment before the extremely welcome Statement by the Secretary of State for Education earlier in the week, and the tabling of the new amendments on young carers. As other noble Lords said today in the Chamber, I very strongly welcome this. I know, from talking to both departments—the Department for Education and the Department of Health—that a lot of very effective work has gone on over the summer that has been very effective both at official and ministerial levels. I also very much welcome the fact that the National Young Carers Coalition has been very much involved in these changes, and I know that it has issued a statement welcoming them.
Lord Mackay of Clashfern
My Lords, I particularly support the amendment of the noble Baroness, Lady Pitkeathley. It is obviously important that the situation regarding children who are carers is properly focused. As your Lordships know, I am a vice-president of the Carers Trust and have an interest from that point of view. I have difficulty understanding exactly the scope of the clauses here, because the clause dealing with well-being talks about the “individual”. I assume that this includes the disabled child as well as the carer, and that the same is true even when the child is not disabled. If one has a carer, the child will be an “individual”, I assume. The adult definition comes in the next clause, Clause 2. Clause 1 refers to an “individual”, so I assume that children are included in that clause and therefore that the local authority, in performing its functions, has an obligation to have regard to the well-being of children.
Earl Howe
My Lords, as my noble friend Lady Tyler said, Amendments 7, 10 and 34 in this group about young carers provide an opportunity within our debates to welcome the Written Ministerial Statement yesterday from my right honourable friend the Secretary of State for Education about the Government’s proposed amendments to the Children and Families Bill on the assessment of young carers. They give effect to the Government’s stated intentions to consolidate and simplify legislation relating to young carers’ assessments, making rights and duties clearer to both young people and practitioners. In the Government’s view, these provisions sit most appropriately within children’s legislation.
The right to an assessment of needs would be extended to all young carers under the age of 18, regardless of who they care for, what type of care they provide or how often they provide it. Local authorities would have to carry out an assessment of a young carer’s needs for support on request or on the appearance of need. The amendments also enable local authorities to align the assessment of a young carer with an assessment of an adult that they care for.
I believe that the government amendment will achieve the desired effect of my noble friend Lady Tyler’s amendment to Clause 10 by putting a young carer’s entitlement to an assessment on a similar footing to the provisions in the Care Bill for an adult carer’s assessment. I have also tabled an amendment to Clause 12 of the Care Bill, which we will debate shortly, that makes it clear that a local authority may combine an adult assessment with a child’s assessment, including a young carer’s assessment, provided all parties agree. The government amendment to the Children and Families Bill will also achieve the desired effect of Amendment 10 by requiring local authorities to take steps to identify the extent to which there are young carers within their area who have needs for support.
Amendment 7 would extend to young carers provisions in Clause 2 that require a local authority to provide services, facilities and resources to prevent or reduce needs for support among adult carers. Prevention is an important matter to highlight, but the Bill already makes sufficient provision on this issue, as it requires local authorities to have regard to overall family circumstances when fulfilling their duties under the Bill.
Clause 1 requires local authorities to promote an individual’s well-being in exercising all their Part 1 functions, including those in Clause 2. Domestic, family and personal relationships are specifically included, and such relationships could encompass parenting responsibilities, the adequate functioning of the family and the household and the impact of providing care and support on other members of the family. We do not think that it would be appropriate to refer to preventing the needs of young carers specifically. One means of preventing their needs will be, of course, to meet or delay the needs of those whom they care for, and this is clearly covered by the existing provision. There may be other means, which could include the provision of services directly to the young carer. However, such routes would not be appropriate for adult care and support to take, and we do not believe that a duty should sit within adult legislation.
We will make it clear in statutory guidance that all these provisions should take into consideration family relationships and circumstances, and I am happy to make a commitment that such guidance will refer specifically to the importance of preventing children undertaking inappropriate or excessive caring responsibilities. In addition, in drafting regulations about an adult’s assessment under the regulation-making powers in Clause 12, we will make it clear that a whole-family approach should be adopted, where appropriate. An adult’s assessment should then take into account the functioning of the family and the household, and the impact of providing care and support on other members of the family, including children.
I turn to the position of those with parental responsibilities for disabled children, which is an important issue. However, we do not consider it appropriate to include provisions within the Care Bill about the assessment of parent carers of disabled children, as proposed in Amendments 6, 8, 9 and 35 from the noble Baroness, Lady Pitkeathley. In the Government’s view, the main provision for assessing and supporting those caring for disabled children should be in children’s legislation, so that the family’s need for support can be looked at holistically. In most cases, the best way of supporting a parent carer of a disabled child and other members of the family is by the provision of support directly to the child concerned. It would not be appropriate for adult care and support to be undertaking an assessment of those needs, when adult support is not best placed to meet them. The view of the Minister for Children and Families is that there is already sufficient provision under Section 17 of the Children Act 1989 to provide for the assessment and support of children in need, including disabled children and their parents.
I turn to Amendments 46 and 58 from the noble Baroness, Lady Pitkeathley, about charging carers for support. We remain of the view that local authorities should retain the power that they have now to charge carers for support provided directly to them. Many local authorities do not impose charges on carers because they, of course, recognise the valuable contribution that carers make to society. However, some may choose to impose a nominal fee to cover a proportion of the costs of providing a particular form of support for carers—for example, a relaxation class or gym membership—and we do not think it appropriate to remove that discretion and flexibility. Indeed, removing the ability to charge even a small amount could result in the withdrawal of such services altogether.
The noble Baroness argued that the cost of caring should not count towards the care account within the cap arrangement. Local authority assessments take the support provided by carers into account in determining the care package. We are clear that the care package should count towards the cap, because that should ensure that all people receive the support that they need. We have heard from the care and support sector that the cap will provide carers, as well as care users, with the financial support to help them decide on the right care for them to help provide, and to reassure them that their families will not face catastrophic care costs.
I have some concern about the noble Baroness’s Amendment 48, which proposes that the provision of intimate services to a person needing care cannot be provided to meet a carer’s need for support. This would create a legal barrier that could significantly hinder the provision of a much-needed type of support to carers. Let me provide one example. It may be appropriate to meet a carer’s needs by providing a service direct to the person cared for. If some type of replacement care is provided to allow the carer to take a break from caring, it may look like home care delivered to the adult needing care, even though it is provided to meet a carer’s needs. The amendment would seriously limit the ability of local authorities to make such arrangements because it would provide that the care workers could carry out some activities, but not others of an “intimate nature”. That could leave a situation where the care worker was able to sit with an adult needing care but not take them to the toilet. That is likely to lead only to confusion, I suggest. We accept that clarity is needed about when a type of support should be considered to be provided directly to the carer, and when to the adult needing care. We will produce guidance on this matter, but we cannot support an amendment that sets such an inflexible rule in primary legislation.
I also reassure noble Lords that the Bill is already very clear that carers should not be charged for any form of support that is provided directly to the person needing care. Clause 14(3) makes it absolutely clear that local authorities cannot charge carers for services provided to the person being cared for. This would include services of an intimate nature.
I hope that I have reassured noble Lords that, together, the Care Bill and the Children and Families Bill provide a clear legislative framework to support local authorities to consider the needs of young carers and protect them from excessive or inappropriate caring roles. On the important issue of assessing those with parental responsibility for disabled children, we remain of the view that they are best supported through the provisions of the Children Act 1989. However, I have noted the concerns raised about those who care for disabled children having the same entitlement to a carer’s assessment as young carers and adults caring for adults will have through the respective provisions of the Children and Families Bill and the Care Bill. Department of Health officials will explore further, with officials at the Department for Education, the issues raised by the noble Baroness. I know that my noble friend Lord Nash is always willing to listen to the concerns of noble Lords on these and other matters.
I hope that I have also reassured noble Lords that the Bill is already very clear that carers should not be charged for support provided directly to the person needing care. However, I am conscious that I have not directly answered an issue raised by the noble Baroness, Lady Wheeler, about the need for identification of carers to ensure that there is no unmet need. It is important to support people to identify themselves as carers so that they can access information, advice and support in their caring role. My department is funding the Royal College of General Practitioners to raise awareness among health professionals. Health and well-being boards should also be identifying the numbers of carers in their local population through joint strategic needs assessments.
My noble and learned friend Lord Mackay asked whether children were already covered in the scope of Clause 1. They are covered in terms of the functions set out in Part 1 of the Care Bill. The local authority must have regard to the well-being principle in discharging any function under Part 1 that relates to children. They would be “individuals” in the case of the exercise of that function—for example, in the provisions relating to the assessment of children in anticipation of their transition to adulthood. I hope that that is helpful.
I have taken a little while to reply to these amendments, but I hope that I have been sufficiently illuminating to encourage noble Lords not to press them.
Baroness Pitkeathley
As we were on a roll there with the Department of Health and the Department for Education working together so successfully on the young carers issue, I rather hoped that we might do it also with regard to parent carers. I am very grateful that the Minister has not entirely closed the door on that. I will read very carefully what he said, but I reserve the right to come back to this issue at Third Reading. I am very encouraged by what he said about taking a whole-family approach, but I believe that it should include parent carers as well as young carers. I am grateful to him, too, for saying that there would be more clarity in guidance about the charging issues. As I said, I will read what he said very carefully, but I reserve the right to bring some of these issues back at Third Reading. In the mean time, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
“( ) NHS bodies must exercise their functions—
(a) with a view to ensuring the integration of services for the purposes of enhancing the health and well-being of people, in keeping with the duty on Health and Wellbeing Boards enshrined in section 195 of the Health and Social Care Act 2012; and(b) without hindering the efforts of a local authority to fulfill its duty under subsection (1) above.”
Lord Hunt of Kings Heath
My Lords, in moving Amendment 11, I wish to speak also to Amendment 30. I also support the amendments in this group tabled by the noble Lord, Lord Best, but may respond to those later.
In Committee, we debated amendments promoting further integration of health and social care. As my noble friend Lady Wheeler said, we supported the view of the Association of Directors of Adult Social Services and the Local Government Association that the Bill should include a specific duty on NHS bodies equivalent to the duty on local authorities to integrate services and that this shared involvement should be enshrined in the Bill. Joint strategic needs assessments and joint health and well-being strategies should provide a strategic overview of how the health and well-being of local communities can be improved and health inequalities reduced. ADASS has long maintained that local health and well-being boards are pivotal in the delivery model in this respect and that the Bill must reflect this to bring about a wholly integrated accountable system that meets identified local needs and objectives.
The noble Earl, Lord Howe, said in Committee that he had no argument with the sentiments expressed by my noble friend and relied on Clauses 3 and 6 of the Bill and various other pieces of legislation, including Section 116 of the Local Government and Public Involvement in Health Act, which requires local authorities and clinical commissioning groups to have regard to the relevant joint strategic needs assessment and joint health and well-being strategy in exercising any of their functions, which would include their duty to co-operate and promote integration. The noble Earl also prayed in aid the prominence of health and well-being boards being strengthened through their role in signing off joint plans required as part of the £3.8 billion pooled fund between local authorities and the NHS to support joined-up and integrated working.
I certainly accept and understand those points but I would like us to go further. I argue that the measure should be much more explicit in the Bill in relation to the National Health Service’s duty of co-operation. We know that the current crisis in accident and emergency services which seems to be extending through the early autumn period is symptomatic of a health and social care system that is under huge pressure. If reductions in social care funding and support for the third sector mean that patients cannot be discharged from hospital that has a knock-on impact throughout the whole system. This Bill places major responsibilities on local authorities. Without the full co-operation of the National Health Service they will be very hard pressed to discharge those responsibilities.
The noble Earl is relying on this Bill and existing legislation but the fact is that so far this has not been sufficient. I refer him to a report published today by the University of Birmingham and Birmingham City Council entitled Turning the Welfare State Upside Down? The report says that our social care system is broken and increasingly unfit for purpose and that we need a big and bold response to tackle the crisis and ensure a decent and fair system for the future. The report is right to emphasise the need for close co-operation between social care and the NHS and to shape services around the needs of the individual. The problem is that the Government through their 2012 Act have created a disintegrated system instead of an integrated one and a system where fragmentation is rejoiced at and where the operation of a market is meant to drive a wedge between people who ought to be co-operating together.
I do not want to go back over this afternoon’s Oral Question, but clinical commissioning groups would have been surprised to hear the noble Earl suggest that it was entirely up to them whether or not services were put out to tender. They have been absolutely pressurised by NHS England to do that. NHS England is clearly under the direction of the Secretary of State: how could it not be when, according to government briefings over the last two weeks, the appointment of its chief executive is going to be the Prime Minister’s decision?
There is real concern that we have conjured up a very fragmented sector. As the noble Earl knows, we already have a system where physical health, mental health and social care have found it very difficult to integrate their services. As we have more older people with vulnerabilities and co-morbidities, the need for the systems to work together becomes ever more paramount.
Amendment 11 would put in the Bill an explicit requirement for the NHS, through the health and well-being boards, to play its full part in the integration of services. In Committee, the noble Earl was sympathetic to these sentiments but not to the amendment. I hope that, in the spirit of accepting wise words in this House, he will be prepared to be more sympathetic on this occasion. I beg to move.
Lord Best (CB)
My Lords, I rise to speak to the two amendments in my name and in the names of the noble Lord, Lord Hunt, and the noble Baronesses, Lady Eaton and Lady Barker. These amendments are carried forward from five which I tabled in Committee, all of which sought to give more prominence in the Bill to housing. I declare my interest as chairman of the Hanover Housing Association, which works exclusively for older people, and as president of the Local Government Association.
The overarching case for these amendments is that everyone's care needs are inseparably connected to the place where they live and where, for most older people, they spend all their time. The right accommodation can sustain our independence and well-being even if we face the illnesses or long-term conditions that afflict many of us in older age. The right accommodation can pre-empt and prevent the need for domiciliary and residential care and hugely reduce costs to the NHS and local authority social services. For younger adults with care needs, the right accommodation can enable a fulfilling life within the community, not hidden away in an institutional setting. The wrong accommodation can cause accidents and, indeed, mental health problems; keep people in hospital because their home will not have them back; and can force people into costly residential care.
This Bill is the chance to incorporate housing into the health and care equation so that these three interlinked dimensions can really work together. The noble Earl has worked hard over the recess to bring back improvements to the Bill. In relation to the housing issues, the noble Earl has noted that our concerns are shared by a number of Peers who feel that the Bill gives insufficient emphasis to the question of housing. He fully accepts the integral role of housing in helping meet care and support needs, and has told us that he sympathises with the arguments he has heard. I am very grateful to the noble Earl for the two amendments he has tabled to give greater prominence to the link between health, social care and housing. His response will be greatly welcomed by the Care and Support Alliance and, within that group, the National Housing Federation, which drafted the original amendments.
Government Amendment 28 to Clause 6 extends the duty of local authorities to co-operate with partners so that this duty will encompass housing associations—registered providers of social housing—which is a very significant step in absolutely the right direction. Government Amendment 12 to Clause 3 ensures that, in terms of the integration of services, housing will be classified as “health related” and will therefore be taken on board by clinical commissioning groups and the NHS Commissioning Board, NHS England. Both these changes are really positive and I congratulate the noble Earl for his farsightedness, once again, in improving the Bill in these two ways.
At the risk of appearing slightly churlish, however, perhaps I could press the noble Earl on the two issues that remain outstanding and are covered by the two amendments in my name, which have support from all parts of the House. In relation to advice, Amendment 15 to Clause 4 would ensure that people have access to good information on the options available to them in relation to housing requirements, spelling out both ways in which their current home could be made more suitable and the choices that they could make about a move to supported or retirement accommodation, such as assisted living and extra care housing.
Although the Bill ensures that advice on care services will be made available, the Joint Committee on the draft Bill strongly recommended that advice on housing options also be included. So far, this recommendation has not been taken on board. It is not an onerous extra requirement to include housing advice in the mix, particularly given that many local authorities already ensure that people get this advice. Indeed, the Local Government Association supports this amendment. The Minister pointed out in Committee that information and advice on specialist housing options should be included when housing information is supplied. This amendment adds the prompt for such housing advice also to be included when guidance is given on care matters.
A move to a more suitable place can be suggested for a younger adult with care requirements. Sources of support for helping an older person to downsize, perhaps in decluttering the attic or sorting out the garden shed, can be recommended. For those who stay put, there is often so much to be done of a practical nature in making life easier for an older person and reducing their dependency on paid carers or family carers. From replacing hard-to-turn taps with long-handle lever taps for someone with arthritic hands, or fitting firm banister rails to the stairs, right through to converting the bathroom to fit a walk-in shower or installing a stair lift, all such adaptations can delay or prevent the need for more intrusive and expensive care provision. With good advice, paying for those adaptations can be covered by disabled facilities grants or equity loans, just as advice for a younger adult with care needs can be given on how the costs of renting a more suitable home can be covered.
Last Friday, I had the great pleasure of visiting the brilliant Centre for Independent Living in Knowsley, jointly funded and staffed by the health, social care and housing services in this borough. The centre brings together all the key elements of a truly holistic service. The occupational therapists are there, as are the care and repair team who can organise reliable builders and advise on grants, the wheelchair and aids teams, and the handy persons who do small improvement jobs. All the different disciplines and specialisms come together in Knowsley’s centre. It helped some 5,700 people last year. About half were referred by GPs, and health needs are therefore often the trigger, but the solution may well be in meeting the individual’s requirements within their home or, indeed, in pursuing a housing solution elsewhere, such as a move to extra care. So when a local authority gets it right, as in Knowsley, it really can do a fantastic, joined-up health, care and housing job. Good advice that covers the housing dimensions is the start of this process.
