Care Bill [HL]

Baroness Barker Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness Emerton (CB)]

My Lords, I support the amendment in the name of the noble Lord, Lord Hamilton, and agree with the views just expressed by the noble Baroness about spirituality. I ask for the forgiveness of your Lordships’ House for this late intervention on the subject. I speak as a retired nurse, but I am nevertheless aware of the situations that nurses are placed in concerning this issue.

Let me start at the beginning. The Nursing and Midwifery Council, places a requirement on every new graduate that each nurse, in partnership with the person, their carers and their families,

“makes a holistic, person centred and systematic assessment of physical, emotional, psychological, social, cultural and spiritual needs, including risk, and together, develops a comprehensive personalised plan of nursing care”.

When I was taught in the preliminary training school, holistic care was described as the physical, mental and spiritual well-being of the patient, as in the 1950s, language was not so sophisticated to call it holistic care with all the ingredients that the NMC spells out. Nevertheless, the principles were well rooted. As a student, I clearly remember the description of today’s holistic care likened to a three-legged milking stool: when one leg breaks, it affects the whole stool. Likewise, if there is a physical condition, the whole person requires attention, be that psychological or spiritual.

It became necessary in 2010 for the Royal College of Nursing to commission a survey on spirituality. It revealed that members wanted more education and guidance about spiritual care, clarification about personal and professional boundaries, and support in dealing with spiritual issues. Within the survey it emerged that there was agreement that spiritual care is a fundamental part of nursing currently much neglected through ignorance and misunderstanding. A pocket book was prepared for the use of nurses, which states:

“The practice of spiritual care is about meeting people at the point of deepest need. It is about not just ‘doing to’ but ‘being with’ them. It is about our attitudes, behaviours and our personal qualities … It is about treating spiritual needs with the same level of attention as physical needs”.

In 1988, as Hitchens quoted:

“Often it is not until a crisis, illness … or suffering occurs that the illusion of security is shattered. Illness, suffering … and ultimately death … become spiritual encounters as well as physical and emotional experiences”.

Spiritual care is not just about religious belief and practice or about imposing belief and values on another using a position to convert. It is not a specialist activity or the sole responsibility of a chaplain. It is about hope and strength, trust, meaning and purpose, belief and faith in self and others. For some, this includes a belief in a deity and a higher power, people’s values, love and relationships, morality, creativity and self- expression.

Eighty per cent of care is delivered by nurses in hospitals and hospices. Nursing homes and care homes are less well supported by registered nurses but again support workers need to understand the relationship between physical, mental and spiritual needs in order to gain the right support for the person being cared for. However, this can be achieved only if nurses have enough time to be with the patient to establish a relationship and to pick up where there is a need. It cannot be done in 15 minutes, but in 15 minutes a registered nurse may pick up the need and be able to pass it on to someone who can give the help that is needed.

I hope the Minister will feel able to support the amendment before us as the words “spiritual well-being” are more explicit about what is required than the word “beliefs”. I hope this short explanation of the depth and breadth in which the nursing profession has explored this subject reflects the enormous amount of work that is required by all caring staff in whatever capacity to understand that the need for holistic care to meet the needs of those being cared for and their families is not restricted to physical or psychiatric treatment but includes spiritual well-being covering many innermost personal needs at often the most vulnerable time in their lives.

[Baroness Barker (LD)]

My Lords, I thank the noble Lord, Lord Hamilton, for his kind words about the work I did on this issue. On Report, I tabled the amendment which stands in his name today because at that point the Government were working to a definition of well-being which was about emotional well-being, and it was my view that it did not sufficiently encapsulate the matters we would define as spiritual. My name is not on the amendment today because over the past few weeks I have discussed this at some considerable length with a number of people, not least with the Minister and the noble Lord, Lord Warner, on BBC Radio 4 at some unearthly hour a couple of Sundays ago.

I think the Minister has met us where we need to be because his amendment refers to “feelings and beliefs”, which is a fairly wide and inclusive term. It is important that we take his words, not the wording proposed by the noble Lord, Lord Hamilton, because most of the discussion this afternoon has been about health and healthcare in healthcare settings, such as end-of-life settings, but this Bill is about social care at its widest in the community. Therefore we are perhaps not talking about the well-being of people at the end stage of their life, and it is important that we stick to a wider definition of a person’s beliefs because we are not talking just about medical matters.

The way the Government have framed the argument is sufficiently wide to include spiritual beliefs. I think in the normal course of conversation, when we talk about beliefs, we have almost a hierarchy of them. Religious beliefs perhaps come fairly high at the top; then people would secondarily think about spiritual beliefs. They might go on to talk about political beliefs being important to a person’s well-being. That is why I think that this time the Government have got this right. It is sufficiently clear and sufficiently inclusive to reflect all the concerns that remain legitimate on behalf of people backing my noble friend Lord Cormack’s amendment.

On this occasion the belt and braces are unnecessary and the noble Earl, Lord Howe, has got the House to the point where it wants to be. I will be quite happy to support that, not least because I think if we reform it we go with that formulation of words. Then we will be able to do the one thing which I think the law has to do, which is to be there as a backstop for those people who believe that their feelings and wishes are not being acknowledged and are being abused. That is the primary purpose of this legislation. Therefore, it should be as wide as possible.

[Lord Elton (Con)]

What the noble Baroness has just said prompts me to point out a difficulty. We are in an age when there is controversy about spirituality, when people can actually lose their jobs over issues of spirituality. If there were to be a case arising under this legislation in which such a matter arose and spirituality was not mentioned in the Bill, the position of those people would be a great deal weaker than if the Bill was amended as my noble friend suggests. Like the Chief Whip, I know that it is contrary to our normal custom to divide at this stage, but it seems that this is an issue of sufficient importance on the one hand and of narrowness of scope on the other to make it both necessary and painless.

Care Bill [HL]

Baroness Barker Excerpts

Monday 21st October 2013 Lords Chamber

[Baroness Barker (LD)]

My Lords, during the deliberations on the Health and Social Care Bill, we spent a considerable amount of time discussing the details of the trust special administration arrangements, not least because it was the first occasion on which a legal process of that kind had been in legislation. We were aware then, and perhaps even more so now, that there has to be some power to bring these decisions to a conclusion. I find it remarkable that people have demonstrated in favour of keeping open Mid Staffordshire hospital, but they have. That is the power of emotion in respect of hospital care in particular.

However, I agree with the noble Lord, Lord Warner, that this amendment is not quite what is needed, although there are some things in it which are to be welcomed. The process that needs to be gone through whenever a hospital is to be closed is to reassure the public that there will be access to alternative services. That is the absolutely critical point and it was with that in mind that I was somewhat taken aback to hear the Minister say that this procedure—and I bear in mind that, as he said, this is the last procedure in a very long process—takes away from the trust special administrator the requirement to involve the public and the patients. It seems to me that that is the very last thing that you would want to do if you were trying to have a process involving political engagement. I therefore ask him how the department came to that decision.

[Earl Howe]

My Lords, the matters we have debated today are of great significance. Of course—and I need to make this clear—we do not want to see any NHS trust or foundation trust fail, but equally we cannot shirk the responsibility to take action if and when that happens. In our taxpayer-funded health system, every pound counts and every pound should be put to best use, providing high-quality, effective care. Failed organisations squander resources. I do not want to be derogatory about them in other ways, but they usually take for themselves an unfair proportion of resources in relation to the local health economy more widely. Failed organisations, if nothing is done, have to be propped up by government bail-outs. That cannot be right, particularly at a time when resources are as constrained as they are now. We need an effective regime for tackling these issues.

The House has agreed with this on two previous occasions, passing legislation in 2009, during the time of the previous Government, and again in 2012 to provide failure regimes for trusts and foundation trusts respectively. We thought that those regimes would be effective, but experience now shows that they need clarification. The noble Lord, Lord Hunt, suggested that this amendment represented a major change of policy and the noble Baroness, Lady Warnock, characterised it as an arbitrary overturning of the decision of the court in the south London case. The Government’s policy has been consistent. It is entirely unchanged. It is self-evidently not a change of policy. Had it been so, the recommendations made by the trust special administrator in south London would have been ones that we would have questioned as legally dubious in the department. On the contrary, we believe that the administrator’s recommendations fell squarely within the wording of the 2009 Act, which, as I mentioned earlier, used the phrase, “in relation to”. That was the phrase around which the judge’s ruling revolved, and it was a different interpretation of that phrase that the judge took.

The noble Lord, Lord Hunt, is very knowledgeable about the heath service, but I am afraid that on this matter he is wrong. His amendment would render the failure regime quite useless. Five years is too long for a failed hospital and the patients it serves to wait for an effective remedy, to say nothing of the cost to the public purse. One of the provisions that the noble Lord has tabled would require the Secretary of State to justify making the power operational after the end of the five-year period, but is that not the debate we should have now? In any event, the effect of accepting his amendment would lead to an incoherent muddle. Either the House believes that a trust special administrator must be able to take the action necessary to resolve serious and prolonged problems at a trust or it does not. A long wait and a report will make no difference to the issues of substance. I urge the House to be decisive on this rather than doing what is effectively kicking a can down the road.

I know that fears have been expressed that the clause we are inserting would enable the Government to make free with every hospital around the country. That is not so. In fact, I submit to your Lordships that that suggestion is scaremongering. The powers could have been used for a long time if it were the Government’s intention to close down every hospital or lots of hospitals. The regime was designed by the party opposite, lest we forget, to deal with the specific circumstances of a trust in failure. It enables an external expert to be appointed as administrator to take a fresh look at the situation and, working with the trust and its commissioners, to develop recommendations for the future.

One needs also—I say this particularly to the noble Lord, Lord Warner—to recognise that trust special administration is only ever invoked when the normal processes for agreeing a reconfiguration have hit the buffers. In normal circumstances commissioners and providers in a locality get together and very often agree about the way services should be reconfigured to make them clinically and financially sustainable. In the case of south London and in the case of Mid Staffordshire that process has been going on for a long time. It is only because we reached an intractable position that administrators were appointed in those instances.

We have heard today that some aspects of our amendment provoke strong feelings, particularly the clarification—and it is a clarification—that a trust special administrator can make recommendations that include other providers where those recommendations are necessary for, and consequential on, his core recommendations. I bring noble Lords’ attention to those key words. Of course I recognise those views, but I do not share them. The clarification is vital for the failure regimes to be effective. It may be possible for the solution to the problems faced by a failed organisation to be found within the boundaries of that organisation, but it may not. Indeed, it is quite likely that it will not be. The health service is formed of a complex network of interdependent providers, all influencing one another. It is plain that making changes to one has a knock-on effect elsewhere. The amendment is a reflection of that reality.

I have a degree of sympathy with those who have argued that the effect of this could be unfair on the successful provider impacted by the failure of a neighbour. Such a step would, of course, be taken reluctantly. But I argue that it must be possible to take such a step if, and when, that is the only way of resolving the problem. The amendment would not apply retrospectively. The date of the court hearing in the south London case is therefore not relevant.

The rest of my amendment makes minor changes and I hope that they will be acceptable to the House. I hope more strongly that the amendment as a whole will find favour. It could be, as some noble Lords have suggested, that additional things need to be done. We do not believe that to be the case but I have heard the arguments put by a number of noble Lords that the amendment might need additions at some time in future. Our minds are open to that. But I beg noble Lords not to lose this opportunity of passing my amendment, as it matters a very great deal, not just in local areas but in the health service as a whole, in the interests of equity and fairness, which, after all, underpin the whole NHS. I believe that noble Lords should reject the amendment proposed by the noble Lord, Lord Hunt.

