Health and Care Bill

Debate between Baroness Pitkeathley and Lord Howarth of Newport

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

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

My Lords, the noble Lord, Lord Howarth, is taking part remotely. I invite him to speak.

[Lord Howarth of Newport (Lab) [V]]

My Lords, I congratulate the noble Baroness, Lady Bennett of Manor Castle, on bringing back this issue on Report; I was sorry not to be able to speak in Committee. We must also be grateful to the academics at the University of Surrey who followed the money and, a year ago, published their exposé, Careless Finance.

The noble quartet of the noble Baronesses, Lady Bennett, Lady Brinton, Lady Tyler and Lady Altmann, has previously provided the House with an excellent analysis of predatory financial manipulation of the social care sector by hedge funds and offshore entities. I just want briefly to underline certain points.

What we have been seeing is legalised theft. Financial operators are leeching, for their own profit and benefit, substantial proportions—16% to 20%—of the funds provided for social care by both the public purse and self-funding individuals; “grey gold”, the profits thus extracted are sometimes called. This racket, unacceptable at any time, has been perpetrated during a period when the Government have chosen to underfund social care lamentably. Because sufficient budgets are not available to local authorities, many people who should be eligible for social care are not receiving it and many who are in social care are experiencing threadbare services. The workforce is depleted and miserably paid.

It is in the context of this crisis that unscrupulous operators have been ripping off a broken system. In their greed they are putting the business survival of providers at risk. As Christine Corlet Walker, Angela Druckman and Tim Jackson of the University of Surrey have reported, we have been seeing a large-scale transfer of money from the poorest to the richest. As they say,

“the ongoing cost is the silent tragedy of the most vulnerable in society.”

Meanwhile, the Government have made little or no effort to address the problem, which indeed they do not appear to acknowledge exists. The noble Earl, Lord Howe—for whom personally I have great regard—in his response on behalf of the Government in Committee, said that the noble Baroness’s amendment to improve transparency was not proportionate or necessary. He suggested that the Care Act 2014 and the CQC’s market oversight scheme should take care of any problems. However, since the abuses continue, it is obvious that these policies have been ineffectual with regard to them.

The noble Earl also said that it was for local authorities to shape, oversee and manage the market, but only the Government can act to close opportunities for rogue investors to carry out these abuses. He suggested that BEIS was on the case, but BEIS has been inexcusably dilatory.

The Government claim to be fixing social care, but all they are doing is providing a meagre and delayed increase in funding for social care by dint of imposing extra tax on the poor. The only reform they are truly interested in is to relieve the affluent of the need to sell their homes to pay for care.

Even the Government are now exercised about the abuses by Russian kleptocrats. So too they should be very seriously exercised by the abuses of the social care system by unscrupulous investors. Can they not see the evils that have flowed from marketising the social care sector? As the noble Baroness has just said, on Wednesday, the House will debate the Economic Crime (Transparency and Enforcement) Bill. We should also be debating an overdue “social care financial abuse (transparency and enforcement) Bill”, brought forward by the Government.

[The Deputy Speaker (Baroness Pitkeathley) (Lab)]

My Lords, the noble Baroness, Lady Brinton, is also taking part remotely. I invite her to speak next.

Health and Care Bill

Debate between Baroness Pitkeathley and Lord Howarth of Newport

Lords Hansard - Part 1 & Committee stage
Monday 31st January 2022 Lords Chamber

[Lord Howarth of Newport (Lab) [V]]

My Lords, I too would have preferred to speak later in the debate. I am sure that there are other noble Lords who have tabled amendments from whom the Committee would have preferred to hear nearer the outset, but I understand that the Deputy Chairman of Committees does not the flexibility to allow this, and I am of course grateful for the opportunity to speak.