Amendment 23, the second amendment in my name and those of the noble Lord, Lord Hunt, and the noble Baronesses, Lady Eaton and Lady Barker, would complete the picture. This amendment again does not add significantly to the burden of responsibilities for local authorities. It falls within the “have regard to”, not the “must”, part of Clause 5, but would mean that in seeking to manage the market for care provision, local authorities should have regard to the housing situation facing those with care needs in their area. It raises the profile of housing in this context so that the different parts of local government all take it into account in their policies and strategies.
The amendment would mean that those within local councils responsible for social care would concern themselves with housing requirements, no doubt by feeding the necessary information into the planning system to influence future housing provision. In devising their strategies, health and well-being boards would consider whether more and better housing should be a priority, whether more disabled facilities grants or support for home improvements could play a greater part in preventing the need for intensive personal care, or whether extending a handy person service would not pay for itself almost instantly. This amendment would mean integrating housing considerations into the shaping of care markets, as well as integrating care considerations into the shaping of housing markets. That would benefit everyone.
I congratulate the Minister on the two important government amendments which give added emphasis to housing. I hope that he is able to go further and take on board these relatively modest but entirely sensible additional changes to the Bill.
Lord Shipley (LD)
My Lords, I rise to support Amendments 15 and 23. I would draw attention to a welcome tribunal judgment in Middlesbrough last week concerning the decision by Redcar and Cleveland Council on the under-occupancy charge. A woman, who is disabled, won an appeal against the decision of her local council which the council claims it took in line with DWP guidance. The tribunal concluded:
“In considering whether there is under-occupation of the appellant’s property, the local authority have not taken into consideration her disabilities and her reasonable requirements, as a result of these, to sleep in a bedroom of her own”.
Redcar and Cleveland Council said that it had properly applied the law as it stood when it decided this case but that the tribunal had introduced an additional test of reasonableness which did not appear in the Department for Work and Pensions guidance. Amendments 15 and 23 would remove a great deal of the doubt that has now been raised. Amendment 23, which refers to access to suitable living accommodation, must include access to suitable sleeping accommodation. That requires there to be a separate bedroom if reasonably required. Amendment 23 would also make it clear that there is a requirement on a local authority to provide access to suitable living accommodation for a person who needs a specific amount of accommodation to enable them to lead a full life.
There is now a great danger for the Government in a large number of tribunal hearings as a consequence of the decision that was made in Middlesbrough last week. One way of avoiding this is for the Government to give a clearer definition of what “reasonableness” is. Amendments 15 and 23 define what is reasonable. I hope that the Minister will agree to look further at this issue in order to ensure that adults who have care and support needs have access to suitable living accommodation. That is clearly not the case at present and it is unfortunate that a large number of people with disabilities are being placed in an impossible situation because of the under-occupancy tax.
Baroness Eaton (Con)
My Lords, I rise to support Amendments 15 and 23 in the name of the noble Lord, Lord Best. Contemplating the need for changes in lifestyle, managing illness and losing the ability to live independently are very daunting and stressful experiences for many elderly people. The proposals in Clause 4 for local authorities to provide information and advice are crucial in enabling people to have the knowledge they need to make decisions with which they feel comfortable. It does seem that the Bill as drafted has a major omission—the absence of advice on housing options.
I worked as a councillor in a northern metropolitan area for many years. I noticed on many occasions that elderly people were totally unaware of some of the opportunities that were available to protect them. I will give the House one example. An elderly lady asked whether I could help her by getting the electricity board to repair the light on the other side of the footpath across her garden. When I pursued the case, it transpired that because this lady was physically infirm, she was unable to reach her bathroom and lavatory, so she was crossing her garden in the depths of winter to use an outside lavatory. The reason she needed the light was in order to get to it. She was totally unaware of the possibility of making adaptations, with help from the local authority, to provide her with a downstairs bathroom. These kinds of incidents reflect the reality of what elderly people know about in terms of services. It is not good enough to say, “They will find out about them somewhere”. If it was part of this provision, that would be a great advantage to all.
My elderly parents lived at home until they were in their 90s. My father was 96 when he died, and my mother was 95. They were fortunate because I was aware of the adaptations that could be provided for them—small things such as grips, handrails and the like. They enabled my father to cope with the infirmities of my mother and for the two of them together to enjoy independent living. But, as I have said, most elderly people are not aware of this provision. When looking at options for care, most people would not think of asking the local authority about housing options. As a local authority person, I am always cautious of giving extra tasks to local authorities, but I know that this part of the Bill would not create a huge burden because local authorities already provide information about the care-related housing options that are available in their area. The point is that those options are not joined up and they do not come under the provision that this clause as drafted would give. I strongly support the amendments of the noble Lord, Lord Best.
The issue of the shaping of markets under Clause 23 is also important. We are always in danger of the right hand not knowing what the left hand is doing. Criticism is made of departments doing one thing on the one hand and another thing on the other. There is now a requirement on planners to look ahead and make provision for the numbers and types of homes that are needed. Surely the two things should be brought together as indicated and that health provision should advise and direct the planning process in terms of what will be needed in the future. I warmly support both amendments.
Baroness Masham of Ilton (CB)
My Lords, I apologise for having only just come into the Chamber, but I have been at an important meeting with representatives from a children’s heart unit. However, this Bill is also important, particularly these amendments. What the Minister gives us assurances about in this House does not always happen on the ground. The matter of housing provision for disabled people has caused aggro up and down the country. People are worried about it. If the Minister can be helpful today, that will do a lot of good.
Lord Hunt of Kings Heath
My Lords, I support the noble Lord, Lord Best, in relation to Amendments 15 and 23. Obviously, we welcome the government amendments to which the noble Earl, Lord Howe, will speak shortly, but it seems that the amendments tabled by the noble Lord, Lord Best, point to areas where the government amendments do not really meet the needs. Amendment 15, on making available information about housing adaptations and on specialist and accessible housing as a key requirement of a local authority’s information service, was a clear recommendation of the Joint Committee. The noble Baroness has just illustrated why making such information available is so important. It could be very helpful in terms of avoiding the need for people to receive long-term care. We should not underestimate the challenge people face when simply trying to find their way through the system. We find it complex, so how much more difficult must it be for those with little experience of the care sector and the housing system? I believe that Amendment 23 is critical to the success of the Government’s own housing amendment. It would ensure a three-way integration that would be an explicit part of a local authority’s duty to promote efficient and effective local markets for meeting care and support. It would particularly ensure that it has regard to the importance of adults’ access to suitable living accommodation.
We know that many local authorities are doing this without any prompting from the noble Lord, Lord Shipley, or my noble friend Lord Beecham. I recently came across the housing for an age-friendly city programme. It seemed to be a really good illustration of how, if a recognition of the changing needs and support of older people is at your core, and you supply a range of care and support housing options as an alternative to residential care, it makes the essential connection between, for example, managing a long-term illness and living in the right accommodation, and the importance of extra care housing schemes that enable people to live independently for longer.
I also just came across a One Housing Group initiative in Islington. It is a scheme designed for 14 people who spend a maximum of 14 days in the centre as an alternative to acute NHS admissions. It has a drop-in centre and an emergency helpline, and this crisis recovery house helps 550 people a year. It keeps 87% out of hospital admissions. It was commissioned by the health service but it shows the interconnection between housing and health.
In responding to the noble Lord, Lord Best’s amendments, I hope that the Government might be prepared to reconsider this and come back at Third Reading with further amendments.
Lord Warner
My Lords, I am sorry that I missed the beginning of this debate but I was with the noble Baroness, Lady Masham, listening to Sir Bruce Keogh explaining how the mess around paediatric surgery was going to be sorted out.
I lend my support to Amendments 11 and 15. I remind the House that many years ago, in the good old days, housing and health were together in the same ministry; there was a united ministry covering both health and housing. We have lost something by that separation. I think that the NHS needs to be given a push on integration, so I very much like the amendment of my noble friend. Too often the NHS forgets that it could help itself by working more closely with other interests, and it would be a timely reminder in this piece of legislation to get that message across. As the noble Lord, Lord Best, has said, we have missed many opportunities over a long period of time, to bring housing into the party as the population has aged. All it has done is increase the burden on adult social care and the NHS. It would be a missed opportunity if we did not rectify some of that now.
Earl Howe
My Lords, I very much agree with noble Lords that housing, along with health, and care and support, should be considered as the three legs of the stool. In relation to housing we are clear about two things: first, many types of housing can be provided as a means of meeting or preventing care and support needs—for example, extra care housing. That is why accommodation is listed as a way of meeting needs in Clause 8.
Secondly, housing is a wider determinant of health; simply having a roof over your head can have an enormous impact on your health and well-being. To reflect this, the “suitability of living accommodation” is listed as part of well-being in Clause 1(2). I hope that those two points in particular will serve to reassure the noble Baroness, Lady Masham.
Amendment 12 clarifies that housing is a “health-related” service, and that both local authorities and the NHS are required to promote integration between care and support, health and housing. This makes the importance of housing explicit not only in the integration duty in this Bill but in the comparable duties on the NHS in the 2006 Act. I hope noble Lords will welcome that.
In Committee, noble Lords also expressed the view that we needed to clarify that local authorities are required to co-operate with providers of services, including providers of housing services. Amendment 28, again in my name, does just this. The non-exhaustive list of the types of “other persons” we expect local authorities to co-operate with would now include certain providers of health, care and support, and housing services. However, we cannot add these bodies as “relevant partners”, as public law is limited in the extent to which it can place duties on such private bodies.
Baroness Barker
When would it be safe to anticipate the statutory guidance which he mentioned?
Baroness Masham of Ilton
Would Amendment 28 be more acceptable if “may consider” were replaced by “shall consider”? There is a big difference between “may” and “shall.”
Lord Hunt of Kings Heath
My Lords, it is good to know that after due consideration the noble Earl is satisfied with his own amendment. On the housing amendments, the noble Lord, Lord Best, will make up his own mind, but it struck me that he is relying on the difference between the local authority as the local housing authority and the local authority as the care authority. He is of course right to say that in county shire areas in some places it is a different function. However, there remains a concern, given that in relation to care and support we are talking about difficult circumstances, often with vulnerable people, over whether the appropriate advice and support will be given. No doubt the noble Lord, Lord Best, will reflect on that.
On my Amendment 11, on integration, the noble Earl relies on existing duties of co-operation on the NHS, and Clauses 3 and 6. Where I fundamentally disagree with him is on the impact of the 2012 Act. The noble Earl may not be aware of just how difficult it now is for the NHS to put a cohesive plan and programme together in every locality, because the current incentives do not encourage that integration. I know that he warns us against putting what he thinks is a superfluous clause in the Bill—but this Care Bill is vitally important. It revises social care legislation and adds the foundations of the implementation of the Dilnot commission. It would be very helpful if there were an explicit duty of co-operation on the National Health Service, because we will not bring about integrated care without the full support of the National Health Service. On due reflection, I would like to test the opinion of the House.
“( ) For the purposes of this section, the provision of housing is health-related provision.
( ) In section 13N of the National Health Service Act 2006 (duty of NHS Commissioning Board to promote integration), at the end insert—
“(5) For the purposes of this section, the provision of housing accommodation is a health-related service.”
( ) In section 14Z1 of that Act (duty of clinical commissioning groups to promote integration), at the end insert—
“(4) For the purposes of this section, the provision of housing accommodation is a health-related service.””
Baroness Greengross
Baroness Greengross (CB)
My Lords, I shall speak to Amendment 18 in this group as well. I have already expressed my support for the Bill, which will make a huge difference to the lives of users of social care services and their families. However, a little more can be done to reform the Bill in the areas of information and advice, and also complaints and redress. I welcome the fact that the Government have recognised this issue and that the Minister has tabled amendments on their behalf. This shows that the Government accept the need for proactive engagement around information and advice, the importance of understanding when and how people access information, and the need for a focus on identifying those who would most benefit from it. These issues reflect exactly the thrust of my amendments except that, unlike the Government’s, mine relate to all information and advice about care and support, not just financial information and advice.
While I welcome the emphasis on proper access to financial advice, it seems a bit inconsistent not to apply this proactive approach to all forms of information and advice about care. For example, even when considering financial options, it is difficult to disentangle these from information that is needed about other aspects of care such as the choice of providers. It might even apply to housing, which was addressed in the debate on the amendment of the noble Lord, Lord Best.
At a time when local authority budgets are under increasing pressure, it is all the more important that people needing social care services are supported to efficiently access all existing sources of support fairly, equitably and transparently, and that local authorities are held to account for the decisions they make about distributing resources. Consumers have to feel that they are in control of their own care, understand what support they can expect and have the ability to speak up when they are treated unfairly. My amendments are designed to further these aims and I am grateful to Which? for assisting me in validating the consumer detriment aspects of this argument.
First, in Amendment 13 to Clause 4(1), as well as the local authority having the duty to,
“establish and maintain a service for providing people in its area with”—
care and support information, I would like to see the local authority having a supporting obligation to “facilitate access to” that service. Secondly, my Amendment 18 to Clause 4(4) would expand the local authority’s duty of information and advice provision beyond those to whom it is being provided to also include those,
“who would benefit from receiving it”.
Baroness Meacher (CB)
My Lords, I support the amendments of the noble Baroness, Lady Greengross. She is so right in saying that people very often have no idea what questions they need to ask and what services they may be entitled to and therefore this aspect of the Bill is far more important than it sounds.
However, I shall speak to Amendment 21 which, in a way, takes us a step further and would ensure that vulnerable people with current or foreseen complex needs receive information and advice in a way that they can understand; also that the information and advice takes full account of their complex personal position. This may sound simple enough, but, in fact, an untrained person with a leaflet on local services, probably including lots of irrelevant information, is quite likely to leave someone more confused than they were before the visit. In fact, if local authorities do not want people to find their way to services that they need, a rather weak and unstructured approach to information and advice is probably the best way to achieve that result, but in the longer run, such a cynical approach will be highly costly.
My few remarks are based on a briefing from the College of Social Work, which has had the benefit of input from front-line social workers, managers, recent directors of adult care and academics, all of whom are very conscious of and concerned about the efficient use of resources. They would not say lightly that one should be developing a service such as this for information and advice unless it were really important. For people without dementia or other disorders which make it particularly difficult to comprehend the world around them, information and advice can probably be provided by less trained people without any great loss.
As was said in Committee, the aims and principles of the Bill are welcome. The College of Social Work is concerned, however, that many of these principles will not be fulfilled in practice. We hope, with the aims and principles in mind, that the Minister will agree to some further clarification in the Bill, or in regulations, on the key role of skilled social workers in supporting and protecting some of the most vulnerable people in society through their involvement at the information and advice stage.
Key stakeholders were grateful that, in Committee, the noble Earl, Lord Howe, recognised the point of this amendment. He said that,
“some authorities have also used qualified social care staff as the first point of contact and have found that this can be effective, efficient and timely, helping people to the care and support that will help them most”.
At that stage he envisaged that,
“guidance will set out the clear expectations of what the local authority’s service should cover or what it should seek to do in order to ensure that the information and advice is sufficient”.—[Official Report, 9/7/13; col. 216.]
The aim here is to ensure, by including the appropriate wording in the Bill or in regulations—I fully accept that having it in regulations would be perfectly satisfactory—that professionally qualified social workers will be deployed in sufficient numbers, including at the information and advice stage, for people who really need that level of expertise. As I have already said, those with complex needs may be a relatively small number of people. This should ensure that these particularly vulnerable people are put in touch with the most appropriate services for them. This could avoid the need for more intrusive and expensive interventions at a later stage.
Lord Lipsey (Lab)
I shall make most of my remarks on the subject of advice and information on Amendment 20, which is a more broad-brush amendment, but I shall just comment on the government amendments in this group, on advice—that is Amendments 16, 17 and 19. I remind the House that I speak as the unremunerated president of SOLLA, the Society of Later Life Advisers, which accredits, to a gold standard, advisers who can help old people on financial matters.
It would be churlish not to say that the government amendments mark a small step forward, in that for the first time they represent a recognition that independent financial advice can be necessary. To that extent, I welcome them. However, I have to say right away that it is impossible to read the briefings we have had without realising that they have caused great disappointment, particularly among financial service people who are determined to get this right. The Equity Release Council says that the government amendments do not go far enough.
In trying to put my finger on the point, yes, they recognise independent advice and financial advice, but they do not recognise the need for that advice to come from people who are properly qualified to give it. It is not enough to have Tom, Dick and Harry advise in this field. It is not enough, even, for local authorities to send people to see people who they may think are quite plausible advisers, such as Citizens Advice: they do not know the complications involved in giving financial advice, particularly to people who have got some money and need to make sure that it will provide them with the care in a home that they want. They need proper, regulated financial advice, given by advisers who can be called to task by the Financial Conduct Authority if the advice they give is not sufficient, who have to follow the rules set by it and must have the kind of qualifications required by it. Therefore, in my view the Government are some way short of what is required in these amendments. It is to repair that lack that I shall later move Amendment 20.
Baroness Barker
My Lords, I think I am right in saying that in the Inuit language there are more than 300 words for snow. I suspect that if historians were to go back through the annals of the British Civil Service, they would come across thousands of ways in which officials have briefed Ministers to say “no” to requests for advocacy. During the 20 years that I have followed these sorts of issues, during which advocacy has became part of social care, Governments have had to find ways to say, “It’s a very good thing, but we’re not going to fund it”. It was therefore a real joy to see the Government’s Amendments 118 and 119 in this group.
It is fair to say that the Government have taken on board the arguments that have put forward by a wide range of people. We know that the changes to the care system and the complexity of those changes, not least those stemming from the Dilnot recommendations, mean that we are now into a level of complexity which individuals on their own—even those who are fairly well informed—will find extremely difficult to manage. Therefore I very much welcome the Government’s Amendments 118 and 119, in which they recognise that there will have to be advocacy services. I also welcome the Government’s commitment to set aside funding for that.
