Health and Care Bill

(Limited Text - Ministerial Extracts only)

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

Moved by

[Lord Kamall]

That this House do not insist on its Amendment 29B, to which the Commons have disagreed for their Reason 29C.

29C: Because there is already a clause in the Bill about reporting in relation to workforce and it is not necessary to impose further or different reporting duties on that topic.

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

My Lords, with the leave of the House, in moving Motion A, I will also speak to Motions B, C and D. The amendments being considered today relate to the NHS workforce, reconfigurations, modern slavery risks in NHS supply chains and the adult social care cap.

I turn first to Amendment 29D. The unamended Clause 35 places a duty on the Secretary of State to report on workforce systems. Our report will increase transparency and enhance accountability by describing the workforce planning and supply system for healthcare workers, including those working in the NHS and public health alongside regulated healthcare professions working in social care and public health in England. The existing clause therefore already delivers, by and large, what Amendment 29D seeks to do.

I can confirm that we will be asking Health Education England and NHS England to assist in the preparation of the report. In addition, while the report will be published at a minimum of every five years, it can be published more frequently than that, if required. I can also confirm that, in the preparation of the initial report, we will also seek the views of key stakeholders. The report is in addition to the rest of our expansive work to improve workforce supply and planning, including the Health Education England strategic framework, which will be published in the coming weeks, and the NHS England long-term workforce strategy.

Moving to reconfigurations, I am very grateful for the constructive debates on these issues across both Houses, and in this place particularly to the noble Lord, Lord Stevens, and my noble friend Lady Cumberlege for their insightful and wise feedback on this power. The first set of changes we have proposed would mean that the NHS had to notify the Secretary of State only about the reconfiguration proposals deemed notifiable, which we will define through regulations. But we intend to align that definition with the existing duty on NHS commissioners to consult local authorities in the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013. Similarly, our amendment removes the requirement for commissioners and providers to inform Ministers of

“circumstances that are likely to result in the need for the reconfiguration of NHS services”.—[Official Report, Commons, 25/4/22; col. 522.]

Throughout the Bill’s passage, we have been clear that our intention is to use these powers only in respect of substantial reconfigurations. The vast majority of reconfigurations will be managed without any ministerial intervention. These amendments and our planned regulations reinforce that principle.

Under the Town and Country Planning Act 1990, the Secretary of State for Levelling Up, Housing and Communities has powers to call in any planning application. However, the stated policy for many years has been to be very selective about doing so, and Ministers will, in general, consider the use of call-in powers only if planning issues of more than local importance are involved. I should like to put formally on the record that our intention is that the same principle applies here.

On the Secretary of State’s call-in power, concerns have been raised about patient safety. I want to be clear that these powers should never, and will never, prevent providers making urgent temporary changes where there is a clear and acute risk to the safety of patients or staff.

Secondly, our amendments give local authorities, NHS commissioners and anyone else the Secretary of State considers appropriate, a right to make representations to the Secretary of State where he or she has called for a proposal for consideration. We expect this to include any relevant provider. The Secretary of State will be required to publish a summary of representations he or she receives, and we will set out in statutory guidance further detail on how local bodies, including providers, will be engaged. In addition, we also want the CQC’s expertise to be taken into account where it is appropriate for relevant reconfigurations. We will therefore look to make clear, in guidance, where information provided by the CQC should be taken into account.

Thirdly, transparency is vital to ensure that these powers are always used by Ministers in the public interest. We are therefore requiring the Secretary of State to provide the reasons for his or her decisions and directions when he or she makes them.

Finally, we have heard throughout these debates that reconfiguration decisions must be made quickly to improve the quality of services received by patients. Our amendment requires that, once he or she has called in a reconfiguration proposal, the Secretary of State must make any decisions within six months. We believe that this set of changes answers many of the key concerns raised in Parliament and I therefore urge noble Lords to consider supporting these amendments.

