Health and Care Bill

Lords Hansard - Part 2 & Committee stage
Monday 31st January 2022 Lords Chamber

Committee (7th Day) (Continued)

20:09

[Lord Ashton of Hyde (Con)]

My Lords, before we resume the debate, perhaps I may point out that we went very quickly last Wednesday—many thanks for that excellent performance. The last group also went quickly. May I respectfully point out that we need to do nine and a half groups this evening? Once again, I ask noble Lords to acknowledge how much we still have to do on this Bill and adjust their contributions accordingly if at all possible.

[Baroness Bennett of Manor Castle (GP)]

My Lords, debate on this group was somewhat interrupted and I will remind everyone that we are talking about dental health. I will speak first to Amendment 224 in the name of the noble Lord, Lord Hunt and others, to which I attached my name. It calls for a statement from the Secretary of State on access to dental care at regular intervals.

This comes back to a point I have made again and again about the Secretary of State taking responsibility and being forced to come before Parliament to take that responsibility. The noble Lord, Lord Hunt, introduced the amendment clearly and I agree pretty well with everything he said. However, I will now start to disagree with him. I note that I am addressing a number of amendments on fluoridation that were signed by my noble friend Lady Jones of Moulsecoomb. Those who were paying attention before will note that her name was on the Annunciator as being in the other Committee Room when we started this group, so I am speaking on her behalf.

There is an interesting progression here because, if I had been asked to do that a few years ago, I would have been quite uncomfortable. Had I been asked a few years ago which Green Party policy I disagreed with, the one I would have questioned was our opposition to mass fluoridation. But I have been on a political and scientific journey since then and I have come to realise that fluoridation is one of those health measures and medical practices that came to be adopted because it seemed like a good idea, well before we did proper trials, work and consideration. As the noble Lord, Lord Reay, said, there is now increasing scientific questioning.

I do not want to go over the same ground as the noble Lord, Lord Reay, but will think about where we are and apply systems thinking to this. The fact is that, according to the Drinking Water Inspectorate, the number of people now willing to drink water from the taps in the UK has dropped from 90% in 1978 to 73% in 1998. To put it another way, one in four people now mistrust the water coming out of their taps and will not drink it.

We can see the impact of that if we happen to go into a supermarket. We see a great many people lugging large, often plastic, bottles of water. They are often people who are struggling to pay for that water, yet they are buying it because of their lack of trust in the water supply that is actually far healthier than what is in the bottles. I would urge them all to drink the tap water, which is the healthy option.

We have a real problem of trust—something we have seen in other contexts. This potential mass fluoridation imposed from the centre above is something that potentially could have a real impact on reducing tap water. The noble Lord, Lord Reay, said, “Well, people can’t afford it, so it’s the poorest who’ll be forced to drink the water”. But the evidence shows that many people who cannot afford it now—from more disadvantaged and BAME backgrounds and who suffer from many disadvantages—who are reluctant to drink that water. We have also seen these issues of trust around the Covid-19 vaccine. These issues could see real risks to dental health.

We also want to apply some real systems thinking. The noble Lord, Lord Reay, referred to the fact that Scotland has brought in some good, targeted programmes on dental health that help children learn to brush their teeth and address diet and the consumption of sugary foods that has so many other health issues. We know what happens in politics. We have a problem with tooth decay and the Government say, “Right, we’re doing fluoridation”. Where are we going to see the money, focus and attention on those targeted programmes that would reach the children who need it most?

20:15

Before the break, a number of noble Lords referred to studies that show that areas of the UK that are fluoridated have lower levels of tooth decay, particularly among children and disadvantaged children, than areas that are not, but those areas still have utterly unacceptably high levels of tooth decay, which has massive impacts. We tend to think about teeth in isolation, but we are talking about the health of those children in total. If we do not see that focus on targeted interventions, we are going to see mass medication, problem solved, box ticked, and we are not going to see the kind of steps forward that we need.

So this is about not mass medicating without consent. It is about trust, decision-making and being democratic. This is one more area in the Bill where the Government should think again.

[Lord Young of Cookham (Con)]

My Lords, I shall respond to the injunction from the Front Bench and speak for less than two minutes. I had not planned to intervene in this debate, but I was provoked by my noble friend Lord Reay, with whom I find myself in respectful disagreement, and further provoked by the noble Baroness, Lady Bennett.

Listening to my noble friend’s speech took me back 42 years. It was like Groundhog Day, because in March 1980 I had to sit through a speech lasting more than one hour by Ivan Lawrence on fluoridation. I was lucky because in 1985 he set a new record by speaking from 5.12 am until 9.35 am. I was refreshing my memory about what I said in response to the debate 42 years ago in just two paragraphs—I should explain that I was the Minister responsible at the time, when I said:

“I think I should first explain that fluoride occurs naturally in most water supplies, sometimes at a satisfactory level for the prevention of dental decay. Fluoridation consists merely of the adjustment to the optimum level for dental protection—one part per million in temperate climes—of the fluoride content of those water supplies that are deficient in it naturally. When water containing the optimum level of fluoride is consumed during the years of tooth formation, the protection conferred in childhood continues during adult life.”—[Official Report, Commons, 6/3/1980; col. 792.]


I wound up:

“Finally, as my right hon. Friend indicated last January”—


that was January 1980—

“it remains the Government's view—like that of their predecessors for many years—that extensive trials throughout the world have shown that fluoridation safely and effectively reduces the prevalence of dental caries—one of the commonest diseases and one which has lifetime consequences for general and dental health.”—[Official Report, Commons, 6/3/1980; col. 799.]

Since that time, government policy has not been delivered, as the noble Lord, Lord Hunt, explained. Initially it was the area health authorities that did not do it, and now it is local authorities. It is now imperative that government policy is delivered, and that is why I wholeheartedly support these clauses in the Bill.

[Lord Storey (LD)]

My Lords, I shall speak briefly on Amendments 224 and 261 and share my views on fluoridisation. I agree with the noble Lord, Lord Reay, that it is a pity we did not have a proper full debate on this matter.

There is a real problem among young children, particularly those in deprived communities, who have increasing levels of bad teeth—dental decay. You would think that as a result of that situation we would be trying to do something more practical about it, yet we see dental inspections in schools decreasing. When I was first a head teacher, the dental services would come in twice a year to inspect children’s teeth and would give a little note to the parents so they could go to their dentist. The second problem we face is that, as we heard from the noble Lord, Lord Hunt, you cannot find an NHS dentist, particularly in a deprived area, for love nor money. That is a problem for families that cannot afford to use a private dentist, even if one was available.

When I was leader of the council in Liverpool, all political parties together—I have to tell my colleagues—decided against fluoridation, so we took the view that perhaps there was a different way of doing it. We were setting up the network of children’s centres in the early 2000s. We therefore made dental health in the nought to five age group one of the highest priorities in the city council’s strategic plan. We also issued additional guidance to our primary schools, asking them to make encouraging better dental health a higher priority. As a result, 10 years later in 2013, the British Dental Association’s 10-yearly survey showed that a reduction of 28% in caries had been achieved in Liverpool’s schools. The targeted approach achieved an outcome double that identified in the York review as the average caries reduction from fluoridation. We will also have helped many children to develop lifelong good personal dental hygiene habits, which is a crucial part of the strategy.

Whether we have fluoridation or not, we need to be absolutely sure that the journey we are going on is correct. In the meantime, we should look at other ways. We should also look at what our colleagues in Scotland have been doing with their Childsmile project, which has been shown to be safer, less wasteful and more effective, and better value for money. I hope that at some stage we will revisit this issue and have a much longer and more considered debate.

[Baroness Walmsley (LD)]

My Lords, this group rightly began with an amendment about adequate provision in dentistry. As we have heard, there is currently a massive shortfall in provision of NHS dentists and indeed dentists as a whole, so much so that a charity called Dentaid, which normally works in the third world, is now working in Dewsbury and Batley—and possibly in other parts of the country that I am not aware of—because people cannot get free dentistry. The situation is made worse by the backlog of treatment caused by the pandemic, whereby dentists were at first unable to see patients and later had to reduce the number of aerosol-producing treatments they could carry out each day.

I have no doubt that the condition of the nation’s teeth has deteriorated during the past couple of years. Nearly 1,000 dentists left the NHS between 2020 and 2021, according to the BDA. However, problems with access to NHS dentistry predate the pandemic. Government spending on dental services has fallen by a third in real terms in the last decade, and the £50 million one-off injection of funding announced recently will barely make a dent in the unprecedented backlog that NHS dentistry now faces.

However, it is also well proven that fluoride, however administered, can strengthen tooth enamel and help teeth to resist decay. The 2018 report from Public Health England made that clear and did not report adverse effects. In Clauses 147 and 148, the Government intend to ensure that the whole country has access to drinking water with at least 1 milligram per litre of water, the level believed to be most effective in reducing tooth decay without the unwanted effects mentioned by the noble Lord, Lord Reay, and without waiting for local authorities to initiate schemes. I have to say that I believe Public Health England rather than the noble Lord.

I am always in favour of prevention and of reducing health inequalities, and it is claimed that this measure would do both, but there are some issues which I wish to probe. Currently only two areas in the country, Hartlepool and Braintree, have the optimum level of naturally occurring fluoride in their water. Other areas, covering about only 10% of the population, mainly in the north-east and Birmingham, already have schemes initiated by the local authority. I accept that a number of costly and bureaucratic barriers have been identified to more local authorities initiating such schemes, and I understand these clauses are an attempt to overcome them by making national regulations. These would remove some of the consultation costs from local authorities. However, some local authorities are reluctant to give up their local autonomy on this issue and believe their residents should be consulted before fluoridation occurs. This must be considered.

I have some questions for the Minister, which fall into two categories. The first is about costs and where they fall. We are told in the impact assessment that current schemes will not be affected, and existing and future capital costs will continue to be borne by the Department of Health and Social Care. What will be the additional burden on the funding of the Minister’s department of bearing the capital costs for every area in the country? I understand that regulations will allow for future costs to be shared by his department with water companies. What impact is that expected to have on the water bills paid by households, since the companies will undoubtedly try to pass it on to customers?

Water companies can well afford to pay these costs themselves, rather than take the money from the health budget. This is clear from the eye-wateringly high earnings of their leading directors. We know from a briefing from Yorkshire Water that the costs can be considerable. A few years ago, it did a feasibility study when only one area—Hull City Council—was looking into fluoridation. At the time, it estimated the capital cost to be £1.6 million to £2 million and the annual operation costs to be approximately £330,000 per year. These costs would have fallen on Public Health England and the local authority at the time, but under the new proposals they would be covered by the Department of Health and Social Care.

Over recent years, capital investment in water and sewerage services has been covered just by income from water bills, but investment in infrastructure has not been adequate, since we still have raw sewage being discharged into water courses and leaks wasting water at an unacceptable level. So, we can expect the companies to accept some of the cost of fluoridation themselves, without passing it on to the customer.

Can the Minister also say what is the plan for regular measurement of the fluoride content of water, and at what point in the delivery journey will it occur? What will this cost, and where will the cost fall? Will the Government allow companies to pass this cost on to the consumer too, although they can clearly afford to absorb it? The reason I ask is that water companies share water all the time and there is a possibility that, without frequent monitoring, the fluoride content delivered to customers could turn out to be either too high or too low to be effective.

The second category of question concerns what other proposals for reducing the incidence of tooth decay have been considered by the Government, as mentioned by my noble friend Lord Storey. I have dealt with the availability of NHS dentistry, but it is excess sugar and acids in the diet that cause tooth decay. Sadly, poor diet is a major problem, particularly among poorer children, for whom the most common reason to be admitted to hospital is the need for complex extraction of rotten teeth. Fluoride can, of course, can be administered in other ways: either applied by the dentist or by regular use of fluoride-containing toothpaste—fortunately, most toothpastes contain fluoride. However, many children eat too much sugar, drink too many acidic fizzy drinks and do not brush their teeth regularly.

As my noble friend said, there used to be a school dentistry service to check for problems, and dental nurses used to visit nurseries and primary schools to teach good dental hygiene. I have myself sat in on such a session and it was excellent, but I do not believe it happens any longer. Have the Government costed a return to these schemes? As for diet, we will be dealing with that in a later group of amendments. So, while accepting the potential benefits of what is proposed, I ask the Minister to assure the House of the cost-effectiveness of the measures, explain the impact on family budgets and tell the House what other measures are being considered to achieve the same ends, which we all want to see: better and more equal dental health.

[Baroness Merron (Lab)]

My Lords, I welcome the amendments in this group, which focus on the need for universal access to dentistry and the introduction of fluoride into water. As my noble friend Lord Hunt said, they are about treatment and prevention, which are equally important when it comes to considering how we tackle tooth decay and oral health. I am grateful to my noble friend, the noble Baronesses, Lady Northover and Lady Walmsley, and the noble Lord, Lord Young, for their support for these amendments.

20:30

As we all know, poor oral health does not just affect teeth; it impacts on our general health and well-being, and it affects what we can eat, how we communicate, and how and whether we can work, study and socialise, and it also affects our self-confidence. Yet tooth decay is largely preventable.

We find ourselves faced with a significant public health problem linked with considerable regional variation and inequality. A three year-old living in Yorkshire and the Humber is more than twice as likely to have dental decay as a three year-old who lives in the east of England, and one in three five year-olds in the north-west has experience of dental decay, compared to nearly one in five in the south-east of England. I therefore welcome Amendment 224, which pursues universal access to NHS dentistry. We all know, through both facts and personal and other experiences, the difficulty in getting to see a dentist. As has already been said, that issue predates the pandemic.

I would be interested in hearing the comments of the Minister on a recent British Dental Association membership survey showing that morale in the profession is at an all-time low. Obviously, unless this can be turned around, the drift of dentists away from the NHS will only accelerate. We have long-standing, systemic problems, and the added challenges posed by Covid-19 mean that there is potential for a further exodus of dentists from the NHS. That threatens not just access for patients but the long-term sustainability of NHS dentistry in general. It would be helpful if the Minister could address that in his response.

Turning to fluoridation, according to the Oral Health Foundation this is the single most effective public health measure for reducing oral health inequalities and tooth-decay rates, especially among children. It is effective and safe, and recommended by the World Health Organization, as referred to by the noble Baroness, Lady Northover. It is something that would benefit both adults and children, reduce health inequalities and offer a significant return on investment.

I heard in the debate that the noble Lord, Lord Reay, and the noble Baroness, Lady Bennett, do not share this view. I say to noble Lords—this has come up several times in the debate—that introducing fluoride into water is not an either/or matter; it is part of an overall strategy. I hope that what we are talking about today is how we can get to a place where we have a proper, all-round approach to preventing oral ill-health and treating it where there is a need for dental care. It is not whether we do or do not introduce fluoride into water, but whether it is useful.

I would just gently say this, to back up the point made by the noble Lord, Lord Young: fluoride is a naturally occurring mineral; it is found in varying amounts in soil, food and drink, and in drinking-water supplies. Of course, as we know, there are some parts of the country where the level of fluoride in the public water supply already reaches the target concentration of water fluoridation schemes, as a result of the geology of the area. In other areas, the fluoride concentration has been adjusted to reach this level as part of a fluoridation scheme. It would be a very strange act on our part to say that only those who are geologically blessed should have access to this support to prevent oral ill-health.

I hope that the Minister will be able to accept what I regard as sensible amendments to move us toward a strategy to deal with the treatment and prevention of oral ill-health.

[Earl Howe (Con)]

My Lords, I am very grateful for the contributions to this debate from noble Lords, bringing us to a set of issues which many of us have been grappling with for a number of years.

I turn first to Amendment 224, and the access issue. The point I must stress before any other is that this Government are committed to improving access to dental services across England. With that aim, we are working closely with NHS England to increase dental capacity as rapidly as possible. Since the start of the year, the threshold for dental activity in NHS practices has again increased and is set at 85% of pre-pandemic activity, allowing more patients to be seen. Building on this, NHS England recently announced an extra £50 million to urgently provide hundreds of thousands of additional appointments.

Beyond recovery from the pandemic, we recognise the need to reform the NHS dental contract to increase access. NHS England is leading on dental system reform and working closely with key stakeholders to deliver this. I think it was the noble Baroness, Lady Merron, who asked about dental morale. Much of any dip in morale has to do with what is seen as a delay in introducing the new dental contract, which has been promised for a number of years. There are all sorts of very valuable reasons for that delay, which the profession is being consulted on, but I understand that dentists are keen to see a new structure of remuneration.

That is a summary of the current backdrop. Noble Lords should be in no doubt of the Government’s continuing commitment to improving the provision of NHS dentistry across the country. What we are doing demonstrates that commitment, and for that reason we do not feel that a requirement to publish a statement on this work is necessary.

This brings me to the amendments on water fluoridation. This Government want to see more of the population benefit from fluoridation, which we know reduces oral health inequalities and the burden on NHS services. I will first address Amendments 259B and 259D, tabled by my noble friend Lord Reay, which take us in a different direction. I realise that he feels strongly about the issue, but in relation to Amendment 259B, the clear advice that I have received is that there is no evidence of harms to the environment from water fluoridation schemes. There are existing safeguards in place to protect the environment and public health.

As part of their overall responsibilities, water companies are already required to comply with relevant environmental legislation. The Town and Country Planning (Environmental Impact Assessment) Regulations 2017 and other legislation set out the thresholds and criteria for which an environmental impact assessment is already required. The installation of water fluoridation plants in some areas may already fall within this scope. The Environment Act 2021 will, when brought into force, place a duty on the Government to have due regard to the policy statement on environmental principles in our policy-making. New and revised policies will need to take into account their impact on the environment. The Environment Agency also monitors the ecological health of our rivers at a large number of sites. If there had been or were to be a failure in the safeguards, the agency could detect this through its routine monitoring programme.

