Health and Care Bill

(Limited Text - Ministerial Extracts only)

Lords Hansard - Part 2 & Report stage
Monday 7th March 2022 Lords Chamber

[Baroness Thornton (Lab)]

My Lords, I am grateful to the noble Baroness, Lady Bennett, for returning us to this issue because I have reflected on the noble Earl’s remarks when we discussed this in Committee. He made an impressive contribution in that it listed many of the safeguards that the Government say are in place to deal with what are clearly very unsatisfactory situations in the care sector, which affect the most vulnerable in our communities.

My question to the noble Earl is: does he really believe that the Government are dealing effectively with the problems that face this sector, which is dysfunctional—I thank the noble Baroness for reminding me that I said that—and places insecurity in the hearts of some of the most vulnerable and eldest members of our communities? If all the things that he listed the previous time we discussed this were working, why would we return to this and say that those safeguards are clearly not working? Asset stripping is clearly still taking place. There are huge dangers to this sector and the noble Baroness has brought this back to the House because of them.

[Earl Howe (Con)]

My Lords, the noble Baroness, Lady Bennett, has brought us back to issues that we debated in Committee and I understand her concern about propriety in the deployment of public funds. I have no problem with the idea that Ministers and public servants should do all they can to ensure that public money is used effectively for the greater good. That is what they are obliged to do anyway. However, I do not feel that this duty is best served by accepting the amendment, even though it has been newly worded.

In my answer in Committee, I described how during the pandemic we learned about the importance of speed and flexibility in the way that we respond to a crisis. I suggest that this amendment would impede the Government’s ability to provide emergency support to critical providers. That does not mean handing out money willy-nilly. Any use of the power will be subject to the usual scrutiny and safeguards around the use of public funds, as set out in Treasury guidance on Managing Public Money and Accounting Officer Assessments.

There is a fundamental problem with the proposition that the noble Baroness has advanced. The amendment refers to “day-to-day operations” but there is no single accepted definition of that term. Any company could find itself excluded from receiving critical funding depending on how its accounts and finances are structured. For example, there are potential scenarios where the Government could ask providers to carry out activities at pace which may involve them in creating unavoidable debts, for which they would need reimbursement. In that situation there would be nothing improper in any government funding being used to repay that debt, but even if there were no such debts involved, the problem remains that any private company would be prevented paying dividends, as it would be logically impossible to disassociate the long-term effects of the assistance from the ability of the company to pay such dividends. I understand the concerns of the noble Baroness about unscrupulous people and fraud, but the amendment as worded is not well conceived.

Turning to Amendments 146 and 147, again, nobody can be comfortable with the idea of rogue investors or unscrupulous care providers. However, I made clear in Committee that the Government are committed to ensuring that we have a sustainable care market. We have already set out a number of planned actions, most notably in the People at the Heart of Care: Adult Social Care Reform White Paper, to achieve this objective. Noble Lords are aware that the adult social care sector is complex, as it contains both the public and the private sector. One thing that the two sectors have in common is the need to maintain not only quality of care but financial stability. To ensure that these businesses provide the care that they are required to, local government and regulators, such as the Care Quality Commission, monitor, regulate and support the sector.

As I mentioned in Committee, the CQC has market oversight responsibility, and in discharging those responsibilities, it performs comprehensive financial sustainability analysis for each provider in the scheme, including some private equity ownership structures. Debt leverage and capital structure are important components of this work, but consideration is also given to current and future trading trajectories, cash headroom and market positioning.

We also have in place the CQC-operated market oversight scheme, which monitors the financial health of the largest and most difficult-to-replace providers in the adult social care sector, ensuring that people’s care is not interrupted due to provider failure, which must be a proper concern. Since its establishment in 2015, there have been no major business failures of care providers that have resulted in the cessation of care.

We have always been clear that fraud is unacceptable. We are acting against those abusing the system; 150,000 ineligible claims have been blocked on the Covid-19 schemes, and £500 million was recovered last year. The HMRC tax protection task force is expected to recover an additional £1 billion of taxpayers’ money. Therefore, even if cash is diverted fraudulently, there is still the ability of the authorities to recover such cash.

I assure the noble Baroness that the Government will continue to keep the measures which I have outlined under review but, at present, we do not believe that the proposed and very prescriptive amendments are either proportionate or necessary. I hope she feels that she can come back to this matter at a future date. With that, I am clear that these amendments should not be accepted.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I thank all noble Lords who have taken part in this debate, and the Minister for his typically comprehensive response. It is interesting that the Minister very much focused on the issue of fraud and fraudulent transactions. I go back to the words of the noble Lord, Lord Howarth of Newport, who referred to what is happening as “legalised theft”. None of these amendments seeks to deal with things that are illegal; they seek to deal with things that are now an established part of our financialised, privatised system, which has all this simply built in.