I now turn to Amendment 48C, particularly on the issue of modern slavery. We clearly share the strength of feeling expressed in both Houses on ensuring that the NHS is in no way inadvertently linked to slavery and human trafficking through its supply chain. That is why the Government brought forward an amendment in the first round of ping-pong that creates a duty on the Secretary of State to undertake a thorough review of NHS supply chains. Today, I can announce that we will go further than this. The Government’s further amendment in lieu will require the Secretary of State to make regulations with a view to eradicating the use in the NHS in England of goods or services that are tainted by slavery or human trafficking. The regulations can set out steps that the NHS should be taking to assess the level of risk associated with individual suppliers; the basis on which the NHS should exclude them from a tendering process; and what measures should be included in contracts. I am particularly grateful to my noble friend Lord Blencathra and also the noble Lord, Lord Alton of Liverpool, for their campaigning—in fact, their persistence—on this issue, and I welcome their support for the amendment. I will also continue, with other Ministers, to work closely with others across government to ensure that our measures to eradicate modern slavery in NHS supply chains are effective and targeted, and reflect best practice.

We must now turn to the issue of the adult social care cap. The Government have announced their plan for a sustainable social care system. It is fair and affordable, and designed to end the pain of unpredictable care costs by capping the amount anyone would need to pay at £86,000. The elected House has once again voted overwhelmingly in favour of our proposals, which are financially privileged—and I would remind the House of its proper role in considering matters that are financially privileged. On the issue of substance, this House will be aware that Governments of all parties, for many years, have considered social care but not implemented reforms due to concerns about the affordability of introducing a cap. I have said previously that reports have gathered dust on shelves but never actually been implemented. Now we have a real opportunity to grasp the nettle. If there are issues or unintended consequences, these will likely be found by the trailblazers, and we can then tweak the system to address any shortcomings. I ask noble Lords to not allow this opportunity once again to slip away.

The existing system is simply not good enough, and our reforms are a vast improvement. Our reforms ensure that more people are eligible for support with the costs of their care; that the amount they spend each week is reduced; and that they can retain more of their savings. At the moment, people get support with the costs of their care only once they have depleted their assets to under £23,250. We are increasing this fourfold, so that people with up to £100,000 in savings, who are currently paying all the costs of their care, will now be eligible for funding support from the state. Under the current system, only once you have depleted your assets to £14,250 do you no longer need to contribute from your assets. We are increasing this to £20,000. Most crucially, at the moment there is no cap. Our reforms mean that people will have more certainty and more peace of mind, and will be able to plan ahead, whatever part of the country they are in.

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[Baroness Wheeler (Lab)]

My Lords, in closing the debate before we hear from the Minister, I make no apology for concentrating on social care, on how the care cap is to be implemented, and on my Motion D1, which implores the Commons to think again on this vital issue. I thank noble Lords who have given their strong support to Motions A1 and D1.

I wish to reinforce the key point that, from the outset, social care and Parliament have been treated pretty shabbily as part of this Bill. It is essentially an NHS Bill. As we know, the social care cap and charging arrangements were added to the Bill in the Commons, with no notice and after the Bill had finalised its Committee stages, and were then pushed through, without any opportunity for full explanation, scrutiny or time to consider the impact on the hundreds of thousands of people who are desperately in need of social care and support and will not receive it under these proposals. We later also had the money-saving bombshell announcement of local authority contributions not being allowed to accrue against the care cap, which was designed to achieve savings on the Government’s original package—even before any form of scrutiny of the Bill had commenced—that will be at the expense of some of the country’s poorest and most vulnerable people.

As noble Lords have pointed out, in reality, we in the Lords Chamber have had little actual time to consider and debate these vital social care provisions, despite many hours and days being spent overall on a long and complex Bill. Worst of all, we had the blank refusal by the Government to discuss or address any of the concerns and issues expressed or put forward by noble Lords from all sides of the House, with their deep expertise and knowledge across social care, or the detailed and painstaking evidence and modelling work undertaken by key stakeholders, such as Age UK, Mencap, the Alzheimer’s Society, and the King’s Fund, Nuffield Trust and Health Foundation expert think tanks. We have instead been told that Ministers have done their best to explain their proposals, but they have absolute red lines against making any changes whatever. Is this what must now pass for parliamentary dialogue, scrutiny and debate?