Turning to Amendment 259D, I emphasise to my noble friend that the scientific evidence around fluoridation is kept under constant review. Several authoritative scientific reviews have looked at the general health effects. The common finding of such reviews is that there is no convincing scientific evidence that fluoride in drinking water at levels used in fluoridation schemes is a cause of adverse health effects. This view is shared by the UK Chief Medical Officers, who issued a joint statement last September supporting water fluoridation as a safe and effective public health intervention to improve oral health.

I listened carefully to my noble friend, but the Government are committed to keeping the evidence under review, and it would be inappropriate to carry out evidence reviews focusing on studies from a specific time period and a specific part of the world, as he suggested. Keeping the evidence under review is what we will do but the Secretary of State is also required to monitor the effects on the health of the population living in areas with water fluoridation schemes and then publish a report no less than every four years. The next report is due in March of this year.

My noble friend suggested that the water fluoridation elements of the Bill have somehow been slipped in without adequate time for debate. In fact, the White Paper setting out proposals for the Health and Care Bill, published in February 2021, highlighted the current difficulties faced by local authorities and set out our intention to use the Health and Care Bill to give the Secretary of State the power to directly introduce, vary or terminate water fluoridation schemes. So the water fluoridation elements of the Bill have been there from the outset and open to debate.

Both my noble friend and the noble Lord, Lord Storey, referred to the Childsmile initiative in Scotland and asked why we cannot have a scheme in England. In fact, daily supervised toothbrushing programmes in England can already be entered into by local authorities or the NHS. There are already some schemes around the country; I visited one myself when I was dentistry Minister. Public Health England has published guidance in this area to help local authorities who are interested in schemes. Against that background, I hope that my noble friend will feel at least a little reassured, and sufficiently so to refrain from moving his amendments when they are reached.

On Amendments 260 and 262, the public voice on further fluoridation remains important and we are committed to ensuring that the population continues to have its say on any future water fluoridation schemes. We are bringing forward plans for an initial expansion of water fluoridation schemes over the next three years. We will consult the public on these plans later this year, subject to the successful passage of the Bill and funding being confirmed. The outcome of that consultation will inform regulations to be drafted later this year. These regulations will be subject to the affirmative procedure.

Underpinning any scheme expansion is the need to undertake feasibility studies and to secure funding, as well as public consultation against which we do not have certainty and cannot pre-empt the outcome. As such, we cannot at this stage set out a programme of expansion; because of that, any programme drafted in advance of the completion of these steps would be so heavily caveated and subject to change that its utility would be substantially undermined. I am of course very happy, as is my noble friend Lord Kamall, to update the House as expansion plans are developed and agreed. However, we do not believe that this needs to be specified on the face of the Bill.

Amendment 261 relates to cost-sharing for new schemes. There are no current proposals for cost-sharing. However, given the cycle of legislation and the infrequency with which these opportunities present themselves, we have taken the decision to include such measures now to provide flexibility for this in future. I can assure the House that, should we bring forward any plans to cost-share in the future, we would seek to fully engage with relevant groups at the earliest opportunity. Any plans to cost-share with public sector bodies would also be subject to regulations on which there is a requirement to consult.

I would say to the noble Baroness, Lady Walmsley, that funding for both new and current health improvement initiatives is within the overall capital budget allocated to the department over the next three years. We will be undertaking a business planning exercise before this funding is made available from April 2022, and we will confirm this is due course.

The noble Baroness asked about the effect on water bills. There will be a cost associated with water fluoridation schemes that will need to be met either through taxation or other means. However, we know that in the end this is a cost-saving measure; the money spent to implement these schemes will save the nation money in the longer term and will benefit health. As I said, currently there are no plans to cost-share with water companies or indeed any other public sector bodies. However, given the opportunity presented by the Bill, we are enacting the relevant provisions.

20:45

Looking at the big picture, we have 57 years’ experience in England and 75 years internationally, and in that time there has been no credible evidence of health harms of fluoridation schemes. Tooth decay is a significant but largely preventable public health problem. As the noble Baroness, Lady Northover, rightly said, we know that water fluoridation is an effective public health intervention to reduce tooth decay and oral health inequalities, not least among children. Those inequalities in certain counties and regions are extremely serious. Therefore, as regards the provisions of the Bill, Clauses 147 and 148 are designed to enable us to move forward meaningfully in the drive to reduce oral health inequalities across this country. I commend these clauses to the Committee and hope that noble Lords will support them.

[Baroness Bennett of Manor Castle (GP)]

I raised the issue of the lack of public trust in tap water and the fact that that is a public health issue and could be magnified. Could the Minister comment on that and suggest what the Government are planning to do about it?

[Earl Howe (Con)]

I apologise to the noble Baroness, because she was making a significant point. I am not sure that I share her perception that those who buy bottled water in supermarkets necessarily do so as a reflection of their lack of trust in tap water; a lot of it has to do with some myths around the benefits of bottled water. However, be that as it may, I will take advice and write to the noble Baroness. I am not sufficiently sighted on the issue she raised and the evidence behind it, so it is probably appropriate if I look into it and write to her.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has been a very interesting debate. On dental access, a number of noble Lords—my noble friend, the noble Baroness, Lady Bennett, the noble Lord, Lord Storey, and the noble Baroness, Lady Walmsley, among others—commented on the great difficulty that many people have at the moment in getting access to an NHS dentist. The noble Lord, Lord Storey, focused in particular on children, which is my particular concern. More energy needs to be put into developing a dental strategy. On thoughts of contracts, anyone who has been a dental Minister will know that the problem with contracts is that dentists always overperform, and the Treasury then claws back in future years, leading to unhappiness and misery in the profession. The fact that the pilot schemes, on which I think work is being based for a future contract, have now stopped, or are going to be stopped, is a great pity, and it does not show positive intent.

On fluoridation, I was delighted that the noble Lord, Lord Young, intervened. A couple of debates ago I was watching on the screen, and he chided me for what I thought was a perfectly formed piece of legislation at the time, many years ago. He talked about his experience as a Minister 42 years ago. I think it was because of his work that I, 37 years ago, as secretary of the Edgware/Hendon Community Health Council, organised public meetings in part of the Borough of Barnet on fluoridation, prior, we hoped, to the then area health authority implementing a fluoridation scheme. Although the public meetings came out strongly in favour of fluoridation, of course nothing happened. I am afraid that the experience in Barnet and Edgware and Hendon was repeated up and down the country, which is why I applaud the Government for doing what they are doing now.

The noble Baroness, Lady Northover, spoke very eloquently about the evidence from deprived areas. Sandwell, next door to Birmingham, is high up in most indicators of poor health, except in dentistry. That is because, unlike Liverpool, Birmingham City Council took the decision in the 1960s to fluoridate the water supply and Sandwell got the benefit. The result is that, in general, oral health in the West Midlands is very good indeed.

I listened with great interest to the noble Lord, Lord Reay. He mentioned the Jauncey judgment, which unfortunately I remember. I remind him that, although Lord Jauncey ruled that Strathclyde Regional Council was exceeding its powers in seeking to fluoridate the water system, he accepted that the amount of fluoride it wanted to put into the system would have no significant adverse effect on health, that fluoridation had been shown to be harmless and that it would be effective. When we quote Lord Jauncey, we need to quote the whole judgment, rather than just whether Strathclyde was found to have the power to put fluoride in the water.

I will not repeat what the noble Earl, Lord Howe, said. In only September, the Chief Medical Officers spoke in their judgment about the effectiveness and safety of fluoride. I was very glad to hear the point the noble Earl made about expansion; I am very glad that it is on the Government’s mind. I look forward to the consultation, which I take will be a national one, if there is going to be an expansion; that is very good news indeed.

On cost sharing, I register that this Bill is full of little clauses which give Ministers powers to do something in the future, when they know what they want to do. I mention procurement regulations in Clause 70 at the same time; I think that is going a bit too far. Having said that, I beg leave to withdraw my amendment.

Amendment 224 withdrawn.

Amendment 225 not moved.

Amendment 225ZA

Moved by

[Lord Warner]

225ZA: After Clause 80, insert the following new Clause—
“Regard to the reports of the Office for Health and Care Sustainability
The Secretary of State, in discharging his or her responsibilities under Part 1 of this Act, must have regard to the reports of the Office for Health and Care Sustainability established under section (Office for Health and Care Sustainability).”

[Lord Warner (CB)]

My Lords, I rise to move Amendment 225ZA and will also speak to Amendment 285. I thank the clerks for their help in devising Amendment 225ZA, which enables us to discuss Amendment 285, which I regard as important, today. Amendment 285 is the substantive amendment I shall address.

The amendment is important because it places in legislation recommendations from the 2017 report by this House’s Select Committee on the Long-term Sustainability of the NHS and Adult Social Care. I am delighted to see two members of that Select Committee, the noble Lords, Lord Ribeiro and Lord Scriven, here this evening. Unfortunately, the Select Committee’s chairman, my noble friend Lord Patel, who did an extremely good job, is unable to be here, but I believe he will join my noble friend Lord Kakkar to discuss a less detailed amendment, Amendment 286, which tries to achieve the same objectives as Amendment 285. For the record, the two Select Committee recommendations which are germane to this amendment are recommendations 33 and 34, found on page 98 of our report. In the interests of time, I will not spell these out, because they are effectively set out in Amendment 285, but I will draw the Committee’s attention to some of the evidence which caused us to make these recommendations.

On page 84 of the report there is a section on:

“A culture of short-termism”.


This starts at paragraph 322 with the sentence:

“Our inquiry uncovered endemic short-termism in almost every area of policy making.”


We made it clear on that occasion that the noble Lord, Lord Stevens—then plain Simon Stevens, the chief executive of NHS England—was “the most notable exception” with his Five Year Forward View.

The committee was very concerned about the approach of what was then the Department of Health, particularly the evidence given to it by its Permanent Secretary, now Sir Chris Wormald, who remains in post today. I draw the Committee’s attention to paragraph 324 of our report, which sets out what the Select Committee made of the Permanent Secretary’s evidence:

“Although we questioned him at length on the work taking place in his department on the long-term future of the NHS, revealingly, we were not provided with any concrete examples. Moreover, he questioned whether this was work that should even be taking place in his department”.


We concluded at the end of paragraph 324:

“We were unconvinced by the answers he provided and we are left with no choice but to conclude that the Department of Health is failing to plan for the future”.


I have been in this place for 22 years. This was a pretty damning conclusion for a cross-party committee of this House to come to. The Permanent Secretary of the government department with the biggest budget after cash benefits, and which would be spent on the biggest public or private workforce in the country, was saying that it was not the department’s job to do long-term planning. This seemed to have been left to NHS England’s chief executive, who had been given no responsibility for securing the workforce he needed or settling the pay and conditions of service for that workforce—matters determined by the government department, whose boss thought it was not his job to do any long-term planning. The Select Committee was rather stunned by this view of what the job of a government department was.

Is it any surprise that your Lordships’ Select Committee made the recommendations it did? I see no evidence that much has changed for the better since the Select Committee’s report. When the noble Lord, Lord Stevens, spoke in the debate on the amendment on the workforce tabled by the noble Baroness, Lady Cumberlege, he seemed to confirm, if one looks back at Hansard, that this was the case, with his account of endless delays before any kind of workforce future plan saw the light of day.

The workforce amendment tabled by the noble Baroness, Lady Cumberlege, has much to commend it, as I said when we debated it. It is certainly a big improvement on the current situation and puts statutory pressure on the Secretary of State to produce regular workforce plans. My worry is that the plan that that amendment would produce may not be long term enough or closely tied to funding streams. Moreover, any planning done under the noble Baroness’s amendment would still be subject to Whitehall negotiation and Treasury and No. 10 interference if it had data or messages that were politically uncomfortable at the time of publication. I had serious doubts about the wisdom of leaving health and care workforce planning totally in the hands of elected politicians and their civil servants. I say that having been a senior civil servant and a Minister.

Two recent stories in the Times have reinforced my view. When we discussed my Amendment 72 on 24 January, I raised the matter of the front page headline in the Times of 18 January: “Javid plans NHS revolution modelled on academy schools”. I thought this was odd, given that we have not completed the legislation on this NHS reorganisation. The noble Baroness, Lady Chisholm of Owlpen, did not totally reassure me when she said in response:

“No further plans have been agreed.”—[Official Report, 24/1/22; col. 37.]


I therefore assumed something odd was going on.

21:00

I was not surprised, therefore, to see the very large spread on page 4 of the Times last Saturday, 29 January, again with the headline:

“GPs nationalised in Javid plan to reduce hospital admissions”.

The journalist—a highly reputable one, in my experience —quotes from a letter sent from the Health Secretary to the Prime Minister this month, telling him that he had

“an ambitious agenda that has the potential to be a central plank of your domestic policy legacy.”

The Prime Minister needs all the help he can get, at the moment.

I cite this information not just because I am curious about what is going on at 39 Victoria Street and the implications for this Bill. Although this issue seems above the Minister’s pay grade, he might wish to venture some explanation. More specifically on my amendment, these Times stories rather make the case for not putting longer-term health and care workforce planning in the hands of Ministers and their civil servants. If the criterion for NHS reform is to be the Prime Minister’s policy legacy, I am unconvinced that the NHS and its staff will end up in a good place.

Amendment 285 places the job of looking ahead and planning in a body independent of government. This body must be set up within six months of the Bill becoming law. The functions of the body are to be exercised on behalf of the Crown as though it were a public department. It has three main functions: monitoring and publishing data relating to demographic trends, disease profiles and the likely pace of change affecting future service demands; assessing the workforce and skills mix required to respond to those changes and publishing regular reports on these matters; and to consider the stability of health and adult social care funding relative to changing demographic and disease trends. In other words, it tries to stop what we had in the past, moving with the NHS budget from feast to famine and back again.

This new office should look five, 10 and 15 years ahead, and publish regular reports laid before both Houses of Parliament. It must produce an initial baseline report within a year of its establishment. It would have an executive chair and five members. The chair and two members would be appointed by the Health Secretary, but only with the consent of the Public Accounts and Health Select Committees of the House of Commons. The remaining two members would be chosen by the office itself. The initial term of office would be five years, and no one could serve more than two terms.

The workings of this new body are largely copied from the legislation setting up the Office for Budget Responsibility in 2011. That innovation seems to have worked well and was the model that this House’s Select Committee had in mind. However, I am not a proud author and I am open to alternative drafting, providing it does not weaken the independence of the body.

Even Jeremy Hunt, who, as far as I can see, ignored this recommendation when he was Secretary of State, seems to have changed his mind. In an interview to the Times last October, he regarded this kind of approach as likely to keep Governments honest.

I hope this House gives serious consideration to this amendment. The stories in the Times about considering further NHS reforms are disturbing and have serious implications for this Bill on Report. They should give the House pause for thought in giving the Secretary of State the powers of direction being sought. If another NHS reform is being cooked up in Victoria Street, it raises the question of why Parliament is labouring so long on this Bill.

[Lord Hunt of Kings Heath (Lab)]

I shall say a few words in support of the noble Lord, Lord Warner; I put my name to his original Amendment 285 and, obviously, I very much endorse what he said. Reading the Select Committee report again, I find it as fresh as ever and its analysis of the issues faced in the NHS are exactly the pressures we see at the moment. Let us be clear: it was a hard analysis. We are all proud of the NHS, but the report rightly pointed out that it performs poorly in comparison with many countries on many indicators. In acute care, we have worse outcomes for survival for stroke and heart attacks, we lag behind comparable European countries for cancer survival, and we have fewer beds, fewer doctors and fewer nurses per head than OECD averages. As capacity is so tight, it is no wonder, given the current pressures post pandemic, that the NHS is struggling to meet the challenges it faces. We have talked about dental access, but we could talk about the horrendous waiting times for treatment or the dreadful ambulance waiting times which are frightening for people with very serious illnesses.

The Government’s approach is one initiative at a time on the whim of the Secretary of State at the time. We have already got the Messenger review which is bringing in a general to tell the NHS how to manage its services. How many times have we introduced people before? I think Secretary of State Hunt established the report by the noble Lord, Lord Rose. He clearly wanted Rose to say that NHS managers were useless. Of course, the noble Lord did not say that. He said that Ministers are useless at creating circumstances in which managers can thrive. Messenger will come out with the same response and his report will also be rejected because what these reports all say is that the way Ministers lead from the centre is non-conducive to the sensible management of the NHS at local level. Bringing some long-term planning to the NHS with the proposals that the noble Lord, Lord Warner, suggests seems to be eminently sensible. I hope this is one of the issues that we will take to Report because it is fundamental to the future.

I was a bit nonplussed because I was rising to support my noble friend Lady Thornton on her Amendment 281, but she is yet to speak to it. It is always good to see the noble Lord, Lord Lansley, in his place. When we debated the future of Public Health England in the 2011 Bill that led to the 2012 Act, we warned that placing PHE firmly within the department would lead to a complete misunderstanding among all of us about who was responsible for its performance. Lo and behold, we had the Covid crisis and that is what happened. Noble Lords will remember that at the beginning Ministers were briefing that PHE was hopeless and that they had lost confidence in it, and that led to the rushed announcement by the previous Secretary of State about the setting up of the UK Health Security Agency. No one knew, because Ministers kept quiet, that they were accountable for PHE and that PHE staff are officials. They are civil servants directly responsible to Ministers for their performance. The Joint Committee inquiry into Covid identified this. Yes, there were issues with Public Health England’s performance, but Ministers should take responsibility.

We risk repeating the problem with the UK security agency, because, again, it is being set up as an agency part of the department, under the control of Ministers. Once again, when trouble arises, we will see the same pattern of Ministers trying to escape their responsibilities for what is performed by this particular agency. The reason I support my noble friend is that I think she is absolutely right in seeking to place this agency on a more independent basis, so that it can be seen to account for what it does and we can avoid the ambiguity being built into the current situation.