These are going to be rare cases and they are always difficult. The problems by their very nature are intractable and serious. We must fix them and have mechanisms to do that in order to put services back on a sustainable footing. Otherwise, I respectfully submit, we ourselves will have failed. I beg to move.

--- Later in debate ---

[Lord Deben (Con)]

My Lords, in general terms, I support the government amendments. I am sure that my noble friend will want to answer the specific issue which the noble Baroness, Lady Greengross, raised. However, I support the Government with a slight caveat. Similar parts of the localism agenda of the Government have likewise seemed to have devolved in order to encourage people to take responsibility. I agree that there is a problem of prescription—if I may use that word in the context of the health service—because we all want to add in to any freedom the particular issues about which we have a special concern. I have real sympathy with those for whom dementia is one of those issues; it certainly is for me. However, we have to guard against that because, in the end, it may produce an artificial series of priorities. In this case, it is much better for the Care Quality Commission to make its own mind up, because it is going to be responsible. I take a rather different view about the recent scandals, in that the commission has to take responsibility for the claims that have been made. If it has to take responsibility, it must have as much control over its agenda as it possibly can.

My concern is simply that the Localism Act claimed to give localities all kinds of new controls over their futures. Yet, this week, we again find the Secretary of State for DCLG calling in a locally agreed solar decision, one supported by the local authority and by the inspector, but turned down—for reasons which are extremely difficult to see—by the centre. I want an assurance from my noble friend that this is real devolution; that the powers which have been given will not be circumvented by some other mechanism within this Bill or other Bills. The purpose of such devolution is to enhance responsibility. My concern is that, often, people who are given and who claim to have responsibility find that the structures are so prescriptive that they cannot take that responsibility seriously. If the amendments are an attempt to ensure that they can carry through their responsibilities in a way which enables the country to look to them to do the job they ought to be doing, that is fine and dandy. However, I hope that we can have reassurance that this is a real change, and not something that is going to be circumvented for the convenience of some Secretary of State by other bits of this or other Bills.

[Baroness Barker]

My Lords, I draw to the House’s attention three questions put forward by Leonard Cheshire Disability. That organisation has worked extremely hard to support the Government in their stated objective of stopping 15-minute care appointments for older people, and its questions are worth following up.

First, why is it necessary to remove this power completely from the CQC; what will the CQC be stopped from doing by the absence of this power that otherwise it would not be? Secondly, the Government are committed to tackling poor commissioning and poor practice. If it is not going to be the role of the CQC to challenge local authorities on their commissioning practices, whose job will it be? Thirdly, is there any evidence that that power, as it exists, has been misused? Whatever one’s view about where responsibility should lie—the noble Lord, Lord Deben, made interesting points about that—those three questions are worthy of an answer when we come to formulate that view.

[Baroness Pitkeathley]

My Lords, I, too, am troubled by the seeming perversity of government Amendments 145, 146 and 149. The effect of the amendments seems to be to make it harder for the CQC to conduct investigations into local authority practices, particularly of commissioning. My understanding, from my hazy memory of when the CQC was set up, was that that was a particularly important function. Surely it has become more so, given the commitment to integration between services provided by the health service and those provided by local authorities. Was that not a key feature of establishing the CQC? The timing of this seems to be very odd—perverse, as the noble Lord, Lord Low, said—given the current huge concern about the way in which services are commissioned, the so-called 15-minute care visits, and so on.

Do the Government see a continuing role for the CQC in working with local authorities to improve the way that they commission services, or is this a retreat from the way the Government view the CQC? I was very involved in the discussions before the CQC’s relaunch, and understood that to be an important part of its function. The amendments appear to reduce the CQC’s power to help improve local authority commissioning and, because of that, its oversight of care quality. That is a great concern to us all, particularly when we are so concerned about the quality of the services which are commissioned.

Care Bill [HL]

Baroness Barker Excerpts

Wednesday 16th October 2013 Lords Chamber

[Baroness Hollins (CB)]

My Lords, I commend the amendment of the noble Lord, Lord Patel of Bradford. I shall not say much more than that other than that he commented on the risk that the current situation could lead to more likelihood of a more medical approach to aftercare. Noble Lords might think that as a retired psychiatrist I would support that, but I do not; it is incredibly important that people who have a history of mental illness and need aftercare services receive the broadest possible support so that admission to hospital is not simply because there is inadequate support for them in the community. I commend his proposal.

[Baroness Barker (LD)]

My Lords, I wish to indicate my support for the continuance of Section 117, as I have done on many occasions before, not least during the passage of the most recent Mental Health Act—when various people, whom I shall not embarrass now by saying who they were, did indeed stand up to defend some of it—because it works.

When the Law Commission first made this proposal in its report, I had occasion to talk to that body. The noble Lord, Lord Patel, is right; the commission relies very heavily on the Mwanza case, and there is a great deal of dispute about the advisability of doing that. The question that I had when I first met the Law Commission still remains: when everything else in the legislation is geared towards enabling health and social care to work together to enable the transfer of people from acute health settings back into the community, why rip up the one piece of legislation that has been there doing that for 30 years? It is not just that some of us see Section 117 as being important with regard to the individuals whom we might know or come across; rather, we see it as an important means of bringing about the transfer that some of us have long hoped would happen in mental health services whereby, instead of having patients who revolve between acute and the community, we could have proper care planning in which people’s mental health needs were addressed by some of the same people, whichever setting they were in. It is not just about trying to preserve a pot of money; it is about trying to keep open a pathway to good and better practice. That is why the noble Lord, Lord Patel, as he always does in this area, has presented the House with a very persuasive argument. I have not yet fully understood why the department feels the need to make the changes that it is making.

[Baroness Wheeler]

My Lords, we fully support my noble friend in his valiant efforts once again to try to get this important issue on mental health aftercare sorted out. We recognise the Government’s concession in removing “the” from subsection (5)(a), but my noble friend is right that there still remains the very real risk that leaving the rest of the subsection in place could lead to local authorities arguing that,

“a need arising from or related to a mental disorder”,

was the requirement only to provide psychiatric, medical and follow-up services.

The statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising from the person’s mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. My noble friend’s amendment would instead define aftercare services as those services that reduce the risk of deterioration in the person’s mental condition and the likelihood of the person requiring readmission to hospital.

It is right that the definition of aftercare services focuses on reducing the likelihood of hospital readmission and does not lead to confusion or legal disputes about a local authority’s role in this or what services should be provided under Section 117 of the Mental Health Act. It is also right that aftercare continues to be viewed as a comprehensive range of generic services across healthcare, social care and other services such as suitable accommodation and community support.

Amendment 128A is a compromise offered by my noble friend that I hope the Government will take up because, as he said, he would prefer to delete Clause 5 entirely, so that the current position in relation to Section 117 remains unchanged. Mind, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association all consider that the best way to avoid confusion over the definition of aftercare is to remove Clause 71(5)(a) altogether.

I hope that the Minister will have some good news for my noble friend and for other Lords who, too, are very frustrated that the mental health aftercare issue has not been laid to rest in the way we thought it had under our discussions as far back as on the Health and Social Care Bill.

Care Bill [HL]

Baroness Barker Excerpts

Wednesday 16th October 2013 Lords Chamber

Moved by

[Baroness Barker]