As we know, the Covid-19 pandemic has led to a substantial rise in mental ill-health across the general population. Not surprisingly, this effect has been particularly hard-felt among unpaid carers. Many carers, already leading confined lives, have struggled with lockdown. Young carers have suffered with the loss of schooling and, when schools returned, trying to ensure that the people they care for have been shielded from the virus. Many were unable to go back to school for fear of bringing the virus home. Many from disadvantaged backgrounds did not have the digital resources to enable home schooling to be effective.

As we consider these amendments, I would like briefly to bring to the attention of noble Lords some remarkable work with carers being developed in Kingston upon Thames by Kingston Carers’ Network. KCN provides a range of crucial services to some 4,000 adult carers and 700 young carers from five to 18 years old. An important element of this support is nurturing the creativity of carers. Recognising, from the SHAPER research programme, which I mentioned in a previous debate, the positive effects of the arts on mental health and well-being, KCN is working with Rosetta Life to introduce three arts programmes for carers. Poetry and conversation provides co-created poetry workshops for adult carers, demystifying poetry and making it easier to approach. Participants have written and shared online poems about the challenges of caring. They have all said they would like more sessions.

KCN is trying to secure funding to participate with Rosetta Life in an international project called HeArt of Care. The idea is to offer master classes in dance, art making, photography, poetry and song writing for both adult and young carers. The project will create a website showing positive representations of the grace, dignity, compassion and joy of care and caregiving. The groups that would participate with KCN are a network of carers from Tyneside, Bristol Black Carers, Caregivers India and the End of Life Care Centre, Rwanda.

Another project is Room2Dream. Rosetta Life has a partnership with Dream a Dream in India, which works with 18 to 21 year-old carers who live in extreme poverty. This is one of 16 partnerships between young people in the UK and young people in refugee camps, conflict zones, hospices and adolescent psychiatric care. Young carers are offered poetry and song-writing workshops; they are given classes in film-making to enable them to create films about their poems and songs, and share them with other young carers not only in India but in, for example, Rwanda, Syria, Zimbabwe and Nepal. KCN is currently trying to secure funding for this initiative too.

These fledgling projects highlight the potential of the arts to improve the lives of unpaid carers and to enable them to have a voice that will be heard nationally and internationally. We should ensure that the system created through this legislation will underpin such ways to strengthen the resilience of carers and, beyond that, to enable them to flourish. These amendments will help. I look forward to a time when public policy, far more reliably and generously, supports unpaid carers to have better lives while they do their crucial work.

[Baroness Pitkeathley (Lab)]

My Lords, for 25 years, I have been trying to bring the voice of carers into your Lordships’ House. I know, from the great amount of support I have received over those years, that the whole of your Lordships’ House agrees that we should recognise and value the enormous contribution of millions of people caring for families and friends, who do so much to support others, often at great personal cost. I make no apology for repeating the statistics: up to 13 million carers provide unpaid care worth £530 million a day, or £193 billion a year. They are indeed the backbone of our health and care system.

Ensuring that the health system identifies and supports carers in return is the least we can do, and that is the objective of the four amendments to which my name is added in this group. I am also very supportive of Amendment 217 moved by the noble Baroness, Lady Wheeler. I thank her for her excellent introduction. I am strongly supportive of Amendment 219 and am grateful to the noble Baroness, Lady Brinton, for tabling it.

As Members will know, I have long called for the NHS to have stronger duties towards unpaid carers. The NHS depends heavily on the role and input of people who care unpaid, usually family and friends but quite often neighbours, in supporting people with long-term conditions and disabilities in the community. Research by Carers UK shows that more than half of carers say they feel invisible to the NHS; more than half of carers providing significant amounts of care were not involved in decisions about hospital discharge; and the majority of carers, over 60%, were not given enough information and advice to care safely, at the point of hospital discharge, for the person they care for.