[Lord Scriven (LD)]

My Lords, I also want to rise to support Amendment 285 in the name of the noble Lord, Lord Warner. I was very happy to put my name to that. As the noble Lord said, I was also a member of your Lordships’ Committee on the Long-term Sustainability of the NHS and Adult Social Care.

Noble Lords who have been following this set of Committee days will realise that this amendment goes to the heart of a lot of what we have been talking about, which is the conflict between short-termism and long-term planning. The Bill is about the integration of health and social care, improving health outcomes and reducing health inequalities. They are not short-term fixes; it is a long-term journey, which will mean long-term plans.

As an independent body, this body does not stop Ministers being able to control health policy. It sets out a framework of what is required in terms of staffing; what the issues will be in terms of disease profile; what will happen in terms of demand; and for seeing how successful the Government have been, not just in being able to give a press release about certain amounts of money going to a certain area but in whether the long-term benefits of that money are achieving better health outcomes, reducing health inequalities and getting the right staffing to the right places to get a better health and social care system for the people of England. That is what this body is about. I think that, of all the amendments we have discussed—I probably would say this, because my name is to it—this is one of the most important, because it deals with the conflict between the priorities of short-termism and long-term planning.

I also want to say, as the noble Lord, Lord Warner, did, that I was astounded, as a former health service manager, that no one in the Department for Health planned for long-term care in the healthcare system. We expected the answer that at least there was somebody in a darkened room doing it. But there was absolutely nobody doing it; it was all about the whim of the Minister. In reality, that was what came out.

I think this amendment actually helps with the central purpose of this Bill, of integrating healthcare, reducing health inequalities and improving health outcomes, because it is long-term. I think it is absolutely right that this House and the public understand how the Government are doing against independent reviews at five, 10 and 15 years. We will be able to see whether the right staff, the right money and the right focus on prevention versus dealing with the acute sector are actually happening, and whether Governments, of one or two or three colours, over a period of time, are improving the healthcare system the population and leading to better health outcomes.

I also support Amendment 281, which the noble Lord, Lord Hunt, has talked about. For me, public health has been kicked for too many years between different parts of the care and health system. In particular, when you have an executive agency whose primary responsibility is to plan and then co-ordinate public health—not just at government level, but within local government and across government—if it is not independent and is not a statutory body, yet again it just plays to the whim of Ministers. I will give an example of why it is not working in its present form, based on something that has just happened in the last few weeks.

21:15

On the issue of face coverings in schools, the agency decided that it was going to happen without any consultation whatever with the Department for Education or local government and education premises. That is because it is not independent. It cannot make independent decisions; it was responding with a knee-jerk reaction based on what Ministers thought was correct. That is why it is important that the amendment in the name of the noble Baroness, Lady Merron, would put this body on an independent footing. So I support Amendment 281, as well as the well-thought-out and central Amendment 285 in the name of the noble Lord, Lord Warner, to meet the absolute crux of what this whole Bill is about.

[Baroness Walmsley (LD)]

My Lords, I too support the noble Lord, Lord Warner. I well remember reading the report of the House of Lords Select Committee on the sustainability of our health and care services in 2017 and being rather jealous that I had not been on the committee, because it struck me as a very interesting one and it produced a very thoughtful and hard-hitting report. The office for health and care sustainability was probably the most crucial of its recommendations. Indeed, I think it would help the Government in making their decisions, because the body itself would not make the decisions but be independent, report directly to Parliament—which I thought was crucial—and look forward as far as it needed to look in a rolling programme of forecasting, assisting Ministers to make the right decisions.

Given the ageing population, resulting from improved healthcare, it had become very clear that funding was not keeping up, and indeed might never keep up unless things were done differently. That is why the committee chaired by the noble Lord, Lord Patel, also recommended the sort of integration that is at the heart of this Bill. It also reported on the lack of alignment between the funding of health and social care, which has resulted in the current gap in pay, particularly in the care sector, and the consequent staff shortage.

This was an excellent recommendation and, unlike other recommendations in the report, it has not been taken up—yet. The key thing about the body is that it would be authoritative, independent and unable itself to meddle in delivery. I would have thought that any Government would welcome the existence of such a body to do a lot of the work to establish what needs to be done and when. Unlike politicians of any political colour, it would be trusted by the public and would be staffed by experts able to gather and analyse the data. All Governments have their own focus—all Secretaries of State for Health have their own focus—and their own political priorities, which often depend on whatever the latest scandal has been, resulting in pressure from the public. Public health is too important for this, so I therefore support this amendment.

[Baroness Thornton (Lab)]

My Lords, we have had an important debate here, and I thank the noble Lord, Lord Warner, both for bringing these amendments before the House and for explaining their background and the important role of the Select Committee. We have debated it several times in your Lordships’ House and everybody in the House, apart from the Government Front Bench, it seems, thinks it is a brilliant report that should be acted on. This seems to be an opportunity for the Government to take on board some of its major recommendations, and this is one of them. We would support that, and we hope that the Minister might have some good news for us on that.

I also wish to speak briefly to the amendment in the name of my noble friend Lady Merron. The argument has already been made by other noble Lords—I am having a slight sense of déjà vu because I am sure I made a speech along the same lines in 2011—about the importance of Public Health England having a statutory basis to its work to give it transparency and accountability. The last two years must show us that that is the right thing to do. That is why I agree with my noble friend’s amendment to put the new UK Health Security Agency on to a statutory footing. As far as I can tell, in the past 20-odd years since I came to your Lordships’ House, every time that various Governments have mucked about with public health, they have got it wrong. Let us use this opportunity to get it right.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I thank noble Lords for bringing forward and explaining these amendments tonight. The specific functions that noble Lords describe in Amendments 225ZA and 285 are crucial functions that the Government are committed to ensuring are discharged in full. There are, however, several bodies in place that already fulfil these proposed functions.

The first proposed function would be a monitoring role and a duty to publish data. This important function is undertaken by the Department of Health and Social Care, which already monitors and publishes some of the data described in the proposed amendment; specifically, that relating to disease profiles, but also incorporating demographic trends, where relevant. The department also commissions independent academic modelling from the Care Policy and Evaluation Centre, or CPEC, to produce projections of the long-term demand on adult social care services. The CPEC model is updated regularly to reflect the latest available academic research and evidence, as well as important updates to key inputs such as ONS principal population projections, along with life expectancy and mortality rates, disability rates, household composition, availability of informal care and unit costs of care.

The second proposed function involves assessing the workforce and skills mix. We agree that workforce planning is a vital component behind any investment. We agree, therefore, that the assessment referred to in this function is extremely valuable. It is undertaken at present by the Department of Health and Social Care, working collaboratively with both Health Education England, or HEE, and NHS England. They work together to look at key drivers of workforce demand and supply over the long term, and will set out how these may impact on the required shape of the future workforce in its broadest sense to help identify the main strategic choices facing us, develop a shared and explicit set of planning assumptions, and identify the actions required.

There are two reasons why I have concerns with trying to involve another body in workforce planning, as this amendment suggests. First, I fear the new body proposed by noble Lords would be distant from planning decisions within the NHS and the needs of service delivery. The strength of the intention to merge Health Education England and NHS England is to tackle this very issue. Secondly, it would overlap and duplicate HEE’s existing statutory responsibilities for workforce planning and investment. To support this work, the department commissioned HEE in July 2021 to refresh its long-term strategic framework, Framework 15.

Moving on, the third proposed function focuses on the stability of health and adult social care funding. This Government are committed to funding stability and sufficiency, underlined by our decision to enshrine in law our five-year long-term plan funding settlement. Healthcare budgets are agreed at spending reviews, with the Office for Budget Responsibility scrutinising those budgets. Further independent financial assessment is therefore not necessary.

It is clear that, for each of the proposed functions, there are already well-established bodies and processes to safeguard the long-term sustainability of an integrated health and adult social care system for England, underpinned by reporting to Parliament. We do not think that the creation of a further body would add value.

I fully agree with the sentiment behind Amendment 281. The UK Health Security Agency, or UKHSA, must be fully accountable for its activities, and there should be full transparency as to how it operates. I can give reassurance, however, that the establishment of the UKHSA as an executive agency of the Department of Health and Social Care is the most appropriate model.

I assure your Lordships that we fully explored other organisational models. However, the executive agency model best facilitates a balance across the needs for strong operational delivery capability, scientific integrity, and the ministerial oversight and accountability necessary to command public confidence. The executive agency model allows for the delivery of executive functions of the department to be carried out separately from, but within a policy and resources framework set by, the department. As the noble Baroness will recognise, this level of flexibility is critical to ensuring a quick and effective response to Covid-type threats without needing to rely on legislation to confer functions, which this amendment would require. Any other approach would reduce the ability of the UKHSA to respond flexibly and rapidly.

In line with requirements for all executive agencies, multiple arrangements are in place to ensure accountability, transparency and effective governance for UKHSA. These include the framework document, which is soon to be published; the annual remit letter, published on 13 July; the business and strategic plans to be published each financial year; and quarterly accountability meetings. Also, UKHSA is required to publish information on contracts and expenditure under normal government transparency rules. As an executive agency, UKHSA must publish annual reports along with audited accounts after the end of each financial year.

It is for these reasons that I ask noble Lords not to press their amendments.

[Lord Warner (CB)]

My Lords, that is pretty much what I expected from the Government Front Bench, so no surprises there.

I am grateful to noble Lords who have spoken in support of Amendment 285. I also support Amendment 281, though I did not mention that in my opening remarks. I want the Government to reflect on the fact that, when the person who had been Secretary of State—for what was then health only—for five or six years was released from office, and what I might call the adrenaline of office had calmed down a bit, he was able to give a pretty lengthy interview in the Times in which he effectively said, “I should have accepted that recommendation”. He explained that it was an amendment which would keep Governments honest—those were his words, not mine. This was someone who had been through the mill, had seen it all, had had to deal with these issues and had had a damascene conversion when he had left office. It is a bit like when Permanent Secretaries suddenly become supporters of freedom of information legislation after they have collected their pension.

We cannot ignore the fact that a person who actually did the job saw benefit in having this kind of body. If the Government are resting their case for long-term planning on Health Education England, I am more than ever reinforced by this amendment, having listened to my noble friend Lord Stevens of Birmingham telling us what went on in the workforce planning that he had experience of. It is a pretty unusual situation to be running a big organisation in which two-thirds of the budget is spent on staffing and workforce issues, where the guy or gal in charge of it is not actually responsible for the long-term planning of the workforce. That is an extraordinary system that Stuart Rose—the noble Lord, Lord Rose of Monewden—and others have found very difficult to understand.

21:30

So I shall come back to this on Report with an amendment that looks remarkably like this—but, in the meantime, I withdraw Amendment 225ZA.

Amendment 225ZA withdrawn.

Clause 4: NHS England mandate: cancer outcome targets

Amendment 225A

Moved by

[Lord Kamall]

225A: Clause 4, page 2, line 35, leave out from “objectives” to “, and” in line 38 and insert “specified by the Secretary of State under subsection (2)(a) for NHS England must include objectives relating to outcomes for cancer patients”
Member’s explanatory statement
This amendment changes the focus of the cancer outcomes objectives so that they cover matters other than treatment (e.g. early diagnosis).

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

My Lords, I will also be moving Amendments 225B and 225C in due course. Clause 4 sets a requirement for the Secretary of State to include objectives relating to cancer outcomes in the mandate to NHS England, and for these objectives to have priority over other objectives relating specifically to cancer.

I first thank John Baron MP in the other place, who introduced this clause, and noble Lords for their support in ensuring that the Bill best delivers on our shared intention of improving outcomes for cancer patients. I also thank the cancer charities that have contacted me to express their views, and the noble Baroness, Lady Morgan of Drefelin, for her engagement. The Government have worked with Mr Baron, NHS England and stakeholders to ensure that we deliver the greatest benefits for cancer patients while minimising the risk of unintended consequences. Amendments 225A, 225B and 225C, tabled in my name, have the full support of Mr Baron, and I strongly encourage your Lordships to support them.

In recognition of the range of services offered to cancer patients, Amendment 225A will ensure that the scope of possible outcomes-driven objectives is broad enough to capture all cancer interventions, such as screening programmes or targeted lung health checks, not just those relating specifically to treatment. Connected to this, Amendment 225C will ensure that these objectives have priority over any other objectives relating to cancer, not just those relating to cancer treatment.

Amendment 225B, meanwhile, makes it clear that the objectives over which the cancer outcomes objectives have priority are those which relate specifically to cancer. When it comes to setting priorities for NHS England, including on cancer, it is vital to consider the outcomes that they should be directing the NHS to achieve. Improving outcomes means boosting survival rates—that remains our overriding aim. But the outcomes that matter to cancer patients are not limited to survival. They also include improving the quality of life for those living with cancer and the patient experience of those being treated.

We want to make sure the objectives we set benefit the outcomes of all cancer patients, whether the objectives relate to screening, early diagnosis or treatment. This is crucial as screening and early diagnosis interventions are one of the most effective ways of improving outcomes and chances of survival. I hope your Lordships can support these amendments.

[Lord Moylan (Con)]

My Lords, I greatly welcome the amendments proposed by my noble friend. In fact, I put my name to the equivalent amendments earlier, proposed by my noble friend Lady Morgan of Cotes. I rise to speak to my Amendment 294, the purpose of which is to draw attention to the dire state of the services and treatment offered to people suffering from cancer of the pancreas—although I could also say that there are other, equally forgotten and equally deadly cancers, such as bile duct cancer, that deserve a debate as well. I am grateful to my noble friend Lord Vaizey of Didcot and to the noble Lords, Lord Patel and Lord Aberdare, for their support of the amendment.

Many of us have seen family members and friends fall prey to this disease. Pancreatic cancer is the deadliest common cancer. It affects 10,000 people a year across the UK, and more than half will die within three months. Three in four will die within a year. Vague symptoms, lack of a simple early test, and low symptom awareness among both the public and primary care professionals result in three in five people with pancreatic cancer being diagnosed at a late stage, when curative treatment and life-saving surgery are no longer possible.

Research into pancreatic cancer has been underfunded for decades: it receives only 3% of the UK cancer research budget, despite being the deadliest common cancer. The result is that pancreatic cancer has the lowest survival rate of all common cancers, with five-year survival rates less than 7%. Five-year survival in the UK lags behind the rest of the world, with the UK ranking 29th out of 33 countries with comparable data. These survival statistics have barely improved in decades.

In addition, there is an unacceptable variability of services for pancreatic cancer sufferers, depending in part on geography, with those living near the few specialist centres able to access some services barely available elsewhere.

I wrote last year to my noble friend Lord Bethell with a particular suggestion being promoted by the small but excellent charity Pancreatic Cancer UK. In due course, on 1 December, I received a reply from my honourable friend Maria Caulfield, who said that NHS England and NHS Improvement had launched an audit of pancreatic cancer services with a view to reducing variations in treatment and improving outcomes. That is wholly welcome. The information we have nationally on pancreatic cancer treatment in the NHS is woefully poor. An audit is a good place to start. But she went on to say that the first data were expected in 2023—not the report, not the action plan that we need, and not the funding allocation, merely the first data.

My amendment seeks to impose certain reporting obligations on the Secretary of State, but its real purpose, and the real purpose of this debate, is to inject some urgency into the Government and the NHS. We cannot afford to wait years just to begin to understand the state of pancreatic cancer treatment and care, let alone to take action to improve outcomes. Pursuing the audit with urgency and dispatch should be a top government priority.

There is one thing the Government could do right away that would at least alleviate the suffering of pancreatic cancer patients—and this indeed is the subject I wrote to my noble friend Lord Bethell about at the urging of Pancreatic Cancer UK. The symptoms caused by pancreatic cancer have a very distressing impact. In particular, people are often unable to digest their food, ultimately starving the body of nutrients and calories, leading to rapid weight loss, malnutrition and loss of muscle mass.

The solution to these symptoms is pancreatic enzyme replacement therapy—PERT. PERT comes in tablet form; you take it with your food. It replaces the digestive enzymes that many people with pancreatic cancer can no longer produce. Taking the tablet helps food to be digested and absorbed by the body, and can vastly improve people’s quality of life. It can also, crucially, help them to gain the strength needed to undergo treatment. If people have lost weight and are too weak, they are sometimes not able to have surgery for that reason. NICE guidelines clearly recommend PERT for people with pancreatic cancer, whether the cancer is operable or inoperable, and there is widespread clinical consensus on its effectiveness. It is widely available and is cost-effective: it costs the NHS just £7 per day per patient.

However, a recent study has shown that only half the people with pancreatic cancer across the UK are prescribed PERT. The May 2021 RICOCHET study, undertaken by the West Midlands Research Collaborative, found that 50% of pancreatic cancer patients were not being prescribed the tablet they needed to digest food. The key reason people are not being prescribed PERT currently is a lack of dissemination of specialist knowledge about pancreatic cancer and the benefits of PERT to general healthcare settings. PERT is more likely to be prescribed in specialist surgical centres than in general hospitals, meaning that people whose cancer is operable are more likely to be prescribed PERT than those whose cancer is inoperable, because people whose cancer is operable are more likely to be moved to a specialist setting.

However, three in five people with pancreatic cancer are not diagnosed until their cancer is at an advanced stage and no longer operable, so they will tend to be treated with palliative care in a non-specialist setting. This means they will be far less likely to be prescribed PERT than if they had been diagnosed early.

What I would hope to hear my noble friend the Minister say this evening is that without waiting for the results of the audit, he will immediately set a national priority that PERT should be routinely prescribed as a feature of pancreatic cancer care. Without setting this focus and without corresponding leadership from national and local health bodies, knowledge and expertise will continue to spread far too slowly for the people with the quickest-killing cancer.