139: After Clause 76, insert the following new Clause—
“Older Persons’ Commissioner
(1) In the Health and Social Care Act 2008, after section 128 insert—
“Part 2AOlder Persons’ Commissioner128A Establishment of an office of the Older Persons’ Commissioner
(1) There shall be an office of the Older Persons’ Commissioner.
(2) Schedule (The Older Persons’ Commissioner) shall have effect with respect to the Older Persons’ Commissioner.
128B Functions of the office of the Older Persons’ Commissioner
(1) The Older Persons’ Commissioner has the function under this Part of promoting the wellbeing, dignity and respect of older people and safeguarding and promoting their rights and welfare.
(2) In fulfilling their duties under subsection (1), the Older Persons’ Commissioner may review, and monitor the operation of, arrangements falling within subsection (2), (3) or (4) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in promoting the wellbeing, dignity and respect, and safeguarding and promoting the rights and welfare of older people.
(3) The arrangements falling within this subsection are the arrangements made by the providers of regulated services in England, or by the Secretary of State, for dealing with complaints or representations in respect of such services made by or on behalf of older people.
(4) The arrangements falling within this subsection are arrangements made by the providers of regulated services in England, or by the Secretary of State, for ensuring that proper action is taken in response to any disclosure of information which may tend to show that, in the course of, or in connection with, the provision of regulated services to older people—
(a) that a criminal offence has been committed;(b) that a person has failed to comply with any legal obligation to which he is subject;(c) that the health and safety of any person has been endangered; or(d) that information tending to show that any matter falling within one of the preceding paragraphs has been deliberately concealed.(5) The arrangements falling within this subsection are arrangements made (whether by providers of regulated services in England, by the Secretary of State or by any other person) for making persons available—
(a) to represent the views and wishes of older people to whom this Part applies; or(b) to ensure the adequate provision to older people of advice and support of any prescribed kind. (6) The Secretary of State may, by regulations confer power on the Older Persons’ Commissioner to require prescribed persons to provide any information which the Older Persons’ Commissioner considers it necessary or expedient to have for the purposes of his functions under this section.
(7) A statutory instrument containing regulations under subsection (5) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
128C Examination of cases by the Older Persons’ Commissioner
(1) The Secretary of State may, by regulations, make provision for the examination by the Older Persons’ Commissioner of the cases of particular older people.
(2) The regulations may include provision about—
(a) the types of case which may be examined;(b) the circumstances in which an examination may be made;(c) the procedure for conducting an examination, including provision about the representation of parties;(d) the publication of reports following an examination.(3) The regulations may, for the purposes of enabling the Older Persons’ Commissioner to examine or determine whether any recommendation made in a report following an examination has been complied with, make provision for—
(a) requiring persons to provide the Older Persons’ Commissioner with information; or(b) requiring persons who hold or are accountable for information to provide the Older Persons’ Commissioner with explanations or other assistance,for the purpose of an examination or for the purposes of determining whether any recommendation made in a report following an examination has been complied with.(4) For the purposes mentioned in subsection (3), the Older Persons’ Commissioner shall have the same powers as the High Court in respect of—
(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad); and(b) the provision of information.(5) No person shall be compelled for the purposes mentioned in subsection (3) to give any evidence or provide information which he could not be compelled to give or provide in civil proceedings before the High Court.
(6) The regulations may make provision for the payment by the Older Persons’ Commissioner of sums in respect of expenses or allowances to persons who attend or provide information for the purposes mentioned in subsection (3).
(7) A statutory instrument containing the first regulations made under subsection (1), (2) or (3) is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
(8) A statutory instrument that contains regulations made under subsection (6) is subject to annulment in pursuance of a resolution of either House of Parliament.
128D Obstruction
(1) The Older Persons’ Commissioner may certify an offence to the High Court where—
(a) a person, without lawful excuse, obstructs him or any member of his staff in the exercise of any of his functions under regulations made under section 128B(5) or 128C; or(b) a person is guilty of any act or omission in relation to an examination under regulations made by under section 128C which, if that examination were proceedings in the High Court, would constitute contempt of court.(2) Where an offence is so certified the High Court may inquire into the matter; and after hearing—
(a) any witnesses who may be produced against or on behalf of the person charged with the offence; and(b) any statement that may be offered in defence,the High Court may deal with the person charged with the offence in any manner in which it could deal with him if he had committed the same offence in relation to the High Court.128E Further functions
(1) The Older Persons’ Commissioner may, in connection with his functions under this Part give advice and information to any person.
(2) Regulations may confer power on the Older Persons’ Commissioner to assist an older person—
(a) in making a complaint or representation to or in respect of a provider of regulated services in England; or(b) in any prescribed proceedings.(3) For the purposes of subsection (2), assistance includes—
(a) financial assistance; and(b) arranging for representation, or the giving of advice or assistance, by any person.(4) Regulations under subsection (2) may also provide for assistance to be given on conditions, including (in the case of financial assistance) conditions requiring repayment in specified circumstances.
(5) Regulations may, in connection with the Older Persons’ Commissioner’s functions under this Part, confer further functions on the Commissioner.
(6) Regulations may, in particular, include provision about the making of reports on any matter connected with any of his functions.
(7) Apart from identifying any person investigated, a report by the Older Persons’ Commissioner shall not—
(a) mention the name of any person, or(b) include any particulars which, in the opinion of the Older Persons’ Commissioner, are likely to identify any person and can be omitted without impairing the effectiveness of the report,unless, after taking account of the public interest (as well as the interests of any person who made a complaint and other persons), the Older Persons’ Commissioner considers it necessary for the report to mention his name or include such particulars.(8) For the purposes of the law of defamation, the publication of any matter by the Older Persons’ Commissioner in a report is absolutely privileged.
(9) In subsection (1) of this section “proceedings” includes a procedure of any kind and any prospective proceedings.
(10) A statutory instrument containing the regulations under this section is not to be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.
128F Restrictions
(1) This Part does not authorise the Older Persons’ Commissioner to enquire into or report on any matter so far as it is the subject of legal proceedings before, or has been determined by, a court or tribunal.
(2) This Part does not authorise the Commissioner to exercise any function which by virtue of an enactment is also exercisable by the prescribed person.
128G Interpretation
(1) For the purposes of this Part “regulated services” has the same definition as “regulated activity” in section 8 of this Act as they relate to older people.
(2) This Part applies to any older person normally domiciled in England.”
(2) After Schedule 5, insert the following new Schedule—
Schedule 5AThe Older Persons’ CommissionerStatus1 (1) The Older Persons’ Commissioner is to be a corporation sole.
(2) The Older Persons’ Commissioner is not to be regarded as the servant or agent of the Crown or as enjoying any status, immunity or privilege of the Crown; and the Older Persons’ Commissioner’s property is not to be regarded as property of, or property held on behalf of, the Crown.
Appointment and tenure of office2 Regulations may make provision—
(a) as to the appointment of the Older Persons’ Commissioner (including any conditions to be fulfilled for appointment);(b) as to the filling of vacancies in the office of Commissioner;(c) as to the tenure of office of the Older Persons’ Commissioner (including the circumstances in which he ceases to hold office or may be removed or suspended from office).Remuneration3 The Secretary of State shall—
(a) pay the Commissioner such remuneration and allowances; and(b) pay, or make provision for the payment of, such pension or gratuities to or in respect of him, as may be provided for under the terms of his appointment.Staff4 (1) The Commissioner may appoint any staff he considers necessary for assisting him in the exercise of his functions, one of whom shall be appointed as deputy Commissioner.
(2) During any vacancy in the office of Commissioner or at any time when the Commissioner is for any reason unable to act, the deputy Commissioner shall exercise his functions (and any property or rights vested in the Commissioner may accordingly be dealt with by the deputy as if vested in him).
(3) Without prejudice to sub-paragraph (2), any member of the Commissioner’s staff may, so far as authorised by him, exercise any of his functions.
General powers5 (1) Subject to any directions given by the Secretary of State, the Commissioner may do anything which appears to him to be necessary or expedient for the purpose of, or in connection with, the exercise of his functions.
(2) That includes, in particular—
(a) co-operating with other public authorities in the United Kingdom;(b) acquiring and disposing of land and other property; and(c) entering into contracts.Reports6 Regulations may provide for the Commissioner to make periodic or other reports to the Secretary of State relating to the exercise of his functions and may require the reports to be published in the manner required by the regulations.
Accounts7 (1) The Older Persons’ Commissioner must keep accounts in such form as the Secretary of State may determine.
(2) The Older Persons’ Commissioner must prepare annual accounts in respect of each financial year in such form as the Secretary of State may determine.
(3) The Older Persons’ Commissioner must send copies of the annual accounts to the Secretary of State and the Comptroller and Auditor General within such period after the end of the financial year to which the accounts relate as the Secretary of State may determine.
(4) The Comptroller and Auditor General must examine, certify and report on the annual accounts and must lay copies of the accounts and of his report before Parliament.
(5) In this paragraph “financial year”, in relation to the Older Persons’ Commissioner, means—
(a) the period beginning with the date on which the Older Persons’ Commissioner is established and ending with the next 31st March following that date; and(b) each successive period of twelve months ending with 31st March.Payments8 The Secretary of State may make payments to the Older Persons’ Commissioner of such amounts, at such times and on such conditions (if any) as he considers appropriate.
General9 In the House of Commons Disqualification Act 1975, in Part III of Schedule 1 (certain disqualifying offices), the following entries are inserted at the appropriate places—
“Older Persons’ Commissioner.”“Member of the staff of the Older Persons’ Commissioner.”10 In the Northern Ireland Assembly Disqualification Act 1975, the same entries as are set out in paragraph 9 are inserted at the appropriate places in Part III of Schedule 1.
11 (1) Regulations may provide that the office of Older Persons’ Commissioner shall be added to the list of “Offices” in Schedule 1 to the Superannuation Act 1972 (offices etc. to which section 1 of that Act applies).
(2) The Secretary of State shall pay to the Minister for the Civil Service, at such times as he may direct, such sums as he may determine in respect of any increase attributable to provision made under sub-paragraph (1) in the sums payable out of money provided by Parliament under the Superannuation Act 1972.””

[Baroness Barker (LD)]

My Lords, given the hour I do not intend to detain the House for long, but I want to return to the subject of an older person’s commissioner, an issue raised so eloquently by the noble Baroness, Lady Bakewell, at an earlier stage in our deliberations. I do so for the same reason that many noble Lords have raised issues in connection with this Bill. The issues remain the same, but the legislative landscape is changing quite considerably, and the practical nature of services for people who will be affected by the Bill is also changing radically. Given these immense changes, coupled with the demographic developments that we know about, it is important to remind ourselves that there are still some gaps in the representation and protection of vulnerable groups in our society that need to be addressed.

I have not been involved in the Children and Families Bill, which I regret somewhat, and particularly today because the Grand Committee has been talking about the establishment of a children’s commissioner for England. Earlier on I looked at the proposal in some detail. It seeks the establishment of a person who is not a Crown employee and whose job will be to promote and protect the rights of children, and to have regard to the UN Convention on the Rights of the Child. Their primary job is to involve children who are living away from home or are in social care and to make known their views about their care. They do that by taking a systematic and thematic view of what is happening, and their job is to speak to government with the overall aim of improvement.

There is nothing there which is not needed by older people. I am going to talk about the fact that there is a raft of other bodies which have statutory duties in relation to older people, but there is a raft of bodies which have responsibilities in relation to care of children—not least of which is Ofsted. Despite children’s rights being perhaps more strongly enshrined in law, as they have been since the Children Act, we still need a Children’s Commissioner. The fact remains that we need an older person’s commissioner, too. We need somebody to be an advocate, to include older people and to talk to government. I do not want to pre-empt anything that might happen in your Lordships’ House tomorrow, but the report of the noble Lord, Lord Filkin, is being debated. It sets out in fairly stark terms how ill prepared government is for the implications of an ageing society.

Had another group of amendments before us on Report been dealt with in a different way, I might have rowed back. Your Lordships’ House decided the other day not to give powers of entry in cases where there is good reason to suspect that older people are being abused. I believe as firmly and as strongly as the noble Baroness, Lady Greengross, that that is absolutely wrong. If we are not going to give powers of entry in cases of abuse, then there is a case for there being an older person’s commissioner to raise those issues and gather evidence. Let us be in no doubt there will be further, tragic cases of elder abuse, and in the wake of them there will be calls for something to be done. Well, I think that something can be done now in the form of this proposal.

When we next convene to discuss this Bill on Report, we will turn our attention to some amendments tabled by the noble Earl, Lord Howe, on behalf of the Government about the appointment of the chief inspectors. The appointment of chief inspectors as officers within the CQC is welcome. It is welcome that there is going to be a Chief Inspector of Hospitals; it is a good thing that there is going to be Chief Inspector of Adult Social Care—I imagine that we have begun to receive information from the Chief Inspector of Adult Social Care, who took up her position this week. But let us be in no doubt that, however independent, experienced and formidable are the individuals, their role is limited. The CQC investigates merely licensed providers; it does not even investigate pathways of care. We know that the majority of care and help in the future will take place in the community—that is where the bulk of older people will be. Those chief inspectors will have but a very limited role, however welcome is their appointment.

If I were in the Minister’s shoes, I imagine that I would question whether the cost of setting up a commissioner makes it a valid thing to do. I sincerely hope that we will very soon be able to gather evidence from the commissioners, particularly the Older People’s Commissioner, in Wales. I know it has not been set up with this particularly in mind but I hope that somebody, somewhere, begins to research the economic benefit of having an older persons’ commissioner. We are going to have to look at the whole economics of ageing in a completely different way. The post of a commissioner could be very important and it would help if we started to move Government along to seeing older people as potentially economic assets in our country as well as people who need services. With that in mind, I beg to move.

[Baroness Bakewell (Lab)]

I rise to support this amendment as I think the House would expect me to because I put forward a similar amendment during the passage of the Health and Social Care Bill.

So here we are again. Time rolls on. I want to refer to the annual report I wrote in 2008-09 about the job I had as the Voice of Older People. I wrote that the job had proved a bombshell. Within hours of the announcement being made responses began. Letters, encounters, meetings and seminars showed me the range of cares particular to older people. At that time equality was my agenda and the issues were about the promotion of things such as equality in retirement, pensions and equal pay. However, concerns rapidly expanded. In no time at all I was being inundated with dilemmas about care homes, housing, rent levels and public loos. Expatriates were writing to me about claiming their pensions. End-of-life treatment was on the agenda again.

This agenda has not gone away. It is growing and it will go on doing so. We will hear tomorrow about the implications of the demographic and right now we are awaiting the ramifications of the Dilnot report. There is a campaign to get older people online, led by the noble Baroness, Lady Lane-Fox. There are concerns about fuel prices. I have recently read that E.ON, with which I have a special deal for a limited price because I am old, is withdrawing that favour from older people. Why? Breast cancer is very much on the agenda for older people. The risk improves the older you get but it does not reduce after 70 or 75. It goes on being a killer and becomes more seriously so.

Which Bill that will come before the House can encompass this vast agenda of the entire population that is growing old? This is a very difficult problem for the matter of law. We need a commissioner who can embrace housing, pensions, health, welfare and money. We need someone who can listen. The main thing about a commissioner is that they are not the spokesman for the established government—they are about us. They speak to government about what it is we want, what it is we would like, and on what we need guidance. The agenda is huge.

