Health and Care Bill

(Limited Text - Ministerial Extracts only)

Lords Hansard - Part 1 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, I thank the noble Lord, Lord Sharkey, for opening this important group and moving Amendment 106, to which my noble friend Lady Thornton added her name. As he explained, the substance of this amendment was singled out by the Constitution Committee and highlighted by the Delegated Powers and Regulatory Reform Committee. I reinforce the Constitution Committee’s endorsement of the DPRRC’s recommending the removal from Clause 20 of the imposition of legal liability merely by publishing a document. We agree with the two committees that this is a necessary amendment, and I look forward to hearing from the Minister how these concerns will be addressed.

Somewhat paradoxically, Amendments 143 and 144 strengthen the powers of NHS England in its quest for top-down management and imposition. However, they sit within the wider context of describing how NHS England would be able to give directions to integrated care boards under Clause 20 and improve these provisions, so we support them.

The remaining amendments on NHS Continuing Healthcare underline how vital it is to address this urgent issue, although it is not central to the intentions of the Bill. I thank the noble Baroness, Lady Greengross, for ensuring this focus in the debate and for Amendments 133 and 139, which ensure that this crucial issue is specified under the ICB’s duties and included in its annual report and performance review accountabilities.

Today, we heard in detail about the widespread concern about and scale of the problems with the way in which the NHS Continuing Healthcare scheme works and is funded, and the arguments it leads to about who pays for what, as a shared responsibility between the NHS and local government. Patients and their carers feel they are the sideshow, not the central focus of concern, and are deeply traumatised and upset by the whole experience.

As a carer of a disabled adult myself, like my noble friend Lady Pitkeathley, I know, from meeting many other carers and their loved ones, their deep concern about this. The three things that cause most concern and upset, which one hears time and again, are, first, the huge problems with inadequately funded social care packages—or their absence—to meet basic care needs, and deep worries and anxieties about how the care cap will operate; secondly, the trauma of the discharge-from-hospital process for carers and their loved ones, which we will discuss later; and thirdly, NHS Continuing Healthcare, the postcode lottery of whether your loved one receives it or not, the huge bureaucracy around the application and allocation process, the long wait for a response and being stuck in the middle of an NHS local authority fight over funding. As the noble Baroness, Lady Finlay, stressed, there is an urgent need to tackle the accountability gap in this process.

NHS Continuing Healthcare is the absolute manifestation of what our Economic Affairs Committee report on the “national scandal” of social care funding called the “condition lottery”—in other words, the wide disparity between health conditions for which people receive healthcare that is free at the point of use and those for which users usually have to make a substantial contribution with “catastrophic costs”, in the committee’s words. As we heard today, dementia is the condition most cited in this regard, but many of us know of cases where people with motor neurone, Parkinson’s and other degenerative diseases have struggled to get NHS Continuing Healthcare funding, either for home care or support in residential homes.

We support Amendment 161, which ensures that the Care Quality Commission reviews must include this issue. However, I am unclear—and may well learn in a minute from the Minister—what role the CQC currently has in looking into all continuing care matters which traverse NHS and local authority boundaries. However, we support its involvement.

The amendment would also ensure that the CQC reviews include looking in depth at how NHS Continuing Healthcare is working under each ICB. That will mean that at last we can begin to develop the much needed strategic overview of this crucial area for thousands of people in desperate need of care and support.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

My Lords, I thank the noble Lord, Lord Sharkey, and the noble Baronesses, Lady Finlay and Lady Greengross, for bringing this group of amendments.

I understand the intention behind Amendment 106, on payment to providers, which is to remove new Section 14Z48 in its entirety, but the section will allow NHS England to specify the circumstances in which an ICB is liable to make payments to a provider for services commissioned by another ICB.