[Baroness Morgan of Drefelin (CB)]

My Lords, I am delighted to rise in support of the Minister’s amendments to Clause 4, and I would like to declare my interest as chief executive of Breast Cancer Now. I am also absolutely delighted to pay tribute to the honourable member John Baron, from the other place, for his incredible leadership as chair of the All-Party Group on Cancer, his tireless campaigning for the interests of cancer patients and his relentless demands around prioritising improvement in cancer outcomes—hence the origin of this new clause.

For me and for those listening to this debate, it is extremely important that the Minister has been able to clarify that the wide range of outcomes covered by this new clause will include, for example, early diagnosis, objectives around end-of-life care, the importance of measuring quality of life as an outcome, and timeliness of care, as well as survival, because we know that all those factors lead to improved quality of life but also improved survival. We do not have the time to wait five or 10 years to see whether improvements in survival are occurring—we need to see them today, next month. We need to see, for example, that PERT is getting through to all patients with pancreatic cancer, rather than waiting for the longer-term survival results.

I am very pleased that these amendments have been tabled and that the Minister has confirmed that a wide range of metrics will be used to ensure a tight grip on keeping track of the system’s performance, identifying emerging problems and backlogs as they arise, because we do not have the time to wait to find out if the system is off-track. I am very pleased that we have some clarity around what is included in these objectives. I will read the Minister’s remarks properly—when it is not quarter to 10 at night—and reflect. I am very grateful for them.

Also, what a tremendous amendment we have on pancreatic cancer, which is, as we have heard, such a pernicious disease. The audit will be very powerful when it really gets to work on what is going on locally to unearth thoughtful ideas about how the system can be improved. So much good work goes on in these audits, not just on pancreatic cancer but other diseases too. Making sure that those improvements are put into practice as quickly as possible has got to be a really good thing that this House will care about very much.

21:45

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the Minister for introducing these amendments as he did and for giving us the assurance that John Baron, who had worked so hard on all of these issues around cancer care and cancer outcomes, has been fully consulted and is fully supportive of them. I was heartened to hear his stress on early diagnosis. All too often at the moment, patients are diagnosed in emergency departments when presenting late because their condition, for whatever reason, has been missed. We certainly need more early diagnostic tests to be available.

I am also grateful to the noble Lord, Lord Moylan, for speaking about a cancer which, in my experience in palliative medicine, is often within our domain. Indeed, I hope that the Minister might be able to find a way of supporting my colleague Professor Katherine Sleeman at King’s, who wants to establish a What Works centre, for a remarkably small amount of money, in order to roll out best practice in the way that the noble Lord, Lord Moylan, recommended. I do not expect the Minister to answer that now—perhaps we can discuss it later—but there certainly is a need to roll out best practice widely, not only from the cancer centres but out into the cancer units and beyond those to the general NHS.

Up until now we have had too much of an emphasis on process. This switch in emphasis to outcomes is most welcome; I expect everyone to strongly support these amendments.

[Lord Aberdare (CB)]

My Lords, I too am pleased to speak in support of the amendment addressing pancreatic cancer tabled by the noble Lord, Lord Moylan, to which I have added my name. I am grateful to the noble Lord for sharing a draft of his speech with me so that I have no need to test your Lordships’ patience by repeating facts and arguments that he and, indeed, the noble Baronesses, Lady Morgan and Lady Finlay, have already stated so tellingly.

I shall just emphasise a couple of points. I imagine that most, if not all, of your Lordships either know or know of someone who has died of this horrific cancer. Few survive more than a few months, unless they are lucky enough to be among the small number—I think it is about two in five people—whose cancer is diagnosed early enough to be operable. I find it quite shocking that the UK still lags so far behind other countries; as we heard, it is 29th out of 33 countries for its five-year pancreatic cancer survival rates. Research spending on pancreatic cancer is scarcely a quarter of that on leukaemia, for example, and supports correspondingly few researchers and projects. Hopefully, the noble Baroness’s friend may get some more of that.

There is a sort of vicious circle: because pancreatic cancer is so deadly, few patients are fit enough for long enough to take part in clinical trials, and few researchers are attracted to specialise in a condition that is widely regarded as a death sentence. The noble Lord’s amendment would build on the welcome audit of pancreatic cancer that he mentioned, seeking to ensure that its findings are regularly published, that they contribute to better information about pancreatic cancer and lead to specific action to address the issues identified—hopefully, the action may happen first and the audit later—while at the same time seeking to increase provision of PERT through national guidance and regular reporting.

Like the noble Lord, I wanted to mention that there are similar issues with other rare and aggressive cancers in this part of the body, such as bile duct cancer, and these too are often diagnosed too late for successful treatment. Even when surgery is available, the prognosis may be poor. Ideally, there should surely be an integrated approach to expedite diagnosis and treatment for all these cancers, and better information to help GPs and other healthcare workers to recognise their symptoms.

I very much hope that the Minister can give some reassurance on how the system being created by this Bill, including the revised NHS mandate on cancer outcome targets, will help to address the challenges of pancreatic and related cancers with some urgency, so that we can at last start to narrow the gap with other countries in treating them. I also very much support the government amendments that broaden the range of factors covered by cancer outcome objectives.

[Lord Vaizey of Didcot (Con)]

My Lords, I support the amendment of my noble friend Lord Moylan, which I was very proud to sign. I echo what the noble Lord, Lord Aberdare, said about knowing people who have died of this terrible disease. By coincidence, having signed the amendment, I had lunch with a friend whose brother suffers from pancreatic cancer. Luckily, however, he had it diagnosed extremely early because he had a blood test that identified the biomarkers that told him that he could have pancreatic cancer. He is now being treated and has a good chance of survival. Then, by coincidence, I visited my GP to have a blood test to test for prostate cancer. Luckily for me, the results were good.

I have a mild obsession about why we are not better in this country at implementing diagnostic procedures. When I went to see my GP to talk about prostate cancer, I asked her what kind of tests were available to me, as an NHS patient, for pancreatic or other types of cancer. As a layman reading the newspapers, almost every day there is news emerging of new blood tests that could identify cancer early. It is one of my trite dinner-party lines—I hesitate to say this, because there are so many experts in the Chamber this evening—that, in effect, one can almost argue that one has cured cancer if one is able to diagnose it early enough. That is why I welcome this emphasis on looking at outcomes rather than process in how we treat cancer. I hope that over time, it will shift the emphasis away from the treatment of cancer to how soon we can diagnose it.

I therefore support the amendment and ask the Minister a simple question: when will the test for pancreatic cancer be potentially universally available to NHS patients? I found it odd, talking to my friend over lunch, that his advice to me was to get myself on a trial as soon as possible to see whether I could get a test to get a diagnosis. It seems to me that we are lagging behind in the opportunity to diagnose cancer as early as possible and treat it as effectively as possible which, of course, will enable us to save a great deal of money.

[Baroness Walmsley (LD)]

My Lords, I declare an interest as a member of the All-Party Parliamentary Group on cancer and a great supporter of John Baron’s campaign on outcomes. Of course, as noble Lords across the Committee have said, the key to getting better outcomes is early diagnosis, rigorous audit, and proper dissemination across the country of what we know works. I certainly support what the noble Lord, Lord Moylan, is trying to do.

I do not oppose the government amendments outlined by the Minister, despite the rather unusual fact that they were only agreed with the Opposition Front Benches at the last minute—that is, this morning. I thank him for clarifying that; although cancer outcomes were the principal focus of Clause 4, they are not the only objective that should relate to cancer patients. The department has consulted with cancer charities, which, of course, represent many thousands of patients, to ensure that the new legislation meets their needs. Can the Minister say when the effects of Clause 4 will be reviewed and any action, if necessary, taken? Although generally approved by the sector, Macmillan is still concerned about how a focus on survival will affect those who, sadly, have terminal cancer and do not expect to survive. What they need is palliative care and measures to make the quality of their last few months of life as good as possible. Could this issue be a key part of any future evaluation of cancer care?

[Baroness Merron (Lab)]

My Lords, we are very pleased to support the government amendments that we have heard outlined. Crucially, they focus on cancer outcomes. As the noble Baroness, Lady Morgan, underlined, that includes survival, quality of life, experience of treatment, end-of-life care as well as diagnosis—in other words, the whole experience in treating somebody as a whole person on a journey that they may have to face. I congratulate the Minister on bringing the amendments forward. I also thank the noble Lord, Lord Moylan, supported by the noble Lords, Lord Aberdare and Lord Vaizey, and others, for highlighting the fact that pancreatic cancer has such an aggressive nature, and yet the symptoms are so silent and often misunderstood that it presents a particular challenge in the context of the care that we are speaking of today.

A focus on outcomes that covers matters other than treatment will be particularly crucial following the backlogs that the pandemic has inevitably led to, with delays in people seeking check-ups and treatment. Macmillan has let us know that more than 31,000 people in England are still waiting for their first cancer treatment, and it has also said of the Bill that for those living with cancer

“not a lot will look different.”

It is therefore crucial that the Minister assures noble Lords that stakeholders are supportive of the changes outlined in this group.

On the point about survival rates lagging behind those of other countries, that is not because the National Health Service is worse than other healthcare systems at treating cancer once it is detected but because it may not be as good at catching cancers in the crucial early stages. In other words, late diagnosis lies behind our comparatively poor survival rates. A key advantage of focusing on outcome measures is that it will give healthcare professionals much greater freedom and flexibility to design their own solutions, which could include running wider screening programmes and better awareness campaigns, and establishing greater diagnostic capabilities at primary care. A further advantage of this new focus is that it will better align NHS priorities with patient needs, which, after all, are core to our discussions on the Bill today.

I have a final and gentle word for the Minister to back up the introductory comment of the noble Baroness, Lady Walmsley. It is of course usual to consult the Opposition and others in advance to ensure that amendments are acceptable and do what is required—in other words, to strengthen the case. I know that this did not happen until very late in this case, and I am sure the Minister will not wish to repeat that practice. In summary, however, we very much welcome these amendments.

[Lord Kamall (Con)]

I thank the Opposition Front Benches for being so gracious given the fact that we notified them late and did not use the correct procedure. I apologise for that once again and I know that the Bill team also apologises for it. We are all on a steep learning curve, as I am sure all noble Lords acknowledge. I thank both noble Baronesses. I hope the lesson has been learned, and we will not have an excuse next time.

I will address Amendment 294 before I come to our amendments. I thank my noble friend Lord Moylan for tabling it. To reassure him, the pancreatic cancer audit is included in the national cancer audit collaborating centre tender, which is currently live. Some reporting timelines are included in the specification for this audit, developed in partnership with NHS England and NHS Improvement, but I am told that during a live tender the document is commercially sensitive and cannot be shared beyond the commissioning team, as this could risk jeopardising the procurement process. The future contract is anticipated to start in autumn of this year. However, it is not possible to confirm the timelines for a new national audit topic for pancreatic cancer until the procurement completes and the contractual deliverables are signed. Unfortunately, therefore, this cannot be aligned with the passing of the Act.

My noble friend will be aware that NICE clinical guideline NG85 recommends that pancreatic enzyme replacement therapy, or PERT, should be offered to patients with inoperable pancreatic cancer and that consideration should be given to offering PERT before and after tumour removal. NICE acknowledges that this is a priority area for improving the quality of health and social care and has included PERT in its quality standard on pancreatic cancer.

We have taken and will continue to take steps to support Pancreatic Cancer UK’s campaign to encourage greater uptake of PERT by doctors treating pancreatic cancer patients, in line with NICE guidance. We are in the process of commissioning a PC audit and, while the scope of this is not confirmed, we will certainly include this in the scoping of the topic. As I said, NICE acknowledges this as a priority area and, while its guidelines are not mandatory for healthcare professionals, the NHS is expected to take them fully into account in ensuring that services meet the needs of patients.

22:00

Turning to the government amendments, I start by thanking the noble Baroness, Lady Finlay, and the noble Baroness, Lady Morgan of Drefelin, who very helpfully stepped in when there were some potential misunderstandings around the amendment we laid. I thank her for her assistance on this matter and for explaining it.

We all want to see improved cancer outcomes and I am pleased that the NHS is committed to this. This is reflected in the current NHS Long Term Plan ambition to improve both early diagnosis and survival. One of the examples my noble friend Lord Vaizey gave was prostate cancer. When I was in the European Parliament and started to use the Belgian health service, I was advised to go and see a urologist. I said, “Why do I need to see a urologist?” and they said that, in Belgium, men over 45 are recommended to have an annual check-up in case of prostate cancer. It is very different in this country. That shows the importance of early diagnosis and how we can promote it. Raising awareness is also important. I saw reports the other day about potential annual screening for prostate cancer and no longer relying on just the PSA test.

With these amendments, the Secretary of State would continue to set objectives relating to outcomes for cancer patients in future mandates, to reflect the priorities that the elected Government of the day have for NHS England, but working in partnership with the cancer charities and cancer experts.

[Lord Moylan (Con)]

My Lords, before my noble friend sits down, on behalf of people who are currently suffering from pancreatic cancer or who might be diagnosed with it in the next few months, is anything going to happen faster in relation to dissemination of knowledge and prescription of PERT as a result of this debate than would have been the case had we not raised this with him?

[Lord Kamall (Con)]

I am afraid that I am not entirely sure of the answer to that, but I hope that we have raised awareness. I am very happy to have a conversation with my noble friend to see what more can be done, if anything.

Amendment 225A agreed.

Amendments 225B and 225C

Moved by

[Lord Kamall]

225B: Clause 4, page 2, line 39, after “relating” insert “specifically”
Member’s explanatory statement
This amendment makes it clear that the objectives over which the cancer outcomes objectives have priority are those which relate specifically to cancer.

225C: Clause 4, page 2, leave out line 40
Member’s explanatory statement
This amendment means that cancer outcomes objectives will have priority over any other objectives relating to cancer (not just those relating to cancer treatment).

Amendments 225B and 225C agreed.

Clause 4 agreed.

Amendment 226 not moved.

Clause 135 agreed.

Clause 136: International healthcare arrangements

Amendment 232

Moved by

[Lord Kamall]

232: Clause 136, page 112, line 10, leave out “an Act of” and insert “a Bill in”
Member’s explanatory statement
This amendment makes a drafting change to reflect the fact that consent of the Secretary of State under section 8 of the Northern Ireland Act 1998 is given in relation to an Assembly Bill rather than an Assembly Act.

[Lord Kamall (Con)]

My Lords, I will speak to two minor technical amendments, Amendments 232 and 312. These amendments, which are made to Clause 111, in relation to HSSIB, and Clause 136, in relation to international healthcare agreements, do not impact the policy of either clause. They simply amend the drafting so that references are made to an Assembly Bill rather than an Assembly Act in relation to Northern Ireland. I beg to move the first of these minor technical amendments, Amendment 232.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baroness, Lady Brinton, is participating remotely and I think now would be a convenient moment for her to speak.

[Baroness Brinton (LD) [V]]

My Lords, along with the noble Baroness, Lady Thornton, and other noble Lords, I was involved in the passage of the Bill that started off life as the Healthcare (International Arrangements) Bill, and which, by the time it was passed, had been renamed the Healthcare (European Economic Area and Switzerland Arrangements) Bill—a name almost as long as the Bill itself, and after some of the worst Henry VIII powers had been removed, including the power of Ministers to sign international trade agreements that could include preferential access to NHS contracts without the formal scrutiny and decision-making powers in Parliament.

The frustration with the remote arrangements is that I am speaking before my noble friend Lord Sharkey. I know that he will speak about the delegated powers in Clause 136. I wish I could hear his contribution before I speak, but I want to say that it seems the Government have forgotten, in nearly three years, the roasting that they got from your Lordships’ House during the passage of the Healthcare (International Arrangements) Bill. The noble Lord, Lord Wilson of Dinton, said:

“The sweeping nature of the powers proposed in the Bill are in many ways offensive to the proper conduct of legislation. I accept that they are needed in the current situation in relation to the EU and Switzerland, but to go wider than that is wrong, I think. We have to insist on legislation being properly prepared, properly debated, properly scrutinised and properly consulted on.”—[Official Report, 12/3/19; col. 926.]


The then Health Minister, the noble Baroness, Lady Blackwood, when conceding on those Henry VIII powers later that day on Report, said:

“I want to be clear that the consequential Henry VIII powers were initially included as a future-proofing mechanism. They were never free-standing and we had envisaged using them in only a limited set of circumstances … we want to alleviate any fears that we are taking powers which are not absolutely necessary in this Bill. As such we are prepared to take the significant step of removing the entire Henry VIII consequential powers in Clauses 5(3) and (4).”—[Official Report, 12/3/19; col. 963.]


One of the reasons that your Lordships’ House is so concerned is that it looks as if the provisions in that Bill are being resurrected in Clause 136 of this Bill. I will give two brief examples: “2 Healthcare agreements and payments” on page 110 of the Bill, among other clauses, gives the Secretary of State the powers to make a healthcare agreement with another country and for Parliament to only comment on it by the negative resolution. For those of us who worked on a previous Bill, that sounds horribly familiar. It also gives the Secretary of State the power to give directions to a person about the exercise of any function, which is familiar not only from that Bill but from other parts of this one.

In “2B, regulations under Section 2A: consent requirements” on page 112, it says at (5) that the consent of the Secretary of State is required for a

“healthcare agreement”

which means

“an agreement or other commitment between the UK and either a country or territory outside the UK or an international organisation, concerning health provided anywhere in the world”.

Any type of “agreement” or “commitment” brings us full circle back to the Healthcare (International Arrangements) Bill as first drafted. This would include international treaties, as was planned back in 2019, to include that access to providing major parts of healthcare in the NHS, but without the consent or knowledge of Parliament, because the detail of the agreement would not need be seen before it was signed, including by the NHS, its stakeholders and the staff who work in the sector.