The Minister will accept that his Amendments 118 and 119 fall somewhat short of my proposal in Amendment 38. I would therefore like to raise a few questions which result from the fact that the government amendments are of a much tighter scope than my proposal. I welcome the amendments, but there are several issues that I wish to ask the Minister about.
Subsection (2) of the new clause proposed in Amendment 118 states that independent advocates will,
“represent and support the individual for the purpose of facilitating the individual’s involvement”.
Advocacy in its truest sense is about much more than involvement—it is about enabling people who need help to achieve the outcomes they want. The word “involvement” is not defined, although it is used a lot in the Bill. Will the Minister say whether advocates will have a full advocacy role or whether this is just about securing the involvement of people?
Secondly, I come to individuals who qualify to have an advocate. Subsection (4) of the proposed new clause is quite clear that that is reduced to people who have substantial difficulty in understanding and retaining information, in making judgments by weighing things or in communicating their views. What is not in the Government’s Amendment 118 is a right of access for the advocate to access those people. Under the Mental Capacity Act and the Mental Health Act, where advocates are appointed they have a statutory right of access to people and a statutory right to interview those people in private. Given that we are talking about some fairly vulnerable people, would it be possible to ensure in regulations that advocates have a statutory right of access?
The third thing that is missing is that although the Government have taken this welcome step, there is absolutely no duty upon the local authority to listen to what the advocate has to say. That is a huge omission in the process; could it be dealt with in regulations? To echo the points made by the noble Lord, Lord Lipsey, it is important that people are properly trained for the roles that they will undertake in this extremely complex set of conditions which they are dealing with. Again, under the Mental Capacity Act and the Mental Health Act advocates have to be properly trained. Can that be dealt with in regulations?
Finally, can the Minister say whether it will be possible to include a general provision that in future, if additional circumstances arose in which it would be to the benefit of a person to have an advocate, they could have access to one? I am sorry to sound less than pleased—I am, in fact, very pleased by what the Government have put forward—but with a few more minor adjustments in regulations we could have something that is a great step forward.
Lord Warner
My Lords, I will make a few remarks about three separate subjects that are covered in this group of amendments. First, I congratulate the noble Baroness, Lady Barker, on her tenacity on the subject of advocacy. I very much support what the Government are doing to try to respond to that, because it is a view that many of us across the House have had for some time. The Bill was deficient in terms of advocacy for those who need that kind of help and support.
I will make one remark in relation to my noble friend Lord Lipsey’s remarks, which we will go into a bit more under the next amendment. I remind the Government of the mis-selling of pensions and insurance in the financial services sector. They would do well to dwell on that before they eliminate the idea of some regulation. I see the argument that not all types of financial advice need a regulated financial adviser. However, some types of that advice need a regulated financial adviser. My peace offering to the Government is the following. If they thought a bit more about this, given what happened in the financial services sector, it may be possible to separate out the types of financial advice and deal with it in regulation, where we need both regulated and unregulated people. At the moment, the Government are being too broad-brush in ignoring some of the complexities, particularly around equity release and deferred payments, which may be equally as complex as any of the pensions and insurance issues that were being rather gaily sold by untrained people in the financial services sector.
I take issue with the noble Baroness, Lady Meacher, on Amendment 21, drawing on my six years as a director of social services. In the 1980s, we set up a care management system where care managers did not have to be qualified social workers. These people were putting together packages of care after an in-service training course, which enabled them to deal with some very vulnerable people with quite complex needs. It is not necessary to have a social worker. Many local authority departments over the years have developed benefits advice services that run alongside their social work colleagues, which give financial benefits advice to vulnerable people who need to be helped to find their way around the social security system. I caution the Government against not going down that path. With all due respect to the professional advice that the noble Baroness, Lady Barker, has had, qualified social workers are not necessarily very good at giving some of the advice that we are talking about.
Even more to the point, we should not divert a scarce resource such as qualified social workers into this area of activity when we do not need to. I remind the noble Earl that we are seeing, in the children’s services, a 50% increase in the number of children coming into care in a four-year period. The real need for social work skills and resources is in some of those other areas of work that local authorities have to deal with. However modest the numbers may be—and this amendment does not limit them that much—we do not need to divert scarce social work resources into this area. They need to go into some of their higher priority work, particularly in the area of children.
Lord Hunt of Kings Heath
My Lords, we shall come to Amendment 20, in the name of my noble friend Lord Lipsey and that of other noble Lords, including me, in a moment. However, I want to ask the noble Earl about the point raised by the noble Baroness, Lady Barker, in relation to independent advocacy. The noble Baroness raised a pertinent point about what responsibility there is on a local authority to engage with the advocate. I hope that the noble Earl will provide the House with more information. Clearly, this is a step forward, which is to be welcomed, but one needs some assurance that the advocacy system will work effectively. It would be helpful to know what the noble Earl’s department thinks might be the appropriate response of a local authority where an advocate has come to the fore.
I have a great deal of sympathy with the amendment of the noble Baroness, Lady Greengross. It is one thing to provide information support grudgingly; another to be proactive in doing so. Perhaps the noble Earl would comment in particular on Clause 4, because there is a world of difference between Clause 4(1), in which a local authority must,
“establish and maintain a service for providing people in its area with information and advice”,
and Clause 4(2), which goes on to describe what type of advice. This does not assure us that a local authority will be effective in doing so. I should be grateful if the noble Earl would explain how this will be monitored. Will the Government have a role in reviewing the effectiveness of local authorities in providing that?
If one is resident in an area where the local authority does not seem to provide an effective information and advice service, what recourse does one have? I assume that there would be judicial review and the ombudsman, but those are heavy-handed approaches and it would be helpful to know whether the Government have thought through ways in which members of the public can draw attention to failures to provide effective information and advice in some local authority areas.
That might pick up on the amendment relating to the use of professionally qualified social workers. My noble friend Lord Warner, with a great deal of experience, has suggested that even in areas where there are complex needs, a qualified social worker need not necessarily provide this support. None the less, one wants some assurance that sufficient provision for support will be given. Again, it comes back to the issue of how we will monitor the performance of local authorities.
Baroness Meacher
My Lords, perhaps as a point of information in response to the noble Lord, Lord Warner, I should clarify that my amendment does not suggest that qualified social workers should provide financial advice, for example. The important point about the role of these qualified social workers is that they are used to co-ordinating services for people and would be well aware of the need for financial and all sorts of other advice. Therefore, in relation to people with very complex needs, they are in a good position to make sure that all the bits of the jigsaw are actually provided. That was the objective behind the amendment.
Earl Howe
My Lords, let there be no doubt at all that in the Government’s view high quality, accessible information is vital if we are to realise the aims set out in this Bill. We heard some excellent arguments in Committee about financial advice, advocacy, accessibility and signposting to other sources of information and advice. I hope that the amendments we are tabling today, and the commitments that we can give about our work with the sector on statutory guidance, will persuade noble Lords that we have listened to what we heard in Committee and have acted accordingly.
The noble Baroness, Lady Greengross, has tabled two amendments, Amendments 13 and 18, which state that local authorities should facilitate access to information and advice and that they should be accessible to those who would benefit. Amendment 21, tabled by the noble Baroness, Lady Meacher, proposes regulation-making powers which specify when social workers should provide information in complex cases. Following consultation, we made clear that information and advice must be accessible to those who have a need for them in relation to care and support. It says exactly that in Clause 4(4). Local authorities will have to meet the information needs of all groups, including those who often find it most difficult to access information, such as those with sensory impairments, people from BME backgrounds, people who are socially isolated or who have complex conditions. We are absolutely clear about that.
“Accessible and proportionate”—the words that we use in the Bill—also mean ensuring that information and advice are available in the right format, in the right places and at the right time. A vital aspect of this is making them available face to face and one to one, by phone, through leaflets and posters as well as online. When appropriate and most effective, that advice should be given directly by a qualified social worker. There will be other occasions when information and advice are best and most appropriately provided by others. We are working with all interested parties on what this means in practice and on translating this into the statutory guidance.
Amendment 18, tabled by the noble Baroness, Lady Greengross, seeks to ensure that information should be accessible and proportionate to those who would benefit. We consider this amendment to be unnecessary. The duty to provide information and advice applies to a local authority’s whole population—including those who would benefit from that. Each local authority will need to tailor the service to its population’s needs. I can confirm to the noble Baroness that the detail about how to do this will be covered in statutory guidance, and we are working with stakeholders, including carers and user groups, to make sure that we get this right.
The Government have also listened carefully to concerns expressed about the provision of information and advice on financial matters. We have in response tabled Amendments 16 and 17, which seek to make clearer the active role that local authorities have. Amendment 16 requires local authorities to have regard to the importance of identifying individuals who would be likely to benefit from financial advice. This encourages a more active role for local authorities to consider whether people would benefit from financial advice. Amendment 17 means that local authorities must seek to ensure that adults understand how to access information and advice on the range of financial options available to them.
There are various options for people who could benefit from financial advice relating to care and support, both regulated and non-regulated. Our amendments highlight the importance of ensuring that people understand how to access the variety of advice available independently from local authorities. They mean that local authorities must seek to ensure that adults understand how to access the different financial advice available to them, thereby supporting people to make informed choices.
A particular point that I want to bring out here is that the Government do not believe it would be appropriate to require local authorities to make direct referrals. For the most part, local authorities do not possess the necessary expertise, and there is a risk that a referral leading to poor advice could bring a significant burden of accountability on to the local authority. We will work closely with stakeholders as we produce the statutory guidance to understand how different types of financial advice, including regulated financial advice, might be of benefit for people in different situations, as well as the active role of local authorities within this.
Amendments 14 and 19 seek to simplify and clarify Clause 4 and to respond to specific concerns raised in discussion in Committee. Amendment 14 simply re-words Clause 4(2)(d) in a more concise and understandable way. This makes the clear and unambiguous statement that the information and advice service must cover how a person can access independent financial advice on matters relevant to the meeting of needs for care and support. Amendment 19 responds to concerns raised about the potential confusion, particularly in the financial services industry, over the term “independent financial advice”. The amendment clarifies that the term means financial advice independent of the local authority.
Baroness Greengross
My Lords, I start by thanking the Minister for his very detailed response to these amendments. I am encouraged by what he said. I was, in my remarks, trying to broaden this issue so that integration is about the information and advice that people need and is not always restricted to financial advice and information. It is much broader. Obviously, the proof of the pudding in this is going to lie in what actually happens, and whether we get the sort of integrated approach to this that we hope underlies the philosophy of the whole Bill.
I am sorry that this provision cannot be in the Bill, but I am less worried about that than the eventual result of these measures. The slight muddling around the word “independence” will come out when we consider the next group of amendments and discuss the difference between regulated and independent. The two can be muddled, with regard to “independent” and “regulated”, when thinking of lots of different models for financial products, for example, and “independent” from the local authority. That all needs to be very clear in the minds of those who seek advice and those who are giving advice to very frail and vulnerable people to whom this needs to be clear, broad and helpful, and as well meaning as I know the Minister has in mind for it to be. I beg leave to withdraw my amendment.
( ) have regard to the importance of identifying adults in the authority’s area who would be likely to benefit from financial advice on matters relevant to the meeting of needs for care and support,( ) ”
(iii) to understand the different ways in which they may access independent financial advice on matters relevant to the meeting of needs for care and support.”
“( ) “Independent financial advice” means financial advice provided by a person who is independent of the local authority in question.”
Lord Lipsey
“( ) The Secretary of State—
(a) has a duty to ensure through national public awareness campaigns that there is a high level of public awareness and understanding of the terms and implications of the cap on the cost of care; and(b) shall publish annually a report on the levels of such awareness and understanding, including the results of a representative poll of adults.( ) Regulations must make provision for when a local authority must refer an adult with care and support needs, or who is making plans for meeting such needs, to a regulated financial adviser; and for when a local authority may refer such an adult for such advice.
( ) The advice and information made available to adults with care and support needs must include—
(a) advice on housing options; and(b) tailored information for individuals with specific medical conditions and complex individual needs.”
Lord Lipsey
My Lords, perhaps I may start with a procedural point. We have had these matters under discussion for quite some time, and the first three Peers named on the amendment—myself, the noble Lord, Lord Sharkey, and the noble Baroness, Lady Greengross—had a most useful meeting with the Minister and Norman Lamb from another place on 12 September. There was complete agreement at that meeting that, if it was at all possible, we wanted to go forward on the basis of consensus on the matters of advice and information, and I am sure that that is right. However, I think it fair to say that we are not quite there yet.
The Minister very kindly agreed to share with us his notes for his speech in reply to the debate this evening in advance so that we could consider them, because many things that he might want to say are very relevant to whether we have a picture for advice that really does the job—sorry to mix the analogies. The Minister fulfilled his kind promise, but only at 2.41 pm this afternoon, and I have not had a chance to digest his words, nor to discuss them with my colleagues, whose names are on the amendment. He also suggested that we should have further talks if they would be helpful, particularly, he said, between Report stage days. Clearly we are not considering finished business here. All I am asking is that there should be agreement from him and from the House that if either he or we think that an amendment at Third Reading is appropriate and necessary—it may well not be—he will not resist it on the grounds that we have thoroughly debated it. This is open territory and we are trying to find a way forward. In that way we can avoid any Divisions this evening. I would be grateful if the Minister would agree.
Lord Lipsey
That is marvellous. That makes it much easier.
As I said, I think we are making headway, but I do not think we are necessarily there. There are three elements to this amendment: the information campaign, which the noble Lord, Lord Sharkey, will concentrate on in his remarks; special groups and housing, which the noble Baroness, Lady Greengross, will address; and I will concentrate on the issue of advice.
Why do I spend so much time banging on about advice? This is an incredibly complicated area. The financial products are very complicated, and many people do not have a natural understanding of them. We all sort of know what a pension is. How many people, even in this House, know what a point-of-use care plan policy is? Who would be able to evaluate whether it was good value for money or bad? There is a large gap in the degree to which people know and understand the kind of products that can be involved here and the issues that can arise.
There is not a lot of this advice about, by the way. Some 53% of councils did not even refer people in care homes for independent financial advice. Only 7,000 of the 53,000 self-funders in care homes have had appropriate financial advice. A point-of-use policy can ensure that they can go on paying for their care however long they happen to stay in the home. Their whole lives are at stake, yet hardly more than 10% have received the financial advice they need.
This is costly not just to the individual but to the councils. Nearly one-fifth of self-funders end up falling back on the state to pay. It costs councils £435 million a year, which is a substantial sum. Much of this could be avoided if people got appropriate financial advice. I do not think that this is not common ground with the Government, but it is, I think, a reason why the Government need to make absolutely sure that they get it right in what they do.
The need for financial advice has greatly increased as a result of the Dilnot scheme. The scheme has no stronger supporter than me, except possibly the Minister. I think it is a very good outcome to a very long and protracted debate. Nevertheless, it does make a lot of things more complicated. I will give an example that I gave in an earlier debate. You can apply for help under the means test and find that you are worse off if you get it because, although you get a little help under the means test, you lose attendance allowance if you get any means-tested support at all. I was amazed when I found that out, and I study this every day. How many people would know that unless they had the right kind of financial advice? That could come from citizens advice bureaux if their computer systems were up to it, but you really want an independent adviser to help you in the round. I do not think that is very controversial.
Lord Sharkey (LD)
My Lords, I will speak to the first part of this amendment, but before I do so I will register my strong support for the remarks made by the noble Lord, Lord Lipsey, a moment ago, especially with regard to the provision of independent and regulated financial advice.
I think it is common ground that the Dilnot reforms will fail unless the public understand what they are and what their implications are. I think it is also common ground that there need to be vigorous communication campaigns to make sure people do in fact know about and understand the implications of the reforms. Where there seems to be a difference between the Minister and those who supported a similar amendment to this in Committee is over who should be directly responsible for ensuring that these campaigns take place and that they have an effective form, and over how their effectiveness is assessed.
The amendment before us gives the Secretary of State a duty to ensure through national public awareness campaigns that there is a high level of public awareness and understanding of the terms and implications of the cap on the cost of care. In his reply to a similar amendment in Committee, the Minister simply noted that the Bill as it stands places a duty on local authorities to provide information and advice, including on the cap system. In later correspondence, for which I am very grateful to the Minister, he expanded on the point. He noted that, first, the funding reforms create a shared interest on the part of local authorities, government and the financial services industry to make sure that people are aware of the reforms and have access to the right information and advice at the right time so that they can plan and be prepared to meet their care and support needs. Secondly, the Government want to act in partnership with these key stakeholders to get this right, building on the effective relationships already established. Thirdly, the Government are seeking views in a consultation on the design and technical implementation of the funding reforms, which includes addressing the best way to proceed to raise awareness of these reforms nationally and locally.
The Minister’s remarks make it clear that there are lots of interested parties in this communications endeavour, but they entirely overlook the question of leadership. A campaign as vital as this needs leadership. I maintain that that leadership can come only from the Secretary of State. Local authorities, almost by definition, cannot easily lead in any national sense. As for the financial services industry, it is convinced that the information campaigns need clear, well defined leadership, and is quite clear that it cannot come from that industry. Who would believe facts on the reforms presented by somebody trying to sell you something? In fact, the ABI has told me that it believes that the public information initiative should be led by the Government. That is what part 1 of this amendment would do—give the Secretary of State leadership and responsibility.