I thank the noble Baroness, Lady Brinton, particularly, who provided a pre-answer in advance of the Minister’s response to Amendment 145, by saying that it was very difficult to separate out day-to-day operations and debts versus financialised debts. In demonstrating what the Charity Commission has done, the noble Baroness showed an effective example of how that can be done and different kinds of debt can be identified. The Minister said that you might need to create some special new financial structure to deal with an emergency situation. I think we know the practical reality of the financial-type structures that we are talking about, and that they are not created under those sorts of situations; they are created in a way to hide where the money is going—to ship the money offshore. That is not something that you would do in a situation where you are simply trying to rescue something.

The point made by the noble Baroness, Lady Tyler, about the inherent instability really brings home the point that what we are talking here, with regard to care homes, is people’s homes. I am glad to see that the noble Lord, Lord Kamall, is in his place, because in another discussion I raised with him the fact that people who are forcibly moved when homes are closed can actually die as a result of it happening. I hope he has made himself more aware of that situation and the risk it presents to people’s lives.

The noble Baroness, Lady Tyler, focused on some of the difficulties that the National Audit Office has had in scrutinising this whole situation. She highlighted the facts that I was talking about—how, when the National Audit Office is able to scrutinise situations, all we get is complaint. The noble Baroness highlighted how it is not even able to conduct scrutiny in this sector because of the kind of financialised structures that we have.

I am pleased that the Minister finished by noting that I am likely to come back—he perhaps even invited me to come back on these issues. It is something that I certainly intend to do. These are very complex areas, as I acknowledge, and this is an attempt to take on some extremely well-funded organisations and professional groups. Just to conclude, it is interesting that the noble Lord, Lord Howarth of Newport, as I did, contrasted the Russian kleptocrats we will talk about on Wednesday versus what we are talking about here. Of course, it is possible that they are not two groups and there might be some overlap. I invite any investigative journalists listening to have a look at whether we might be able to see an overlap there.

At the moment, it is my intention to withdraw the amendment, but I do not regard this issue as in any way dealt with or finalised. I beg leave to withdraw the amendment.

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22:39

Division 6

Ayes: 59

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Labour: 27
Liberal Democrat: 18
Crossbench: 8
Conservative: 4
Green Party: 1
Bishops: 1

Noes: 99

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Conservative: 97
Independent: 2

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Moved by

[Lord Kamall]

153A: After Schedule 18, insert the following new Schedule—
“LICENSING OF COSMETIC PROCEDURESIntroduction
1_ This Schedule is about the provision that may be made by regulations under section (Licensing of cosmetic procedures).Grant of licence
2_ The regulations may—(a) require a local authority not to grant a licence unless satisfied as to a matter specified in the regulations;(b) require a local authority to have regard, in deciding whether to grant a licence, to a matter specified in the regulations.3_ The regulations may make provision requiring a local authority not to grant a premises licence unless the premises have been inspected in accordance with the regulations.Licence conditions
4_(1) The regulations may make provision for the grant of a licence subject to conditions.(2) Provision of the kind mentioned in sub-paragraph (1) may—(a) enable a local authority to attach conditions to a licence;(b) require a local authority to attach to a licence a condition specified in the regulations.Duration of licence etc
5_(1) The regulations may make provision about the duration, renewal, variation, suspension or revocation of licences.(2) The provision that may be made under sub-paragraph (1) includes provision conferring power on a court by which a person is convicted of an offence under the regulations to vary, suspend or revoke a licence.Reviews and appeals
6_ The regulations may make provision for—(a) the review of decisions under the regulations;(b) appeals against decisions under the regulations.Offences
7_(1) The regulations may create offences in relation to—(a) the breach of a prohibition imposed by virtue of section (Licensing of cosmetic procedures)(1);(b) the breach of a condition attached to a licence;(c) the provision of false or misleading information to a local authority in connection with anything done under the regulations.(2) The regulations must provide for any such offence to be punishable on summary conviction with a fine or a fine not exceeding an amount specified, or determined in accordance with, the regulations.Financial penalties
8_(1) The regulations may confer power on a local authority to impose a financial penalty in relation to—(a) the breach of a prohibition imposed by virtue of section (Licensing of cosmetic procedures)(1);(b) the breach of a condition attached to a licence.(2) The amount of the financial penalty is to be specified in, or determined in accordance with, the regulations.(3) If the regulations confer power to impose a financial penalty in respect of conduct for which a criminal offence is created under the regulations, they must provide that a person is not liable to such a penalty in respect of conduct for which the person has been convicted of the offence.(4) If the regulations confer power to impose a financial penalty they must include provision—(a) requiring the local authority, before imposing a financial penalty on a person, to give the person written notice (a “notice of intent”) of the proposed financial penalty;(b) ensuring that the person is given an opportunity to make representations about the proposed financial penalty;(c) requiring the local authority, after the period for making representations, to decide whether to impose the financial penalty;(d) requiring the local authority, if it decides to impose the financial penalty, to give the person notice in writing (a “final notice”) imposing the penalty;(e) enabling a person on whom a financial penalty is imposed to appeal to a court or tribunal in accordance with the regulations;(f) as to the powers of the court or tribunal on such an appeal.(5) The provision that may be made by the regulations by virtue of sub-paragraph (1) includes provision—(a) enabling a notice of intent or final notice to be withdrawn or amended;(b) requiring the local authority to withdraw a final notice in circumstances specified in the regulations;(c) for a financial penalty to be increased by an amount specified in or determined in accordance with the regulations in the event of late payment;(d) as to how financial penalties are recoverable.Enforcement
9_ The regulations may confer on a local authority the function of enforcing the regulations in its area.Fees
10_ The regulations may include provision for fees in relation to the carrying out of functions of a local authority under or in connection with the regulations (including the cost of its enforcement functions under the regulations).Guidance
11_ The regulations may require a local authority, in carrying out functions under the regulations, to have regard to guidance published by the Secretary of State. Interpretation
12_(1) In this Schedule—“grant”, in relation to a licence, includes vary or renew;“licence” means a personal licence or premises licence;“personal licence” has the meaning given by section (Licensing of cosmetic procedures)(2);“premises licence” has the meaning given by section (Licensing of cosmetic procedures)(2).(2) Nothing in this Schedule is to be read as limiting the scope of the power to make regulations under section (Licensing of cosmetic procedures).”Member’s explanatory statement
This new Schedule sets out some of the things that may be included in regulations establishing a licensing regime relating to non-surgical cosmetic procedures (including provision for the imposition of fees, the creation of offences and financial penalties).