The Government are committed to ensuring that delegated powers in the Bill use the most appropriate procedure, so that Parliament has due oversight of their use. We recognise that the Bill contains a significant number of guidance-making powers and powers to publish documents. However, we believe that they are appropriate because, as the noble Baroness, Lady Walmsley, said, they reflect the often complex operational details and the importance of ensuring that the guidance keeps up with best practice, especially as the system flexes and evolves. I understand the noble Baroness’s point about Parliament, but the issue here is whether, every time the system flexes, Parliament has to have another debate. The ICBs will be reading the guidance, not Hansard, and the guidance should reflect that.

Nor is it our intention to interfere unduly in the financial affairs of ICBs. Instead, the intention is to resolve specific circumstances, such as emergency services. The legislation makes it clear that each ICB has to arrange for urgent care services to be available for all people physically present in the area, not just for the people who are its core responsibility by virtue of their GP registration. I am sure noble Lords will agree that it would be neither fair nor in the best interests of promoting an efficient health service for the ICB to both arrange and cover the cost of all additional emergency treatment brought by visitors to the area, particularly in areas with high visitor numbers. A number of noble Lords referred to that principle in debates last week.

Instead, this provision allows NHS England to mandate a different payment rule for those services, ensuring that, where necessary, the ICB where a patient is registered will pay, rather than the ICB where they receive treatment. This ensures that the financial impact is felt in the right commissioning organisation and eliminates the risk of some ICBs having unreasonable financial demands placed on them—for example, during the holiday season.

The wording of this provision replicates almost exactly the National Health Service Act 2006 as amended in 2012, but it is updated to reflect the new ICB structure. As my noble friend Lord Howe mentioned to me, we had a massive debate about this 10 years ago, but the provision seems to have worked effectively in the CCGs, and we wish to continue that with the ICBs.

Amendments 143 and 144, in the name of the noble Baroness, Lady Finlay, are about NHS England directing ICBs. I understand the interest in ensuring that NHS England has the necessary tools to intervene in ICBs where necessary. However, we believe that NHS England already has sufficient powers to direct ICBs. NHS England already has certain powers to direct an ICB under Section 14Z59(2), and powers to intervene over ICBs in order to prevent failure and to ensure that the lines of accountability from ICBs through NHS England to Parliament are strong.

However, this power has a threshold in that it can be used only if NHS England deems an ICB to be failing to discharge a function or at risk of failing to do so. The threshold removes the possibility of NHS England overdirecting the system while retaining the power for use if necessary. This balances the need to prevent failure and to support accountability with allowing ICBs the autonomy they need to operate effectively.

Amendments 133, 139 and 161 expressly require that ICB annual reports and NHS England performance assessments of ICBs include specific consideration of commissioned services, including NHS Continuing Healthcare, which noble Lords have spoken about, and that the CQC reviews of ICSs include specific consideration of that. We agree with the principle, but we believe that it is already covered in the Bill. NHS England already has a key role in overseeing ICBs. For example, the Bill requires NHS England to assess the performance of each ICB every year, and ICBs are required to provide NHS England with their annual report. These reports will include an assessment of ICB commissioning duties, which would encompass any arrangements for NHS Continuing Healthcare.

In addition, as noble Lords are aware, Clause 26 gives the CQC a duty to assess integrated care systems, including the provision of relevant healthcare and adult social care within the area of each ICB. This would include the provision of NHS Continuing Healthcare. We intend the CQC to pilot and develop its approach to these reviews in collaboration with NHS England, but also with other partners in the system. This should ensure that the methodology does not duplicate or conflict with any existing system oversight roles.

With this in mind, we believe that these amendments are not necessary, because commissioned services, which we would expect to encompass NHS Continuing Healthcare, are already included in these clauses. I hope that I have been able to somewhat reassure your Lordships. For these reasons, I ask noble Lords not to press their amendments.

[Lord Sharkey (LD)]

My Lords, it is clear that new Section 14Z48 is an unambiguous abuse of delegated powers. It provides for a law to be created by the simple issuing of a paper. There is no real possibility of a coherent defence of this procedure and the Minister did not provide one, relying as he did on special pleading and the extraordinary notion that Parliament cannot handle complexity.