The other areas where the Minister may differ about a communications campaign are how high to set the bar and how to explicitly make it plain that it is not just the terms of the reform that have to be understood but the implications of the terms of the reform. It is not much good being aware of the facts if you cannot work out what the facts mean for you. However, the difference over how high to set the bar for a communication campaign is critical. As the noble Lord, Lord Hunt, pointed out a moment ago, the Bill states only that local authorities must establish and maintain a service for providing information and advice. The Bill does not set any measure for whether anyone actually receives or understands this information and advice. It does not set targets of any kind.
You can easily see a situation in which local authorities can, at least technically, fulfil a duty to provide advice and information without providing much of it, or knowing how many people are reached by it and how many of those reached understand it and the implications it has for them. That would be an entirely unsatisfactory outcome and certainly not what the Government intend. We need to make sure this does not happen and that is what part 1 of the amendment would do. It calls for,
“a high level of public awareness and understanding of the terms and implications of the cap on the cost of care”.
At Second Reading, the Minister said:
“The Government will adopt a strategic approach to maximising the public’s understanding of the new care and support system”.—[Official Report, 21/5/13; col. 827.]
The key word is “maximising”. The amendment gives written substance to the idea of maximisation.
The first part of the amendment contains a paragraph which would require the Secretary of State to publish annually a report on the levels of awareness and understanding of the reforms,
“including the results of a representative poll of adults”.
When we discussed this requirement in Committee and subsequently, the Minister felt that reviews of understanding and awareness would naturally follow in the normal course of things, and I am sure that is the case. However, the special nature of these reforms and the need to be able accurately to measure progress in informing people and keeping them informed calls for a more definite and more regular assessment. The Minister also felt that the kind of annual survey we proposed might be very expensive. I have had extensive experience of these surveys in business over the past 20 years and I can reassure the Minister immediately that the kind of annual survey this amendment proposes would have an essentially trivial cost. That is why, for the sake of clarity, the amendment makes reference to a “representative poll of adults”. This kind of survey would, in fact, cost very little, would be very easy to administer and would be exceptionally quick in delivering results.
I will close by saying that I strongly believe a large-scale national information and advice campaign is necessary for the success of our reforms. I believe that any such campaign must have appropriate targets and that we should see on a regular basis how these targets are being met. I believe that any such campaign must have clear leadership, and that direct responsibility for that leadership should be the duty of the Secretary of State, as the amendment proposes. I very much hope that the Minister will be able to agree with at least some of it.
Baroness Greengross
My Lords, I fully endorse what my two esteemed colleagues said regarding the need for appropriate financial advice. I am still of the opinion that people should be referred to regulated advisers, who are best placed to advise them on the full range of solutions open to them. However, to avoid repetition, I will briefly concentrate on the paragraph in Amendment 20 dealing with other areas of concern about which we have already talked in some depth, such as housing. People with specific medical conditions and complex needs are reliant on suitable housing provision. We should also not forget the needs of their carers in this regard. The local authority will need to engage with agencies and organisations such as the CABs and Age UK in an integrated way. This should be part of providing a relevant local advice and information envelope.
Plainly, there is no point in getting appropriate financial advice if, through no fault of the adviser, faithfully following that advice cannot be guaranteed to lead to good care outcomes. Those outcomes may be consequent upon ensuring that things such as the suitability of the individual’s housing and accommodation are included in any wider fact-finding conducted by the local authority alongside any care or financial assessments it performs. That housing suitability will probably depend on the complexity of the care package that the individual’s needs disclose. Those needs will probably derive directly from the specific set of conditions and symptoms that the individual faces.
No one would expect a local authority to be familiar with every possible combination of health and social circumstances that an individual may face, which is why close working alongside local agencies and organisations such as the CABs and Age UK in assuring the existence of a complete, competent advice and information envelope is so important. Indeed, it is my firm view that the quality of that integrated approach to care management may well be the key determinant on which successful outcomes depend. I urge the Minister to adopt our amendment, as we believe that it would go a long way to ensure more effective and efficient outcomes for both the service user and the taxpayer.
Lord Deben
My Lords, I declare an interest as chairman of the Association of Professional Financial Advisers. One of the areas that regulated financial advisers are most concerned about is that they should be able to do the job that they are there for. I am concerned that recent “reforms” have meant that there are fewer people available to give advice and fewer people getting advice. One of our problems is that this means that people get bad advice. They say something to their friend round the corner, or somebody says “I think so-and-so’s OK”, or they have read something in the newspaper. One of our difficulties here is that the perfect gets in the way of the good. People are frightened to say things like, “here is a list of people” or “here is somebody I have used”, in case they then incur some kind of responsibility. Yet if we do not help people to find someone who can give them advice, the very people who most need advice do not get it. I am concerned that this is becoming almost a social problem in the sense that those who are best off and least need advice get the best advice while those who are less well off and need advice do not get it because we have got ourselves into this mess.
I am not in a position to say that this or that amendment is ideal, but I hope the Minister will accept that, in today’s circumstances, unless we give clarity to people and make it relatively easy and simple for them to go to get advice, they will not go and will not be able to.
I have two more short points to make. First, we have concentrated on the simplicity of the advice when you get it, which seems to me to be the wrong place. It is the simplicity of getting the advice that really matters. Very often, the advice that is given may not be all that simple, because the circumstances may not be all that simple, but if the simplicity of getting the advice is right then it can be moved through more effectively.
Secondly, in considering these amendments and, indeed the Bill—at this stage and going forward—I hope the Minister will realise that one of the problems about seeking advice is that the language used is incomprehensible to anybody but the professional. I find this embarrassing: I once sat on an FSA committee designed to try to make more people more financially literate and spent my whole time asking superior people in the finance world to explain to me what they meant. I discovered that they did not always know what they meant. There is a sort of language which is used and batted backwards and forwards between these people. There is a terrible fallout in this. I remember that a friend of mine was asked for advice—not about finance, but about how to buy a theatre ticket—by a man had never gone to the theatre before but whose wife wanted to go to something. She explained and dealt with it but a friend of hers said, very superiorly: “Of course everybody knows how to buy a theatre ticket”. My friend asked, very simply: “Could you buy a football ticket”.
That is one of the problems, so I hope we can try to do this in a way which is comprehensible and simple and which does not mean that the most needy are unable to get the service they need.
Lord Warner
My Lords, I rise to support this amendment and, particularly, to talk about the first two prongs of it. I do this partly from my experience as a member of the Dilnot commission. I remind the House what that commission said on the subject of an awareness campaign. We made only 10 recommendations, one of which was a very strong one because we had been incredibly depressed by the evidence given about people’s understanding of the present system, let alone the new one. When you have 60% of the population thinking that social care is provided by the NHS, you have a bit of a problem explaining to people how the system operates. Since they have not even mastered the existing system, you have to make a really big effort to get across some of the messages about the changes to it.
You could argue that it is a bit like Africa: if you have never had a landline and go straight to mobile phones it might be easier to make the change. Many people will not carry a lot of baggage about the existing system, but we do need to work really hard on this issue. That is why we said:
“To encourage people to plan ahead for their later life we recommend that the Government invest in an awareness campaign”—
we used the word “invest” very deliberately—
“This should inform people of the new system and the importance of planning ahead. This campaign could be linked into the wider work to encourage pension savings”.
Those three sentences were worked over very carefully and we said exactly what we meant on those issues. We said them as strongly as that because we thought that, to some extent, the success or failure of the changes encompassed in the Bill depend on that awareness campaign. I have not seen the Minister’s reply, but I have a suspicion—because I know how health Ministers get briefed—that there will be something about how this is not appropriate stuff to put in the Bill. I can see that there is some strength in that argument but if we are not to put it in the Bill then the Minister has got to start to tell us, in detail, what the Government are going to do.
The Government have had more than two years to think about this. We were made to produce a report very quickly indeed: within 12 months. It is now more than two years since it was produced and I should have thought we could expect a reasonably detailed plan from the Department of Health about how it is actually going to make the public aware. It would be nice if the Minister accepted the amendment, but if he is not going to, we need to know: where is the budgetary provision for the awareness campaign; what work has been done on the selection of people to help run the campaign; when it will start and how long it will go on for. How much are you going to pay for this? Do you accept the idea that all good awareness campaigns have some kind of follow-up arrangements? The noble Lord, Lord Sharkey, has suggested an annual survey and I would not disagree with that. As he rightly said, these surveys are, from my experience, relatively cheap to do. Given the sums of money we are talking about in the Bill, this would be a very modest thing to do and there is certainly no point in having an awareness campaign if you are not going to check up whether there has been any increase in awareness.
There is a raft of issues where we need to have some detail from the Government on what they have been doing on this recommendation for a couple of years. If we have not got a very convincing story, we have to consider putting this in the Bill, to generate some energy and action in this area.
I turn to the second prong, which we have already talked a little bit about under the previous group of amendments. I strongly support what my noble friend Lord Lipsey said, and I want to return to the issue of mis-selling. We have had some serious problems in this country about the way the public has been sold financial products and we ought to be able to learn from history over that. It is not any old Tom, Dick and Harry who can give sensible advice to people about complex financial issues. The noble Lord, Lord Deben, is right: many of these issues are complex and you need a simple system to get to the advice, but the advice is not always going to be simple.
Let me illustrate that with the sort of circumstances that families and older people may be faced with. It is fairly common that an older person is going to give up their house; their spouse has died and they will have to give up the house. The family might well want to have a conference about what they do with that house. There are several options: they could keep the house and rent it for income; they could go for equity release; they could go for deferred payments; or they could go for a point of care plan, as my noble friend said. Choosing the best thing to do from some of those options is not straightforward; it will require someone who knows their way around some of these issues and can give advice to people and their families on how to make a sensible, good decision that fits their particular circumstances. The Government have to give more consideration to this.
I accept that not every issue will be complicated and there could be some circumstances in which the financial advice does not need to be given by a regulated financial adviser. However, the Government now have to do the legwork on separating the sort of situations where regulated financial advice is needed from those where one can be more relaxed about it. If we do not give guidance of some standing and credibility to local authorities, we put them in an invidious position because they will be damned if they do and damned if they do not. They need some advice on the sorts of circumstances in which they, to discharge their obligations under the terms of this piece of legislation, can point people clearly in the direction of advice that is likely to be appropriate to that person’s circumstances.
Lastly, I wish to make a point to the noble Earl about the Secretary of State’s new obligation under government Amendment 138 to have regard to the local authority’s requirement in Clause 1 to promote well-being. The Secretary of State is now pretty much in the same position as that of the local authority when he is producing guidance and regulations. It is at least an arguable case that he would not be fulfilling that requirement unless he put in place some credible arrangements for sound financial advice being given to people and he helped the public to understand the details of the arrangements of the new scheme that the Government were implementing. I am not a lawyer, but it would be worth a punt by going to lawyers to argue that the Secretary of State would be in breach of his new obligations if he took a cavalier approach to financial advice and awareness of the new scheme.
Lord Hunt of Kings Heath
My Lords, I, too, support the amendment. I thank the noble Earl, Lord Howe, for giving us an assurance that this matter can be brought back at Third Reading, which is very helpful to our debate.
As several noble Lords have said, many people find dealing with financial products very complex indeed. They also find the system of social care funding to be complex. How much more complex will it be when the Dilnot provisions in the Bill are introduced? My noble friend made the point that many people misunderstand the current system. Many people think that social care is free at the point of use until they suddenly reach a situation where either they or their relatives are faced with catastrophic issues around long-term care. Even in relation to Dilnot, my noble friend Lord Lipsey pointed out in Committee that many people think there is this cap of £72,000 but, as we know, it is much more complex than that. The £72,000 cap is based on the fee that the local authority will pay for people who are not self-funded, but we know that self-funders, in essence, subsidise those who go into care that is in one way or another funded by the local authority because they meet the means-test requirements. Of course it is not free because there then have to be hotel costs, which Dilnot estimated to be about £12,000 a year. This matter is therefore very complex and many people find dealing with financial issues very difficult.
Earl Howe
My Lords, I begin by thanking the noble Lord, Lord Lipsey, my noble friend Lord Sharkey, the noble Lord, Lord Hunt, and the noble Baroness, Lady Greengross, for the amendment, which covers a number of distinct issues relating to information, advice and awareness of the reforms to care and support funding. I am grateful to them all for meeting me over the summer to discuss these issues so constructively.
A number of speakers, including the noble Lords, Lord Hunt and Lord Warner, stated that public awareness of these matters, particularly on the potential cost of care, is woefully low and that this needs to be addressed. My noble friend Lord Deben made some telling points in that connection. The Government agree that if we are to realise in the fullest sense the benefits of these reforms, it is critical that people are made aware of them and what the reforms mean for them. There is absolutely no dispute on that point. I explained in Committee that Clause 4 requires local authorities to provide information and advice on care and support, and that this must be accessible to their whole population. This will need to include information on the capped costs system.
However, we accept that local awareness-raising alone might not be sufficient. Furthermore, we accept that the department has an important role to play at the national level. For an awareness campaign to be successful it needs to be delivered in partnership—national and local government working alongside the wider care sector. We do not believe that a specific duty in the Bill would achieve this and we do not think that it is necessary. It is not necessary, for one thing, because we are already building a partnership without legislation. We have embarked upon a joint programme with local government to implement the reforms, and I can assure my noble friend Lord Sharkey, and the noble Lord, Lord Warner, in particular, that awareness-raising will be a part of this. We are engaging with the voluntary sector, care providers and the financial services industry to make sure that we all play our part in communicating these reforms effectively. It is a joint effort and a joint responsibility.
To answer my noble friend Lord Sharkey, the public awareness campaign will be timed to coincide with the coming into force of the key elements—that is, April 2015 for most; April 2016 for the capped costs system. I can assure him, too, that the Government do not intend to shy away from the need to raise public awareness.
Turning to the second limb of the amendment, the Government are not convinced that it is proportionate to require the Secretary of State to conduct a poll and publish a subsequent annual report on awareness of the capped costs system. However, we do agree with the need to monitor the effectiveness of the reforms and the Government have committed to conduct post-legislative scrutiny of all new legislation. Moreover, recognising the need to improve data on public understanding of care and support, we have also taken steps to develop and include new survey questions for the annual Health Survey for England. The new questions will be used to monitor and track public awareness over time. If questions are included, fieldwork will be conducted throughout 2014, and the report will be published at the end of 2015. These data would provide us with a baseline against which we can evaluate changes in public awareness. The survey is conducted annually, so there is scope to include the questions in subsequent years. Additionally, there are already questions in the English Longitudinal Study of Ageing— ELSA—which capture public awareness of care and support and expectations of how it is funded. Some data are already available and the next set will be available at the start of 2016. Together, these steps will inform the ongoing implementation and policy development process that will take place in the years to come. I hope that is helpful to my noble friend and provides him with some reassurance.
We are currently consulting about the design and implementation of the funding reforms. Through this we are seeking views about how best to raise awareness of these reforms nationally and locally. We will consider the responses carefully before deciding on the way forward. I can assure the House that this will include a role for the department nationally.
The next part of Amendment 20 would introduce a regulation-making power to specify circumstances where local authorities must, and where they may, make referrals to financial advisers regulated by the Financial Conduct Authority. Given that quite a bit of the ground covered in this amendment was discussed at length earlier in the debate, and relates to a number of government amendments which have been accepted by the House, I hope that noble Lords will forgive me if I do not rehearse all the arguments they have already heard.
The noble Lord, Lord Lipsey, emphasised the importance of people understanding the various products that are available. We agree that, in some instances where someone is considering a financial product such as a care annuity, financial advice should be regulated through the Financial Conduct Authority. However, there are many sources of valuable financial advice that do not need to be regulated and can be provided free of charge—such as advice on managing money from the citizens advice bureaux or from the Money Advice Service. In addition, the fact that financial advice is regulated does not mean that it is appropriate for care and support purposes. Very few regulated financial advisers currently have a qualification or expert knowledge of care and support, though we hope that this sector will develop over the coming months and years. In this context, the term “independent financial advice” covers both regulated and non-regulated advice.
The noble Lord, Lord Lipsey, also asked about the regulation of advisers in this particular field and what we are doing about this. The regulation of financial advisers comes within the remit of the Financial Conduct Authority. We have opened up discussions with the authority and with the Association of British Insurers on the regulation of financial products and advice.
From the comments of the noble Lord, I took it that he accepted that it would be inappropriate to require local authorities to make direct referrals where, for the most part, they do not possess the necessary expertise to judge between advisers. Requiring them to do so would present a significant burden and could result in a local authority making an unnecessary or inappropriate referral. There is the further risk that a referral leading to poor advice could be seen as the fault of the local authority, a point he acknowledged, bringing yet more of a burden of responsibility in increased disputes, and even legal challenge. We believe that the decision to take up financial advice, of whatever form, and the choice of adviser, should belong to the individual and not to the local authority.
In respect of the third limb of the amendment, about housing, this is very similar to Amendment 15 tabled by the noble Lord, Lord Best, which we have already discussed. If the noble Lord has any further concerns, I should of course be happy to speak to him separately.
With regard to the provision of information and advice to people with specific health conditions, this is primarily the responsibility of the NHS. For example, there is a wealth of tailored health and social care information on the NHS Choices website that is public-focused and available to local authorities to use however they see fit. Health and housing are, of course, vital for people using care and support. Clause 3 puts local authorities under a duty to promote the integration of care and support with health and health-related services. The House has accepted Amendment 12 to clarify that this incorporates housing, which includes joining up the provision of information and advice. We will address this in detail through statutory guidance.
I hope that this persuades at least some noble Lords that these issues are all being considered very seriously by the Government, as we work with local authorities and others to implement the reforms. On that basis, I hope that they feel able to withdraw their amendments.