I am well aware that there is a multitude of charitable organisations that deal with all sorts of this fragmented agenda. I pay particular tribute to Age UK which is very, very strong in dealing with these issues, but what we need is for our complaints to be funnelled through an individual who belongs on the side of the old, who addresses the rest of the community about all these issues. I know that the Minister knows that the agenda is a wide one. What we need to know is where we can place this need—on which Bill and in which House? I support the amendment.

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[Earl Howe]

My Lords, I am grateful for the opportunity to discuss this extremely well crafted amendment, which proposes the establishment of an older persons’ commissioner. Our ambition is to make this country one of the best places to grow old in and I begin by saying that I have some sympathy with the intention behind the amendment; to ensure that older people receive the high-quality care they need and also to support them to use the complaints system effectively when things go wrong. However, disappointingly for the noble Baronesses, I cannot subscribe to the solution that is proposed in the amendment. The main reason for this is that the provisions contained in the amendment are, by and large, covered by work already being undertaken elsewhere. The interests of service users are already protected through a number of routes.

I begin by citing the role of the CQC. The Care Quality Commission’s role is to ensure providers of regulated activities in England provide people with safe, effective, compassionate and high-quality care. The new chief inspectors for hospitals, adult social care and general practice will champion the views of patients and service users and judge the quality of care. Then, separate from the CQC, the new chief social worker will ensure that social work practice is directly inputting into policy development and we now have Healthwatch, whose function it is to represent service users’ views. If noble Lords look at what we are doing in the Bill, new statutory obligations are being introduced, such as the duties to establish safeguarding adults boards and to undertake safeguarding inquiries and/or reviews. We also have the government amendment to require independent advocacy in certain cases.

Looking beyond the Bill, the vulnerable older people’s plan is working towards having an accountable clinician to ensure proactive care planning for older people and those with the most complex needs. Furthermore, we want older people to have a major voice in issues that affect them. The Minister for Care and Support and the Pensions Minister take part in the UK Advisory Forum on Ageing. This group gives Ministers the opportunity to engage with and hear directly from older people on the key issues affecting them. I suggest that all these steps, taken together, go a considerable way towards addressing the concerns at which the amendment is aimed, but I need to be clear that, to minimise the impact on the public purse, we would not envisage setting up a new public authority alongside those functions.

My noble friend Lady Barker asked why we should not have an older persons’ commissioner since there is a children’s commissioner? If an older persons’ commissioner were established, the supporting structure would potentially be very large and would cost significantly more than the children’s commissioner. This is not only because of the comparatively larger number of older people who receive services compared to children, but also because the amendment confers a wider range of functions on the older persons’ commissioner than the children’s commissioner.

Michelle Mitchell, former director-general of Age UK said last year:

“For us it’s not just about having a commissioner; it’s about ensuring that older people’s issues are central to the mainstream – not only the government agenda, but business and the public sector as a whole”.

I support that view. What matters, surely, is what is actually happening and whether the system is pulling together to make it happen. We want to ensure, quite simply, that issues affecting older people are at the heart of government business. I am happy to explore ways to further enhance the voice of older people, although without creating additional costly bureaucracies. On that basis, I hope that the noble Baronesses will feel somewhat comforted that there is a lot going on to protect the interests of older people and that my noble friend will therefore feel able to withdraw the amendment.

[Baroness Barker]

My Lords, I thank the Minister for his characteristically comprehensive response and I am in complete agreement with him: there is a great deal going on, much of which is valuable and effective. I return to the central issue: I am not convinced that there is coherence, either within government, across government or in government interactions with the private and voluntary sectors and with local government. That is the issue to which I will return, and it is a point that the noble Baroness, Lady Bakewell, has made so eloquently.

I accept that this amendment is not perfect; it was crafted in order to bring the older persons’ commissioner within the scope of the Bill but it is not ideal. I thank the Minister for his response. We will continue to work away at this issue, I have no doubt. I beg leave to withdraw the amendment.

Amendment 139 withdrawn.

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[Lord Hunt of Kings Heath]

My Lords, the Opposition strongly support the thrust of the Francis report in its determination that the NHS be honest with patients who have been harmed. I very much echo the comments made by the noble Baroness, Lady Masham, in describing why we need an open culture. I welcome government Amendment 140. It is very important; we welcome the duty of candour being placed in the Bill. The amendment is less detailed than my own and will rely on regulations, as the noble Earl, Lord Howe, has said. The important thing is to get this in the Bill.

I have a couple of questions for the noble Earl. First, can he confirm that the regulations will be affirmative? Secondly, in considering the regulations, will he look at the issue of the threshold? For instance, the regulations might restrict the statutory duty of candour to cases that could be described as of severe harm or fatal; or it might go wider. In his report, Robert Francis used the word “serious”. Clearly, there is a distinction between severe harm and seriousness, but most patients and their relatives, or anyone involved in anything that could be described as a serious case, would wish the organisation in the health service to be as open as possible about what had happened.

These are not easy issues; but it is noticeable that the being open guidance is clear that cases of moderate harm and above must be disclosed. The NHS constitution does not put any limit on the level of harm that would be disclosed. I do not expect the noble Earl to respond to the detail of those questions tonight, but in drafting the regulations it would be reassuring to know, first, that consultation will take place with patient groups on the contents of those regulations before they are published and, secondly, that the question of the threshold by which the seriousness of the case would come within the regulations will be given very great consideration.

I should—at the end of the day rather than the start—declare my interest. I remind noble Lords of the interest I declared two days ago.

[Baroness Barker]

I have a quick follow-up to the question of the noble Lord, Lord Hunt of Kings Heath. Sir Robert Francis’s recommendations were clear that the duty of candour should apply where death or serious harm “may have been caused” or were believed or suspected to have been caused. That is an important distinction; it is not merely playing with words. When the Minister comes to respond, perhaps in writing, will he say whether that point will be covered in regulations?

[Earl Howe]

My Lords, I am sure that we are all aiming for the same effect and that there is little difference in the approach that we are taking. The amendment of the noble Lord, Lord Hunt, is drafted as a stand-alone duty: it would place a duty of candour on providers, but it would operate outside of the CQC registration system. As such, it is not clear who would enforce the duty of candour or what would be the consequences for a provider who did not observe the duty.

Introducing the duty as a requirement for registration with the CQC comes with a ready-made enforcement vehicle, including the power to prosecute providers who do not meet the duty. In Committee, we explained why this is our preferred approach. It would give the flexibility to develop the duty in consultation with service users and carers. I can indeed confirm that patient groups will be included. The duty itself will have the same legal power in secondary legislation as it would in primary legislation.

We are making real progress in taking this forward. In the summer, the CQC consulted on plans to introduce a duty of candour set through its registration requirements. The CQC is due to publish the findings from the consultation shortly. The department plans to consult on a draft regulation later in the autumn. I assure noble Lords that both I and my officials would be pleased to discuss the content of the draft duty of candour regulation with them in detail as we develop the final regulation. I confirm to the noble Lord, Lord Hunt, that these will be affirmative regulations.

On the threshold, both the Francis and the Berwick reports recommended that the statutory duty of candour for CQC-registered providers should apply in instances of death or serious injury/incident. There is a balance to be struck. We accept the Berwick report finding that an automatic duty of candour covering every single error could lead to defensive documentation and large bureaucratic overheads that would distract from care.

I hope that my amendment reassures noble Lords of our strong commitment to introducing a duty of candour and that they will feel able—

Care Bill [HL]

Baroness Barker Excerpts

Monday 14th October 2013 Lords Chamber

[Baroness Barker]

My Lords, I rise only to ask a question. I agree with the noble Lords, Lord Warner and Lord Lipsey, that a deferred payment scheme was an important selling point for the Dilnot report. Even though very few local authorities are running such schemes at the moment, it is an important and live issue in the minds of older people and their families; it is one that they dwell on quite a lot. I want to ask the keeper of the Dilnot tablets—who is not a character from Harry Potter—whether the commission gave any consideration to setting a figure as outlined by the noble Lord, Lord Lipsey. Did it have a level of assets in mind that people should be able to exclude?

When the noble Lord, Lord Hunt, talks about a scheme, is it a model that would apply to individuals or is it really a model that would apply to local authorities and their ability to carry the costs of the Dilnot scheme in their area for a defined period of time? I can see what the noble Lord, Lord Hunt, is saying in terms of having a model, but I am slightly confused about it. Perhaps when the Minister comes to reply, in telling us about the Government’s thinking on all of this, he might address what to me appears to be the key underlying factor.

--- Later in debate ---

[Lord Warner]

My Lords, I rise briefly to support Amendment 77 and to ask the noble Earl whether his department has actually looked at the legislation that protects children to see whether this is in line with that legislation.

My child protection legislation knowledge and expertise are a bit rusty but the basic rule of child protection is that you see the child in their home environment. That is rule number one. If you look at many of the cases that have hit the headlines after going wrong, it is due to a failure to secure entry early on in the proceedings to see the child in their home environment. The noble Baroness, Lady Greengross, has highlighted a very important issue. I am still struggling to understand why the Scots and the Welsh think it is important to retain this kind of approach but we in England do not. There does not seem to be a consistency of purpose across the borders.

Lastly, with regard to neglect, if you look at the data on child protection, I think the fastest growing area in which courts are authorising care orders and approving care proceedings for children is neglect. We should not shy away from the fact that when times are hard this may be a growth area. I am very pleased that the noble Baroness, Lady Greengross, has included abuse and neglect in her amendment.

[Baroness Barker (LD)]

My Lords, I support the noble Baroness, Lady Greengross, particularly on Amendment 77 about powers of access and entry. She and I were both there at the birth of Action on Elder Abuse, which grew for a reason: people had identified and begun to codify the many different forms of elder abuse.

I absolutely sympathise with what the noble Lord, Lord Rix, is trying to do. Indeed, I had the same thought myself but I will defend the Bill by saying that other forms of abuse—physical, sexual, whatever—are set out in different pieces of legislation. What this Bill does is define financial abuse for the first time. That is really important because we know that very many older people are financially abused by relatives and until now the financial services industry has been pretty hopeless about dealing with it. That is why that is there.

A power of access is important precisely for the reasons identified by the noble Lord, Lord Warner. What we are talking about here is the right of a social worker with a police escort, having got permission via a legal document, to go into somebody’s house, where there is a suspicion that criminal activity may be taking place. That is the magnitude of what we are talking about.

Care Bill [HL]

Baroness Barker Excerpts

Wednesday 9th October 2013 Lords Chamber

[Lord Harries of Pentregarth (CB)]

My Lords, as someone who remains a Bishop, on behalf of my old friends on the other side of the Chamber, I would like to support this amendment. As the Bishop of Oxford, I remember visiting one of the brand new universities, which thought of itself in very secular terms. Nevertheless, the university was adamant that it should have a chaplain because it believed in whole-person care, and an essential element of whole-person care was the spiritual dimension. We need to take that into account.

We also need to take into account the fact that we now live in a multifaith society, and for those of some religions in particular, it is very important that they have someone with religious authority in contact with them in the final stages of their life. There are good reasons for supporting this amendment.