Placing a duty on the NHS with regard to carers is needed, as there is currently neither a systemic nor systematic approach towards carers in the NHS. As the noble Baroness, Lady Brinton, pointed out, a duty to carers would help greater integration between services. Currently, local authority social care sees carers as equal partners in care and very much part of the system, whereas carers can be invisible to the health system. This duty would also lead to direct benefits to the health system, including improved health and well-being, improved satisfaction with services, and reduced admissions and those all-too-frequent readmissions. More practically, it would avoid the significant omissions of carers in recent guidance on hospital discharge, to which I now turn.

Amendment 221 proposes to insert a new clause to protect carers’ rights. As it stands, Clause 80 is of great concern. Almost incredibly—I can hardly believe I am saying this—it removes from carers rights that have been hard fought for over many years and which were enshrined in the Care Act 2014 and the Community Care (Delayed Discharges etc.) Act 2003. Many of your Lordships will remember those Acts and the many hours we spent on them.

This Bill repeals the legislation giving carers the fundamental right to have an assessment and ensuring that the services provided make sure that discharge from hospital is safe. There are endless horror stories about unsafe discharges and this issue has been debated extensively in another place. Hospital discharge is one of the most difficult points in the care system for unpaid carers, who often take on caring responsibilities without the right support.

Through Clause 80 in the Health and Care Bill, the Government are seeking to pass legislation that would enact the discharge to assess approach mentioned by my noble friend Lady Wheeler, which has recently been deployed by NHS England, by repealing, as I said, the Community Care (Delayed Discharges etc.) Act 2003. Amendment 221, in my name and supported by the noble Lords, Lord Young of Cookham and Lord Warner, and the noble Baroness, Lady Tyler of Enfield—to all of whom I am very grateful—would ensure that, in advance of any patient being discharged from hospital, the relevant NHS body must identify and consult any carer who is about to provide or will be providing care. This would ensure that the local authority is not the only statutory body with responsibilities towards carers and that the NHS plays its equal part. It would also ensure that the carer in question has services that protect their well-being and that assumptions are not being made that they will automatically provide care—assumptions that are made far too often.

Carers’ organisations are extremely concerned that the inclusion of carers in this guidance for discharge to assess is insufficient to protect carers’ rights. I ask the Minister, on what evidence basis is the move to discharge to assess better for unpaid carers? The evidence seems to be that discharge to assess is worse. The Government’s own impact assessment of the Bill recognises that it will lead to many carers having to take on even more care. It states:

“There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier. For some, this may result in a … reduction in work hours and associated financial costs.”


Are the Government really suggesting that carers go on to benefits—the carer’s allowance, for example, which is only £67 a week and recognised as a pathway to poverty?

I am sure the Minister is also aware that if a carer gives up work to care, they do not immediately get any benefits. That leaves them without any income at all. Or are the Government suggesting in their impact assessment that discharge to assess is better for carers by suggesting they take unpaid leave from work, in the process passing on the costs of hospital discharge to employers? Giving up work to care hurts the economy and costs businesses money in terms of recruitment and retention. So I would really like the Government to explain the thinking on this one, because I have lost count of the number of Ministers who have stood at the Dispatch Box and agreed with me that the best thing you can do for carers is enable them to stay in paid work as long as possible. So will the Minister please explain that to me—or better yet, be prepared to explain it to a group of carers that I am happy to arrange to meet him?

I turn now to Amendment 225, on the definition of a carer, which will be spoken to by the noble Baroness, Lady Hollins. It may seem unbelievable, but when I started in the carers’ movement in the mid-1980s, the word “carer” was unknown. Yes, it was not even in the dictionary, and every time you typed “carer”, your spellcheck corrected it to “career”. Now the word is everywhere and, in a way, the unpaid carers movement is a victim of its own success, because everyone wants to be called a carer and it is increasingly used to describe paid care workers. Carers themselves actually have difficulty in identifying themselves as a carer—“I’m not a carer, I’m a mother, a husband, a daughter”, is what they say. This lack of identification is an obstacle to them accessing support, so a proper definition is vital and it must be all-encompassing, as set out in the amendment. We fought very hard to get these definitions acknowledged in statute, for example the Care Act 2014, and it is important that the word “carer” encompasses parent carers and young carers.