Lest we think that this is just words, the Chancellor of the Exchequer and the Secretary of State for Health and Social Care have both talked extensively in America to healthcare providers in recent months. What is different about this clause is the breadth of definition of a healthcare agreement, the powers that are held only by the Secretary of State, and the total lack or paucity of consultation or scrutiny by Parliament and other stakeholders before the Bill came to your Lordships’ House.

Why has Clause 136 reinstated some of the key elements of the Healthcare (International Arrangements) Bill that were removed because Ministers recognised that the scope was too wide, the Henry VIII powers were egregious, and Parliament, the NHS and other stakeholders were being totally disregarded?

Should my noble friend Lord Sharkey wish to propose on Report that the clause do not stand part, I will support him.

[Lord Sharkey (LD)]

My Lords, as the noble Baroness, Lady Brinton, said, I have given notice of my intention to oppose the Motion that Clause 136 stand part. This clause is yet another example of the Government’s abuse of delegated legislation and the avoidance of any meaningful parliamentary scrutiny. It is also a clear and obvious breach of an important constitutional convention.

Clause 136 amends the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which started off life as the Healthcare (International Arrangements) Bill, as we just heard. It would enable the Government to implement healthcare agreements with countries outside the European Economic Area and Switzerland. The exercise of the powers in this clause is through regulations subject only to the negative procedure. The department points to the 2019 Act as for seeking these powers, despite what we just heard from the noble Baroness, Lady Brinton.

During the passage of the then Bill in 2018-19, the Government justified or tried to justify taking the relevant powers as the need for speed and flexibility in the extraordinary circumstances of the EU withdrawal process. Parliament did not accept the provisions in the original Bill that the powers should be geographically and temporarily unlimited. After interventions by Parliament, the powers ended up being confined to the EEA and Switzerland and being sunsetted.

The department may be correct to state that the Secretary of State currently lacks the necessary powers to implement reciprocal healthcare agreements with countries outside the European Economic Area and Switzerland. However, this does not mean that there is currently no way to implement such agreements. They could and should be implemented by primary legislation. This would be in keeping with a long-standing constitutional convention that, outside the exceptional case of making provision for EU law, international legal agreements that make changes to UK law are given domestic force by an Act of Parliament. This ensures proper parliamentary scrutiny.

Our committees have pointed out breaches of this convention to the Government on several recent occasions. The last occasion was the proceedings of what was originally the Healthcare (International Arrangements) Bill, as I have just mentioned. Before that, the DPRRC commented on the breaches of this convention in the Professional Qualifications Bill in May 2021 and the Private International Law (Implementation of Agreements) Bill in March 2020. The Constitution Committee commented on the same Bill in its May 2020 report and concluded that:

“It is inappropriate for a whole category of international agreements to be made purely by delegated legislation.”


This is exactly what the Government are proposing in Clause 136.

The department does not address why such international healthcare agreements could not be implemented by primary legislation. We could try to remedy this abuse of delegated powers and breach of convention, as we did with the 2019 Act, by limiting their application and by sunsetting provisions. But, without a clearer understanding—or indeed any understanding—of exactly what agreements the department intends to use these powers for, it is not really possible to limit the power as we did then. The powers could also be sunsetted, as per that Act, but it is clear this would be inappropriate, given there is no longer a pressing time constraint on their use, unlike the then imminent departure from the EU. A better solution would be for the Government to abide by the constitutional convention and bring forward the appropriate primary legislation. That is the only way in which to enable any meaningful parliamentary scrutiny of these important reciprocal arrangements.

I look forward to the Minister’s explanation of why it is necessary to bypass Parliament and breach the constitutional convention in the manner proposed. I understand why it may be convenient, but cannot see why it is necessary or proper. We will certainly return to this issue as the Bill progresses.

[Baroness Finlay of Llandaff (CB)]

My Lords, I am most grateful to the noble Lord, Lord Sharkey, for that completely comprehensive overview of the problem with this clause. I simply have some questions relating to it. We have devolved powers in the devolved nations of the United Kingdom and, to my understanding, this clause does not oblige the Government to have undertaken a comprehensive consultation with them before entering into such an agreement. It does not seem to require legislative competence before such legislation is proposed, and that legislation certainly would not come before this Parliament anyway.

22:15

This issue is referred to in new Section 2A(4)(b). I would like assurance that this is prospective, not just retrospective, so that if the powers of the devolved nations expand, that expansion of powers will be respected and things will not be agreed without consultation with them over new powers, as well as the current powers they have in the legislation that gave them devolved competencies. It may be that it would be helpful to the Committee for the Minister to give us a specific example of where such an agreement might be entered into, how consultation would occur, and what the processes would be for seeking legislative consent. I find this clause very worrying.

[Baroness Thornton (Lab)]

My Lords, I am extremely grateful to the noble Lord, Lord Sharkey. Several months ago, some of his staff came to talk to me about the international healthcare part of the Bill. I said pretty much what the House decided two and a half years ago, which the noble Baroness, Lady Brinton, described. I said that we would be very sceptical of it, because we had to cut a Bill in half all those years ago to take out the international bit and leave in the European and Swiss bit because of the powers that it gave the then Secretary of State to make agreements with persons—without specifying who they might be. I remember it very clearly. So when I saw that the noble Lord had put down clause stand part, I regretted that I had not put my name to it at that time, because I realised that we would have to address this aspect of the legislation. I will not object at all to the two minor amendments, as I realise that they are simply drafting amendments, but unless we can resolve this in some way which deals with the powers, I fear that we will return to this on Report, and we will certainly support a move to remove this clause from the Bill.

[Lord Kamall (Con)]

My Lords, I am grateful to the noble Lord, Lord Sharkey, and others for their comments and for their engagement with the Bill team on this issue. We currently have only limited healthcare agreements with countries outside Europe. They support people from the UK to access medically necessary healthcare but do not always provide comprehensive cover for those who need it. The powers included in this clause will enable the Government to implement comprehensive reciprocal healthcare agreements with countries around the world, not just with the EEA and Switzerland. This will allow the reimbursement of healthcare costs and the exchange of data to facilitate a reimbursement process. By implementing such agreements, we hope that we can better support people when they are abroad. We have listened to concerns previously expressed in the House, so the Bill will also remove Section 1 of the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which provided a freestanding payment power and enabled the Secretary of State to make unilateral payments for healthcare in the EEA and Switzerland. This is no longer needed, following EU exit.

We are replacing this power with regulation-making powers which can provide for payments to be made in two circumstances: one, to implement healthcare agreements, and two, in countries where there is a healthcare agreement in place but the healthcare falls outside the scope of that agreement and the Secretary of State determines exceptional circumstances exist to justify payment. These are not the same powers that were originally drafted in the 2019 Bill. We have listened to Parliament and limited the scope of the powers to those necessary to deliver the policy intention. We have, for example, revoked the unilateral payment powers, which would enable the Secretary of State to make wide-ranging payments for healthcare outside healthcare agreements. The UK recently successfully concluded a trade and co-operation agreement with the EU, which includes comprehensive reciprocal arrangements. Therefore we see this as an appropriate time to tailor existing powers so they allow us best to support the healthcare needs of UK nationals across the world.

We hope that these legislative measures will allow us to strengthen existing agreements with non-EU countries or form other healthcare partnerships should we wish to in future. This includes looking to improve our healthcare co-operation with key international partners, the Crown dependencies and our overseas territories. We also want to offer more healthcare cover to UK residents travelling abroad for tourism or short-term business purposes, similar to the arrangements available to them when they visit EU countries.

I take this opportunity to confirm that there are no Henry VIII powers in this clause; they were removed during the passage of the Bill in 2019 and have not been put back. In response to the question of the noble Baroness, Lady Finlay, the Bill requires consultation with the devolved Administrations over the drafting of regulations made under the powers in this clause, and we are pleased that the devolved Administrations have all agreed to recommend that legislative consent is granted for these provisions.

In addition, the negotiation of international health agreements is reserved, and the devolved Administrations have a role to play in implementing those agreements. That is why we laid amendments in the House of Commons on Report of the Health and Care Bill. These amendments give the devolved Administrations power to make regulations in the areas of devolved competence within reciprocal healthcare.

As we are all too aware, healthcare co-operation between countries is a vital aspect of the global society we are a part of. Reciprocal healthcare provides safeguards and support for our most vulnerable as well as greater opportunities to travel, for work or leisure. I thank the noble Lord, Lord Sharkey, for his suggestion that we have a meeting before Report for further conversation.

Amendment 232 agreed.

Clause 136, as amended, agreed.

Clauses 137 to 139 agreed.

Clause 140: Cap on care costs for charging purposes

Amendment 232A

Moved by

[Lord Kamall]

232A: Clause 140, page 116, line 41, leave out from beginning to end of line 9 on page 117 and insert—
“(a) in relation to eligible needs met by a local authority, to any amount the local authority charged the adult under section 14(1)(a) or 48(5) for meeting those needs;(b) in relation to eligible needs met by a person other than a local authority, to what the cost of meeting those eligible needs would have been to the local authority that was the responsible local authority when the needs were met.”Member’s explanatory statement
This amendment de-couples the costs that accrue towards the care cap from the costs specified in the budgets and simplifies the drafting for determining those costs that accrue.

[Lord Kamall (Con)]

My Lords, I will speak to Amendments 232A, 232B, and 234A to 234L in my name, made in relation to Clause 140. In the course of the detailed work on the operational guidance on charging reform in partnership with local authority representatives, it has become apparent that the existing legislative framework leads to unfair treatment of local authority-supported individuals in some areas and proffers incentives for self-funders in others. The intention of these amendments is to remove this. This applies even before this Bill, or whatever charging scheme we come up with, comes into effect.

Noble Lords may be aware that everyone who wants to meter towards a cap on personal care costs must have a needs assessment to ensure they have eligible needs. If there is a delay in the needs assessment through no fault of the person requiring care, they may wish or need to begin to pay for care before the local authority is able to intervene. At present, Clause 140 would enable self-funders to start metering from the point they request an independent personal budget, but the clause does not contain an equivalent provision for those whose needs are expected to be met by the local authority. These amendments will make the position the same for those whose needs are met by a local authority as for a self-funder, as well as clarifying that metering for those whose needs are being met by a local authority will be at the amount the local authority charges.

The amendments will also decouple how a local authority decides what meters towards a cap from the personal budget and independent personal budget. There are several practical benefits of this. Among the most important is ensuring that, having had an independent personal budget set by a local authority, nobody has a perverse incentive not to meet their needs. Without the amendments, somebody would meter the amount they are expected to spend set out in their independent personal budget even if they then purchased less care in order to save money.

The amendments also mean that any spending to meet agreed eligible care needs would meter towards a cap at the amount it would cost the local authority to meet those needs, where they are met by the local authority at the amount charged by it. This would happen even if it was omitted from the personal budget or independent personal budget for some reason.

Finally, there is an amendment to make a minor clarification of the circumstances in which an independent personal budget must be provided by a local authority and what the personal budget and independent personal budget must include.

I look forward to this debate and I am grateful to many noble Lords who, I am sure, wish to speak on this important matter.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, the noble Baronesses, Lady Brinton and Lady Campbell of Surbiton, will be speaking remotely. I invite the noble Baroness, Lady Brinton, to speak now.

[Baroness Brinton (LD) [V]]

My Lords, I thank the Minister for introducing the large swathe of government amendments, trying to provide small changes to clarify and to remove unintended consequences of the current system. I will speak to Amendments 235, 236A and to Clause 140 standing part of the Bill.

Amendment 235 in the name of the noble Baroness, Lady Greengross, is an attempt to replicate and update the Dilnot cap. It is certainly better than the current system, and I think that many noble Lords across all parties in this House have said that it is a shame that the new system does not emulate Dilnot better. The amendment from the noble Lord, Lord Lipsey, reduces the rate at which those on low incomes lose benefits if they have assets above the means test threshold.

However, Clause 140 as a whole is a problem. It was added to the Bill later and was not considered by the Commons Bill Committee. Under Amendment 234, “persons entering the care system at or under the age of 40 will have their care costs capped at £0. This would apply to new applicants as well as existing care users who, while over the age of 40, have been accessing care and support since before the age of 40.” It is a huge form of injustice that we have an NHS that is free at the point of use and yet young people with learning disabilities and life-limiting health conditions are being charged for their essential care. One survey of respondents with disabilities in April last year found that 81% said that they had faced cuts in care packages or increased charges during the pandemic, with over half of them specifically reporting increased charges. The survey found that

“charges had forced people to stop care they needed or make difficult choices for financial reasons, with the results showing an increased reliance on family members and high levels of deteriorating mental health, including suicidal thoughts.”

The National Audit Office reported on local government finance in the pandemic and found that 41% of councils with social care responsibility said that they needed to make “substantial” service savings to balance their budgets, including by increasing charges and further use of their reserves.

Mencap’s response to the national insurance levy was that

“we can’t see how the proposed cap on care costs will benefit people with a learning disability … People who need care are missing out, others are having their support cut and some are being asked to pay towards their care which they simply can't afford.”

Further, BBC research has found:

“Some adults with learning disabilities are paying thousands of pounds extra a year, with six councils doubling the amount of money collected in charges. In half of 83 areas that responded to a BBC request, bills across all users have risen at least 10% over two years.”


One example is Saskia Granville, who was shocked when, earlier this year, her care charges increased more than 400%, from £92 to £515 a month. She has a learning disability and lives in supported accommodation in Worthing, west Sussex, but fears the charges will curtail her independence. Some 94% of people with learning disabilities are not in work so they just cannot find that extra cash.

I look forward to hearing from the Minister how on earth he thinks that the current system is either justifiable or equitable. While there may be change trying to sort out some of the minor anomalies, what remains is a system that is deeply unjust. I hope that the Minister is able to consider both Amendments 235 and 236A. I remain to be convinced by the arrangements that he has outlined and if brought back at Report, I am likely to support Clause 140 not standing part of the Bill.

22:30

[Baroness Campbell of Surbiton (CB) [V]]

My Lords, I support Amendments 233, 234 and 235 in the names of my noble friends Lady Bull and Lady Greengross and the notice of intention to oppose Clause 140 in the name of the noble Baroness, Lady Wheeler.

The amendments propose less punitive charging regimes for social care users, and the notice to oppose reverses the regressive changes to the existing provisions. I support all of them to highlight on this occasion the unfairness of the Government’s charging formula on one particular group in society: working-age disabled adults.

Government amendments to the Care Act disproportionately affect working-age people, especially those with lifelong disabilities who draw on support for their day-to-day needs. It is no secret that I have long campaigned against such charges. Amendments 233 and 234 propose a zero charge on disabled people between the ages of 18 and 40, and Amendment 235 replicates the Dilnot proposals adjusted for inflation.

Care and support for those who depend on it is no less fundamental than healthcare is to survival. Without my care assistant to help me eat, drink, move and breathe, I would die, as I would if I did not receive medical care. Without access to support, I could not contribute to my community, and I could not work or enjoy life, but to live like my non-disabled peers, I would have had to pay for my care until I reached an £86,000 cap from the age of 18. In effect, it is a financial penalty on disability.

Before charging was introduced, working-age disabled service users could save for their first home, provide for a family, fund a university education and afford all the extra costs of disability such as housing adaptions or an accessible vehicle—to thrive as equal citizens. I was very lucky. I grew up during that time, which afforded me the opportunity to aspire to the same ideals as my non-disabled peers aged between 18 and 40.

Coming from very humble beginnings, I did not have a financial cushion, but I worked hard, saved like crazy and spent wisely—all the characteristics that this Government want their citizens to emulate. And look, the policy succeeded, due largely to a then no-charging policy. Here I am today, participating in vital scrutiny, equal among my “peers”. If I had been born 25 years later, it would have been a very different story.

In his foreword to the Government’s disability strategy, the Prime Minister says that it is the Government’s

“determination to level up the country so that whoever and wherever you are, the spark of your talent and potential can be connected with the kindling of opportunity”,

yet this Bill introduces a social care means test which drives disabled people into poverty and places a cap on aspiration.

Those with assets of less than £20,000 will continue to pay out of their income towards the cost of their social care. This includes pensions, means-tested benefits and extra-costs benefits such as personal independence payment, disability living allowance and attendance allowance. They are all regarded as income in the social care means test. Local authorities will undoubtedly raid these entitlements, intended to fund additional disability costs, to pay for social care. The charging reforms do nothing to address this injustice.

Consequently, those without means, unable to supplement their income through work or savings, will be forced to go without vital support. With the hike in energy bills next April, some will also go without fuel. Charging for care will prevent these young people getting on with life and building up a nest egg. Once their savings reach £20,000, they will be looted and their future security denied.

Take Sarah, aged 34. She has a learning disability and lives in supported housing with social care support for meals, budgeting and running a home. She gets housing benefit for her rent, but with no assets and being unable to work, Sarah is reliant on disability benefits for all other essentials such as food, fuel, council tax, social activities and clothes. She has been paying £81 a week towards her care package but last April the council told her that this would increase to £125. It will take Sarah 13 years to reach the cap, living on only £160 a week. If she were under 25, it would be even less—£141. Sarah will pay the same as someone with assets of £55,000. How on earth can this be described as fair? Sarah, and thousands of others like her, will not be living. They will be barely surviving.

In his Second Reading speech, the Minister said:

“The Government recognise that their amendment to the adult social care charging system was considered controversial. However, it is necessary, fair and responsible.”—[Official Report, 7/12/21; col. 1779.]


What is fair about holding down disabled people in poverty? What is responsible about limiting their ability to survive and prosper? Rather than liberating them, this charging policy will undermine their well-being and lock them in a state of avoidable and costly dependency.

I ask the Minister to work with disabled people’s organisations, myself and my colleagues before Report stage to find a fairer way to enable these service users to thrive, and to consider essential care and support services as a long-term investment rather than a drain on the Exchequer. I urge Members across the House to support these amendments and, in doing so, offer younger working-age adults with care and support needs equal life chances.