[Baroness Barker (LD)]

My Lords, I apologise for not being in my place for the start of this debate. As noble Lords will know, on these occasions such amendments are often tabled by myself and the noble Lord, Lord Hunt of Kings Heath. We do so because we support the right of Christian Scientists to have their beliefs respected, in particular their right to refuse treatment. That said, when we discussed this matter in Committee, while at that point the Minister was as sympathetic as always, he failed to draw a distinction that is important to people of faith, which is that between the use of the words “emotional” and “spiritual”. People of faith believe that matters which are spiritual are of a different order from those matters which are emotional. I have a degree of sympathy with their view. However, I also have a degree of sympathy with the Minister, who does not wish to put things into legislation that are unnecessary. I hope that he will, in this case, perhaps be a bit more sympathetic to the arguments that are being put forward.

The noble and right reverend Lord, Lord Harries of Pentregarth, is right that as a society not only are we becoming much more diverse, but in our everyday life we understand the importance of faith and spiritual matters to other people. For example, we would not for a moment think it acceptable to present somebody with a diet that was not reflective of their cultural and religious beliefs. In our modern day health and social care services we are increasingly adept at recognising people’s differences and accommodating them. All told, this is a small amendment which costs nothing but means an awful lot. I hope that the Government will be able to take it on.

[Lord Warner (Lab)]

My Lords, as the chairman of the All-Party Group on Humanism, I am not sure that I should actually be following the previous speakers. However, Amendment 5 in this group is in my name and I want to be nice to the Minister instead of telling him off. The Minister has listened to the concerns that we expressed in Committee about applying the requirement to pursue the obligation on local authorities in Clause 1 to the Secretary of State in his actions, particularly regulations and guidance, to promote well-being.

I congratulate the Minister on listening to those concerns and tabling government Amendment 138, which effectively meets the concerns that we have. I suspect that my co-signatories, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Greengross, would say that the Minister’s amendment may not be quite as elegant as ours, but we are not going to have a competition about aesthetics; he has met the point and I thank him very much for what he has done.

--- Later in debate ---

[Baroness Barker]

When would it be safe to anticipate the statutory guidance which he mentioned?

[Earl Howe]

I apologise to my noble friend. I cannot give her a precise answer, but I shall endeavour to do so as soon as possible. I do not think that the guidance will be available before the Bill leaves this House.

--- Later in debate ---

[Lord Lipsey (Lab)]

I shall make most of my remarks on the subject of advice and information on Amendment 20, which is a more broad-brush amendment, but I shall just comment on the government amendments in this group, on advice—that is Amendments 16, 17 and 19. I remind the House that I speak as the unremunerated president of SOLLA, the Society of Later Life Advisers, which accredits, to a gold standard, advisers who can help old people on financial matters.

It would be churlish not to say that the government amendments mark a small step forward, in that for the first time they represent a recognition that independent financial advice can be necessary. To that extent, I welcome them. However, I have to say right away that it is impossible to read the briefings we have had without realising that they have caused great disappointment, particularly among financial service people who are determined to get this right. The Equity Release Council says that the government amendments do not go far enough.

In trying to put my finger on the point, yes, they recognise independent advice and financial advice, but they do not recognise the need for that advice to come from people who are properly qualified to give it. It is not enough to have Tom, Dick and Harry advise in this field. It is not enough, even, for local authorities to send people to see people who they may think are quite plausible advisers, such as Citizens Advice: they do not know the complications involved in giving financial advice, particularly to people who have got some money and need to make sure that it will provide them with the care in a home that they want. They need proper, regulated financial advice, given by advisers who can be called to task by the Financial Conduct Authority if the advice they give is not sufficient, who have to follow the rules set by it and must have the kind of qualifications required by it. Therefore, in my view the Government are some way short of what is required in these amendments. It is to repair that lack that I shall later move Amendment 20.

[Baroness Barker]

My Lords, I think I am right in saying that in the Inuit language there are more than 300 words for snow. I suspect that if historians were to go back through the annals of the British Civil Service, they would come across thousands of ways in which officials have briefed Ministers to say “no” to requests for advocacy. During the 20 years that I have followed these sorts of issues, during which advocacy has became part of social care, Governments have had to find ways to say, “It’s a very good thing, but we’re not going to fund it”. It was therefore a real joy to see the Government’s Amendments 118 and 119 in this group.

It is fair to say that the Government have taken on board the arguments that have put forward by a wide range of people. We know that the changes to the care system and the complexity of those changes, not least those stemming from the Dilnot recommendations, mean that we are now into a level of complexity which individuals on their own—even those who are fairly well informed—will find extremely difficult to manage. Therefore I very much welcome the Government’s Amendments 118 and 119, in which they recognise that there will have to be advocacy services. I also welcome the Government’s commitment to set aside funding for that.

The Minister will accept that his Amendments 118 and 119 fall somewhat short of my proposal in Amendment 38. I would therefore like to raise a few questions which result from the fact that the government amendments are of a much tighter scope than my proposal. I welcome the amendments, but there are several issues that I wish to ask the Minister about.

Subsection (2) of the new clause proposed in Amendment 118 states that independent advocates will,

“represent and support the individual for the purpose of facilitating the individual’s involvement”.

Advocacy in its truest sense is about much more than involvement—it is about enabling people who need help to achieve the outcomes they want. The word “involvement” is not defined, although it is used a lot in the Bill. Will the Minister say whether advocates will have a full advocacy role or whether this is just about securing the involvement of people?

Secondly, I come to individuals who qualify to have an advocate. Subsection (4) of the proposed new clause is quite clear that that is reduced to people who have substantial difficulty in understanding and retaining information, in making judgments by weighing things or in communicating their views. What is not in the Government’s Amendment 118 is a right of access for the advocate to access those people. Under the Mental Capacity Act and the Mental Health Act, where advocates are appointed they have a statutory right of access to people and a statutory right to interview those people in private. Given that we are talking about some fairly vulnerable people, would it be possible to ensure in regulations that advocates have a statutory right of access?

The third thing that is missing is that although the Government have taken this welcome step, there is absolutely no duty upon the local authority to listen to what the advocate has to say. That is a huge omission in the process; could it be dealt with in regulations? To echo the points made by the noble Lord, Lord Lipsey, it is important that people are properly trained for the roles that they will undertake in this extremely complex set of conditions which they are dealing with. Again, under the Mental Capacity Act and the Mental Health Act advocates have to be properly trained. Can that be dealt with in regulations?

Finally, can the Minister say whether it will be possible to include a general provision that in future, if additional circumstances arose in which it would be to the benefit of a person to have an advocate, they could have access to one? I am sorry to sound less than pleased—I am, in fact, very pleased by what the Government have put forward—but with a few more minor adjustments in regulations we could have something that is a great step forward.

Care Bill [HL]

Baroness Barker Excerpts

Wednesday 9th October 2013 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I am grateful to the noble Baroness, Lady Greengross, for allowing this debate. This is an important question and I agree that ensuring that an assessment is made around the time of the admission of a patient to a hospital or other acute care setting would help the process of the appropriate discharge of that person when the time comes for them to leave. One has to say that the context in which we are debating this is one in which the health and social care system is under extreme strain. The Minister will know that the accident and emergency performance, and the issue of the four-hour target, is proving to be problematic for a number of trusts, including my own, in September and October. Clearly, if the health service is having difficulties in September or October, in pretty clement weather, it does leave one with some foreboding about what is going to happen later on in the winter.

The Government have injected a certain amount of resource into the system—I think it is £250 million—which is labelled on the tin “to A&E departments”. The Minister will know that the money has not gone to A&E departments; it has tended to go to the clinical commissioning groups. While limited amounts have gone to A&E departments, in the main, this has been dealt with through urgent care boards. My understanding is that in a lot of areas they still have not decided how to spend the resources. This is partly because CCGs seem to be slow to make hard decisions, and partly because some are not spending the money because they say that they have not received it yet. The problem is this: if by the middle of October you still have not spent or committed yourself to those additional resources, it could take another three months. If, for instance, it was a series of care packages or it was extra resource for employing more nurses, it could take an awfully long time from the decision to spend the money to it actually being in place, and then for the money to be spent.

I am really using this as an opportunity to say to the noble Earl, Lord Howe, that there is a real issue at the local level of actually getting all the partners together and to agree the actions that need to be taken to ensure that we do not get the kind of discharge problems that we are seeing.

What is the cause of the issue of A&E performance? There has been some debate about whether it is partly due to the lack of accessibility and primary care. No doubt, there are serious issues involved which would suggest that that is a problem. However, the noble Earl may have seen some work undertaken by Matthew Cooke, who used to be the adviser to the Government on urgent care and was a consultant in my own trust at Heart of England. His work would suggest that the problem is discharge; that there is simply not the capacity in the community or among personal social services departments to provide the support that is required. However much the Government want to beat up A&E departments, unless we can sort out the capacity in the community, these problems will continue.

The noble Baroness’s amendment is really trying to get to the heart of this. She is saying that it is a real problem—not just for older and more vulnerable patients, but it is probably more directed at those patients—if the first time you start to worry about discharge procedures is when they have spent quite a few days in hospital. First, it takes a long time for the system to intervene; and secondly, it may mean that the patient stays in hospital too long. We know all the problems of institutionalisation, when people have greater difficulty in going back to their own home or into low-level community provision as opposed to having to go into care homes.

The noble Earl, Lord Howe, will no doubt say that this is not the stuff of legislation. However, because of the seriousness of the current problems in our health and social care system, it would send a very powerful signal to people working at local level about the absolute importance of starting discharge planning almost as soon as a person comes into A&E, and of the need to have an integrated approach. It would also give a signal to local authorities. At the moment there is a real problem because local authorities often play around with discharges by saying that they are not convinced that a person is ready for discharge. That is simply trying to ration expenditures. A signal to local authorities that that is also unacceptable would be very helpful.

I am glad that the noble Baroness raised this problem. It is a very important issue. I hope that the noble Earl may be able to help us with it.

[Baroness Barker (LD)]

My Lords, I care passionately about hospital discharges. In 30 years of working with older people and older people’s organisations, we have never managed, under any structure or formulation of the National Health Service, to get right the system of discharging people from hospital. I suspect that the noble Lord, Lord Hunt, is right that the Minister will resist attempts such as that of the noble Baroness, Lady Greengross, to address the issue through legislation.

From my work with voluntary organisations, and some work that I have done over the summer, talking to CCGs, there are two things that could have a direct impact on this. The first is to work with people in the acute sector, to get them to understand that very often voluntary organisations are and can be the answer to managing people’s admission to A&E and their return from hospital. At the moment, many CCGs do not see that voluntary organisations have any role to play in their work. As long as they are of that opinion, frankly, the position is not going to change.

Secondly, there are examples of very good hospital discharge planning. A number of Age UK branches have take-home-and-settle schemes. There is a hospital, I think it is in the Midlands, where a housing association has taken over a ward and turned it into a discharge facility.

[Lord Hunt of Kings Heath]

My Lords, I am very glad that the noble Baroness has mentioned that. My own trust, the Heart of England, has an agreement with Midland Heart to do that. It shows that you can create capacity. My point is, that was negotiated four or five months ago. It is far too late for clinical commissioning groups to be messing around in mid-October, still pondering how they are going to spend the money. It will be January or February before they are going to be able to spend it.

[Baroness Barker]

I did not know it was the noble Lord’s hospital. I met the housing association a couple of months ago. Good examples of integrated systems that work include Torbay. The key is getting that information into CCGs. The sooner we do that, and the sooner they see that they have to be part of an integrated health and social care system, the more likely we are to be able to stop older people being, as the noble Baroness, Lady Greengross, very accurately put it, dumped.