For the record, I will underline some of the key reasons why opposition to the Government’s proposal for the cap implementation is so clear and strong. The cap level and implementation strongly favour the better off and would bring almost nothing to the worst off. This is unfair and the opposite of levelling up. Older people and those with modest means all fare badly under the Government’s charging proposals.

Even the Government’s own impact assessment admits that only 10% of working-age disabled adult care users will benefit, that one in five older people will not see the benefits of the cap and that poorer care users are much more likely to die before they reach the cap than others with the same care needs. Among older people, those in the north-east, Yorkshire, Humber and the Midlands will be worse off. For dementia sufferers regionally, just 16% of people in the north-east and 19% in the east Midlands would hit the cap, compared with 29% in the south-east. The overall figure, as a result of disallowing local authority contributions towards the cap, is that only 21% of people living with dementia would reach it.

The mountain of evidence produced by stakeholders and think tanks shows that social care is not being fixed, as the Government continue to try to have us believe. The “nobody will have to sell their home” promise is firmly debunked, too, despite the Government desperately clinging on to it; it is a hollow and false claim. Somebody with assets of £100,000 will lose almost everything, while someone with assets of over £1 million will keep almost everything. How can this be the fair plan that the Minister insists it is?

The reality is that, as the Government holds to their solid red line, their arguments just do not stand up but get weaker by the minute. The Minister argues that his is the only affordable plan, but, if that is the case, why do the £90 million of savings have to be paid for by those who can least afford it, and why are there not better plans to protect those with fewest assets?

Local authority care contributions counting towards the cost are presented by the Government as unfair. Instead, they insist that setting the cap at the same level for everybody,

“no matter their age, where they live in the country or the nature of the care and support they need to draw on”,—[Official Report, 5/4/22; col. 1986.]

is the fairest system. Is that not also the opposite of how levelling up should work?

The argument that no one will be worse off than under the current system is just not borne out by the overwhelming evidence from the stakeholders and think tanks. The contention that the Government are reforming and changing the system where previous attempts have failed just is not true. There was cross-party agreement on the implementation of the Care Act after detailed scrutiny of the Dilnot proposals, and it was this Government who failed to implement it. I remind the House, as someone who was heavily involved in the scrutiny of that Bill, that there was no mention of the Care Act provisions being unaffordable when the Act and its implementation proposals were agreed in 2014.

On working-age adults, as the noble Baroness, Lady Campbell, has again forcefully underlined, the Government’s proposals will mean that they remain trapped in poverty. The Minister’s previous reference to the uprated social security benefits that they will receive instead under the minimum income guarantee completely missed the point of how social care needs have to be supported.

Ministers have doggedly stuck to their responses, without either acknowledging or addressing these clear counterarguments and evidence. My Motion again reinforces the key issues that we have tried all along to get the Government to respond to: the importance of implementing the care cap under the consensus provisions of the Care Act, and ensuring that local authority care costs are allowed to accrue towards the cap to avoid the huge unfairness that not doing so will cause to key groups in need of social care.

Finally, we want to make sure that the Government’s much-vaunted but little-explained trailblazer pilots are completed before regulations on the cap are agreed, as well as including the analysis of the impact on regional eligibility and the effect of the cap on working-age disabled adults under 40 with eligible care needs. Is this not both sensible and fairer to the key groups who stand to lose so much under the Government’s proposals? Why is this so difficult for the Government to agree to? I referred to “little-explained pilots”, but I did receive a letter three hours ago from the Minister, for which I thank him, setting out information about the pilots that in fact adds very little more than the DHSC press release in March and also shows that they will not be evaluating the key areas of impact that my Motion calls for.