[Baroness Bull (CB)]

My Lords, Amendments 233 and 234 are in my name and I am grateful for the support of my co-signatories and of Mencap and nine other working-age disabled adult charities, whose concerns these amendments reflect. Clause 140 would amend Section 15 of the Care Act 2014, which places a limit on the amount adults can be required to pay towards eligible costs over their lifetime. The Government intend to set that cap at £86,000, irrespective of age and income.

My amendments would “switch on” the section of the Care Act that allows different rates to be set for specific groups, and define one specific group as people between the age of 18 and 40 who are eligible to receive care and support. The effect would be to implement Dilnot’s recommendation that people entering the care system at or under age 40 have their care costs capped at zero. This would apply both to new applicants and to existing users who have accessed care and support since before the age of 40.

The Government have argued, and expert bodies have accepted, that no one will be worse off under their proposed charging reforms. But this does not make them fair and it does not make them just. They fail to recognise that people with mental, physical and learning disabilities will need additional care and support to participate equally in opportunities that many of us take for granted. They also fail to acknowledge that this inevitably leads to higher costs of living and leaves working-age disabled adults with little or no chance of accumulating assets or savings.

The Government’s impact assessment shows that savings and assets are particularly low among younger adults: 73% of 16 to 35-year-olds have made no plans to pay for social care, and ONS figures show that wealth for households where the head is 55 and over is 25 times higher than households aged between 16 and 24. But, of course, all these figures refer to the working-age population who are able to work and therefore earn, and employment rates among disabled people are shockingly low. Just 50% are in work, and this drops to 20% for those with a learning disability. This of course means many disabled people do not have access to regular earnings or career trajectories that deliver rising salaries. So, not surprisingly, disabled people have, on average, £108,000 less in assets than their peers without disabilities. According to the Joseph Rowntree Foundation, 38% of working-age disabled adults in the UK live in poverty.

On top of these limited opportunities to earn and save, most working-age care users have a long-term condition or disability that will require costly care and support long before they reach old age and, in many cases, from birth. Scope tells us that, on average, disabled people face £583 of extra cost for every month of their lives. And, of course, very few have the resources to self-fund their care. The vast majority are either below the lower capital limit or in the means-tested system. In this case, their care needs are assessed and those needs deemed eligible are part-funded by the local authority. Needs deemed ineligible are not funded, but they are still needs, and needs have to bet. Often, this is the kind of care that enables the interactions with the workplace and social and leisure opportunities that my noble friend Lady Campbell spoke about. As funding pressures on councils lead to further squeezing of eligibility criteria, as she described, more disabled people are having to fund more care from their own pockets.

But of course, as we heard when the Government introduced new amendments on Report in the other place, this contribution will not count towards the cap. Only the amount the individual contributes to the cost of their eligible care needs will count towards the cap—not the support they receive from local authorities and not the cost of ineligible needs, even though they are genuine needs and funded entirely from individuals’ own pockets. So the consequence of this controversial change is that those people least able to afford it will be spending a greater proportion of their assets and income on social care costs. Let us be clear: that income will come from benefits. The impact assessment says its calculations

“assume users do not make contributions to their care from their income and … all contributions are from user assets.”

But in the very next line, it admits:

“In reality, whilst income from employment is excluded from the means test, income from some benefits would be included.”


So disabled people not only face higher care and support costs but are less likely to be able to earn and therefore save—and they are experiencing parallel pressures on their benefits income from rising care contributions.

The Government’s analysis does not take this into account. These oversights in the analysis cast serious doubts on whether enough has been done to understand the specific needs of younger adults requiring care and how they differ from older people. No one would argue that older people do not deserve support, but it is hard not to conclude that the Government’s reforms are primarily concerned with people who develop care needs in later life, having built up assets and savings, at the expense of working-age adults with long-standing needs.

We have already heard the Minister this evening refer to the danger of unintended consequences. I urge him to consider the consequences of these reforms for those people who most need support and to consider my amendments as a fair and just way to protect them from catastrophically high costs they cannot afford for care they cannot afford to live without. “No one will be worse off” is not, I am sure, what this Government mean when they talk about levelling up. We can and should aim higher.

[Baroness Thornton (Lab)]

I am standing here to speak in the place of my noble friend Lady Wheeler, because—as irony has it—she is a carer and has had to go home to care for her husband. I find that an irony. My noble friend wanted to speak at this point because we are very keen to make our points in the debate on clause stand part. First, I congratulate the noble Baroness, Lady Bull, who tabled Amendment 233, which leads the discussion on this highly controversial clause. She spoke with clarity and precision—and, of course, I thank her for her support of the other amendments.

22:45

This clause sets the care cap too high to benefit the majority of people who need to be protected. It abandons the key safeguarding Dilnot principle of enabling local authority care costs to count and to accrue towards the cap. It also abandons the consensus on implementing Dilnot that was so painstakingly and carefully worked through and agreed under the Care Act 2014, with cross-party consensus in both the Commons and the Lords.

On top of this, in the process of dismantling the Care Act provisions, the government amendments tabled in your Lordships’ House introduce a new set of even more complex technical charging rules for local authorities, which, to stand any chance of working it all out and administering and implementing the new arrangements, will have to develop costly new systems and accounting rules procedures, and employ more staff—IT specialists, accountants and auditors.

I thank the supporters of my amendment—the noble Baroness, Lady Campbell, and the noble Lords, Lord Warner and Lord Lansley—and, indeed, other noble Lords who kindly said they would have signed the amendment had it not already been full. I look forward to their contributions.

I am also grateful for the many expert briefings—in particular from the Alzheimer’s Society, Age UK, the MS Society and a group of 10 charities, including Mencap, that support working-age disabled adults and people with learning difficulties. Between them, these key stakeholder briefings spell out graphically, with full costings and actual person examples, the full impact of the Government’s care cap proposals on millions of people either receiving social care or in desperate need of it.

I am sure noble Lords will draw further on those examples today, as we have already heard in the contributions so far. Despite the pledge that nobody should have to sell their home, the fact is that someone with assets of £100,000 will lose almost everything, yet someone with assets worth £1 million will keep almost everything.

The deletion of Clause 140 is therefore vital, because it would enable the care cap provisions in the Care Act to remain in place, including ensuring that local authority costs count and accrue towards reaching the care cap. Labour strongly supported this negotiated package in 2014, and the costs involved, for implementation in 2016, in the full expectation that the Government would stick by it. Sadly, we know what subsequently happened with the staged annual postponements until final cancellation in 2019.

Labour’s support for the care cap has always been in the context of seeing it as part of a much wider social care reform that is needed to build long-term sustainability and growth, which the Government have yet to address. What the cap does not do, as summed up by Age UK, is improve access to care services by lowering the threshold or broadening the “eligible needs” definition. It does not increase the amount of care available. It does not provide increased funding to the system in terms of overall total expenditure. It does not improve care quality, develop the workforce or promote innovation, and it does not stabilise the care market by addressing the local authority funding problem

We know that what the Government are now proposing was discounted by the Dilnot commission as unfair, because it will result in people with low levels of wealth spending the largest proportion of their assets on care costs. That is clearly what the modelling shows, particularly in some of the most deprived areas across the country. The health think tank the King’s Fund has joined the call for the removal of Clause 140, labelling the £86,000 cap as “regressive” and running counter to the levelling-up ambition.

The cap level must be brought down and be set at a cost that achieves the fairness and equity that Dilnot was aiming for. Amendment 235, tabled by the noble Baroness, Lady Greengross, which would place the cap at the equivalent of the original Dilnot level by uprating its present value to £50,000, and which would be implemented under the current Care Act legislation, is a clear way forward to replace the Government’s Clause 140 proposals, and we strongly support it. I look forward to hearing from the noble Baroness in due course.

The Nuffield Trust supports this amendment and underlines that the simple removal of Clause 140 would create a more generous form of cap. In his Second Reading response speech, the Minister justified the £86,000 cap and the charging restrictions and said that

“nobody will be worse off in any circumstances than they are in the current system, and many people will be better off. The reforms mean that the Government will now support an extra 90,000 older care users at any given time.”—[Official Report, 7/12/21; col. 1888.]

But when we searched we found that the Build Back Better paper breaks this down as an additional 30,000 benefiting from the higher means test threshold and 60,000 from the cap, so could the Minister explain where this information is fully contained and analysed as it does not appear to be covered in the impact assessment or the related social care document? What are the overall estimates when the younger care population and people with learning difficulties are included?

The Age UK detailed case-by-case analysis of the impact on older people does not bear this out and the Alzheimer’s Society modelling shows that just 19% of people with dementia would reach the cap, and that is disproportionally detrimental to dementia sufferers in the north of England, the Midlands and some areas of London. With 900,000 people currently living with dementia in the UK especially likely to need social care rather than medical care, can the Minister tell the House what the Government’s estimate of the cap’s impact on dementia sufferers is and how this has been taken into account in the proposals before us today?

In summary, Clause 140 must be deleted so the Commons can think again about the proposals we have before us. What is presented in the clause is not a strategic plan needed for social care. It does not solve the existing funding crisis, which has been reinforced by social care playing second fiddle to the allocation of the health and social care levy and being virtually ignored in October’s spending review.

What we have instead is a last-minute, hastily drawn-up proposal, tacked on to a Bill that is mostly NHS-focused, forced through the Commons without notice—without a proper debate—and presenting us with a confusing mishmash of amendments on how councils must go about ensuring that the money they spend on social care packages does not get calculated in any assessment of need.

For these reasons, we wish to delete Clause 140. It should be replaced with the wording set out in Amendment 235 from the noble Baroness, Lady Greengross. I also need to say to the Minister that we do not expect him to move the government amendments tonight because a much wider discussion is needed in your Lordships’ House. I thank noble Lords for allowing me to speak at this point in the debate.

[Lord Lansley (Con)]

My Lords, we have reached the point where my noble friend on the Front Bench—who is doing his job well—should look round for support on his own Benches. I fear all he has got is me.

I can see the point he was making about the desirability of these amendments. If Clause 140 were to be proceeded with, they are improvements on the structure of Clause 140, but they rather illustrate the point that Clause 140 itself was brought forward at a late stage and was not fully thought through. I might say to my noble friend that I am a little confused as to how he can be asserting that these amendments are the result of implementation of the existing system, demonstrating a problem when—as far as I can see—Amendments 232A, 232B, 234H, 234J and 234K all relate to parts of the Care Act 2014 that were never brought into force. So they cannot, in practice, have resulted from the implementation of what he describes as the existing system.

I wanted to follow the noble Baroness, Lady Thornton, because what I have to say follows directly on from what she had to say. The noble Lords will recall that at Second Reading I made it clear that I thought it was best to take Clause 140 out—I still am of that opinion. If we were to proceed with Clause 140, the noble Baronesses, Lady Bull and Lady Campbell of Surbiton—the noble Baroness, Lady Bennett, not having a chance yet to explain—have explained very well the two central points about young adults. One is that they will not have had an opportunity to accumulate assets in their lifetime. The Dilnot report itself said:

“Anyone developing an eligible need up to the age of 40 should also face a zero cap, as we do not think that people younger than 40 can, in general, realistically be expected to have planned for having a care and support need, nor will they have accumulated significant assets.”


Of course, the point that was made very well by the noble Baronesses, Lady Campbell and Lady Bull, was that, even in so far as they have incomes derived from benefits, these may be taken into account in the means test, and so we would have a situation where, under the impact of Clause 140, they would have, potentially over many years, the erosion of whatever benefits are intended to be achieved for precisely that reason. So I very much support Amendments 233 and 234.

My point more generally is that when we get to Report I hope we will have a fuller Chamber and a fuller opportunity to explain why we should take out Clause 140. Of course, in part, in doing this—I see the noble Lord, Lord Warner, standing by ready to explain what the Dilnot commission, of which he was a member, said—I am in a sense defending the Dilnot report and its implementation. I asked Andrew Dilnot to undertake the review, and it reported to me.

I noted that, on Report in another place, Matt Hancock said:

“The reason that the Dilnot system, as previously proposed, was never put in place was that there was never a proposal to pay for it”.—[Official Report, Commons, 22/11/21; col. 111.]


I have to tell him that he was a Back-Bencher in 2010-11 and there was a proposal to pay for it. It was not a Dilnot commission proposal; it was my proposal, and it would have had significant benefit in that, because it would have removed the domiciliary care exemption on the means test, it would have rebalanced domiciliary care and residential care in the social care system. It would of course have meant that, very often, those who were benefiting from the cap and had significant housing assets would have contributed towards it.

I also proposed that the winter fuel allowance should not be made available in future to older people who were higher rate taxpayers. The net effect of these two measures was about £2 billion a year, which at the time would have been enough to pay for it. The Treasury, of course, said no, because 100,000 people a year would benefit from the cap, 200,000 people a year would have to pay into the system, and therefore it was not a good idea. Politically, the Treasury was completely wrong then, and probably it is completely wrong again in bringing forward the proposal encapsulated in Clause 140.

I will just elaborate and then I will stop. On Report in the other place, the right honourable Mel Stride said of what was then new Clause 49, now Clause 140:

“The first we heard of it was not in Committee”—


there were 12 sittings of that, until 2 November—“or in September”, when the tax measures were announced, “but on Wednesday evening”. This was Monday evening, and the first they had heard of it was the previous Wednesday evening when the amendment was tabled. So it was strictly last-minute but, even in the time available, a significant number of Members of the Conservative parliamentary party in the other place had their reservations. The clause was passed with a majority of just 26, with 19 Conservative Members of Parliament voting against it. Quite a number spoke, including Kevin Hollinrake, who said that

“there is no doubt that the way that the cap works means that it is less generous for those with more modest assets.”—[Official Report, Commons, 22/11/21; cols. 115-47.]

The objective—which, as I remember, was calculated on the back of the Dilnot report—should be that, broadly speaking, whatever your level of assets, there is a maximum level of loss of assets resulting from the implementation of the cap with a means test. If I remember correctly, it was about 45% loss of assets for those with the least assets; it would not exceed that. Of course, for people with lots of assets, the loss of their assets is significantly below that percentage. But now we have ended up with people with a large amount of assets having a potentially very low loss of assets and they are the principal gainers; people with very few assets, but some, may well lose them all. This cannot be right, and it cannot be fair. It is quite clear that Members of the other place, including a significant number of Conservatives, want to think about this again. When it comes to Report, if we take Clause 140 out, we will rightly give them the opportunity to do so.

23:00

[Baroness Greengross (CB)]

My Lords, I rise to speak to Amendment 235 in my name, which seeks to implement the social care contribution cap recommended in the 2011 Dilnot report. He recommended that a cap be set at £35,000. Care cost inflation runs at 1.5% above the consumer price index, so to replicate the 2011 recommendation, adjusting for this cap would now be set at £50,000, and that is what this amendment seeks to achieve. The amendment would also adjust the cap with care cost inflation each year.

I first want to acknowledge that the Government’s proposed cap in this Bill of £86,000 is a significant improvement, as it introduces a cap and puts some limit on what people pay in care costs. There are some who still do not believe that there should be a cap and feel that this will just be a means of helping wealthy homeowners, but not all homeowners are automatically wealthy or sitting on some high-value property portfolio. For many people, as we know, their only real asset is a modest family home, which, in certain parts of the country, may have increased in value over time but even so not enough to make them wealthy.

There is an equity issue in that, if someone is diagnosed with cancer, the NHS will cover the full treatment cost, whereas if someone is diagnosed with dementia, they may require many years of care, which will cost families thousands of pounds as this is not covered. My Amendment 291, which will be debated in a later group, addresses the issue of dementia care plans and specifically talks about the different types of dementia and how each requires a different type of care and support. If someone is unlucky enough to be diagnosed with a certain type of vascular dementia, Lewy body dementia, or Parkinson’s-related dementia, these conditions often require many years of care—up to a decade or more in some cases.

I am not suggesting that there should be a different cap for people who have been diagnosed with long-lasting forms of dementia, but we must understand that people with these types of dementia will be the most impacted by this provision. The proposed cap of £50,000 in this amendment, the equivalent to that recommended in the Dilnot report nearly 11 years ago, is a much better one. According to the ONS, the average yearly earnings for people in the UK is £31,000. The cap of £50,000 is roughly just under two years’ average earnings, whereas £86,000 is nearly three years’ average earnings.

I anticipate that, when the Minister responds, the main objection to this amendment will be the cost to the Government, and I have no doubt that the Treasury will have concerns if the cap is lowered. In response to this, I refer the House to the debate in this Chamber on 16 September 2021 on the Intergenerational Fairness Forum report, Grasping the Nettle. As chair of the Intergenerational Fairness Forum, I introduced this debate, outlining that the report recommended that the Government introduce a social care levy at a rate of 1%, which could be raised to 2% for those aged 50 and over if there were a need for extra revenue. The levy would apply only to adults over the age of 40, placing the heaviest burden on those best placed to contribute to the cost of this bill. I mention the recommendation from this report to highlight that there are still other options to fund social care, and it would mean that the Government could lower the cap.

Some will feel that it is better at this time to focus on implementing the current cap and then, over time, press for a lower cap. Certainly, history shows that when other social security measures, such as the pension, were first introduced, they started at quite a small amount of money but then became more generous over time. I accept the logic of this, but still feel that the case must be made for a lower cap and that this should be considered and debated in Committee.

[Lord Lipsey (Lab)]

My Lords, this is a rather strange grouping. In the earlier debates we were dancing at times on the heads of pins, and now we have the noble Baroness, Lady Greengross, with her proposals for a lower cap, and the noble Baroness, Lady Bull—with whom I agree—largely exempting people of working age with a disability, and it is difficult to cover the whole field. However, I will attempt to give a small synopsis leading up to my own amendment, which is about the taper.