Lord Lipsey
My Lords, I thank the Minister for that reply and for the positive things that he said from which we can draw encouragement. I was particularly pleased to hear him talk about the national role of the department in information provision and confirm that there will be campaigns around landmarks in the Dilnot report to carry that forward. Equally, there are some things on which, if I may say so, he still is not quite there. Nobody advocates direct referrals—nobody. I accept his argument—everybody does—that you cannot just send people to say, “You have to go and see so and so”, or, “So and so is your man”. The other extreme is to say that you do nothing. You provide, for example, a list of suitably qualified advisers within the local authority area; you tell people how to get hold of them. We should not set up straw men, whom nobody is advocating, in order to fend off suggestions that need to be acted upon.
Some things the Minister said would be valuable to follow up in writing. I am sure that the noble Lord, Lord Sharkey, will agree with me that it would be fascinating to see the monitoring suggestions as a substitute for the poll that he suggested, because if they work, that is fine and we will not press it, but if they seem to fall short, that would be different. I think that there will be room to ask the Minister for further discussions with the movers of this amendment so that we can narrow even further the ground before us. I do not pretend to be fully satisfied as I stand here tonight. I gave my reasons earlier why I do not think that the Government’s amendments to the Bill complete the picture, but we are making progress, as we all want to, and we are having a good dialogue. With the Minister’s help, I want to carry that forward before Third Reading, at which stage we will see whether an amendment is needed. With that, I beg leave to withdraw the amendment.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
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EUC Report: Court of Justice of the European Union
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Baroness Corston
To ask Her Majesty’s Government what is their response to the Report of the European Union Committee on Workload of the Court of Justice of the European Union: follow-up (16th Report, Session 2012–13, HL Paper 163).
Shortly after the report was published, the president of the CJEU put forward a series of proposals designed to increase the efficiency of the court. Most notable were the proposals to increase the number of judges in the General Court by 12 in order to tackle the increasing number of pending cases before the court. The Commission thought that increasing the number of judges in the General Court would be the only possible solution to the court’s workload problems, stating that,
“only by immediately increasing the number of judges . . . will it be possible to stem the flow of new cases and effectively tackle the backlog of cases”.
Member states generally agreed that the number of judges ought to be increased. However, agreement proved elusive, principally over the method for appointing the additional judges. In May 2012, the aspects of the president’s proposal dealing with increasing the General Court’s judiciary were dropped in order to facilitate agreement by the member states to the other parts of his proposals.
Subsequently, a Friends of the Presidency Group was established by the Council, comprising representatives from all member states with a view to examining the case for increasing the number of judges in the General Court. However, the group failed to reach any conclusions and the presidency put forward a proposal for consideration at the General Affairs Council on 11 December 2012 which included the appointment of nine additional judges appointed through a rotation system. The proposal was rejected by the member states.
At this point, the sub-committee decided to conduct a follow-up inquiry to determine whether the adopted proposals were having an impact on the workload of the court and whether there was still a case for increasing the number of advocates-general in the Court of Justice and increasing the number of judges in the General Court. The sub-committee wrote to the witnesses who had participated in the original inquiry and asked them to provide written evidence. Evidence was also heard from the Minister for Europe, the right honourable Mr David Lidington, in March. Shortly after we published our call for evidence, the CJEU requested that the number of advocates-general be increased by three, and after debates in both Houses of Parliament, as required by the European Union Act 2011, the proposal was agreed by the Council on 25 June. The first of the new advocates-general will be from Poland and is due to take up the post shortly. In line with the existing rotation, the other two will be of Czech and Danish nationality. They will take up their posts in October 2015.
In our follow-up inquiry we concluded that there was still a case for increasing the number of judges to the General Court. The latest statistics from the court indicate that there has been a reduction in the number of pending cases due to a fall in the number of new cases. The average time that it takes the General Court to dispose of a case has fallen by 1.9 months to 24.8 months. The sub-committee welcomed the decrease in the number of new cases but considered it a temporary respite. It argued that little could be inferred from the decrease in the number of new cases brought before the court as the long-term trend was clearly upwards. The sub-committee called on the Government to make the case strongly in discussions with member states to increase the number of judges and to urge member states to find a system of appointment of additional judges that safeguards the stability of the court and the quality of the judiciary. The Government responded to our follow-up report in July. They agreed with most of the conclusions in the report and appeared to be more positive about appointing additional judges to the General Court as a means to deal with the court’s backlog of cases. They also seemed to favour a merit-based selection process to appoint additional judges. The Commission also agreed with the follow-up report’s conclusions. It stated that “an overwhelming majority” of member states and MEPs supported the appointment of more judges to the General Court. However, the Commission cautioned that it is up to the member states to agree, by what is called “common accord”, a method for appointing additional judges.
Given the inability of member states to reach agreement on a method for the appointment of additional judges to the General Court, the Commission appears to have lost interest in the issue for the time being. However, the Legal Affairs Committee of the European Parliament, the JURI committee, continues to push for an increase in the number of judges. In June 2013, it agreed a report on the draft regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union by increasing the number of judges at the General Court. The report states:
“As a consequence of the progressive expansion of its jurisdiction since its creation, the number of cases before the General Court is now constantly increasing . . . resulting over time in an increase in the number of cases pending before that court and an increase in the duration of proceedings”.
It concludes:
“The General Court—in spite of its substantial efforts—can no longer handle the growing workload”.
The JURI committee has proposed a number of amendments to the draft legislation governing the statute of the CJEU which include an increase in the number of judges in the General Court by 12; that the additional judges should be appointed,
“exclusively on the basis of their professional and personal suitability”;
that there should be no more than two judges per member state; and that during a procedure to appoint one or more of the 12 additional judges, member states may submit nominations, and judges retiring from the General Court may nominate themselves. The report appears to be sound. It follows months of work by the rapporteur, Alexandra Thein, meetings in Luxemburg with officials from the General Court and the president of the CJEU, and discussions at five JURI committee meetings.
The proposals safeguard the geographical balance and representation of national legal systems as there will continue to be one judge per member state and no more than two judges for any member state. Appointing additional judges on the basis of their professional and personal suitability, as assessed by the Judicial Appointment Commission, seems quite sensible and hard to refute. However, Ms Thein proposes that the European Parliament should be receptive to compromise proposals from the Council or the CJEU. She considers that, given the urgency in appointing additional judges to the General Court:
“Any agreement is better than further delay.”
The report is due to be considered in plenary by the European Parliament on 10 December 2013.
The questions that arise for the Minister are: can the Government confirm whether they support appointing more judges to the General Court? If so, would they support a system for appointing those judges based solely on merit? Will the Government make representations to the Commission and the Council to adopt the JURI committee's report?
Lord Bowness (Con)
My Lords, I wish to do little more tonight than support the noble Baroness, Lady Corston, in her plea to the Government for answers to those questions and particularly that they ensure that additional judges are indeed appointed to the General Court as soon as possible. As the noble Baroness has told the House, the committee concluded that this was necessary some time ago while I had the pleasure of serving on that committee and nothing, to my knowledge, has changed. I am pleased to say that, from the Government’s response to the follow-up report, they now appear to agree that the case for increasing the number of judges has been well made. If that is indeed the case, I am pleased that they have been converted to the idea. As I have said on previous occasions, I trust that resources will not again be considered the problem.
A robust functioning legal system is invaluable. The rule of law in the widest sense is perhaps the greatest bulwark against bad government, and preserving the quality and effectiveness of the European Court system is important. The court is a vital institution for the proper functioning of the Union. Without the court we have nothing to buttress the operation of the single market which is so much more complicated than a trade deal and is, we are told and all agree, essential for our interests.
The question of resources should be put in the context of the sums involved. From an overall EU budget of the cost of the court is just over 0.25%. It is difficult to know how much the United Kingdom contributes to that because statistics do not give a breakdown. However, on the basis that we contribute something like 11.5% of our share to the overall EU budget, our share of the court budget would be £32 million.
Put into context, we are quite happy to spend some £25 million, if a Statement made by my right honourable friend the Foreign Secretary in July of this year is correct, on various international tribunes, all of which are very worthy, but are certainly no more important than the Court of Justice of the European Union.
The issue, as the noble Baroness, Lady Corston, has indicated, is how we appoint these additional judges. I am rather disappointed that paragraph 10 of the response says:
“The Government looks forward to examining detailed proposals in the Council”.
We all look forward to something coming; the question is, what are we going to do about bringing it forward? I understand and, to some extent, support the principle of a merit-based system, but if not, I am at a loss to understand why the procedures for the appointment of the advocates-general cannot be used.
I am sure that we are all delighted to see my noble friend the Minister on the Front Bench replying to this short debate on what, in the scheme of the many things with which she is concerned, may appear a small matter. It is nevertheless an important matter for the European Union. I will therefore perhaps trespass upon her good will to seek assurances from her that the Government will keep this matter, and other important matters within the European Union, at the forefront of the agenda at European Union meetings, taking positive steps to ensure that they are considered.
The United Kingdom could have great influence. Indeed, we often speak of our worldwide influence, so it would be good to know that that influence can be brought to bear within the European Union. There are matters which are not for the grand world stage, not the material of headlines but important nevertheless. If I may stray slightly from the topic, there are problems such as progress on the admission of Macedonia, Moldova, Transnistria, Serbia and Kosovo to name but a few. Of course, there is also the problem of more judges for the General Court—another kind of problem but one that needs a solution.
I believe that a British lead on such issues would be both welcome and constructive, and a change—if I may say so—from our apparent obsession with our relationship with the European Union.
Lord Dykes (LD)
My Lords, it is a great pleasure to be able to follow the noble Lord, Lord Bowness, and I very much agree with the content of his remarks. Not wishing to embarrass my noble friend in any way, or cause him any difficulties, I will also add that there have not been many occasions when I find myself strongly disagreeing with what he says on all sorts of different kinds of European matters. He has the reputation of having been an excellent chairman of the sub-committee before the noble Baroness, Lady Corston, and we were grateful for his guidance on many matters, particularly those in more recent times.
We are now coming to an important moment in the development of the European Union, albeit with at least one member Government who seem hesitant on a number of aspects. That is disappointing to the observers of the general scene in Europe. I hope that that attitude will change over time. The Government face enormous complications about how they will handle these matters in the UK’s political cockpit between now and the next general election, either with or without a change of Government, and with or without a coalition.
Under the provisions of the Lisbon treaty, the Court of Justice of the European Union, by the beginning of December next year, will undertake a much greater, with widespread consent and enthusiasm, and will need extra resources. Although there was a temporary dip, the workload is already showing signs of renewed increase and that will become a major element of its work in future as it deals with all aspects under the treaties—the contents of the two main treaties and dealing principally with the single market and all the things of greater complexity that flow from that as time goes on. One thinks of all the possible cases that will arise over trade marks, patents and intellectual property, as well as more mundane disputes that will arise between corporations, and between Governments and corporations in different member states, as the single market develops. There is still a lot of work to be done in the single market context. People tend to think that it is mostly completed, but that really is not true; it is an ongoing situation and the Court of Justice is going to be a vital part of that.
On the Government’s side, there seems to be a psychological reluctance to show any enthusiasm for these matters at all, which is a great pity. I am sure that that view is shared be members of the main European Union Select Committee, of all parties and backgrounds, as well as the sub-committees. Although scrutiny means the right to be critical about things that are either manifestly not in our national interest or against the practical interest of a particular piece of policy formation or political decision, the general picture should be more positive. As my noble friend Lord Bowness quite rightly said, the amount of money involved in making sure that this court works efficiently and properly on an expanded basis with additional judges—who, I personally hope, will be chosen on their merits, as has already been enunciated; we thank the noble Baroness, Lady Corston, for her opening remarks—is so minuscule as to be within any of the foreseeable elements of the European Union budget totals anyway. I think I am right in saying that year in, year out, the actual expenditure outlays of the European Union budget are below the allocated amounts from the previous decision-making period.
Although the idea that there should be hold-ups because there is an austerity programme that should affect everybody is right in terms of many other aspects of the Commission budget—the big stuff in the budget and the modernisation of that budget—it cannot be right to harm the effective functioning and future efficiency of this important body, which will be much more influential and powerful, quite rightly, in future in adjudicating on legal matters affecting all the member states and the various parties involved in those cases.
I share the disappointment that the indication in the debate on 23 July that this had to be done under the European Union Act was not greeted with much enthusiasm in this House, as we recall; indeed, there were members of the coalition who were very strongly opposed to it and thought that it was the wrong kind of procedure to bring in at this time on treaty-based matters, which are international treaties and should be treated on that basis in the future. Be that as it may, I was particularly pleased that one of the report’s main suggestions was:
“The Court should take further steps to encourage national courts requesting preliminary rulings to include a provisional answer”.
I think that is a very practical suggestion.
As has already been mentioned, the Government’s response was very unenthusiastic, which we found disappointing. The report states:
“On the most important reform, namely the increase in the GC’s judiciary, the Government ‘noted’ the recommendation while pointing out that they were seeking significant cuts to administrative spending over the following years and that any budgetary implications relating to proposals for reform of the CJEU would have to be consistent with their position”.
Bearing in mind the minuscule amounts of money involved, it seems to be more of an ideological reluctance to show any enthusiasm for the Court of Justice because of the very nature of the institution itself. That cannot be right, when it has been agreed under the Lisbon treaty as a vital part of the future development of the European Union, and is supported overwhelmingly by the other member states, including of course with great enthusiasm by the new member states, which do not fear this magical loss of pretend national sovereignty which seems to be an obsession of at least one of the political parties, or a good segment thereof, in this country. I cannot understand that.
I hope, therefore, that the Government, in the form of my noble friend Lady Warsi, whom we thank for coming to conclude this debate, will give us an encouraging answer on these matters. It is time to face up to these things. Time is short between now and the beginning of December next year for these matters to be resolved. The sub-committees are going into other areas, too, where the Government need to show greater enthusiasm: the big stuff in policy, the opt-outs and all that, which is a continuing saga to which I will not refer any longer.
The European Commission letter of 17 September says that,
“in line with the view of the House of Lords, the Commission is of the opinion that it is too early to tell to what extent the amendments to the Statute of the Court of Justice of the European Union which, together with changes to the Rules of Procedure of the Court, only entered into force last year, will lead to a decrease in the number of pending cases”.
That means that it did not really feel that that was going to be so in the future, as has been suggested. The letter goes on to say that,
“the Commission is pleased to see that an overwhelming majority both amongst the Member States and within the European Parliament support the idea of additional judges”.
The letter concludes:
“The Commission agrees with the House of Lords that an increase in the number of judges should be preferred over the creation of specialised courts”.
That is an extremely important point. I hope that the Government tonight will agree.
Lord Liddle (Lab)
My Lords, it is somewhat paradoxical that this is the fourth time in the past two years that I, as European spokesman for the Opposition, have had to speak on this matter. I cannot think of any European topic on which we have had so many debates, other than our membership of the EU itself. Some people might say that to have four debates on the European Court of Justice in the space of two years shows that the House of Lords has got its priorities wrong in timetabling its business. That may be a true general point but in this case it actually demonstrates the persistence of your Lordships’ European Union Committee and the quality and commitment of its members to see that its recommendations are acted on by the Government. The noble Baroness, Lady Corston, and the noble Lord, Lord Bowness, are to be greatly praised for the determination they have shown in making this case for Court of Justice reform.
We last debated this in June, when we had to approve the Government’s support for three new advocates-general. There was a bit of self-congratulation that we had at least achieved something. The Polish advocate-general takes office this year and there are to be another two advocates-general by October 2015. This seems to be reform at a snail’s pace. There are very strong reasons why that pace should be quickened.
First, there is already a backlog. Secondly, it is overwhelmingly in our national interest. The coalition has made one of the prime objectives of its European policy the deepening of the single market in the areas of digital economy, energy and services. I can tell your Lordships that in all these three areas progress will be very dependent on the court and its judgments. The digital area is full of competing vested interests. The energy area is full of strong national incumbent companies that want to hang on to their monopoly positions. We had the services directive in 2005 and there has been a great deal of foot-dragging by some member states in its implementation. If you are to achieve your objective, all these things require a much stronger court that is able to deal with these issues in a more speedy way.
Thirdly, there is in 2014 the “communitisation”—in the European parlance—of justice and home affairs as a result of the Lisbon treaty, which means that vast areas of what has been intergovernmental legislation will come under the jurisdiction of the Court of Justice, increasing the workload again. Of course, we are going to be participating if we get our opt-ins in some of those areas.
As the noble Lord, Lord Bowness, and the noble Baroness, Lady Corston, have said, the argument about cost is really absurd. The court is 0.26% of the EU budget —one-quarter of one-hundredth of the EU budget. The EU budget itself is only 1% of EU GDP. If my arithmetic is right, and it may be wrong because I am getting a little rusty, the cost of the court is one forty-thousandth of Europe’s GDP.
In terms of Britain’s national interests, which ought to be at the forefront of this Government’s policy for Europe, there is indisputable academic evidence that the single market has permanently added 1.9% to British GDP. That is a result of our being members of the single market. Potentially, if we get what we want, it could be much more. The noble Lord, Lord Bowness, calculated that the cost of the court is roughly £30 million. That addition to our GDP is worth over £30 billion. When one thinks about the importance of the single market to our economy, it is absurd to allow some ideological points about the jurisdiction of the court to get in the way of sensible moves to strengthen its efficiency.
I hope that the Government will support the case for more judges. I should like to make one point. The noble Lord, Lord Wallace, answering the debate in June on behalf of the coalition, said:
“We are strongly in favour of additional members—not another 27 but another nine or 12”.—[Official Report, 10/7/13; col. 1484.]
We very much hope that will be agreed. It will be a pleasure if the noble Baroness, Lady Warsi, will reiterate that firm commitment given by the noble Lord, Lord Wallace, that British policy is to press for an increase in the number of judges in the court.