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[Baroness Merron (Lab)]

I thank the noble Baroness, Lady McIntosh, for moving this amendment. I feel that we have discussed these issues at considerable length at previous stages of the Bill, so I do not wish to go over old ground, other than to say that the Royal Society for Public Health, the British Dental Association, the Chief Medical Officer and many others are very much in favour of greater fluoridisation because, on balance, there is strong scientific evidence that it is an effective public health intervention. In other words, it is the single most effective way to reduce oral health inequalities and tooth decay rates, especially among children, and it is, as your Lordships’ House knows, recommended by the World Health Organization. On all these positive points, I am very much inclined to agree, and do not feel that the amendment before your Lordships’ House would be helpful to support that intervention.

[Earl Howe (Con)]

My Lords, I thank my noble friend Lady McIntosh for her clear introduction to Amendment 156. The first thing for me to underline is the point she made: the water fluoridation provisions in the Bill will simply transfer the power to initiate fluoridation schemes from local authorities to the Secretary of State. The Bill does not compel the expansion of fluoridation. Any future proposals to establish new schemes would be subject to funding being secured and public consultation, and I will come on to both those things in a second.

The noble Baronesses, Lady Finlay and Lady Merron, are quite right that the evidence is strong that water fluoridation reduces the incidence of tooth decay for both adults and children, but nobody is complacent about public health. We will continue to be under a legal duty to monitor the health effects of water fluoridation on populations with schemes and to report no less than every four years. Monitoring the evidence is a continuous process and involves colleagues from multiple disciplines, including toxicology.

The law here is explicit. Water companies are required to comply with legislation to protect employees, consumers and the environment from harms. 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 in relation to developments. The installation of water fluoridation plants in some areas may fall within scope. Furthermore, the Environment Act 2021 will, when brought into force, place a duty on Ministers of the Crown to have due regard to the policy statement on environmental principles in our policy-making; hence new and revised policies will need to take into account their impact on the environment. I would like again to reassure your Lordships that the evidence is kept under review.

My noble friend referred to the case of McColl v Strathclyde, in which I think she said she was involved. Perhaps I could just state for the record that the plaintiff’s arguments in that case about the safety and effectiveness of fluoridation were all explicitly rejected by Lord Jauncey, who found that there was no convincing scientific evidence supporting that position. Since that ruling by Lord Jauncey, 38 years ago, it remains the case that there is no convincing scientific evidence of water fluoridation being harmful to health. Indeed, were we not to have any fluoridation, there would still be areas of the country where fluoride is naturally present in drinking water at a similar level to that achieved by a fluoridation scheme.

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Moved by

[Lord Kamall]

157: After Clause 164, insert the following new Clause—
“Child safeguarding etc in health and care: policy about information sharing
(1) The Secretary of State must publish and lay before Parliament a report describing the government’s policy in relation to the sharing of information by or with public authorities in the exercise of relevant functions of those authorities, for purposes relating to—(a) children’s health or social care, or(b) the safeguarding or promotion of the welfare of children.(2) In this section, “relevant functions” means functions relating to children’s health or social care, so far as exercisable in relation to England.(3) The report must include an explanation of whether or to what extent it is the government’s policy that a consistent identifier should be used for each child, to facilitate the sharing of information.(4) The report must include a summary of the Secretary of State’s views about implementation of the policy referred to in subsection (1), including any views about steps that should be taken to overcome barriers to implementation.(5) The report must be published and laid before Parliament within one year beginning with the date on which this section comes into force.(6) In this section “child” means a person aged under 18.”Member’s explanatory statement
This amendment inserts a new clause requiring the Secretary of State to publish and lay before Parliament a report describing the government’s policy in relation to information-sharing by or with authorities with health and social care functions, for purposes relating to children’s health or social care or the safeguarding or promotion of the welfare of children.