[Lord Warner]

I support the important amendment of the noble Baroness, Lady Greengross. I want to do so by telling a story and then putting a suggestion to the Minister. Like my noble friend Lord Hunt and me, he will have done his time touring hospitals as a Minister. We are usually shown the high points of the hospital’s achievements. Life changes a bit when you cease to be a Minister and you visit your friends and relatives in hospital. On visits to hospitals to see friends and relatives, because I am a nosy sort of person I have always looked to see whether there is a date for discharge on the charts. Some of these discharge dates are great works of fiction. When I have asked nurses about these discharge dates, quite commonly they say that managers have told them they have to have a discharge date—so it is something they have done for internal compliance purposes.

Although the suggestion of the noble Baroness, Lady Greengross, may not be right for the Bill, it is at the very least important for guidance. Planning on admission for discharge is needed. Present arrangements fail to communicate that to the social care world. It is now an internal mechanism for the NHS, not a mechanism designed to get people out of hospital into an appropriate placement as soon as they are ready to go. It would be a good idea to put this in the Bill, but at the very least this issue needs to be covered in some detail in guidance so that the NHS and the social care world are clear beyond peradventure what they are supposed to do when a person comes into hospital. If we went along that path, the world would be a better place and we would deliver some of the objectives of this legislation.

Care Bill [HL]

Baroness Barker Excerpts

Monday 29th July 2013 Lords Chamber

Section 117 provides a vital level of protection for vulnerable people with mental health problems. The impact of diminishing this duty should not be underestimated. I apologise for going over time.

[Baroness Barker]

My Lords, I thank the noble Lord, Lord Patel of Bradford, for introducing this extremely important issue, which this House has addressed on a number of occasions, including during the passage of the Mental Health Bill, when the noble Earl and I were in opposition and argued very strongly for the retention of Section 117. It also came up during the Health and Social Care Bill.

I do not want to go into any detail because the noble Lord has done that excellently and there is no need for much more to be said. I would simply say that Section 117, which has been around for about the past 30 years, is the one piece of legislation that enables health and social care to work effectively together to deal with the needs of a very vulnerable group of people. It seems very odd, when the whole thrust of the rest of the Bill is aimed at integrating health and social care, that the one piece of legislation where that actually works is constantly coming under attack. People’s mental health deteriorates for reasons to do with their social circumstances as much as their mental condition. The noble Lord is right yet again to defend this piece of legislation and I support his amendment.

[Baroness Wheeler]

My Lords, my noble friend is right to express his frustration and dismay that, once again, we are faced with government proposals which would change the statutory provision of free aftercare services for people leaving hospital who have been treated under the Mental Health Act 1983 and people subject to community treatment orders—Section 117 services.

As we know, the Government have promised to address concerns about changes made to Section 117 in the code of practice guidance under the Act, but my noble friend has shown clearly today why the Bill’s current wording under Clause 68(5) needs to be changed. As it is drafted, it would have very serious consequences and cause complete confusion over the responsibility for provision of aftercare services for mentally ill people, which we all thought had been addressed and resolved last year under the finally agreed provisions of the Health and Social Care Act.

The current statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising due to the mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. Amendment 105 to Clause 68 instead defines aftercare services as those services designed to reduce the likelihood of a person requiring readmission for the same mental disorder. It is right that the definition of aftercare services focuses on reducing readmission to hospital and does not lead to confusion or legal disputes about a local authority’s role in this or about what services should be provided under Section 117.

Recent surveys by the mental health charity Mind have shown, generally, that many people with mental health problems are never properly assessed to see if they need social care—such as somebody to help with admin or household tasks, washing, dressing or something meaningful to do with the day. At least under the current legislation, people with mental health problems who have been treated under the Mental Health Act are entitled to receive free aftercare services when they leave hospital, and we must take care to safeguard that entitlement.

We on these Benches strongly support my noble friend’s amendment to ensure that that entitlement is carried through into the Care Bill. My noble friend has both the expertise and the dogged determination to pursue his case, and I hope that the Minister has some very good news for him today that addresses his rightful concerns.

--- Later in debate ---

[Baroness Hooper]

My Lords, I need only add very little to the case proposed by the noble Baroness. In the interests of fairness and equality in relationships, whatever the relationship, this is worthy of consideration. I emphasise that the noble Baroness has talked about a review. There are of course a lot of practical details which could affect this situation which would have to be worked out, but the important thing is that this type of relationship should have the same sort of consideration as has been given to others.

[Baroness Barker]

My Lords, I return to this subject yet again, having discussed it every time it has come before your Lordships’ House. I take a very different view of this proposal not because I wish in any way to denigrate people who care, but because a fundamental flaw and a serious danger lurk within it. Let us remember that it originally came from organisations such as the Christian Institute, as part of its continuing campaign against civil partnerships and same-sex marriage. It is not a proposal which emanated from the carers’ movement. I have spent 15 years in this House discussing various pieces of legislation which apply to carers. This did not arise. This has never arisen from the carers. It is very much part of a different campaign.

The proposal equates two fundamentally different sorts of relationship: those entered into freely and voluntarily as adults, and consanguine, family relationships. Those two types of relationship have always been treated differently in law, for very good reason. You cannot choose your family, you are born into it. You have relationships with people in that family which are wholly different, and your obligations to those people are wholly different, from those in the families which you create. That is why you do it. Also, you cannot leave a family into which you are born in the same way that you can divorce a partner to whom you are married.

That is important because behind this lie two key questions. First, if there are several siblings, how do you choose which two people enter into the relationship and benefit? Secondly and more importantly—the question which the noble Baroness, Lady Deech, has not answered although the noble Baroness, Lady Howarth, and I have put it every time this issue has arisen—how do you stop weaker members of the family being put under duress and compelled to protect the family property by stronger ones? Within that lies the potential for gross and horrible abuse.

I understand that the noble Baroness, Lady Deech, has weakened her proposal this time by asking for no more than a review. If there is a review and report which does not address that issue, it will have done the citizens of this country a disservice. I hope that at that stage, if not now, we can put an end to this campaign.

Carers already have recognition in ways that matter. We have carer’s allowance. We have attendance allowance. We have all sorts of things which recognise the particular status of carers without tying them into relationships around property which are very difficult to disentangle. If this is a way of dealing with the inequities of inheritance tax, so be it, but it is one containing dangers which should be appreciated before we go ahead with it.

[Baroness Northover]

My Lords, I thank the noble Baroness, Lady Deech, for tabling this amendment. This would place a duty on the Secretary of State to arrange a review of legal and financial rights and obligations of adult carers, adults they care for and codependent adult family members who share a house, with a view to considering the establishment of a specific legal status for such people that would include rights and obligations arising at death of one of the adults concerned.

The noble Baroness, Lady Deech, and my noble friend Lady Hooper emphasised the human side of this challenge, and of course one sympathises with the cases that they mention. Noble Lords will remember that we had an extensive debate recently on these issues both for the Marriage (Same Sex Couples) Bill, and in 2004 for the Civil Partnership Bill, as my noble friend Lady Barker has set out. In the recent debate, the noble Baroness, Lady Deech, sought to include carers and cohabitees in the proposed review of civil partnerships. We had some debate then about the Government’s support for carers. The point was also made that this was in essence a tax point.

I note that during the debate we recently had, the noble Baroness, Lady Deech, said that, having studied the Care Bill, she had not seen in it a hook on which to hang such a review. We believe that interpretation was correct. Such a review would be enormously complex and range much further than the provision of care and support.

As the noble Baroness, Lady Hollis, stated in Committee on the Marriage (Same Sex Couples) Bill, inheritance advantages on death would need to be balanced by responsibilities and financial dependencies during lifetime. There would need to be a fundamental root and branch review of social security and pensions policy and the provision of means-tested benefits, as well as a review of rights and obligations on death. Such questions about legal rights and responsibilities, arising from specific family relationships and friendships, are not related to the subject matter of the Care Bill. Nor do they fall within the responsibilities of the Secretary of State for Health. Indeed, Carers UK has said that forming some kind of formal legal relationship between a carer and the person they care for is not the right way to solve the challenges that carers currently face, a point that my noble friend Lady Barker has emphasised.

Parents, children and siblings already have a legally recognised relationship to each other that affords certain rights—for example, in the laws of intestacy. The Government, of course, value the contribution of carers in supporting family members and friends, recognising that they may often be caring for many years. That is why the Care Bill provides for significant improvements for carers in terms of offering them support in their caring role and in having a life of their own alongside caring. The noble Baroness, Lady Pitkeathley, in Committee on 3 July, said of the attention given to carers in the Bill:

“In the history of the carers’ movement, with which I have been associated for nearly 30 years, it is truly the most significant development that we have seen”.—[Official Report, 3/7/13; col. 1311.]

She said today that it is all she could have dreamed of in terms of the rights of carers. The noble Baroness, Lady Greengross, said that it is one of the best Bills we have seen in a long time. New and simplified assessment procedures will focus on the impact of caring on individual carers and families, on how to support carers to look after their own health and well-being and on the outcomes carers wish to achieve in their day-to-day life, including employment.

We also intend to provide carers with similar rights to support as those for whom they care. This new duty has been warmly welcomed as providing parity of esteem with those who need care and support. They will, of course, benefit from other provisions within the Bill, including the provisions that a local authority must promote an individual’s well-being in all decisions made with and about them and the requirements on what local authority information and advice services should include so that people understand how the care and support system works, what services are available locally, and how to access those services. The cap on eligible care costs will help to reassure everyone that they have a level of protection if they or members of their family have the most serious needs and incur very high care costs. I hope that I have reassured the noble Baroness of our support for carers.

--- Later in debate ---

[Baroness Deech]

My Lords, we start from the position that the European Court of Human Rights found that the situation was discriminatory. As far as I am concerned, it has nothing to do with the Christian Institute or attacks on civil partnership. I have nothing to do with the Christian Institute. I got interested in the Burden sisters’ case because two of my former students were their barristers and the two ladies wrote to me. I then remembered all the other situations that I knew about.

This is not a question of forcing a relationship on anyone. We all know of situations where two people choose to live together: no one has forced them to and either of them could have moved out years ago. There are many of these situations around the country. Two family members have lived together voluntarily and feel slighted when death and other difficult legal situations pop up and there is no proper law for them. That is why I said in my amendment that I was referring to adults who have lived together for five years—I could easily have said 20 years and it would have come to the same thing. I am no longer pushing for a relationship because that has been seen by many in the House to be inappropriate. However, I think it would be heart-warming to those who have written to me and taken an interest in this if the House were to be a bit more generous-spirited towards people who find themselves in this situation. It is a question of equality in a situation where the European court did find that there was discrimination.

People are not tied to each other in such a way that one might take advantage of inheritance tax relief—they have chosen to live together and would expect a hand of equality to be offered to them. The noble Baroness, Lady Northover, pointed out that only a very small number of people pay inheritance tax. The other side of the coin is that, if there were some generosity, for example towards siblings in this situation, a very small number would be affected. As far as I understand it, avoiding inheritance tax is rather more complicated than the noble Baroness has indicated. It takes quite some confidence to start making gifts when you think that you only have seven years to go. As far as I know, if you carry on living in the house, it could hardly be regarded as a gift that you have handed over to someone else; you would have to move out to make it plain that it was a gift.

I hope that between now and Report, the Government would at least give some indication that they will look at inheritance tax in the situation that I have described. Otherwise I might well choose to come back to this in the interests of those who have written to me and who feel that they do not get the same generous treatment on death as others. In the mean time, I beg leave to withdraw my amendment.