As the Bill stands, Parliament is bypassed and scrutiny is avoided. I remind the Committee that the DPRRC and the Constitution Committee have recommended the removal of this section. I again suggest to the Minister that if he wants to retain the powers set out in Section 14Z48, he should rework them between now and Report at least to involve scrutiny by Parliament via the affirmative procedure. If he does not, we will return to this issue on Report. In the meantime, I beg leave to withdraw the amendment.

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[Baroness Thornton (Lab)]

I certainly cannot help my noble friend, but I live in hope that the Minister can. It smacks of a fix. The Minister might not be prepared to say on the Floor of the House what exactly the fix was between the various bits of NHS England and various bits and other parts of the machinery. I suspect that the noble Lord, Lord Lansley, might know better than the rest of us what that fix was.

I will comment on my noble friend Lord Davies’s amendment. The problem with it is that, as the ICPs are proposed in the Bill at the moment, they will not be spending any money or commissioning services. It is also important that they include the various important parts of our local health delivery systems, including pharmacists, dentists, GPs, social enterprises and the voluntary sector. As I read it, this amendment would exclude hospices, for example—which would be a ridiculous thing to do. So my noble friend might want to rethink that amendment, because it does not necessarily serve the intended interests of the ICPs.

[Lord Kamall (Con)]

I thank all noble Lords, especially the noble Lord, Lord Hunt, for the points they have raised. ICPs will play an important role in co-ordinating services, planning in a way that improves population health and reduces inequalities between different groups. It is right that we consider the best conditions for their success. I was asked where the idea for ICPs came from. It originated from the Local Government Association. We have had extensive consultation with both the LGA and NHS England. To be clear, councillors can sit on ICPs.

[Baroness Thornton (Lab)]

Is that the fix: that councillors are not allowed to sit on the ICBs, where the money is spent, but they are allowed to sit on the ICPs? That is not acceptable to me.

[Lord Kamall (Con)]

I do not see it as a fix. The consultation was much wider than just NHS England. In November 2020, NHS England ran a public consultation on the structure of ICSs, including NHS staff, patients and members of the public.

[Baroness Walmsley (LD)]

May I ask the Minister whether councillors were consulted?

[Lord Kamall (Con)]

I do not know for certain, but I am sure their views would have been heard via the Local Government Association.

[Baroness Chisholm of Owlpen (Con)]

They were.

[Lord Kamall (Con)]

They were. Good. I got the answer just in time.

I will turn to Amendment 147, which would mandate a role for a member drawn from each area of primary care. With all amendments relating to the ICP membership, we want to be careful to give space for local areas to find a model of membership that works best for them. As the noble Lord, Lord Stevens of Birmingham, raised at Second Reading, it is right that in a country as large and diverse as ours, one size will not fit all. Therefore, it is right that local areas should be able to determine the model and membership that best represent their area.

We fully expect primary care professionals to be involved in the work of ICPs. Each partnership will need to involve a wide range of organisations and representatives from across the system, including professionals from primary medical, dental, pharmaceutical and optical backgrounds as they prepare their strategy. The department has published a draft list of representatives for ICPs to consider involving, which includes clinical and professional experts, including those from medical, dental, pharmaceutical and ophthalmic settings. The mechanism of how this is done will be down to local discretion. For example, one ICP may wish to formally appoint certain members, whereas a neighbouring ICP may wish to have an extensive range of consultees, and a third may decide to invite primary care representatives to join a subcommittee instead. We believe it is right that local areas are able to determine the model of partnership that best works for them, and this amendment would prevent that from happening.

A similar argument applies to Amendment 148. While we welcome the contribution of directors of public health and the voluntary, charity and social enterprise sector, I do think that we risk limiting the flexibility of ICPs. We expect public health experts to play a significant role, especially given their role in developing the joint strategic needs assessments that are crucial to guiding all planning, and their role in supporting, informing and guiding approaches to population health management.