The noble Lord, Lord Wallace, went on to say that the problem lay in the difficulty of agreeing how the extra judges should be chosen: which member states would have them and which would not. This raises a difficulty of fundamental importance to the Government’s ambitions to see reform in the European Union. For instance, if we are to have a more efficient European Commission that does not over-regulate, we have to get away from every member state having a commissioner of its own, each with a portfolio of their own. That inevitably results in an extension of European action. We want a much more focused Commission. At the very minimum, there has to be some system of senior and junior commissioners. The equality of member states will have to be addressed in that case.
Similarly, if the costs of Europe are to be cut, it is absurd that there is a Court of Auditors in which every member state has an auditor with their own cabinet system. To cut the costs, it is necessary to move away from the principle of every member state having its own person. The question of reconstituting the court on a basis where not every member state gets an additional judge is at the heart of the reform agenda for Brussels. It is a fundamental point. The Government have to seize this and elevate it if they want reform to the top political level of the European Council. I urge the Government to press on and to pursue a genuine reform strategy for Europe. If they do that, they will have our full support.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con)
My Lords, I am grateful to the noble Baroness, Lady Corston, for opening this debate, and also to all members of the sub-committee on justice, institutions and consumer protection—both for their report and for their continued interest in this matter. I am also grateful to members of the European Union Committee. I am grateful to the noble Baroness for her detailed opening remarks, some of which I may repeat for the record.
A well functioning European Court is in the interests of all EU member states. I accept the view of the noble Lord, Lord Liddle, that it is in our national interest too. The Government have consistently supported efforts to reform the court to uphold the integrity of EU law and to increase the capacity and efficiency of the court. We all benefit from effective EU law—including British businesses operating within the single market. I accept the views of the noble Lord, Lord Liddle, on that. In evaluating any proposed reforms, the UK has been keen to ensure a number of things. First, reform should promote the effective passage of justice. Secondly, it should be based on clear evidence of need. Thirdly, it should not place additional burdens on the EU’s budget. Fourthly, it should avoid full-scale treaty change; and fifthly, it should be acceptable to Parliament.
Since the European sub-committee’s initial report in 2011, several useful reforms have been implemented. These include increasing the number of judges in the Grand Chamber from 13 to 15; streamlining procedures by, for example, abolishing the requirement to read the report for the hearing in full; allowing for the appointment of temporary judges to the Civil Service Tribunal and establishing a new office of vice-president in the Court of Justice and the General Court. In the debate of 23 July 2012, when this House agreed to support these changes, my noble friend Lord Howell noted that they were fairly modest. The Government agree that their impact on the processing speed of the court is also likely to be modest. However, we believe that even a modest impact is to be welcomed. Given that these measures came into effect only towards the end of last year, it is too early to assess their substantive impact. We will monitor their effect over the coming months.
Moving to more substantive reforms, your Lordships will remember that earlier this year, the Government received the approval of both Houses to agree to increase the number of advocates-general at the Court of Justice to nine from 1 July 2013, and to 11 from 7 October 2015. The Government share the belief of the sub-committee that this reform will help the court to handle cases more quickly and improve the quality of decision-making. At the Council of Ministers meeting in June, the Government agreed to this reform. We expect the first of these additional appointments—a permanent Polish advocate-general—to be made soon. This appointment will bring Poland into line with the other “Big Six” member states, including the UK, all of which have permanent advocates-general. The two other additional advocates-general will increase the existing rotation system from three to five. Under the current arrangements, we expect that the first two, due to be appointed in October 2015, will be Czech and Danish.
In its request, the court sought to have the first additional advocate-general in post from 1 July 2013. Since this request was made only on 16 January 2013, and as the Council agreed to it only in June, this was always an ambitious timetable. The Poles estimate that their nomination process will take four months. We therefore expect that we will shortly be presented with the Polish nomination. The court and other member states are keen for the Polish advocate-general to be in post as soon as possible. The UK therefore stands ready to approve any suitable candidate.
Most of these reforms have concentrated on the Court of Justice, so there is now a need to focus on reform to the General Court. The Government share the European Union Committee’s eagerness for a resolution to the question of additional judges for the General Court. These negotiations have continued since March 2011, and still seem some way from a successful conclusion. While there is a case to be made for additional judicial appointments, the questions of how many more judges there should be, and how they should be appointed, remain open; as does the question of cost-effectiveness. In particular, the debate on selection method has reached an impasse. The political reality is that there is currently no agreement on any particular system.
The Government have a set of key priorities. Among other things, we want to ensure that the legal expertise and judicial memory of the court remain strong, that there is an appropriate balance in terms of the representation of common and civil law and that reforms are cost effective. Within this framework, the Government are maintaining a flexible stance in negotiations to help to facilitate an agreement. We are working hard to find a solution, and I assure my noble friend Lord Dykes that we are committed to finding a solution on which necessary agreement can be reached.
In response to the noble Baroness, Lady Corston, the Government believe that increasing the number of judges in the General Court could form part of the solution to the problem of the court’s backlog of cases but, alongside this, we think that the court must also review its working practices and processes to ensure that they are as efficient as possible. In this context, we are expecting the court to publish a recast of its rules of procedure later this year and to submit it to the Council for approval.
A merit-based system would better meet our priorities than the rotation-based systems previously discussed, and I should like to think that UK judges would have a good chance of nomination under those circumstances. The problem, however, is that there simply is not the consensus in the Council that would be needed to move towards a merit-based system. Many details still need to be worked out, and many states have strong objections in principle. That said, we are encouraged by President Skouris’ comments on the benefits and feasibility of a merit-based system, and we look forward to negotiations continuing.
I hear what my noble friend Lord Bowness said on budgets. In the current economic climate, there is an imperative on all the EU’s institutions to reduce their administrative costs. The Government have been clear throughout that any additional advocates-general or additional General Court judges should not result in an increase to the EU’s budgetary demands. We believe that the relatively small additional financial pressures of appointing the advocates-general can be met from within the court’s existing budget, which was more than €354 million for 2013, and which the court has underspent in previous years. When we agreed to these appointments at the Council of Ministers meeting of 25 June, we submitted a statement noting this expectation. Likewise, we will continue to emphasise that any additional reform costs must not create pressure for an increase in the EU’s administrative budget. During discussions on the annual budgetary framework next year, we, alongside like-minded member states, will press very firmly for costs to be met from within the court’s existing budget.
I note what my noble friend Lord Dykes said, but in the current economic climate there is an imperative to find ways to reduce administrative costs. In the same way that we have asked our domestic institutions to do more, we look to the EU to do likewise. I also assure him that we are heavily engaged on a wide range of European issues. My honourable friend the Minister for Europe regularly updates Members of your Lordships’ House on the broader issues raised by my noble friend Lord Bowness.
The Government are committed to promoting the effective passage of justice by the Court of Justice of the European Union. We believe that the appointment of additional advocates-general, alongside the reforms that the court has already made, will contribute to this goal. The Government will continue to work closely with the court, the Commission and other EU member states to identify and take forward both long and short-term solutions to the General Court’s backlog, and we will continue to explore the full range of options for structural reform in order to find a solution that meets the objectives I have outlined today.
Lord Bowness
When does my noble friend anticipate that this matter will next be before the Council?
Baroness Warsi
I do not have that information to hand, but I will write to my noble friend with full details.
Care Bill [HL]
(10 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Meacher (CB)
“( ) the need to adhere to specific minimum quality standards and requirements in the commissioning and provision of services to adults, as regulations may prescribe;”
Baroness Meacher (CB)
My Lords, I will also speak to Amendments 25 and 26 in this group and acknowledge the Government’s Amendments 24 and 27, which I will mention later. I start with Amendments 22 and 25. As many noble Lords have said, the Care Bill has the potential very significantly to improve the care of elderly and disabled people. However, there is also the possibility that only a part of that potential will be realised, particularly in the face of significant cuts to local authority budgets. Amendment 22 therefore places in the Bill a requirement for there to be regulations about how services are commissioned to ensure that they offer at least a sufficient level of quality to the individual. Amendment 25 ensures that home visits are not normally commissioned for less than 30 minutes. The amendments provide for a service of at least minimum quality, as I said, which will ensure the dignity of each elderly or disabled person. They also allow flexibility—which is important—for short visits, for example for the delivery of a meal or for giving an injection, and also for longer visits.
This became very clear to me when I met the director of the Bikur Cholim social care organisation, which has been in operation for many years looking after people in the Jewish community. The director told me that for a disabled, doubly-incontinent client, a morning visit cannot be completed in less than one hour. Dealing with the incontinence—and one does not want to go into too much detail about that—can be time consuming. A bath or shower is essential for a doubly-incontinent person; they need a change of clothes, possibly a change of sheets, to have food provided and help to get dressed.
When you think about all that, it is fairly obvious that you could not possibly do it in half an hour. However, in our financial context there is an increasing tendency to commission ever-shorter home visits, many lasting only 15 minutes, as has been well publicised on the “Today” programme twice this week. Indeed, a survey by the UK Homecare Association found that one in 10 visits already last only 15 minutes and the proportion of 15-minute visits has increased by 17% over the past five years.
Leonard Cheshire Disability has seen tenders for visits of only 10 minutes and, according to the person on the “Today” programme, these carers tend to take 10 minutes to take off what they describe as “their hat and coat”. I am quite curious about carers arriving in a hat and coat, but there we go. It means they would then have to shoot out of the door without their hat and coat. The mind boggles. This is a very serious issue and a tragic quote from a disabled client makes the point better than I can: “By the time they have got me to the commode and helped me to change, the time is up. I end up choosing between getting my meal prepared or having my commode emptied. Do I get a drink or do I go to the toilet?”.
Imagine having to make those kinds of choices. The public do not support depriving elderly and disabled people of a dignified service. Some 96% are critical of these very short visits for personal care; people understand about an injection, I think. Will the Minister clarify on the Floor of the House that a visit to deliver personal care, including, as it will inevitably, dressing, taking the client to the toilet or bathing, within a timeframe of 15 minutes is simply impossible and always will be. Therefore, one can say something pretty firm about it.
From the point of view of the carers too, workers complain that they have had to stay longer than 15 minutes in almost every visit, even though they are paid only for 15 minutes and they are not paid for their travel time either. As one said, “You just cannot possibly do this job in that length of time”. The question is whether we are giving sufficient priority to elderly and disabled people living at home. I think we have to answer, “Surely not”. The Minister, Norman Lamb, has very publicly criticised 15-minute personal care visits, but there is nothing in the Bill to prevent this practice from continuing and, indeed, from spreading further. The government amendments do not really tackle the problem, although I know that the Minister always tries very hard to do what he can. He will be aware of the 2,000 plus e-mails that have landed—not necessarily on his desk but in the office—within the past few days expressing concerns about this issue. It has concerned people very deeply.
I hope that the Minister can assure the House today that the Government will guarantee that our most vulnerable people can rest assured that their needs will be met and their dignity will be protected. This means, I fear, carers having enough time. I know, of course, that this means resources, so we are here coming down to priorities and where they really lie.
Amendment 26 is supported by the Care & Support Alliance of 70 organisations representing old and disabled persons, those with long-term conditions and their families. Clause 5 acknowledges the benefits of quality services but only requires local authorities to,
“have regard to … the need to ensure”,
that sufficient services are available. I am not quite sure how one has regard to those matters and then disregards them, so I am genuinely not sure what that means. The amendment would “require” local authorities to ensure that sufficient services are available to meet the needs for care and support of adults and their carers in their area. We are talking here about good planning of services over time, and also the planning of a comprehensive range of services for people with very different disabilities and needs being undertaken.
We take the view that the social care system is in crisis, too often leaving older and disabled people and their families without essential care and support; certainly, I take that view. Indeed, I emphasise that I fear that abuse of elderly and disabled people is very likely to be the next national scandal. We have had physical abuse of children; we have had sexual abuse of children. One has only to think about the love of parents for children to wonder, if parents are doing that to their children, how many elderly and disabled people may face abuse? I say this with the greatest possible sympathy and understanding for carers. How many of us can honestly say that we could live with, say, a dementing parent—I have had a dementing parent, so I have an understanding of this—year after year, without sufficient support, and always find the emotional, physical and every other kind of energy to provide that care, and often to give up your life to do so, without being reduced to behaviours of which one would be profoundly ashamed? If abuse occurs, we cannot blame the overburdened carers. It is up to us.
Meeting short-term needs is essential. This is not straightforward for people with fluctuating disorders. Somebody with multiple sclerosis, for example, can from time to time need full-time, 24-hour care. If that is not available, that person will have no option but to be moved into a residential home. Very often, the only space is in a residential home for the elderly. For, say, a 25 or 30 year-old, that is a deeply distressing experience, apart from being very expensive.
On the range of quality services, a tragic story about a deafblind man says it all. Some unqualified person delivered his breakfast but never told him where it was, so he went without breakfast for days. It was sitting on the fridge, but you have to have the training to tell you that you need to be very good on your communication. You could say that it is all very basic stuff, but this poor chap went hungry.
I very much welcome the Government’s amendments in response to these concerns but, unless I have missed something important—I confess that I may have—they do not seem to ensure that sufficient appropriate services are made available for vulnerable people. I am confident, nevertheless, that the Minister well understands the importance of this issue and very much hope that he can assure the House this evening. I beg to move.
Baroness Masham of Ilton (CB)
My Lords, I support Amendment 22 but am concerned about Amendment 25. Is it wise to mention 30 minutes? I declare an interest as president of a spinal injuries association. Some of our members have broken their necks and are paralysed from their neck down. To get a paralysed person up, to do an evacuation of their bowels and to wash and dress them, using a hoist, might take at least three hours. Surely it is better to stress the individual’s needs rather than to set in stone half an hour. Providers of care may use that as a marker.
A visit taking 15 minutes, as has recently been in the headlines, is totally ridiculous. Having the choice of whether a carer takes someone to the lavatory or gives them a drink is unacceptable. If stress is put on the carer who cannot do the job in that time, they will leave and not do the job at all. The person needing care is left in a dangerous position if adequate care is not given. The amendments need to be flexible and aimed at an individual’s personal needs. I hope very much that the Minister will look at this and will do something to make it acceptable.
Baroness Greengross (CB)
My Lords, I was the lead commissioner at the Equality and Human Rights Commission during a big inquiry looking at home care for older, frail people. We found that half of the people receiving such care were satisfied with it. Half were not. Mostly, the complaints were about breaches of their human rights. This is a terrible indictment of our care system: to be able to say that because of the care that is regularly given to people, their human rights are breached is absolutely unacceptable.
We know that the number of 15-minute care visits, as Leonard Cheshire Disability discovered this week, is going up: 60% of local authorities commission them and the number has risen by 17% in the past five years. I do not want to delay colleagues in the House for very long; it is just that you cannot do the sorts of jobs that the majority of people need in 15 minutes. Of course, one needs flexibility: to give somebody a dose of medicine does not take very long, but to really care for someone, which involves all the tasks that the noble Baroness, Lady Meacher, mentioned so lucidly and clearly, takes much longer. We need some way in the Bill of making absolutely sure that this cannot continue. It is absolutely disgraceful that we have to have this conversation at all.
Baroness Finlay of Llandaff (CB)
My Lords, on reading carefully the amendments in the name of the Minister, I hope that he will be able to provide reassurance that his amendments will go further than Amendments 22 and 25 to which I have added my name and that they will be much more about the whole person and the whole person’s needs. I recognise that there are dangers in putting a timeframe around anything; there is the danger that it will be used as a so-called minimum standard, down to which people will drop. I initially wanted to support these amendments and I suppose, if I had a choice, I would have added my name to those of the Minister now, because there is a real problem if care is not adequate in quality and promoting well-being in that it creates dependency rather than reablement towards increasing independence. There is a sense of personal worth that goes along with being able to do things, however slowly, rather than having to accept somebody doing them for you because they are in a terrible rush. I hope that the Minister will provide us with a much wider reassurance than the words suggest at first glance.
Baroness Gardner of Parkes (Con)
My Lords, I was most interested to hear the comments of the noble Baroness, Lady Meacher, and I agreed with every word, but I do think the time limit specified would not be right and I strongly support Amendment 27. However, there are other aspects of this care issue that we have not really thought about.
One that is covered in Amendment 27 is about the well-being of carers. I find it very disturbing that a woman I know who lives in with a person needing pretty comprehensive care every Saturday and Sunday and stays overnight on both nights, is appallingly paid for this because she is self-employed. I said to her that I could not believe she was earning so little when it is such a very important job and so very time consuming. I told her I would look on the internet to see what she is entitled to as a minimum wage. It turns out that there is no minimum wage for a self-employed person. That quite stunned me; there is a great reservoir of people who would be willing to take on self-employed caring positions and do them for quite long periods, not rushing people, but not at her rate of pay, which worked out at a little over £2 an hour for all the hours she was there. I suggested that, since she had done training in care, she should work instead for the people who provide a service for the local authority. She followed that up and it turned out that she would not earn much more, because they are not paid for travelling time. Unless the organisation improved so that her two, three, four or 10 jobs—whatever it is—were almost next door to one another, the unpaid travelling time would constitute much more of her day than the time actually caring for people.
The other point raised by the noble Baroness, Lady Finlay, is that it is more than just physical care. We have heard much in recent days about people’s extreme loneliness, how they can go almost for days with hardly a word with anyone. That is a most essential thing in life, to feel that you have not been abandoned. The woman in the television report talked about taking your coat off, making your booking and going through it all, and how you are left with 10 minutes in the middle and then you book in a final 10 minutes to reverse everything. That is exactly what I remember from when I was chairman of local social services 30 years ago; that was exactly the same problem then.