[Baroness Barker]

Before the noble Baroness does that, I would just make a point of fact. If people make arrangements in respect of their property for the purposes of minimising their inheritance tax, they do not have to move out. That is a matter of fact—they can continue to live in the property. I would not like people watching our debate to take what the noble Baroness has said as fact. I believe that she is wrong.

[A noble Baroness]

They have to pay rent.

[Baroness Barker]

But they do not have to move out.

Amendment 105SA withdrawn.

Care Bill [HL]

Baroness Barker Excerpts

Monday 22nd July 2013 Lords Chamber

[Lord Warner]

My Lords, one of these amendments has my name attached to it. I certainly fully support my noble friend’s other amendments and perhaps should have added my name to them. This is an important group of amendments in relation to the deferred payment arrangements, which are an equally important part of the architecture of the new scheme.

I agree very much with the purpose of my noble friend’s Amendment 92ZZX. When the Dilnot report proposed the idea of a deferred payment scheme, it was to be a national scheme that was totally consistent with the minimum national criteria threshold and portability. I have to say that we envisaged it coming into operation at the same time as the cap. The Government’s proposal of universal payment arrangements is certainly consistent with our approach but it leaves unanswered the question of whether you want to administer such a scheme through 152 local authorities.

One could make a case for a central scheme or latching the management of a such a scheme on to some existing agency. I think that the arguments are relatively evenly balanced. My noble friend has come up with one way of doing it, which is a model scheme that would be required to be adopted by most local authorities. The worst of all worlds would be not to take hold of this issue and leave it to a marketplace of 152 different bodies without much guidance or assistance with compatibility of IT and issues of that kind. We need to hear from the Government how they intend to ensure that this scheme is operated consistently by 152 local authorities. I personally do not have an axe to grind one way or another but I fear that if the Bill is left as it is, we may end up with a bit of a mess, with a wide range of diversity among the different local authorities.

I certainly see the sense of the first part of my noble friend’s Amendment 92ZZY. I shall be very interested to hear the Minister’s response. The second part raises a wider issue, which I still think we need to give more consideration to. There was considerable concern during the Dilnot inquiry about access to sound, independent financial advice, not just in relation to a deferred payment scheme but to some of the other financial products or major financial decisions on paying for care that people would be taking—often at a time of crisis in a family’s life. People would not necessarily be as clear-headed as they might otherwise be. There would be a lot of emotion, and it was important that people could feel confident about getting impartial advice. My sense is that as these major changes come closer, the financial services industry itself might well prefer some stronger statutory safeguards on accessing quality financial advice, if only to protect it from accusations that people had been misled.

I think that we need to come back to this issue. Can the Minister tell us more about discussions with the industry, and where the Government’s thinking is on a statutory requirement on accessing independent financial advice, not just in relation to deferred payments, but to a wider range of financial decision-making?

I added my name to my noble friend’s Amendment 92ZZZ because, like him, I have considerable doubts about whether by April 2015 we can get in place a well thought out and reliable universal deferred payments scheme in place, alongside all the other systems changes that have to be made. The new consultation document, at more than 100 pages, which came out last week on the new funding and payment arrangements demonstrates the complexity of what is involved. These changes will require a major public awareness and education campaign, as we discussed last week. By coincidence, last week I received a note, as other noble Lords may have done, from Saga. It suggests that there is still a mountain to climb in making the public aware of and well advised about these particular new arrangements.

As I have already mentioned, it is not at all clear to me whether we are talking about a nationally administered deferred payments scheme, or 152 separate schemes. That issue in itself will, I suggest, take some time to get sorted out. It is another powerful argument for not rushing our fences and trying to get this all in place by April 2015. We need some convincing chapter and verse from the Minister on readiness, because I, like my noble friend, cannot see how it is sensible to introduce a deferred payments scheme a year in advance of the new cap scheme, with all the interrelationships between these two schemes.

The good news is I perhaps slightly take issue with my noble friend, and give the Minister some comfort on Amendment 92ZZW. I am not sure about putting an interest rate into primary legislation. The ex-Minister in me would be saying, “I think we need a bit more flexibility than that”.

[Baroness Barker]

My Lords, I shall give some support to the noble Lord, Lord Lipsey. He has thought about this issue in greater detail than many, and that is very important. It is worth pointing out one thing which many people seem to have forgotten. We already operate deferred payments. We have done for a very long time; this is not new. My first question to the Minister is, what intelligence have the Government taken from the evidence which already exists about the operation of current deferred payment schemes—albeit not as part of the Dilnot scheme—in the assumptions they have made about how this legislation will be implemented?

Secondly, I share the view of the noble Lord, Lord Warner, that the potential effects will vary according to demography. In certain boroughs, the overall balance of the population and its longevity will mean that this has a greater impact than elsewhere. For example, in Greater London, the impact will be completely different in the London Borough of Newham and the London Borough of Richmond. Have the differing effects in different geographical areas been modelled? What lessons have the Government taken from that modelling?

I think that the noble Lord, Lord Lipsey, is right. This scheme is a very important part of the overall architecture of Dilnot, and if it does not work, given the sensitivities which there are around property and so on, it could be extremely damaging. The noble Lord may be right that it should be deferred, perhaps as the noble Lord, Lord Warner, suggested, for a year. It may be better to do it at leisure and in more detail than to do it in haste and get it wrong.

--- Later in debate ---

[Earl Howe]

We will, of course, give that consideration. I am just reflecting, in the light of the noble Lord’s comment, on whether deciding what arrangements suit the individual is a matter for the Government, or rather a matter of individual choice. If there were a difference in the interest rate, it would surely be up to the individual to decide whether they wished to avail of whatever facility was being offered to them. I do not see that it is necessary to go down the path that the noble Lord, Lord Lipsey, is suggesting, whereby a local authority should be the one and only provider of funding in that kind of situation, merely because the interest rate was perhaps more favourable than an insurance provider’s.

Deferred payments mean that people will not have to sell their home in their lifetime to pay for residential care; I do not think that any commercial product offers that. Equity release is not available to people currently in residential care. However, there is potential for equity release to help people with domiciliary care and other costs. We would welcome developments in that market but this is an evolving discussion with the industry.

In respect of Amendment 92ZZX, we will continue to work with the care sector to ensure that authorities are in the right position to offer deferred payments from April 2015. There will be a dedicated implementation effort led jointly by government and local authorities, learning from local areas with well established deferred payments schemes. This will help to achieve a consistent national approach that fits with existing local systems and structures. We have also announced £335 million of additional funding in 2015-16 to support local authorities to deliver funding reform, including the introduction of universal deferred payments.

Amendment 92ZZZ would delay implementation by one year, until 2016. Given the work already under way with the sector and the shared desire across both Houses to address the issue of care and support funding reform, it is surely only right that we implement this at a reasonable pace. My view—and I hope, on balance, that the Committee will agree—is that it would be unfair to persist with the current system for longer than is needed. The timetable we have set out has other advantages. The 2015 introduction means that deferred payments will be part of the new offer to self-funders coming into place that year, and the stronger engagement by authorities with self-funders will be excellent preparation for introducing the capped costs system in 2016.

The noble Lord, Lord Warner, expressed the fear that we would have 152 deferred payment schemes around the country. As we have discussed, some authorities already have established deferred payments schemes. We think it makes perfect sense to build on the good work that exists. It will also ensure that deferred payments integrate with wider care services. The point here is that authorities will be following criteria set out in national regulations. There will be a consistent approach to who qualifies and what fees they can defer, and a consistent policy around interest and charges.

There is, of course, work to be done by local authorities, but I suggest that what we are tasking them to do is not exactly alien territory to them. We are confident that local authorities have the skills to offer deferred payments. The requirements primarily involve financially assessing people and keeping a record of fees that people have deferred and the interest owed, which is all consistent with activities that authorities undertake as part of providing means-tested care and support. Many authorities already operate deferred payments very effectively. We will work with the sector to identify good practice, as I have mentioned.

In answer to my noble friend Lady Barker, in local authorities with established schemes 20% to 30% of self-funding care home residents take out deferred payment. The level of uptake in 2015 may be similar or it may be somewhat higher. Again, it is incumbent on us—and we recognise this—to work with the sector to identify good practice that others can learn from.

[Baroness Barker]

Is the 20% to 30% an average across all authorities?

[Earl Howe]

Yes, it is intended to be an average estimate across local authorities.

The noble Lord, Lord Lipsey, was concerned that there might be an incentive to encourage people to go into care homes rather than receive care at home, which would be contrary to the direction of the policy. That is an understandable concern, but Clause 1 creates a new statutory principle that applies to all the functions under Part 1, including care and support and safeguarding and means that, whenever a local authority makes a decision about an adult, it must promote the adult’s well-being. That ensures that individual well-being is the driving force behind care and support so that local authorities focus on achieving the outcomes that matter to people.

Moreover, although local authorities will be able to charge interest they will not be able to make a profit on deferred payments, so there should not be perverse incentives. Even so, it is important that people who go into residential care should understand their financial options so they can decide what is best for them. Authorities will have a duty to establish and maintain a service to help people access independent financial advice. We are currently consulting on how this duty should operate in practice, including how it works for deferred payment.

The noble Lord raised an important point in relation to the details of the scheme. These are all things we want to look at as part of our consultation and in the work we are doing with the care sector on implementation of funding reform.

--- Later in debate ---

[Lord Patel of Bradford]

My Lords, I had not intended to speak on these amendments, but they present something of a dichotomy in one of the areas in the Bill, particularly Amendment 92ZFC from the noble Baroness, Lady Greengross, on the powers of access. Last year I was invited by the manager of the local Bradford safeguarding social work team, a Mr Robert Strachan, who had already thought about this issue and had had extensive consultation with some of his colleagues, social work professionals and strategic managers in Bradford. He told me that opinions varied. At that time, no one had had a problem pulling together a protection plan for a vulnerable adult within the existing legislation, although people felt, when they were pushed to the limit, that such a power could be quite useful. I was gently persuaded by that.

However, when talking to Mind, the mental health charity, which has recently done an extensive consultation with its network, I found that it believes that this power is disproportionate and unnecessary. Its members have been clear that they would consider it intrusive and contrary to the European Convention on Human Rights, and that this would undermine the trust between social workers and service users. Mind has sought the views of its network of people with experience of mental health problems, and was clearly told that there is a mistaken but prevalent belief that people with mental health problems do not have the capacity to make decisions about their own safety. Because of that, many have had negative experiences of intervention, compulsion and detention, all of which reduce choice and control and can undermine trust in statutory authorities. Mind argues that introducing powers of access for social workers is likely to further undermine trust in statutory authorities and lead to extremely difficult working relationships between social workers and service providers. I am of course sympathetic to these views. However, I am also extremely sympathetic to the views expressed in the arguments from the noble Baroness, Lady Greengross, so I am a little torn.

The only way in which I can look at this is by case example. Let us assume that an elderly lady is being cared for by her son, who has some behavioural problems, like the case that we recently had in Bradford where the grandson actually killed his grandmother. Neighbours report their concerns to social services, who dutifully go around and visit. However, they never get further than clacking the front door; the son tells them that everything is fine and he is looking after his mother. Further reports of shouting and banging reach the authorities via the neighbours, but still they are refused permission to enter and see the older lady. What do you do? The police have no powers of entry but clearly there are some major concerns. How, therefore, to proceed and establish even that the lady is dead or alive? Powers of entry, in such extreme circumstances, would allow professionals to access the house and see the person, as in cases involving domestic violence or children. I would therefore be broadly inclined to support the powers, which would add something that is not currently in place.