Similarly, we expect appropriate representation from the voluntary, charity and social enterprise sectors, which will be able to contribute in respect of a number of different interests and perspectives. A number of noble Lords have spoken very eloquently about the reasons we should involve these sectors. We believe it would not be prudent, for example, to suggest that it may be appropriate for only one person to represent the local voluntary sector on a partnership, given the diversity of their involvement in health and social care.

I turn to Amendment 150, tabled by the noble Lord, Lord Davies of Brixton, and I also thank the noble Baroness, Lady Thornton, for her advice on that. I appreciate that the noble Lord might want to prevent anyone who works for, represents, or has a financial interest in a private health and care company, from being a member of an ICP. However, I would draw the noble Lord’s attention specifically to the recent experience of coronavirus, which showed that independent and voluntary providers were a vital part of the health and care picture. This amendment could exclude a significant part of the health and care sector, as the noble Baroness, Lady Thornton, rightly said. Given their scale and the central role they play, adult social care providers in particular would be potentially useful members of an ICP. It also risks leaving out, for example, dentists, pharmacists, opticians and many others working in primary care, and doctors other than GPs who work both in the NHS and privately.

We expect every ICP to have robust measures to ensure that formal conflicts of interest are managed carefully and transparently. It is also important to note that ICPs, as the noble Baroness, Lady Thornton, says, are not commissioners, and so will not be making decisions on the allocation of funds. Fundamentally, the ICP is working solely for the interests of people in the area. The experience of the health and well-being boards is helpful here, as they have similar flexibility in membership, and there have not been significant issues with conflicts of interest as they have developed their plans. We really expect the ICP strategy to be rooted in the people and communities they serve, and to be directly informed by the health and well-being boards and the joint strategic needs assessments. We are refreshing the health and well-being boards’ guidance to ensure that there are strong foundations in place at neighbourhood levels that the ICP can consult and build on.

Having said this, I thank noble Lords for their contributions on this important matter. However, as I have explained, we believe that these amendments run contrary to the principles of flexibility and subsidiarity that the Bill is based on, and therefore I hope that noble Lords will not press them.

[Lord Hunt of Kings Heath (Lab)]

I am grateful to the Minister. First, I thank my noble friend Lord Davies for his amendment. I think, notwithstanding what the Minister said about some of the technical details, the principle that he put forward is absolutely right: clearly, the consistency with ICBs that he mentioned is really important. I am also very sympathetic with the noble Baroness, Lady Walmsley, and her amendment on the importance of public health and voluntary organisations.

We come here to the principle that some of us continue to be puzzled by the architecture we see before us. The Minister says that this was consulted on and the Local Government Association is fine and dandy about it but, with respect, that is not sufficient in terms of your Lordships and the rigour and scrutiny that we need to put into this legislation. Frankly, as my noble friend Lady Thornton suggests, it looks much more like a fix between representative institutions to preserve the current arrangements as much as possible.

I remain somewhat confused about the structure. The Minister said that health and well-being boards will feed into ICPs, but why? Think about what he said about the role of integrated care partnerships; it sounded to me like the role of the health and well-being boards. I just do not understand the differences. I understand that, in some parts of the country where the ICP will cover a lot of local authorities, there is an argument that you should continue with health and well-being boards at the local level, but I do not see why they cannot be sub-committees of the integrated care partnerships; the Minister referred to that. Why on earth do we in Birmingham need a health and well-being board as well as an ICP? I simply do not understand it.

If the Minister believes that this should all be set out at the local level, why can people decide locally not to have a health and well-being board? He may say, “Ah no, you need a framework”. Our argument is that you need a framework in relation to membership as well. The compromise here might be to set out in legislation, as we will want to do, certain conditions around local governance and then leave it up to the local level. In relation to ICPs, however, we cannot leave it as it is. Having said that, I beg leave to withdraw my amendment.