I will also add that I have seen recent government claims in the media that deleting the social care cap arrangements in the Bill would jeopardise the whole Bill. I emphasise that that is not so. In their place we would instead have the rest of the Bill and the Care Act 2014 provisions, which would form the basis for moving forward quickly and implementing the cap in a much fairer and more inclusive way that would benefit many more people in desperate need of social care support.

I hope that even at this late stage the Government will listen, address the overwhelming concerns and evidence from all the stakeholders and experts on social care services and delivery and accept my Motion as the best way forward.

[Lord Kamall (Con)]

I thank all noble Lords who have spoken in this debate. I will turn to the issues as briefly and succinctly as I can.

On workforce planning, I hope I can assure noble Lords that we will engage with stakeholders on the preparation of the report, which will include the regulated workforce in health, social care and public health. I hope your Lordships also understand the work being undertaken by the Government, NHS England and Health Education England to improve workforce planning and to lead the improvements we all seek. This is why we think the amendment is unnecessary. I also remind noble Lords that at local level there is an incredible amount of local planning going on much closer to the ground.

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21:49

Division 9

Ayes: 169

Noes: 204

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Moved by

[Lord Kamall]

That this House do not insist on its Amendments 30B and 108B, to which the Commons have disagreed; and do agree with the Commons in their Amendments 30C to 30K in lieu.

30C: Page 197, line 27, after “a” insert “notifiable”

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Moved by

[Lord Kamall]

That this House do not insist on its Amendment 48B, to which the Commons have disagreed; and do agree with the Commons in their Amendment 48C in lieu.

48C: Page 64, line 38, at end insert the following new Clause—
“Eradicating slavery and human trafficking in supply chains
(1) The National Health Service Act 2006 is amended as follows.
(2) After section 12ZB insert—
“12ZC Eradicating slavery and human trafficking in supply chains
(1) The Secretary of State must by regulations make such provision as the Secretary of State thinks appropriate with a view to eradicating the use in the health service in England of goods or services that are tainted by slavery and human trafficking.
(2) The regulations may, in particular, include—
(a) provision in connection with the processes to be followed by public bodies in the procurement of goods or services for the purposes of the health service in England (including provision as to circumstances in which a supplier is excluded from consideration for the award of a contract);
(b) provision as to steps that must be taken by public bodies for assessing and addressing the risk of slavery and human trafficking taking place in relation to people involved in health service supply chains;
(c) provision as to matters for which provision must be made in contracts for goods or services entered into by public bodies for the purposes of the health service in England.
(3) In this section—
“health service supply chains” means supply chains for providing goods or services for the purposes of the health service in England;
“public body” means a body exercising functions of a public nature;
“slavery and human trafficking” has the meaning given by section 54(12) of the Modern Slavery Act 2015;
“tainted”: goods or services are “tainted” by slavery and human trafficking if slavery and human trafficking takes place in relation to anyone involved in the supply chain for providing those goods or services.”
(3) In section 272 (orders, regulations, rules and directions), in subsection (6), after paragraph (zze), insert—
“(zzf) regulations under section 12ZC,”.”

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Moved by

[Lord Kamall]

That this House do not insist on Lords Amendment 80 in respect of which the Commons have insisted on their disagreement; do not insist on its disagreement with the Commons in their Amendments 80A to 80N in lieu; and do not insist on its Amendments 80P and 80Q instead of the words so left out of the Bill to which the Commons have disagreed for their Reason 80R.

80R: Because the Lords amendments and the disagreements by the Lords to Commons amendments could affect financial arrangements to be made by the Commons, and the Commons do not offer any further reason, trusting that this Reason may be deemed sufficient.

[Lord Kamall (Con)]

I have already spoken to Motion D. I beg to move.

Motion D1 (as an amendment to Motion D)

Moved by

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22:04

Division 10

Ayes: 160

Noes: 196

Motion D agreed.