These are not new problems; because there are so many more older people who need more care, and there is more awareness, with people wanting to stay in their own homes, this problem has grown, and we do not have the solutions to match the need. I strongly support the emphasis on the well-being of carers, which is mentioned in Amendment 27—that is important. People should feel that they are doing a worthwhile job and that what they are doing is helping other people. They should also be reasonably remunerated for it. There is so much that we would all support; I feel that all noble Lords in this Chamber want to see more help and more efficiently used help. Amendment 27 in particular covers a lot, but whatever offers can be made, so much the better.
Baroness Emerton (CB)
My Lords, I apologise for not having heard the first part of the speech made by my noble friend Lady Meacher; I can only say how much I agree with her. In the past nine weeks, while the carer was away, I had the personal experience of doing two weeks’ full-time caring. I timed waking up, giving the medication, getting breakfast, rushing up to do my post while she was having her breakfast, and then attending to her personal care and getting her dressed. It took an hour and a half, every day, and that was just the morning.
On the point made by the noble Baroness, Lady Finlay, the minimum quality standards in the noble Earl’s amendment set a good standard. However, that needs to be supported by an assessment and care programme. There needs to be a proper assessment of what is required in terms of the total care, not just the minimum. We have a system for some of our residents in the retirement development where I live, where prevention to admission to hospital is done by an assessment of how much time care is required. Two people come from the unit—a nurse and a physiotherapist—and fully assess the patient. If there is a proper care programme, that gives the time element. Amendment 25 says “excluding travel time” and that a visit should not take less than 30 minutes. It is difficult to be so prescriptive, but if that was according to the care plan, it might go a long way.
Lord Hunt of Kings Heath (Lab)
My Lords, Amendment 151 is in my name. This is a very important group that goes right to the heart of our debates about the quality of care that is being given to many vulnerable people. You cannot distinguish the quality of care from the way in which care workers themselves are treated. I very much agree with the noble Baroness, Lady Gardner, on that.
In Committee I quoted from a Unison survey called Time to Care, and I will quote one or two statistics from it. In this survey, 79.1% of the staff surveyed said that they had to rush work or leave one care visit early to go to another. Some 56% earned between £6.08 and £8 per hour. The majority do not get set wages. Their turnover is very high: 57.8% of those surveyed were not paid for travelling time between visits. That is not the foundation for providing good-quality, comprehensive and continuous care.
We know that many people on these so-called zero-hour contracts have had to sacrifice time with their children in order to be available when their employer requires them to be—even if there is no work. Others are required to work exclusively for one employer with no guarantee that they work enough hours to pay the bills. The Opposition believe that employers ought to be banned from insisting that zero-hour workers be available even when there is no guarantee of any work. We should stop zero-hour contracts that require workers to work exclusively for one business, and we should end the misuse of those contracts where employees in practice work regular hours over a sustained period.
The issue of how care workers are treated and employed is directly linked to the arguments of the noble Baronesses, Lady Meacher and Lady Greengross, about 15-minute care visits. There is no doubt that there is widespread concern about the impact of local authorities setting what can seem to many to be arbitrary limits in the time allowed for care. I do not necessarily go along with the amendment sponsored by the Leonard Cheshire organisation, but the argument that it raises about care workers being asked to provide personal care, including supporting service users to dress, bathe, eat and go to the bathroom in a timeframe that simply does not allow dignity or respect, seems powerful.
Equally, I have noted the comments of the president of the Association of Directors of Adult Social Services, who cautions against taking a broad-brush approach in terms of the time that should be given to each client. The association agrees with Leonard Cheshire Disability that 15 minutes is not long enough to allow some homecare tasks to be done, but it says that there is a need for some flexible and truly personal approach, so that each person can be assessed and provided with the appropriate care. The noble Baroness, Lady Masham, made a powerful point that if one seeks to place in legislation a minimum number of minutes, the risk is that it would not meet some people’s needs. However, the problem is that if one starts to define it in legislation, it might become the maximum. That seems to be one of the great dangers.
That is why we need to look carefully at the noble Earl’s two amendments. I appreciate the fact that he has come back to your Lordships’ House with some amendments which seek to deal with the substance of the issues that we are talking about. In essence, they say that local authorities, in promoting the effective operation of a market, must first have regard to,
“the importance of fostering a workforce whose members are able to ensure the delivery of high quality services”,
which is in Amendment 24; and in Amendment 27 they must have regard to,
“the importance of promoting the well-being of adults … with needs for care and support and the well-being of carers in its area”.
The question for us is whether that is enough. I rather doubt it. That a local authority “must have regard to” does not seem a particularly strong message to local authorities. Where is the beef in that? Where is the leverage to make local authorities do the right thing in a context, which we must recognise, where they are extremely pressurised in relation to resources?
The reason why I tabled Amendment 151 is that, given that it is difficult in legislation to prescribe the kind of behaviour that we want from local authorities—for the reasons that we have already debated and which the noble Baroness, Lady Masham, illustrated effectively —one way to deal with this issue is through the regulatory system, as I said in Committee. Noble Lords will know that later in the Bill we will discuss the Care Quality Commission and already in the current Bill it 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 as may be prescribed”.
There is an opportunity for the Government to say that the CQC will take this on as a major responsibility, to review, monitor and, in some cases, take effective regulatory action, if they believe that the action of those people providing care, either in terms of how they have been commissioned by local authorities or by self-funders, is inadequate. However, the problem with the clause is that there is no guarantee that that is going to happen, because all we are doing is essentially giving the Government regulation-making powers. There is no certainty that this approach will be prescribed.
Lord Warner (Lab)
My Lords, I want to speak to all the amendments in this group—and, in doing so, I have tried to take myself back in time and then, like the Doctor in “Doctor Who”, come forward again quickly. How would I deal with this set of circumstances if I was a director of social services today, as distinct from the late 1980s and early 1990s? I do not envy them because I think that they have a very difficult job to do in balancing the resources available with the expectations of the public, which this Bill will increase. I am not sure that we crack the problem with any of these amendments, on their own. I remind the Minister that in Committee I tabled an amendment, so that we could debate this, which gave the Secretary of State powers to make regulations when there were unsatisfactory employment practices. I deliberately drew that amendment widely, because I do not think that we should just concentrate on the 15-minute visits. That is today’s problem—but we have a series of problems, and there could be another lot of problems with employment practices coming along a few months or years down the track.
At the moment, we have four areas in which there are concerns about employment practices. We have zero-hour contracts with exclusivity and no guarantees of working, 15-minute visits and unpaid travelling time, which I would suggest are all incompatible for the most part with the ambitions of this Bill. I am not saying that my previous amendment was perfect or right—and I am pleased that the Minister has come back with some attempts to grapple with these problems. I do not dismiss his attempts, because these are intrinsically difficult problems, but we need to future-proof this Bill against new practices that may creep up.
What I like about Amendment 151, in the name of my noble friend, is that it puts things very clearly in the court of the regulator, and enables the regulator to look at both providers and commissioners. On some of this, providers are doing only what they are asked to do; they are responding to what the commissioners are expecting of them. So we cannot just blame the providers, although I would like to blame some of them, when local authorities are engaging and encouraging them, in some parts of the country, to engage in practices that are totally incompatible with the aspirations of this Bill.
Where do we go from here? I still think that the Minister might be wise to consider the idea of taking a regulation-making power for the Secretary of State, but I equally accept that that may not produce change fast enough. I found Amendment 27 noble in spirit but a little unclear about what its effect would be. Therefore I come back to Amendment 151. Of all the amendments, I think that is the one that gives me more confidence that there is a capacity to respond to concerns about commissioning practices and provider practices. I do not like the idea of a time limit for visits being set in this Bill because I would not want to be running a social services department with that kind of limitation on my ability to deploy my staff in a sensible way and in the best interests of the service users.
I do not think that we have cracked this problem fully. I think my noble friend has come forward with a better way of getting a grip on these issues, where the regulator picks up noise in the system about these unsuitable employment practices and can take some action both on the commissioning side and on the provider side. My only concern is that there is a later amendment that slightly moves the CQC away from intervening in local authority commissioning, which I think would be incompatible with what we need to do to tackle some of the problems covered by this group of amendments. I hope the Minister can tell me that I have got that bit wrong, but my reading of a later amendment is that it removes the CQC from actually monitoring the commissioning of adult social care.
Lord Low of Dalston (CB)
My Lords, perhaps I might be permitted a word before the end of the debate. I supported these amendments in Committee and am happy to do so again this evening, though I take the points that have been made about being too prescriptive about time limits in Amendment 25. I think the essential point is that the Bill introduces a number of important new duties and responsibilities designed to enshrine the right values at the heart of our care system—for example, the primacy of the well-being of the individual. However, these values are only as good as the services that are put in place to give effect to them. It is not enough simply to put empty principles into legislation. The Bill needs to contain concrete requirements that will help to guarantee quality in the services that are delivered.
The Government’s amendment requiring local authorities to have regard to the well-being principle when commissioning services is welcome, but I do not feel that it is clear or specific enough to underwrite even the very modest guarantee of quality sought by the amendments of the noble Baroness, Lady Meacher. It provides no assurance that the practice of commissioning very short personal care visits will stop. It also fails to commit the Government to producing regulations that set out in greater detail what should count as quality commissioning. From those points of view, I still feel that the amendments of the noble Baroness are in every way to be preferred.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I begin by thanking noble Lords for the excellent debates that we have had on these topics in Committee and again this evening. As the report by Leonard Cheshire Disability highlighted earlier this week, we need to move away from overly prescriptive commissioning, which focuses on price and time slots, to consider how local authorities can deliver better outcomes and quality care. I therefore fully agree with the principles behind the amendments that noble Lords have tabled with regard to poor local authority commissioning practices. Of course, noble Lords will be aware that Clause 5 requires local authorities to promote a market in high-quality services and specifically requires authorities to consider this duty when arranging services to meet people’s needs. This would make it very difficult for local authorities to commission services in 15-minute slots where doing so undermines the quality of those services.
Clause 5 also requires local authorities, in fulfilling this duty, to have regard to the need to ensure there are sufficient services available to meet people’s needs. With regard to Amendment 26, it is important to recognise that local authorities can achieve this only through working with providers in their area. We therefore do not believe that it would be appropriate to require local authorities to ensure sufficiency of services independently. This could lead to local authorities finding themselves forced into providing services where a market had not developed otherwise. Therefore, I cannot support the amendment tabled by the noble Baroness. She asked me to clarify what “having regard to something” means. Where that duty is present, it is not something that local authorities are able to ignore. In other words, if they have to have regard to a particular thing, that is not something they can disregard. Rather, the clause as drafted is intended to recognise, as I have said, that sufficiency of services can be achieved by local authorities only when working with providers and not by local authorities alone.
It was clear in Committee that, in the view of many in this House, the Bill as it stands does not go far enough in relation to poor local authority commissioning practices. We have reconsidered our position and developed our own amendment, Amendment 27, in the light of the concerns raised. This amendment would require local authorities, when commissioning services, to consider the effect of their commissioning decisions on the well-being of the people using those services. Our approach has some significant differences from and, I would argue, three clear advantages over, the approach suggested in Amendments 22 and 25, which seek to prohibit specific commissioning practices and in particular to require homecare visits to last at least 30 minutes. The first advantage is that our approach sends a clear message on the face of the Bill that commissioning services without properly considering the impact on individuals’ well-being is unacceptable. We believe, in the light of the arguments expressed in Committee, that it is important that we are able to send this message on the face of the Bill.
Secondly, our approach also explicitly prevents local authorities making decisions about how they commission services without giving due regard to the impact on individuals’ well-being. This goes a long way towards achieving the objective we all share of tackling poor commissioning practices while maintaining local authorities’ ability to decide the most appropriate approach to commissioning services for the people in their area, and acknowledging that the underlying issues here are cultural and cannot be tackled by legislation alone.
Thirdly, our approach has a singular focus on the outcome that we all want to achieve of promoting individuals’ well-being. Consequently, our approach is holistic of all poor commissioning practices and future-proofed against new practices that could emerge without risking the creation of perverse incentives through taking an overly prescriptive approach. Moreover, our approach is also holistic of commissioning for all types of care and support, not merely focused on one area: that is, not just on personal care.
In contrast, there are three reasons why I cannot support the approach set out in the amendments of the noble Baroness, Lady Meacher. First, it is important to recognise that local authority commissioners do not act in ways that undermine well-being because they want to, but rather because they do not recognise the effects of their decisions or feel unable to commission in other ways. As the president of the Association of Directors of Adult Social Services has argued, we should be careful of assuming that,
“simply by abolishing 15-minute slots a magic wand will have been waved, and improvements automatically achieved”.
It is important to recognise the limitations of legislation in tackling this issue. We have heard during this debate some appalling examples of people having to choose between being fed and being cleaned as a result of homecare visits being commissioned for too short a time. Local authorities that commission such services are palpably failing in their duty to meet people’s needs. That they still commission such services demonstrates the fact that the underlying problems here are cultural and cannot simply be legislated away. Banning specific poor practices will only lead to other poor practices emerging. Instead, I strongly believe that we need to work with authorities to enhance commissioners’ understanding of the effects of their commissioning decisions on individuals’ well-being and of how they can commission more effectively.
Lord Hunt of Kings Heath
My Lords, I agree with the noble Earl that the commissioning policies of some local authorities are called into question. However, are there some issues here regarding the resources they have available? Is the overall reduction in local authority expenditure not also responsible for some of these policies?
Earl Howe
My Lords, we certainly know that the reduction in resources has had some effect. However, it is interesting that the feedback from local authority chief executives and directors of adult social services suggests clearly that the detrimental effect on the provision of adult social care is not as dramatic as one might suppose from the drop in local authority budgets. This is partly because of the funding provided by my department to local authorities to make up some of the gap. I would not wish to say that there has been zero effect. We think, from the feedback, that the volume of services has diminished by about 5%. This is 5% too much, in most people’s eyes, but may not be as significant as some have feared.
My second point is that central prescription risks prohibiting practices that may, in some circumstances, be consistent with high-quality care. For example, 15-minute homecare visits could well be appropriate in some situations, for instance for helping people to take medication, which is not a process that takes very long at all. Further, using legislation to ban specific processes may result in perverse incentives arising, without addressing the actual problem. A number of noble Lords made that point.
Thirdly, legislating for a specific period of time for which homecare visits must last risks reinforcing one of the key problems here: inappropriate use of time and task commissioning. Instead, we need to move away from overly prescriptive commissioning practices which focus on—
Baroness Meacher
My Lords, I apologise for intervening, but I want to make clear that there is absolutely no prescription: there is flexibility. It is simply saying that you cannot do a personal care visit of less than 30 minutes.
Earl Howe
I do understand that and apologise if I implied anything different. I was seeking to make the point that once you specify a period of time in a Bill it starts to look prescriptive, even if that is not the intent or the effect.
As I was saying, we need to move away from overly prescriptive commissioning practices that focus on price and time-slots, to consider how local authorities can deliver better outcomes and quality care. None the less, there is more that we can and will do to tackle poor commissioning practices. There is a role for regulation. We are therefore proposing an amendment that will make it clear that the CQC may, with approval from both Secretaries of State of DH and DCLG, undertake a special review of local authority commissioning of adult social services in cases of systematic failure. Subsequent to any such review, CQC could issue an improvement notice in the event of a non-substantial failing and recommend special measures to the Secretary of State in the event of substantial failings.
We also intend to issue statutory guidance specifically on local authority commissioning. This will be a valuable opportunity to influence local practice. In particular, we will include in this guidance clear examples of high-quality and poor-quality commissioning practices to support local authorities to develop and improve their own approach.
As well as tabling Amendment 27, we have also, in response to points raised in Committee, tabled Amendment 24, which will require local authorities to consider through their commissioning decisions the importance of fostering a workforce able to deliver high-quality services when shaping local markets. This amendment is, of course, not just about local authority commissioning practices but more widely about how the local authority can work with the market in its area, including with providers from which it does not commission services, to foster a high-quality workforce. This reflects our strong belief that the characteristics of the workforce, including opportunities for learning and skills development, have a direct relationship with the quality of the care that individuals receive. Improving the capability of the workforce through continued skills development and appropriate working conditions is therefore a key component of market shaping.
I therefore fully agree with the intention behind Amendment 151, but I note that the CQC already has powers to take into account standards of employment as part of its inspection of providers. A separate duty on the CQC to undertake periodic assessments of employment standards would duplicate what the commission is already able to do and compel it to undertake assessments of a very specific nature. For that reason, I cannot support Amendment 151, tabled by the noble Lord, Lord Hunt. It is vital that we give the commission the time and freedom to develop its own performance-assessment methodology. In the fullness of time, this may mean that ratings consider employment standards, but this should be a matter for CQC to determine after considering the views of key stakeholders.
Lord Hunt of Kings Heath
I am grateful to the noble Earl for giving way and I imagine that we can debate this more fully when we come to his amendments around CQC independence. However, there is surely a distinction to be drawn between the way that the commission does its work and the overall strategic framework in which it does it. I should have thought that it would be appropriate for Parliament to lay down that it would be right for the CQC to focus on standards in the care sector. Does the noble Earl agree that you can draw a distinction between the framework that is set out in legislation and the way in which the CQC does its work—and I very much support the idea of its independence?
Lord Warner
Can I be clear about something arising from what the noble Earl said? I am struggling with whether the CQC can look at these employment practices only as it plods its way around the country, one authority at a time, or whether, if it starts to pick up something—either from looking at one or two authorities or from public reactions—it can commission a generic review or study of commissioning practices across the country. I am not clear what the noble Earl is saying about this—whether the commission has to work its way through authority after authority, or whether it can make a generic review of particular practices.