I first declare an interest as an unremunerated president of SOLLA, the Society of Later Life Advisers—the people who really know a lot about this stuff. I should also apologise for not having participated in the Second Reading debate but, like the noble Baroness, Lady Bull, I was in a crucial meeting of our House’s Communications Committee, which made doing so impossible.

On Mondays, Wednesdays and Fridays I am a strong supporter of the cap as recommended by Andrew Dilnot, for the obvious reason that it ends an unfairness to people who happen to live for a long time and therefore lose their assets. Unfortunately, in 54 minutes’ time I shall go back to the way I am on Tuesdays, Thursdays and Saturdays, which is to be broadly opposed to a cap of the kind that has been proposed. That is for two reasons. First, all parties should take into account that it is wildly expensive—some £3 billion, which will rise as the number of old people rises. I would much rather that that money was spent on better care for those who need it than on paying for the rich. Do not be in any doubt: whatever gloss is put on it, half the people in care are paid for by the state now, so all the expenditure on the Dilnot cap will go on the other half. A lot of them are not rich people—some of them are quite modestly wealthy—but it is the richer half of the population that this cap supports. As a socialist, that is why I cannot go along with it—at least on Tuesdays, Thursdays and Saturdays. It is not too long until next Sunday, when the good Lord will advise me on what final position to take.

Starting from that scepticism about the concept of a cap, I will say one thing about Dilnot’s proposals. Whatever you think, whether you are for it or against it, the case for the cap is much less strong than it was when Andrew Dilnot proposed it in his brilliant report, and for three reasons. First, no one now has to sell their house to pay for care. They did then but they do not now: they can borrow the money from the local authority and pay it back afterwards. Secondly, house prices have risen by 30%, so many people have more assets they could spend on their own care without leaving themselves with no assets to leave to their children. Thirdly—an important point which has been wholly missed so far in the debate—the private sector, belatedly but slowly, has started to get its act together about this. There are two relevant products: equity release, which enables somebody to get some money out of their house to pay for their care without selling the house, leaving plenty for the children; and, more importantly, annuities and deferred annuities, which are paid from the point of care in the case of an annuity, or after you have been in care for two years or so in the case of a deferred annuity. I was amazed to read through the impact assessment, which went through every possible argument on caps and alternatives to them, and not see a single reference to deferred annuities. They are part of a holistic solution.

I ask the Minister in all sincerity—I know he is very open to suggestions—that, before this Bill completes its passage and, preferably, before we have decided whether to leave Clause 140 as part of the Bill, we look at the role that the private sector can play in supplementing a cap, for example in allowing people to pay for better care for themselves, or indeed possibly replacing it with a less regressive way of paying for care. It should be looked at; it has been ignored since Dilnot, and the case that Dilnot then made against it is not quite the same today, so it really deserves to be looked at.

Finally, on my own amendment on the taper, I am very distribution-minded about this cap. What motivates me is that I hate taking scarce state money, which is needed to provide decent services for people who cannot provide decent services for themselves, and spending it on a subsidy for “Disgusted of Tunbridge Wells”. This seems wrong to me. I would love to see the welfare state expand. I am rather shocked to find a Conservative Government seeking to expand it in order to help the better-off at the cost of much more public spending. The better-off should be able to look after themselves.

If we are to have a cap, we should make it as good in terms of redistribution as we can, with less favouring of the rich than is the case with the present cap. That is why I brought in another thing that has not been mentioned in the debate: the taper. At the moment, the taper does not matter much; it applies in only a very narrow band of incomes. However, under this system, the taper will apply to assets of between £20,000 and £100,000. For every £250 you have in the bank, you lose £1 a week in benefits. That will hit the people who have between £20,000 and £100,000 in assets. They are not rich; they are the kind of people I want to help, but they are being struck by this taper.

Of course, addressing this will cost money, and I am reluctant about that. For every £50 you put on the £250 for the taper, it would be about £200 million a year; it is not nothing, but it is less than the £1 billion or so that would be lost if Clause 140 does not stand part of the Bill. If the Government want to show that they are interested in redistribution, as well as pleasing their richer supporters, I ask them to look at the taper as an alternative. I saw the vote in the Commons: Clause 140 is down the pan. It is not going to win. If he takes it back to the other place, he will be voted down, so it is not going to happen. Therefore, we all, particularly in your Lordships’ House, need to use our imagination to find alternatives to the proposal that the Government have put forward. That proposal will not pass this Parliament in its present form and in its entirety. Working with the Minister, we need to find a better proposal that meets the various considerations I have put forward and, in particular, uses the private sector and does not protect the assets of just the rich.

[Lord Warner (CB)]

My Lords, a little belatedly, noble Lords might like to hear from one-third of the Dilnot Commission; I declare my interest as that third. I have to say that our ideas have been presented in a whole variety of ways over the last 10 years. This evening, they have been presented fairly accurately, which is refreshing.

23:15

I say to the noble Lord, Lord Lipsey, that the private sector had its chances. It was conspicuous by its absence, particularly the insurance industry. We made these proposals because of the absence of many alternatives. Andrew Dilnot and I would never claim that this was a perfect solution that would satisfy everybody; it was a solution to do what the report said—Fairer Care Funding. The report never claimed that it would sort out all the problems of funding adult social care, although it did point out to the Government of the day—the noble Lord, Lord Lansley, may remember this—that adult social care was underfunded by about £1 billion. This was in the 2010-11 financial year. That gap has simply widened over the past decade, so that it is probably somewhere around six to eight times that £1 billion, judged on the eligibility criteria in 2010. So we never set out to do that.

What we did was to come up with a cap, which we said should be between £25,000 and £50,000. Our preferred figure was £35,000, which the noble Baroness, Lady Greengross, accurately reflected in her amendment. She has done everybody a service by giving a reasonable inflation figure in scaling up £35,000 to today’s prices. That has never been done. How the Government got to £86,000 is something of a mystery, but no doubt the Minister will clarify why there is this difference between the noble Baroness’s uprating of £35,000 and how the Government got to £86,000. It is certainly tempting sometimes, just to get a cap, to go with £86,000, but it is not what we actually said. When we wrote our report, we costed it. We pointed out that, if you went for a £50,000 cap, it would cost about £1.3 billion and, if you went for £35,000, it would add another £0.5 billion.

I am telling tales out of school slightly here. We consulted people such as the shadow Chancellor, who said that we would not frighten the horses if we came up with a solution that was south of £2 billion a year. That is what we did, and it has taken 10 years to get from where we were with this report to the coalition Government to be even having a discussion about implementing it, even though the framework was put in place in the 2014 Act. I confess to having been on the Select Committee that looked at that in draft. It was a rather good Act, which had the framework to implement the recommendations in this report.

You do not need all the—if I may say—stingy recommendations and amendments put forward by the Government. There is nothing wrong with the recommendation of the noble Baroness, Lady Greengross. We made this very clear in the report, as the noble Baroness, Lady Bull, said; if noble Lords want to look it up, and do not believe me or the noble Baroness, they should go to page 24 of Fairer Care Funding. That sets out what you would do with people who developed an eligible need up to the age of 40. It is worth saying something about why we justified that.

We do not think that people younger than 40 can, in general, realistically be expected to have planned for having a care and support need, nor will they have accumulated significant assets. People may still be paying off debts and have significant amounts to pay on their mortgage, and could have young families. We recognised those problems, and it is why we recommended a zero cap. There is not a lot of argument about that; it is a straightforward explanation of what the evidence said when we were drawing up this report. I support the non-governmental amendments, and think that the Minister should go back to his colleagues and start to think again.

[Baroness Bennett of Manor Castle (GP)]

My Lords, having attached my name to Amendment 233 in the name of the noble Baroness, Lady Bull, and Amendment 235, in the name of the noble Baroness, Lady Greengross, I shall rise briefly. I am not quite sure why I did not attach my name to Amendment 234 in the name of the noble Baroness, Lady Bull. I certainly meant to, so I apologise for not doing so. I did that because I was approached to show broad cross-party support. Indeed, my name and that of the noble Lord, Lord Lansley, on the same amendment definitely demonstrates that.

As someone concerned about poverty and inequality, I could not but do that. The noble Baronesses, Lady Bull and Lady Greengross, have set out the cases very clearly. I am not going to run through again the levels of poverty and inequality and the sheer struggle that so many people currently face and will face in future. As we have been around the houses for quite a long while on whether Clause 140 stand part, I shall just refer to one sentence in the Age UK report because it sums up where we are very clearly. It says:

“It is clear that these changes have the potential to save the Government hundreds of millions of pounds, but at the expense of those on low incomes, with modest assets and living in parts of the country where houses values are lower.”


It is the very opposite of levelling up.

However, in the context of this debate and particularly after the comments of the noble Lord, Lord Lipsey, I want to set out an alternative vision—a vision that is much more radical than anything noble Lords have heard from anyone else tonight. It is the vision that was passed at the Green Party conference in October after a long and very hard-working campaign, particularly by our group of disabled members. It calls for free social care for all adults. Members of your Lordships’ House will have often heard me talking about a universal basic income, and I see the other side of that as universal basic services. I regard social care as a basic service. If you need help to eat, wash and lead a full life under your own control, that should be provided free at the point of need in the same way as the NHS is provided. This is a basic philosophical difference from others who have said that we need it all means-tested and that we need to be able to look at where a person is. I say that if someone needs this help it should be provided and then, whether or not people who have the means to contribute to that, whether they have been unfortunate enough to suffer a disability or a limiting illness, they should all be in that position.

I am aware of the time, so I will make just one final point on postcode lotteries. We often express a great deal of concern about postcode lotteries, but there is another lottery that occurs to people in this situation. Some people who suffer very serious disabilities or very serious illnesses that affect their living conditions are able, through the courts, to receive payments. Perhaps their parents are able to show that they suffered some disability at birth as a result of inadequate care, and they receive a very large payment that is set at a level to provide them with a decent level of care for life. Perhaps they are a young adult who is knocked off their bicycle and it is possible to hold a driver responsible. They get a very large court payout absolutely rightly. I am not challenging that under the current system at all, but they get that payment. Someone with exactly the same condition who cannot go to court and the people caring for them, their parents or relatives, have to struggle and fight at every level and at every moment to get the care that they need. That is just not right.

[Lord Davies of Brixton (Lab)]

My Lords, I just want to contribute to this debate. I fully support the remarks of my noble friend Lady Thornton. I was particularly struck by her dissection of this Government’s totally preposterous claim to have a plan for social care. They do not have a plan. All they have is a regressive tax and a broken promise.

I am tempted by the remarks of my noble friend Lord Lipsey to enter into a broader debate on these issues. Clearly, this issue is not going to go away. This is not the end and the issues that were raised will come back again and again until we move towards something fairer and more comprehensive. I cannot resist saying that I am unconvinced that deferred annuities will have any part in any sort of mass market provision of care. As a product, they are fatally flawed, in my view.

My noble friend’s remarks also made me think of the extent to which this debate is taking place while ignoring the key factor in these issues, which is housing or, rather, property management. That is really what we are talking about, but we do not mention it in the context of these debates, which is unfortunate. I am glad my noble friend raised these issues. However, I think the substantive point this evening is the imperative of sending this clause back to the Commons where they can reassess it with greater time than they were allowed initially.

Finally, I just want to highlight the revealing and outrageous statement by the Minister in the Commons, Mr Argar. He said the Government

“have always intended for the cap to apply to what people personally contribute, rather than on the combination of their personal contribution and that of the state.”—[Official Report, Commons, 22/11/21; col. 110.]

I do not believe that means-tested benefits are any more money being given by the state than my pension that I get from the national insurance scheme. It is outrageous to cast people as, in a sense, recipients of charity. It is their rights as citizens to have this money, and it is their money; it is not the state’s money. It reveals the Poor Law mindset of this Government.

[Lord Kamall (Con)]

My Lords, I understand the concerns about the lack of debate in the other place on this issue. The Government are putting in place a package of reforms to be implemented in 2023. The introduction of the £86,000 cap on costs is part of a package through which we hope that no one will lose out when compared to the current system. I will get the source that the noble Baroness, Lady Thornton, asked me for. I think that is a reasonable question.

The Government believe that having the cap in place allows people to balance their personal responsibility of planning for later years and puts in place a system where we hope that no one faces unpredictable care costs. Without Clause 140, two people with the same level of wealth, contributing the same amount towards the cost of their care, could reach the cap at very different times, driven not by how much they are spending on their care but how much the local authority is. We wanted to address that perceived unfairness.

Instead, the Government made the decision to offer the same cap for everyone. However, the cost for people with more modest means will be reduced in two important ways: first, through means-tested support, including for those living in their home. This kicks in as soon as someone’s assets fall below £100,000, potentially right from the start of their care journey. We chose to offer the same threshold for means-tested support, no matter where somebody draws on care, because we want to support and encourage people to be able to stay in their own homes whenever they can. That was an ambition set out in our White Paper, People at the Heart of Care.

23:30

Secondly, lower daily living costs will ensure that, having reached the cap, more people will be able to afford daily living costs from their income, protecting their assets, which is a key objective of the cap. Clause 140 as amended would make sure that no person was worse off through our reforms, but I understand the concerns from noble Lords across the Committee who say that that is not enough. The amendments would allow those care costs incurred by an individual to meter towards the cap. The person would then be able to meter at the rate that the local authority would have paid to meet those needs.

We hope that these changes will provide parity and fairness between self-funders and those funded by local authorities when there is a delay in carrying out a needs assessment. Decoupling how a local authority decides what meters towards the cap from the personal budget and independent personal budgets will simplify processes. This, we hope, would provide more autonomy and personalisation to the care user, rather than being a record of how much a person’s care costs.

We believe that these amendments are necessary to ensure parity between self-funders and people supported by a local authority to pay for their care, as well as to ensure that all amounts which ought to meter towards the cap will do so. However, given our discussions with the noble Baroness, Lady Thornton, earlier today and given the views expressed by noble Lords, in the spirit of what I hope will be ongoing constructive discussions, I will not press these amendments at this stage and bring the matter back on Report.

I shall briefly touch on some of the other amendments. Amendments 233 and 234 work in conjunction to require the Secretary of State to specify in regulations that people entering care under 40 will not face personal care costs in their lifetime. There have been previous iterations of the policy, including different caps for different ages, but we did not feature them because they were considered unfair. For example, someone entering care the day before their 40th birthday would benefit from a personal care cost cap of zero and free personal care for their lifetime, but a person entering care after their 40th birthday would not benefit from the same free personal care by a two-day margin. We considered that a cliff edge of that magnitude would be unfair. I have also heard—

[Lord Warner (CB)]

The proposition in relation to the age of 40 was in the report; it has been around for 10 years. It is a bit late in the day to be coming forward with the suggestion that it was an inadequate proposition from the Dilnot commission. Ten years is a long time to discover truth.

[Lord Kamall (Con)]

Perhaps I may move on to Amendment 235, on setting the cap based on the recommendations of the Commission on Funding of Care and Support and moving the implementation date by a year. For local authorities to make a change of this magnitude this year is undeliverable. They have told us that the original plan to implement for October 2023 is already an ambitious target.

Setting the level of the cap has been a fine balance. The Government have had to consider the longer-term cost of reform and what proportion of the future levy revenues to earmark for this purpose and other purposes. Retrospectively to impose a cap on care costs for everyone in the care system and to include their care costs during their lifetimes in the cap calculation is unfeasible.

I would like to have some further conversations with the noble Lord on Amendment 236A, if that is possible. I thank him for some of his suggestions to date. There is a real debate about how feasible a private solution is. I remember in an earlier debate the noble Lord rightly chastising me and saying that it was rather embarrassing for a Labour Peer to propose to a Conservative Peer a private sector solution. That hurt—but I completely understand. If it is possible, I personally would have been open to it, but the Government maintain that it is not feasible. We will probably need some more discussions.

This clause clearly needs a lot more discussion between now and Report. I could go into more arguments but, given that there was a lack of debate in the other place, I think that it needs more debate and more consideration overall. I am very happy to have more round tables with the Bill team, the charging team and noble Lords to explain the case, and for noble Lords to decide whether it is an acceptable case or still to disagree with it. With that in mind, I hope that noble Lords feel sufficiently reassured not to press their amendments at this stage and to allow the clause to stand part of the Bill. I beg leave to withdraw my amendment.

Amendment 232A withdrawn.

Amendments 232B to 234L not moved.

Clause 140 agreed.

Amendment 235 not moved.

Amendment 236

Moved by

[Baroness Finlay of Llandaff]

236: After Clause 140, insert the following new Clause—
“Registration of tertiary prevention activities in respect of provision of social care
In section 9 of the Health and Social Care Act 2008, in subsection (3) at the end insert “or any form of reablement and rehabilitation provided under section 2 of the Care Act 2014 to reduce the need for care and support”.”Member’s explanatory statement
This new Clause would bring reablement and rehabilitation provided under Section 2 of the Care Act 2014 to reduce the need for care and support into the purview of the Care Quality Commission.

[Baroness Finlay of Llandaff (CB)]

My Lords, this group of amendments is concerned with rehabilitation services. Very briefly, because the hour is very late, I will set out why it matters so much.

People in hospital, as the Minister said previously, lose muscle mass at an alarming rate when they are confined to bed. They risk thrombosis, lose their ability to balance, their confidence and their social contacts, and can become lonelier, isolated from friends and family, and depressed as they see themselves able to do less and less. They then become terrified of going home and often feel quite dumped when they get home because there is a sudden cliff edge from being supported in an environment to feeling like there is no one there. That same cliff edge also happens for patients when they leave intensive care units and go from the very intensive care down to a general ward—so we have huge steps in our system at the moment.

Assessment in hospital, as has often happened, does not often make any sense, because people know their own home. So assessing whether someone can make a cup of tea in a hospital kitchen may bear no relationship at all to their own kettle, their own kitchen, the floor, where they keep things, and so on. They need to be in their own home to be assessed. In their own home, there are often trip hazards, if they are not detected, and if people are not supported to navigate around their own home and furniture, they will have a fall and end up back in hospital very quickly. They need seven-day support at home, because they need to have people whom they can contact.