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[Baroness Merron (Lab)]

My Lords, I am grateful to the noble Lord, Lord Farmer, for introducing this important debate and to other noble Lords who have supported the amendments before us and spoken about how we can improve the support that families will receive through this Bill. As the Family Hubs Network rightly observes,

“prevention is simply listed in the Bill as one of several commissioning requirements of ICBs with no broad mention of children’s health”.

This group of amendments gives us the opportunity to sharpen this.

As we have heard, the issues that families face, in whatever form or shape, do not exist in isolation. In addition to the impact of financial, housing, social and other pressures, the physical and mental health of a child or young person affects the physical and mental health of not just their parents, but their wider family, and vice versa. It makes common sense to facilitate a healthcare system that is designed and resourced to actively take a holistic approach to the many issues that face children and those who care for them.

I cannot help but feel that the points raised today are not new. We have the experience of Sure Start to show us how effective properly integrated family services can be. As the Institute for Fiscal Studies confirmed:

“By bringing together a wide range of early years services for children under 5, Sure Start centres dramatically improved children’s health even through their teenage years.”


Early investment is crucial.

I hope the Minister will be keen to embed change in this Bill to replicate the success that we saw through Sure Start. The first step towards doing this is to make sure that integrated care partnerships are properly required to consider how family help services can be thoroughly integrated into our health and care system, so that family members—no matter what form those families take—are seen as both individuals and groups who have an effect on each other.

[Lord Kamall (Con)]

I thank my noble friend Lord Farmer and all noble Lords who spoke about their experiences. The creation of integrated care boards represents a huge opportunity to support and improve the planning and provision of services to make sure that they are more joined up and better meet the needs of infants, children and young people.

Before I go into the specific amendments, I make it quite clear, as my noble friend said, that the Government set out in their manifesto a commitment to championing family hubs. We want to see them across the country, but at the same time we must give democratically elected councils the choice to shape how services are delivered, bearing in mind some of the points made by the noble Lords, Lord Mawson and Lord Warner, whom I thank for their experience on this.

The Government agree that it is vital to ensure that ICPs work closely with a range of organisations and services to consider the whole needs of a family when providing health and care support. In preparing the integrated care strategy, the integrated care partnership must involve local Healthwatch and the people who live or work in the area. We are working with NHS England and NHS Improvement on bespoke draft guidance, which will set out the measures that ICBs and ICPs should take to ensure they deliver for babies, children and young people. This will cover services that my noble friend considers part of family help.

In addition, the independent review of children’s social care is still considering its definition of “family help”, and the definition published in The Case for Change may well be further refined as a result of ongoing consultation. It would be inappropriate to define the term in legislation at this stage, pre-empting the full findings of the review and the Government’s response to it. Also, it is important that there should be a degree of local determination as to what should be included in the strategies of ICBs and ICPs. In order for them to deliver for their local populations, a permissive approach is critical.

On Amendment 167, we agree that family hubs are a wonderful innovation in service organisation and delivery for families. The great thing about them is how they emerged organically from local councils over the last decade. I pay tribute to my noble friend for the key role he has played in advocating family hubs and bringing this innovation to the heart of government. The Government strongly support and champion the move but we are clear that they have to be effective and successful—they need to be able to adapt to local needs and circumstances. They also need to be able to operate affordably, making use of a diverse range of local and central funding streams.

In both these regards, local democratically elected councils should hold the ultimate decision-making power over whether to adopt a family hub model and how it should function. As such, I regret that we cannot support the amendment, which would place too much prescription on the decisions and actions of local authorities and risk imposing significant new financial burdens. For this reason, I ask my noble friend to consider withdrawing his amendment.

[Lord Farmer (Con)]

My Lords, I thank the Minister for his rather disappointing reply and those who supported these amendments, particularly the noble Baroness, Lady Tyler, and my noble friend Lady Wyld, for giving such clear definition to the services and the advantages of family hubs. I take to heart the advice from the noble Lord, Lord Mawson, about unintended consequences. I would quite happily talk to him about this. I also take the point from the noble Lord, Lord Warner, that it is nought to 19, not nought to five. Families have so many problems with teenagers, as we see on the streets today, and family hubs can be a non-stigmatising place where help can be got.