However, the trick would be in the execution of those powers. For example, it would not be sufficient merely to gain entry. What would you do next—convey the lady to a place of safety or take the son away? If you did not, you would be exposing the victim to further and sustained abuse. This would need thinking through carefully. The question of how the powers would be controlled and executed would be difficult but not insurmountable. I look forward to the Minister’s arguments to persuade me either way on this one.

[Baroness Barker]

My Lords, I support the amendments of the noble Baroness, Lady Greengross. They go straight to a gap that exists for older people who have capacity but are physically dependent upon people who may be abusing them. With all respect to the noble Lord, Lord Patel—whose arguments I listened to very carefully because they were very thoughtful, and I would not want to disregard what Mind has found in its consultation with its members—I point out to him that members of Mind are likely to have protection under either the Mental Health Act or the Mental Capacity Act. The people to whom the amendment tabled by the noble Baroness, Lady Greengross, is addressed do not have that protection. For me, that swings the argument.

Elder abuse has a rather odd standing in the general consciousness. It does not have the same profile as the abuse of children. It goes up and down the public agenda depending upon whether there has been some scandal or an awful case in the papers. People’s reactions to it vary enormously. When people are polled on their views about this, the phrasing of the questions in any consultation can have a profound impact. Were we faced with a question that said: “Would you like social workers to have the power to intrude into your house?”, most of us would say no, but if we were asked, “Do you think that somebody ought to be able to look out for people who are extremely vulnerable and may not be able to get out and tell anybody?”, we would say yes. That goes straight to the consultation that the Government have already held, and the reason for some of its findings. Professionals who have had experience of dealing with people and operating under the law have said that they think there needs to be a greater degree of protection, albeit with brakes and conditions, such as the necessity of getting the agreement of a JP—not just social workers barging in because they feel like it.

Taken together, the amendments tabled by the noble Baroness, Lady Greengross, get the right balance. They are not about empowering bossy professionals to wade in regardless of what people want but they are quite important, not least because of something the noble Baroness, Lady Greengross, said, which was of tremendous importance: the largest percentage of people who abuse vulnerable elderly adults are family members. The consequence of that is that very often people who are being abused are highly reluctant to do anything about it because they fear that there will be repercussions against their family members. That is why it is necessary to have a bit more legal force behind some of this than we would otherwise think we should, and I think that, on balance, the noble Baroness’s amendments are right and proportionate.

Finally, there is a very good case for the Government to accept the amendments or something like them within this legislation. They should do it now when we are not making decisions in the shadow of a scandal and when we can talk about best practice in neutral terms.

[Baroness Hollins]

My Lords, I shall speak briefly in support of my noble friend’s Amendment 92ZFC because it applies to people with learning disabilities—particularly people with mild or moderate learning disabilities who may not meet the eligibility criteria for care and support in a situation where someone has befriended a person with a learning disability, moved in with them and concerns have been raised by neighbours that the person may be being abused. This is not about family carers; it is a mate crime. It is the sort of crime of which Steven Hoskin was a victim. He was subsequently murdered. Somebody moves in, and the local authority is unable to speak to the adult with a learning disability to check whether they are okay because the other person always answers the door and will not let anybody in. This power of access would change that, and I support my noble friend.

Care Bill [HL]

Baroness Barker Excerpts

Tuesday 16th July 2013 Lords Chamber

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, I thank the noble Lords, Lord Low and Lord Touhig, for bringing forward these amendments. I say straight away that I fully support the intention of Amendment 88M, which is to ensure that local authorities engage a suitable expert when carrying out complex assessments. The assessment will remain an integral part of the process of determining a person’s care and support needs and whether these meet the national eligibility criteria. To ensure that this is done correctly, it is essential that the person carrying out the assessment has the right knowledge, skills and competence. We heard from users of care and support during the engagement on the draft Bill about the importance of the assessor having knowledge of the condition that the person may have, whether they are, for example, a frail older person, a person with mental health problems or a person with autism.

Care managers and social workers are trained to carry out assessments. Their skills and experience will allow them to assess people with various conditions such as physical disability. There are, however, certain complex conditions where these skills are not sufficient to allow assessments to be carried out effectively. I am particularly thinking about a person who is deafblind—the example, given by the noble Lord, Lord Low. In those circumstances, most care managers would find it very difficult, if not impossible, to communicate with the person. It takes someone with expertise to carry out an assessment properly and identify the person’s needs and the outcomes they wish to achieve.

I agree with the noble Lords that, in such circumstances, the local authority must engage a person with the relevant expertise to carry out the assessment. That continues to be our policy. I also accept that if the adult’s condition is so complex at the assessment stage as to require the services of an expert in the field to provide advice, then it makes perfect sense for this to be repeated when the plan is to be reviewed. I should like to reassure the Committee that the Bill already has provisions in place to allow this joined-up approach to occur if an adult’s circumstances have changed in a way that affects the care plan. Clause 27(4) states that the local authority must, to the extent it considers appropriate, carry out a fresh needs assessment. In doing so, it would have to follow the requirements of regulations to consult a person with expertise. I hope I have reassured noble Lords of our agreement to the principles that they raise. In the light of what they have said in support of the amendment, I will look again at Clause 12 to ensure that we are giving ourselves the relevant powers to achieve our aims. I hope that the noble Lord, Lord Low, will find that undertaking welcome.

[Baroness Barker]

In Clause 27 it appears that it is only the local authority that has the power to ask for there to be a reassessment, not the individual. Is there a provision somewhere in the Bill that enables an individual to trigger a reassessment, or does that power lie with the local authority alone? If the Minister does not have an answer to hand, perhaps he might write to me.

[Earl Howe]

I shall do my best to answer my noble friend in a moment or two, but I am aware that I did not answer a specific question raised by the noble Lord, Lord Low, as to why we changed the wording in Clause 12(1)(c) of the draft Bill. We widened the scope of the powers following consultation—for example, to add a power to specify when an expert must be consulted —and in widening the powers the wording was slightly amended. We are happy to look at this again in order to make sure that it continues to meet the policy intention. In answer to my noble friend Lady Barker, I would refer her to Clause 27(1)(b), which refers to the right of an individual to request a review.

--- Later in debate ---

[Lord Low of Dalston]

I shall speak to Amendments 89BA and 92ZZM. I very much welcomed the comments of the Minister at Second Reading, when he stated that the Government,

“intend to use regulations to ensure that services ... currently … provided free, including … minor aids or adaptations, remain provided free of charge”.—[Official Report, 21/5/13; col. 826.]

That seems only right, since minor aids and adaptations are qualifying services under the Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003.

The Government do not want to see local authorities charging for services that they are not permitted to charge for today. Clauses 2(3)(b) and 14(6) hint at this, explaining that regulations may prohibit local authorities from charging for particular types of support. However, the Bill should be explicit about what local authorities are prohibited from charging for.

I shall take the amendments in reverse order. Amendment 92ZZM relates specifically to personal budgets and would ensure that anyone needing care and support and requiring equipment or adaptations costing under £1,000 would not be financially assessed as part of a personal budget, which would effectively impose a charge for those items. In considering the amendment, will the Minister clarify how equipment and adaptations will be provided for in personal budgets? Will he ensure that regulations are unambiguously clear on the need for equipment and adaptations to remain free and for there to be no variations at a local level? The College of Occupational Therapists has some concerns about this.

I know that the Minister understands how important these provisions are to ensure effective preventive services that reduce both the demands on care services and the cost to local councils. In many instances, occupational therapists assist those requiring care and support by recommending the provision of equipment, minor adaptations and assistive technology, often resulting in recommendations, disabled facilities grants for safe management of progressive conditions and the moving and handling of people.

Equipment and adaptations are critically important, as they reduce the need for escalating care, protecting the individual and saving the resources of cash-strapped local authorities. Any reference to the provision of equipment and adaptations is notably absent from the legislation. However, these aids are critical for many people, and it is important that the Government are clear about how equipment and adaptations will be treated under the Bill. I hope that the Minister will agree not only that they should remain freely available but that they should not attract a charge by the back door when made the subject of a personal budget.

Amendment 89BA is a probing amendment to seek an assurance from the Minister that the provision in the Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003, preventing local authorities charging for minor aids and adaptations under £1,000, will be maintained and to ask whether the £1,000 threshold, set 10 years ago, will be kept up to date.

[Baroness Barker]

My Lords, I support all the amendments in this group. On these Benches one of our great hopes for a national system of criteria is that it will lessen the frequency with which people in different parts of the country are wrongly charged for services that should be free. It has always been the case that older people, and carers in particular, can find themselves being charged by a local authority for things that are in fact free under various different pieces of legislation, notably the Community Care (Delayed Discharges etc) Act.

All of these amendments have things to commend them. I will start in reverse order, with the amendment of the noble Lord, Lord Lipsey. He has hit on something that is a bigger issue than perhaps has been realised yet. When we were debating the pension credit legislation in this House, the noble Baroness, Lady Hollis, talked about the fact that she had taken over the affairs of an elderly relative. She was probably the one person in the whole of Britain who at that time knew exactly what the regulations were. Yet it was only after the person died that she discovered that they had a little account about which she had known absolutely nothing. Why? Because many older people put money aside to cover their funeral. That is the truth. It is something that is very important to them. They probably do not tell people about it. I am sure that they also have other reasons, but that is a very common one. It is not uncommon for relatives to discover such accounts, although they are not vast amounts of money. The noble Lord, Lord Lipsey, is absolutely right that if, in a circumstance like that, somebody was deemed to have transgressed the law, it would be unfair and unjust.

I also add support to Amendment 89BA, an amendment of the noble Lord, Lord Low of Dalston. I was lucky to serve with the noble Lord, Lord Best, last year on an inquiry into the availability of aids and adaptations for older people who need help to remain in their own homes. We discovered extraordinary variations across the country and heartrending stories of elderly ladies having to carry their very elderly husbands up and down flights of stairs on their back, in a way that was simply unsustainable.

I commend to noble Lords the policy that was adopted by the local authority in Hull. It occurred to officials one day that, truth be known, nobody really wants a ramp outside their door. So they abandoned their assessment procedure; they stopped sending social workers out to discover whether or not this was necessary. They saved a lot of money that went instead into direct services. That is a commendable approach, and one that probably saved the city of Hull a lot of money in immediate and direct costs. Would that that spirit could go into the implementation of this Bill.

[Lord Warner]

My Lords, I rise briefly to support the amendment of my noble friend Lady Pitkeathley. As someone who has spent six years in the local authority salt mines, I say that one should never underestimate the capacity of any local authority, when times are hard, to scratch around for things by which they can raise some money—I say this with affection. If there is a scintilla of doubt in this legislation about the ability to charge carers for services, we should remove it immediately. Otherwise I would be willing to bet a reasonable sum of money that when there is a financial crisis in some part of the country at some point in the future, a bright spark in a local authority will light upon the chargeability of carers for particular services. I am not sure whether my noble friend’s wording is the right way of doing this, but her intention is absolutely right. I hope that the Government will take this issue away and make sure that this particular piece of legislation is totally fireproof in terms of the ability of local authorities to charge carers for services.

I also support the amendment of my noble friend, Lord Lipsey. Evidence was given repeatedly to the Dilnot commission about the distressed state that many people were in when they made key decisions about their family’s circumstances. I suspect that he is on to something important that affects quite a lot of people.