Earl Howe
My Lords, I was distinguishing between providers and commissioners. The CQC can do thematic reviews under, I believe, Section 48 of the Act, but we are talking there about providers. As regards commissioners, we are proposing in a later amendment to give the CQC powers to conduct special reviews where concerns have been raised about a particular local authority or NHS commissioner; there would not be periodic, regular reviews. However, the CQC will be looking at every provider over a period of time. The amendment from the noble Lord, Lord Hunt, specifically addresses the ability of the CQC to examine providers. I was saying earlier that it already has the necessary powers to do detailed work in whatever area it chooses.
I return to the issue of local authority commissioning practices. As I argued, the underlying causes of poor commissioning are cultural, and we need to work with local authorities to tackle these issues. We are therefore undertaking a number of non-legislative activities, including the development in co-operation with ADASS of a set of commissioning standards. These standards will enable individual authorities to gauge their own effectiveness, and will support the LGA and ADASS to drive sector-led improvement.
In addition, we are working with the Towards Excellence in Adult Social Care initiative to support local authorities to seek continuous improvement in their adult social care functions, and in the outcomes achieved. This programme brings together local, regional and national stakeholders, and is focused on providing peer support and interventions by local government to share learning, find new ways of engaging local people, and use knowledge of what works, data and innovation to drive improvement in the quality of services.
I hope that these arguments, and the amendments we have tabled, are sufficient to demonstrate to the House that we understand and agree with the strength of feeling around these issues. For the reasons I have set out, I cannot support the amendments tabled by noble Lords, but I hope that the arguments I have made today will be sufficient for those noble Lords to feel able not to press their amendments. I do not yet know what the noble Baroness, Lady Meacher, intends to do with her amendment, but it may be helpful for noble Lords to know that the Government do not consider that a decision on Amendment 25 is consequential on Amendment 22.
Baroness Meacher
My Lords, I thank the noble Earl for his thoughtful response and also all noble Lords who contributed to this debate. It has been very considered, and the points raised have been very important. These visits can require three hours of work, or one and a half hours—all sorts of different lengths of time. Whatever is decided ultimately must enable those visits needing that length of time to be undertaken in that way. I welcome the amendment of the noble Lord, Lord Hunt, and I am sure that the CQC has an enormously important role to play in this. I wonder whether the Minister would think it appropriate to require a thematic review of this issue to be undertaken by the CQC, bearing in mind the level of concern across the country about what is happening at the moment, which clearly is not acceptable in terms of these very short visits for personal care.
The noble Earl mentioned the 5% reduction in the budget for adult social care. It sounds small, but we all know that the adult social care budget has always been incredibly low—way below what it should be. Priority has never been given to this area of work, so a 5% reduction is pretty serious. There is a lot to be done. The noble Earl referred to guidance, regulations, and so on. I personally would welcome an opportunity to have a discussion with him about how, in the guidance and regulations, it might be possible to ensure that adequate priority is given to this area of work. This is really what we are talking about here.
My amendments are aimed at stimulating the debate. They are also an effort to draw out some commitments from the noble Earl, and to some degree I think we have achieved that objective. I do not know whether the Minister would be willing to have a conversation about what might be included in the guidance and regulations.
Baroness Meacher
With that assurance, I am happy to withdraw the amendment.
“( ) the importance of fostering a workforce whose members are able to ensure the delivery of high quality services (because, for example, they have relevant skills and appropriate working conditions).”
“( ) In arranging for the provision by persons other than it of services for meeting care and support needs, a local authority must have regard to the importance of promoting the well-being of adults in its area with needs for care and support and the well-being of carers in its area.”
“( ) The following are examples of persons with whom a local authority may consider it appropriate to co-operate for the purposes of subsection (2)—
(a) a person who provides services to meet adults’ needs for care and support, services to meet carers’ needs for support or services, facilities or resources of the kind referred to in section 2(1);(b) a person who provides primary medical services, primary dental services, primary ophthalmic services, pharmaceutical services or local pharmaceutical services under the National Health Service Act 2006;(c) a person in whom a hospital in England is vested which is not a health service hospital as defined by that Act;(d) a private registered provider of social housing.”
Baroness Greengross
“( ) ensuring that consideration of the early and co-ordinated assessment of an adult who may have care and support needs, following discharge from hospital or other acute care setting, is initiated upon admission to that acute care setting.”
Baroness Greengross
My Lords, this amendment concerns discharge plans for people in hospital. I shall start by saying that, in response to my Amendment 87ZA tabled in Committee on this issue, the Minister was understandably reluctant to specify the particular circumstances in which the high-level aims of the general duty to co-operate, as set out in Clause 6(5), should apply. He felt that there should not be an exhaustive list of circumstances, such as discharge plan management, in which the power should be used, and said that he expected authorities and their relevant partners to co-operate when an individual was discharged from acute care under this clause. He asserted that Schedule 3 to the Bill sets out clear steps to ensure the safe discharge of a patient from an acute care setting, and that an assessment for care and support should be made before the patient is discharged, not afterwards. Clause 12(1)(b) already allows for regulations to specify other matters to which the local authority must have regard in carrying out an assessment. Given that this involves setting out procedural detail and related matters, he felt it more appropriate to set out such detail in regulations rather than in the Bill.
While I agree with much of that, my main point regarding the importance of discharge being included as part of admission planning into an acute care setting may have been misunderstood. The subject of discharge should be considered as part of the admission process, long before the actual discharge is instigated. That is the important point here, and I remain firm in my belief that it should be included in the Bill. The most important thing is the idea that discharge planning should be part of the admission process. We have all heard a large number of stories of people who have been discharged inappropriately because everything is decided too late in the day and no one is ready for the discharge. I personally could talk about two or three relatives aged 80 to 90 who have been dumped out of hospital in the middle of the night. Such instances are horrific, but I am afraid that they will continue unless we get this right.
Clause 12 is not relevant here because it refers to a need for a care assessment as being an essential part of the discharge process from an acute setting into either supported home care or longer-term residential care. I want to ensure that it will be facilitated by eventual discharge being part of the admission assessment, which is a very different process that is gone through at a different time by different clinical staff. Including such a duty in Clause 6 would ensure that this happens, so that the eventual discharge stands more of a chance of being successful. The Royal College of Nursing has expressed the view that:
“We are currently seeing far too many people trapped in a ‘revolving door’ between community and hospital services”.
Ensuring a suitable discharge founded on appropriate admission from acute care would, in my view, go a long way to reducing this terrible waste of resources and its associated human misery. I beg to move.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Baroness, Lady Greengross, for allowing this debate. This is an important question and I agree that ensuring that an assessment is made around the time of the admission of a patient to a hospital or other acute care setting would help the process of the appropriate discharge of that person when the time comes for them to leave. One has to say that the context in which we are debating this is one in which the health and social care system is under extreme strain. The Minister will know that the accident and emergency performance, and the issue of the four-hour target, is proving to be problematic for a number of trusts, including my own, in September and October. Clearly, if the health service is having difficulties in September or October, in pretty clement weather, it does leave one with some foreboding about what is going to happen later on in the winter.
The Government have injected a certain amount of resource into the system—I think it is £250 million—which is labelled on the tin “to A&E departments”. The Minister will know that the money has not gone to A&E departments; it has tended to go to the clinical commissioning groups. While limited amounts have gone to A&E departments, in the main, this has been dealt with through urgent care boards. My understanding is that in a lot of areas they still have not decided how to spend the resources. This is partly because CCGs seem to be slow to make hard decisions, and partly because some are not spending the money because they say that they have not received it yet. The problem is this: if by the middle of October you still have not spent or committed yourself to those additional resources, it could take another three months. If, for instance, it was a series of care packages or it was extra resource for employing more nurses, it could take an awfully long time from the decision to spend the money to it actually being in place, and then for the money to be spent.
I am really using this as an opportunity to say to the noble Earl, Lord Howe, that there is a real issue at the local level of actually getting all the partners together and to agree the actions that need to be taken to ensure that we do not get the kind of discharge problems that we are seeing.
What is the cause of the issue of A&E performance? There has been some debate about whether it is partly due to the lack of accessibility and primary care. No doubt, there are serious issues involved which would suggest that that is a problem. However, the noble Earl may have seen some work undertaken by Matthew Cooke, who used to be the adviser to the Government on urgent care and was a consultant in my own trust at Heart of England. His work would suggest that the problem is discharge; that there is simply not the capacity in the community or among personal social services departments to provide the support that is required. However much the Government want to beat up A&E departments, unless we can sort out the capacity in the community, these problems will continue.
The noble Baroness’s amendment is really trying to get to the heart of this. She is saying that it is a real problem—not just for older and more vulnerable patients, but it is probably more directed at those patients—if the first time you start to worry about discharge procedures is when they have spent quite a few days in hospital. First, it takes a long time for the system to intervene; and secondly, it may mean that the patient stays in hospital too long. We know all the problems of institutionalisation, when people have greater difficulty in going back to their own home or into low-level community provision as opposed to having to go into care homes.
The noble Earl, Lord Howe, will no doubt say that this is not the stuff of legislation. However, because of the seriousness of the current problems in our health and social care system, it would send a very powerful signal to people working at local level about the absolute importance of starting discharge planning almost as soon as a person comes into A&E, and of the need to have an integrated approach. It would also give a signal to local authorities. At the moment there is a real problem because local authorities often play around with discharges by saying that they are not convinced that a person is ready for discharge. That is simply trying to ration expenditures. A signal to local authorities that that is also unacceptable would be very helpful.
I am glad that the noble Baroness raised this problem. It is a very important issue. I hope that the noble Earl may be able to help us with it.
Baroness Barker (LD)
My Lords, I care passionately about hospital discharges. In 30 years of working with older people and older people’s organisations, we have never managed, under any structure or formulation of the National Health Service, to get right the system of discharging people from hospital. I suspect that the noble Lord, Lord Hunt, is right that the Minister will resist attempts such as that of the noble Baroness, Lady Greengross, to address the issue through legislation.
From my work with voluntary organisations, and some work that I have done over the summer, talking to CCGs, there are two things that could have a direct impact on this. The first is to work with people in the acute sector, to get them to understand that very often voluntary organisations are and can be the answer to managing people’s admission to A&E and their return from hospital. At the moment, many CCGs do not see that voluntary organisations have any role to play in their work. As long as they are of that opinion, frankly, the position is not going to change.
Secondly, there are examples of very good hospital discharge planning. A number of Age UK branches have take-home-and-settle schemes. There is a hospital, I think it is in the Midlands, where a housing association has taken over a ward and turned it into a discharge facility.
Lord Hunt of Kings Heath
My Lords, I am very glad that the noble Baroness has mentioned that. My own trust, the Heart of England, has an agreement with Midland Heart to do that. It shows that you can create capacity. My point is, that was negotiated four or five months ago. It is far too late for clinical commissioning groups to be messing around in mid-October, still pondering how they are going to spend the money. It will be January or February before they are going to be able to spend it.
Baroness Barker
I did not know it was the noble Lord’s hospital. I met the housing association a couple of months ago. Good examples of integrated systems that work include Torbay. The key is getting that information into CCGs. The sooner we do that, and the sooner they see that they have to be part of an integrated health and social care system, the more likely we are to be able to stop older people being, as the noble Baroness, Lady Greengross, very accurately put it, dumped.
Lord Warner
I support the important amendment of the noble Baroness, Lady Greengross. I want to do so by telling a story and then putting a suggestion to the Minister. Like my noble friend Lord Hunt and me, he will have done his time touring hospitals as a Minister. We are usually shown the high points of the hospital’s achievements. Life changes a bit when you cease to be a Minister and you visit your friends and relatives in hospital. On visits to hospitals to see friends and relatives, because I am a nosy sort of person I have always looked to see whether there is a date for discharge on the charts. Some of these discharge dates are great works of fiction. When I have asked nurses about these discharge dates, quite commonly they say that managers have told them they have to have a discharge date—so it is something they have done for internal compliance purposes.
Although the suggestion of the noble Baroness, Lady Greengross, may not be right for the Bill, it is at the very least important for guidance. Planning on admission for discharge is needed. Present arrangements fail to communicate that to the social care world. It is now an internal mechanism for the NHS, not a mechanism designed to get people out of hospital into an appropriate placement as soon as they are ready to go. It would be a good idea to put this in the Bill, but at the very least this issue needs to be covered in some detail in guidance so that the NHS and the social care world are clear beyond peradventure what they are supposed to do when a person comes into hospital. If we went along that path, the world would be a better place and we would deliver some of the objectives of this legislation.
Baroness Finlay of Llandaff
My Lords, I shall be brief since the hour is getting late. This amendment makes a very important point, though it may be better in guidance. One of the problems is that the pinch point is always A&E, and getting patients out is really difficult. At the moment, there is tokenism in planning discharge. It needs to be much more embedded in trying to predict people’s needs and having things in place. Until discharge planning really is part of looking ahead at the aims for the patient we are still going to have backlogs, because we are still going to be waiting for somebody to come in and do something.
Earl Howe
My Lords, I should like to thank the noble Baroness, Lady Greengross, for tabling Amendments 29 and 125, on what is undoubtedly an extremely important issue, not just for the system but, most importantly, for the patients themselves. When someone is discharged from an acute care setting, care and support must be joined up to prevent unnecessary delays and readmissions that can be distressing to patients and their families and carers. The noble Lord, Lord Hunt, was absolutely right on increasing pressure on acute trusts, not least in A&E.
There is a mixture of reasons why this is occurring: the weight of patient demand; the acuity of patients who present at A&E, more of whom have to be admitted; workforce issues in some A&E departments; hospital discharge practices that may not be as efficient as they should be; an absence of follow-on care in certain locations or, indeed, adult social care services; and delays in installing home adaptations. One cannot generalise about this problem. One can say only that in many areas it is very real.
I will just correct the noble Lord on one issue: the £250 million that we have allocated to ease the pressures on A&E. Those moneys went to 53 NHS trusts before the end of September. They went to trusts that were most at risk of breaching the A&E standards. They were not chosen by Ministers or the Government. The process was led by NHS England and Monitor, so it was done on a structured and objective basis.
Lord Hunt of Kings Heath
The point is that the chief executive of each of those trusts had to sign, if you like, for the money, but they did not get all the money. Most of the money went to clinical commissioning groups. Some of them are still meeting to discuss how to spend it, which is the worry.
Earl Howe
At least we have given them more notice this year than they have had in previous years. Quite often, winter pressure money has been released into the system only around Christmas. We have consciously tried to do it several months earlier. While I acknowledge the truth of what the noble Lord said in certain areas of the country, I hope and believe that by the time the pressure becomes significant, those crucial decisions will have been made.
Baroness Masham of Ilton
As the Minister has brought this matter up, I shall ask about the hospitals that got the money. York and Leeds got extra money, but Hull did not. Hull is one of the most deprived and difficult areas in the country. Will he look into it and let me know?
Earl Howe
I will happily look into it, because I do not have with me the complete list of trusts and the factors that lay behind the decision that was taken by NHS England. I will certainly write to the noble Baroness about that.
Delivering joined-up, person-centred and co-ordinated care in a way that stops patients falling through the gaps in the system is of key importance to improving their outcomes and experiences. I believe it is incontrovertible that local authorities and relevant partners must co-operate in order to ensure safe and timely transfers of care. Indeed, the Bill already requires that. Clause 6 requires that local authorities and relevant partners co-operate with one another where this is relevant to care and support. Subsection (5) of the clause sets out some key examples of when this duty should be used. There can be no question that this duty would apply also to ensuring safe and timely discharges, and we do not see the need to add further detail to such broadly worded provisions. New guidance on discharge planning and on how local authorities should perform co-operation duties under Clauses 6 and 7 will be issued following the passage of the Bill.
Further, Schedule 3 to the Bill sets out a process around ensuring the safe and timely discharge of acute hospital patients. This not only requires the local authority, following notification from the responsible NHS body, to assess a patient who it appears may have a need for care and support before they are discharged but requires the authority to have the necessary care and support package in place before discharge takes place. The duties to co-operate apply to that process as well. In fact, to come back to the point that the noble Lord, Lord Warner, raised about guidance, the current discharge guidance, Ready to Go, makes it clear that discharge planning should start before or on a patient’s admission to hospital. We know that that does not always happen, but it is best practice, and has been best practice for some considerable time.
Amendment 125 would allow the Government to specify what the authority and its partners must have regard to when performing that assessment. Surely this is right. I reassure the noble Baroness that, as the assessment required to be carried out by this schedule is the same as the one in Clause 9, we already have this power in Clause 12(1)(b) of the Bill, which allows for regulations to,
“specify other matters to which the local authority must have regard in carrying out the assessment”,
and in Clause 12(6) which allows for an assessment to be carried out jointly.
I hope that I have reassured the noble Baroness that the Bill already requires local authorities and “relevant partners” to co-operate in the safe and timely discharge of patients and contains sufficient provisions to make such regulations and to issue guidance on this matter. With those reassurances, I hope the noble Baroness will be able to withdraw her amendment.
Baroness Greengross
My Lords, I thank the noble Earl for his reassurance. The noble Baroness, Lady Barker, and I worked together for many years and she is desperate as I am to get this right because it has never yet been achieved. The stories are horrific about poor hospital discharges that have not been adequately planned from the time of somebody’s admission into an acute hospital. We really have to get this right now if we are to be in any way a civilised society.
I thank the noble Earl because he obviously has the same commitment as do many other noble Lords to whom I am very grateful for supporting this amendment. If the regulations are firm enough and closely followed, perhaps this time we will get it right. I hope so, and thank the noble Earl very much for his attention and interest in this matter, which is of very great importance to many of us. I also thank all noble Lords who have supported me.
“( ) the Minister of the Crown exercising functions in relation to social security, employment and training, so far as those functions are exercisable in relation to England;”