I agree with the noble Baroness, Lady Merron, about Sure Start. In a way, I have always said that family hubs are building on Labour’s Sure Start centres. However, it is not nought to five but nought to 19—in fact, nought to 25 for children who come out of the care system, et cetera, with special needs.

There might be concern that my amendments attempt inappropriately to set in concrete the policy of family hubs when it is constantly progressing. However, the changes I have described are not just about bringing the latest policy idea into the Bill. Absent of these references to places where families know that they can access help and be connected to the full gamut of local services and support, the Bill will not reflect the overarching direction of travel. Their inclusion requires health to be fully on board, which has not happened in the past, to the detriment of the success of previous policies.

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[Baroness Thornton (Lab)]

My Lords, we on these Benches said everything we needed to say on this matter in support of the noble Lord, Lord Mawson, when we had the substantial debate. I do not know when it was—last week, I think. These two amendments flow from that. We probably could have taken them then, but I am sure that the Minister will have useful things to say.

[Earl Howe (Con)]

My Lords, we return to the very important theme of subsidiarity, to which the noble Lord, Lord Mawson, has brought us in both his amendments and his powerful speech, born of his immense experience in the real world.

I will begin with Amendment 159A, if I may. One of the main reasons for introducing this Bill was to ensure that existing collaboration and partnership working across the NHS, local authorities and other partners was built on and strengthened. This relates especially to the framing and monitoring of assessments and strategies. We intend for these assessments and strategies to be a central part of the decision-making of ICBs and local authorities. That is why we are extending an existing duty to ICBs and local authorities to have regard to the relevant local assessments and strategies. Furthermore, the integrated care board and local authorities will both be directly involved in the production of these strategies and assessments through their involvement with both the integrated care partnership and the health and well-being boards. As a result, they have a clear interest in the smooth working of the ICP.

More widely, there are already several mechanisms to ensure that ICBs and local authorities will have regard to the assessments and strategies being developed in their areas. First, health and well-being boards have the right to be consulted by ICBs and give NHS England and ICBs their opinion on whether the joint forward plans take account of the joint local health and well-being strategy. Likewise, as part of its annual assessment of ICBs, NHS England must consult each health and well-being board on how well the ICBs have implemented the relevant joint local health and well-being strategies.

There are what one might call insurance policies embedded in these arrangements. Each ICB must also include in its annual report a review of the steps it has taken to implement any relevant joint local health and well-being strategy. It must also consult the health and well-being board when undertaking that review. Finally, NHS England has formal powers of intervention if an ICB is not complying with its duties in any regard. Putting all this together, we think that it is sufficient to ensure that ICBs will have regard to both ICP and health and well-being board plans.

The emphasis is on collaboration. Implicit in that concept is the two-way street on the sharing of ideas and exemplars that the noble Lord, Lord Mawson, called for and illustrated in his examples. Given the strong collaborative measures in the Bill and the strong foundations of collaborative and partnership working across the NHS, local authorities and other partners on which this Bill is built, we do not think that further provision is required. We would expect an ICP to resolve disagreements through discussion and joint working rather than additional, potentially burdensome procedures.

Amendment 210A brings us once again to the role of non-statutory organisations in helping to create and sustain healthy communities. I want to stress straightaway that the Government hugely value the contributions of the voluntary, community and social enterprise sectors to the health and well-being of the nation. We recognise their important role in supporting the health and care system.

The Government fully expect that commissioners will also recognise this contribution and role going forward. This role will be particularly important in efforts to recover performance and move beyond a purely reactive service to building a sustainable and personalised health and care system, something the non-statutory sector is uniquely placed to offer. I think the lessons learned, so well described by the noble Lord, Lord Warner, in the previous set of amendments, are widely accepted nowadays.