The problem is that, at the moment, recovery and maintenance of personal independence, although central to the Government’s long-term ambition for social care services, just do not seem to be integrated. In the document, People at the Heart of Care, there is a reference on 68 occasions to the importance of the role of adult care services in maintaining independence for people at home in the community, but there is no mention of local authority rehabilitation services at all.

Rehabilitation services in the community are not subject to regular monitoring and inspection. There are no consequences for poor or absent provision beyond individual complaints, which is why this amendment proposes that they should be brought into the purview of the Care Quality Commission. In the other place, the Minister Edward Argar stated his belief that services were already covered by the existing legislation. But that is not the everyday experience in operation. For example, if we look at vision rehabilitation services, in an audit undertaken by the RNIB, half of the lead counsellors for rehabilitation had no idea that vision rehabilitation was in their remit.

I shall move on rapidly to Amendment 241, because these amendments are all linked. I should have said at the outset that these have been proposed and supported also by the Chartered Society of Physiotherapy, of which I am president. In this amendment, in large part, professions involved in local authority rehabilitation are regulated bodies with recognition in health, such as OTs, physios and speech and language therapists. But there are other people in local authorities involved in providing rehabilitation who are currently completely unregulated and unregistered, so the Rehabilitation Workers Professional Network is currently seeking registration with the Professional Standards Authority in order to take this group of staff on to a list of statutorily regulated social care staff.

Amendment 306, also in this group, would bring local authority reablement and rehabilitation activities, defined by care and support statutory guidance as tertiary prevention, into regulation and enable the Secretary of State to require information on how the service is operated. Anecdotally, there is wide, unwarranted variation in both the quality and breadth of service offered across England. There is no centralised reporting of performance. Bringing these services explicitly into regulation would enable NICE to develop guidelines and quality statements that could be used to inform the quality of provision of services, which, as I have already said, could then be properly inspected. We might then get nearer to having a level playing field.

I also have my name to the amendment of the noble Baroness, Lady Greengross, which is about hospital accommodation, and I will speak to it briefly. At the moment, we have a severe shortage of beds. We know that patients come out of ICU to general wards, and there are patients who cannot then be discharged to home. Often, they are in that twilight where they are really not well enough to go home. They need more rehabilitation, they need more support, but the hospital is deeming them fit to discharge because of the incoming pressure on their beds.

If we had some more step-down beds, we could provide care in much more imaginative ways, such as happens in some parts of Europe, where, for example, family members are expected to come in and help with some of the basic care—feeding, personal hygiene and so on—of their own relative, as they all get used to rehabilitating together, so that that person can go home with that family member understanding how to care for them and what to do, and therefore being able to support them better in the community and pick up early warning signs.

We need to learn from the military rehabilitation units and the new NHS national rehabilitation centre that is being built near Loughborough, because there is evidence that if you can move people through the system more appropriately and get them back home, they recover better and quicker and do not risk that deterioration I referred to at the beginning. A community rehabilitation plan would improve co-ordination, integration of rehabilitation units and community rehabilitation. I beg to move.

[Baroness Walmsley (LD)]

My Lords, numerous reports from Select Committees of your Lordships’ House have recommended that the NHS and care system do things differently in order to use resources efficiently while providing better care and independence for patients. It is well known that most of us cost the NHS more as we get older, particularly if we have multiple morbidities. This is why the Government launched the Ageing Society Grand Challenge—to achieve five additional years of healthy life by 2035. So your Lordships’ Science and Technology Committee looked into this and published a report on 15 January last year. Sadly, we had to conclude that the Government are not on track to achieve this.

23:45

Amendments 236, 241 and 306, tabled by the noble Baroness, Lady Finlay, are relevant to this issue. They would require regulation for workers working in rehabilitation and reablement. The Science and Technology Committee looked into resources to enable older people to live safely and independently in their own homes, and this would apply to younger people coming out of hospital after a long period. We recommended that the Government make

“targeted and strategic investments in research for the design, evaluation and uptake of data-driven services, assistive robot technologies and AI for older people in order to develop national expertise and critical mass in this important area.”

We also recommended that internet access should be available in all homes and that older people be provided with digital skills, all with the objective of allowing more people with frailties and disabilities to live at home and not take up beds in acute hospitals or care homes.

Part of the training for the tertiary prevention activities mentioned in the noble Baroness’s amendments should include the ability to assess which of these technologies are appropriate for the reablement of each patient and the skills to help them learn to use them. Such technologies, correctly diagnosed and provided, could do a lot to reduce the pressure on residential social care and support. These tertiary prevention and rehabilitation activities are vital for levelling up health disparities, which means that the staff who deliver them are vital too, and that is why I support the noble Baroness’s amendments.

[Baroness Greengross (CB)]

My Lords, I rise to speak to my Amendment 289, which would ensure that every hospital has sufficient accommodation to allow a bed for any patient who is rehabilitating and who no longer needs to be in hospital, but who cannot be discharged to their own home. Further, this amendment would place a duty on the Secretary of State to ensure that hospitals use any spare land owned by the NHS to build this accommodation.

For many years I have been an advocate for this type of accommodation. The NHS has struggled for a long time with a lack of available hospital beds, a situation made worse by the coronavirus pandemic. Having rehabilitation accommodation for people who need to be near a hospital in case they need to see a doctor, but who do not need the full services of an NHS hospital bed, which is considerably more expensive, would be of considerable benefit. In Scandinavia, patient accommodation of this nature has been part of the state health system since the late 1980s. Having patients stay in these facilities, which are designed to cater for people needing medical care, has delivered considerable savings to the public health system.

The cost of someone staying in one of these hotel rooms is less than a third of the cost of someone staying in a hospital bed. This is a great example of how the private sector, working in conjunction with the state, can enhance efficiency and deliver better public health outcomes. Over the last couple of years I have had the privilege of working with chartered architect Jimmy Kim, who has identified various opportunities throughout England to use NHS-owned land or vacant buildings for this sort of development. These sites could be given to the private sector to develop into non-clinical units, with a guarantee of a utilisation contract from the Government. At present, NHS trusts are spending money putting up patients in hotels, with rooms costing as much as £275 per night. One hospital has spent over £1 million on hotel rooms in the last three years. From a cost perspective, it would be better for the NHS to provide this accommodation in symbiosis with the private sector, rather than paying hundreds of pounds a night for hotel rooms or having patients stay longer in hospital beds which are not designed for the context of health rehabilitation.

We need to bear in mind the widening context of what a patient is in today’s society, which is one with dementia, adult-disabled, mental health issues and, progressively, those for whom the social services have yet to find suitable accommodation.

The need to reform both health and care is long overdue. The pressure to invest more in social care has been building up over many years, and Governments have been slow to respond. But part of this must also be looking at prevention and helping people to remain independent, which we can do through supporting rehabilitating patients and helping people to remain independent. We also know that pressure on our hospital system means that many people wait far too long to get treatments, while others stay too long due to there not being suitable accommodation when they are discharged. In too many cases, people end up in hospital for too long or in the social care system where, instead, the step-down accommodation that I am proposing in my amendment would be the most suitable option.

I would love to discuss this further with the Government as I believe that the concept has real merit, as it would reduce NHS costs and improve patient outcomes. My amendment would help the NHS save money and result in better outcomes for patients. I know that one such experiment is being developed now in London; I am really delighted to know about that and I think many patients will be too.

[Baroness Watkins of Tavistock (CB)]

My Lords, delayed transfers in care is an ongoing challenge for health and social care services, made worse with the pandemic. We need to remember that hospitals are for assessment and treatment. As other noble Lords have already said, extensive stay in hospital is not good for your health.

In February 2020, there were over 155,000 delay days in hospital, costing a significant amount of money. A majority of the delays—21%—were caused by delays in packages of care in patients’ own homes, while 18% were due to delays in receiving further non-acute NHS care. With over half a million emergency admissions in the same month, intervention is urgently needed to reduce systematic pressures and maintain safe and timely discharge.

I therefore particularly support Amendment 289 to optimise existing space and develop new accommodation for hospital patients who no longer require acute treatment. There are a range of options, including community hospitals, NHS nursing homes, contracts with not-for-profit social enterprises and, as my noble friend Lady Greengross has said, independent sector companies.

However, these issues are not new. I have in my hands a paper by Sir Cyril Chantler for the King’s Fund, The Potential of Community Hospitals to Change the Delivery of Health Care. The salutary point about this excellent paper is that it was written in 2001.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly, since I attached my name to Amendment 289, in the name of the noble Baroness, Lady Greengross. She set out the reason for the need for this service, but I just want to say explicitly—particularly given the next group of amendments—that I do not believe that independent providers, for-profit providers at least, would be the way of doing this, given the many problems that we have seen in social care, which are highlighted in the next group.

We still have, in some places at least, community hospitals and facilities in communities. These are things that ideally would be developed by the community for the community, being run for public good not private profit.

[Baroness Grey-Thompson (CB)]

My Lords, I speak in support of Amendment 289 in the names of my noble friends Lady Greengross, Lady Watkins, Lady Finlay and the noble Baroness, Lady Bennett of Manor Castle.

Reading the words of the amendment reminded me of the speech that my noble friend Lady Campbell of Surbiton gave in your Lordships’ Chamber on 29 November 2012—col. 274 in Hansard. She talked movingly about a young man, a wheelchair user who had to remain in hospital four months longer than he should have because of a lack of accessible accommodation —a travesty. One can only imagine the impact on the mental health and well-being of someone in this situation. Sadly, many more now know what this feels like.

Although the situation we are in now is somewhat different, I hope that the Minister will be able to give due consideration to the needs of disabled people, in relation to accessibility—for example, regarding toilets, showers, and specialist equipment—but also to the support networks that disabled people may require, while ensuring that appropriate and knowledgeable people are able to support their rehab. This is vital so that many disabled people are not marooned.

While I have been in your Lordships’ Chamber tonight, I have been sent some data on the work carried out by Dr Elizabeth Williamson about the mortality rates of those on the learning disability register over the last 18 months; these rates are, quite frankly, shocking. I need some time to go through the data in detail and digest it. I will write to the Minister to explore this further but, at a quick glance, the data gives me cause for significant concern and means that careful implementation of the amendments in this group will be very important to protect and support disabled people.

Going back to the amendment, a disabled person’s ability to return home may or may not be more complicated than for a non-disabled person during this time but a longer stay than necessary could have a significant impact on someone’s mental health and well-being, especially if not properly supported, and could even hamper their long-term physical recovery, which, in turn, would put more pressure on the NHS.

[Lord Warner (CB)]

My Lords, I will speak briefly in support of Amendment 289. It is worth remembering that the NHS used to have convalescent beds—I went to one as a boy, recovering from peritonitis. These have disappeared over time. When in the 1980s and 1990s nursing homes were set up in increasing numbers across this country, we found that they ended up on the means-tested side of the boundary between health and adult social care. In a way, the NHS lost out because these resources were on another side of the boundary, which was defended with jesuitical force to make sure that people did not drift into the NHS who might get care that was not means tested but free. We have ended up shooting ourselves quite badly in the foot by allowing these services to drift out of the NHS and into the adult social care system.

Shortly after the 2010 election, I facilitated a proposal from a few large nursing home groups to take recovering patients from hospital to free up acute hospital beds. This was rejected by the Treasury which thought it would lead to large numbers of people who were being means-tested getting free NHS care. In fact, they were two separate groups and the NHS was punishing itself by keeping people in beds in the NHS at high cost. We know that about 25% of the people who are in acute hospital beds should not be there—they need not be there clinically—but they are holding on to those beds because there is nowhere else for them to go within the NHS system. We have ended up unnecessarily blocking beds and spending a lot more money because we cannot put in place a service that the NHS badly needs. I suggest to the Minister that we revisit this issue in the interests of the NHS and its patients.

[Baroness Merron (Lab)]

My Lords, I thank noble Lords for the debate this evening and for the amendments put forward, which have focused on what I would call a complete continuum of care and support where people need it most; my thanks also to the noble Baroness, Lady Finlay, for leading the debate. What we hear tonight is the need to drive up standards and availability in what can be accessed for reablement and rehabilitation.

As the noble Lord, Lord Warner, reminds me, I fear that, over time, we have perhaps lost a broader range of provision, and the word “convalescence” has somewhat left our vocabulary. The amendment tabled by the noble Baroness, Lady Greengross, to ensure that accommodation is available to people who are in rehabilitation—people who no longer need to be in a hospital ward but cannot return to their own home—is creative and practical. I hope that the Minister will look at exploring that idea.

On this group of amendments we are talking about supporting patients in leaving hospital and finally returning to the place where they should be—home—safely and in a timely manner, and about keeping hospital beds free for those who need them most. This should be done by providing the right kind of care when people actually need it. We all know that delayed discharges make things worse for people. There is functional decline, such as muscle deterioration, in those who are older or who have dementia. There is additional expense for the NHS as people occupy beds when they do not have a clinical need to do so. Also, people will need more complex, or higher levels of, care on discharge, due to the loss of function that I mentioned earlier.

Individuals recover best in an environment suited to them. That may be at home; it may be in specific accommodation; it may be in other circumstances. What is most important is that people are considered as individuals and assessed at the right time and provided for, so that they can go on to live healthier and more independent lives for longer.

The noble Baroness, Lady Watkins, said that most delays were due to a failure to arrange the right package of care. Indeed, that is so. The noble Baroness, Lady Grey-Thompson, emphasised the need to ensure that provision is tailored to the needs of the individual. This is particularly important as we move into the post-pandemic time and find that one in 10 Covid patients will live with long-term symptoms.

In conclusion, I support not just the spirit and ambition of this group of amendments, but the suggestions in them. I hope that the Minister will take them on board.

[Baroness Chisholm of Owlpen (Con)]

I thank noble Lords for explaining these amendments. On Amendments 236 and 306, it is right that social care services be appropriately and effectively regulated, and this includes rehabilitation and reablement. However, I do not believe these amendments are necessary to achieve that outcome.

The definition of “social care” in the existing Section 9 of the Health and Social Care Act 2008 is already sufficiently broad to cover reablement and rehabilitation services provided under Section 2 of the Care Act 2014. Most rehabilitation and reablement services are already within the scope of the CQC’s regulated activities, so most of those services are CQC registered.

It follows that these services are also in scope of the provision in Clause 85 that enables the Secretary of State to require information from CQC-registered providers of adult social care services. If there are concerns about the scope of CQC regulatory activities in relation to these particular services, I would encourage the noble Baroness to write to my noble friend the Minister, so that it can be ascertained whether changes to secondary legislation are needed.

On Amendment 241, the scope of Section 60 currently covers healthcare professionals across the UK, and social care workers in England only. Social care is a devolved matter and falls within the competence of the devolved legislatures for Scotland, Wales and Northern Ireland. Section 60 defines

“social care workers in England”

through a list of descriptions. Staff who work to provide reablement and rehabilitation services in the course of care work are covered by the existing descriptors and could therefore be brought into regulation through secondary legislation. In addition to those carrying out this role in the social care field, there are also a number of healthcare professionals who provide reablement and rehabilitation services, such as occupational therapists and physiotherapists, who also fall within the scope of section 60.

Finally, turning to Amendment 289, the Government recognise that rehabilitation is a critical element of the health and care system, supporting patients with a wide range of conditions. A number of initiatives are already under way to support future discharge routes in a way that is sustainable and cost-effective and that provides choice for patients to return to their community. These will be pursued locally by the NHS in ways that best fit their local clinical requirements.

I think it was the noble Baroness, Lady Finlay, who asked why NICE could not give guidance. NICE has already given guidance on rehabilitation after critical illness in adults. It was published in 2009 and reviewed in 2018.

NHS England and NHS Improvement lead a programme to identify optimum bed-to-home models of care for rehabilitation services, supporting discharge to assess policy implementation. The programme will estimate the right capacity for out-of-hospital rehabilitation care, supporting systems through a range of guidance, frameworks and tools. Furthermore, we have already asked NHS organisations to review their estate and identify opportunities to utilise or dispose of surplus assets to ensure that the estate remains efficient and cost-effective.

The NHS also, for transparency, publishes quarterly statistics on surplus land. Integrated care boards will be able to develop estate strategies which identify the efficient use of the estate. As part of that, these plans will be able to identify a number of NHS priorities that could be delivered through the use of surplus land. It should be for local organisations, not the Secretary of State, to decide how to utilise surplus land to meet the needs of their local populations, and therefore we do not think this amendment takes the correct approach in this regard.

I thank noble Lords for their contributions to this debate and hope that I have given them enough assurance at this late hour to allow them not to press their amendments.

[Baroness Finlay of Llandaff (CB)]

I am most grateful to the Minister for that response and I am particularly grateful to all those who contributed to this debate at this late hour. The noble Baroness, Lady Merron, had it completely right when she said that this was about a continuum of care. The problem is that, if people do not get timely care at the outset and on the way through their journey, things just accumulate.

I certainly will go back and look at the NICE guidance; I had understood that it did not go far enough or cover things effectively, but I am most grateful to the Minister for drawing my attention to that. Certainly we should be looking at how the regulation of those involved in rehabilitation in the community can be extended. Of course, the advantage of regulation is that you also have a lever for training and education, to address the very specific needs of different groups. My noble friend Lady Grey-Thompson spoke of the disabled group, which includes those with physical disabilities, learning difficulties and different areas of handicap. They need to be looked after by people who have been trained and who understand what their specific needs are. That cannot be just a generic service.

I am also glad to hear that there will be the ability to look at the beds and the estate overall and that people are beginning to think about that again. With all those assurances, I beg leave to withdraw the amendment.

Amendment 236 withdrawn.

Amendments 236A and 236B not moved.

House resumed.

House adjourned at 12.10 am.