I point out that the purpose of this amendment is not to create anything new. It uses only existing legislative references. Its purpose is to ensure that the definition of carers in the Bill is entirely clear, so I see no possible reason for the Government to reject it.

Health and Care Bill

Debate between Baroness Pitkeathley and Lord Howarth of Newport

Lords Hansard - Part 3 & Committee stage
Wednesday 26th January 2022 Lords Chamber

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

I call the noble Lord, Lord Howarth, who is participating remotely.

[Lord Howarth of Newport (Lab) [V]]

My Lords, your Lordships’ Select Committee on the Constitution, of which I have the honour to be a member, has advised the House, as has the Delegated Powers and Regulatory Reform Committee, that this Bill is a skeleton or framework Bill. It provides a multitude of vaguely delineated powers and duties. It is often impossible for noble Lords to scrutinise these meaningfully because their meaning is so unclear

The Bill is also an instance of a growing tendency in the Government’s legislative practice to create “soft law”—that is, guidance, rules and directions which are not susceptible to parliamentary scrutiny but are, in, effect binding. It also creates “hard law”, which is not susceptible to parliamentary scrutiny, as in the Henry VIII power in Clause 15, but is subject only to the negative resolution procedure.

This manner of legislating is part of a pattern documented in a long series of reports by the Constitution Committee, drawing the attention of the House to Henry VIII clauses which are convenient to the Executive but subversive for parliamentary democracy, and to the creation of delegated powers enabling Ministers to bring in significant policy change subject to little or no parliamentary scrutiny. The DPRRC has reported that the Bill contains no less than 155 delegated powers.

What is egregious, however, are the autocratic powers that the Bill accords to the Secretary of State. I had sought to indicate that I wished to speak on the previous group, but there was some confusion, and the Chair did not invite me to do so. I hope therefore that noble Lords will bear with me as I take us back for a moment.

As the noble Lord, Lord Hunt, and others, noted Clause 39, entitled

“General Power to Direct NHS England,”


states:

“The Secretary of State may give NHS England directions as to the exercise of any of its functions.”


It goes on to say:

“The directions that may be given include a direction as to … when or how a function is, or is not, to be exercised”


and

“matters to be taken into account in exercising a function.”

The autocratic power provided by Clause 39 is exacerbated by Clause 64, which repeals the duties previously placed on the Secretary of State to respect autonomy within the NHS.

The mischief, which the noble Baroness’s amendments in this group seek to mitigate, is further compounded by Clause 40 and Schedule 6, which confer comprehensive powers on the Secretary of State in regard to reconfiguration of NHS services. Effectively these three clauses together confer upon the Secretary of State, with only the exception stated at proposed new Section 13ZD in Clause 39, mainly in relation to clinical discretion, absolute power over the NHS.

We are told that the Secretary of State has no intention of bossing NHS England around and that he needs powers to sort out failures within the NHS system. In our earlier debate today on continuing care, and in his response to the last debate, the Minister said it is not the Government’s intention to interfere unduly in the affairs of ICBs. However, in a letter to the Times today, referred to by the noble Baroness, the chief executive officers of the King’s Fund, NHS Providers and the NHS Confederation warn of the danger that the Bill may lead to politicisation of decision-making in the NHS, of the kind which the noble Lord, Lord Warner, described in the last debate and which the noble Baroness, Lady Cumberlege, has just explained. The fact remains that Clauses 39, 40 and 64 make the Secretary of State untrammelled master of the NHS.

With such power comes temptation, not least for Department of Health officials. What might “unduly” mean in practice? The Secretary of State may often refrain from interfering, but too often he, or officials acting in his name, may not. In any case, to accord the Secretary of State such excessive power is wrong in principle. The legislation should strike an acceptable balance between the autonomy which NHS leaders and managers need if they are to do their jobs well, responding as they judge appropriate to local needs, and a due accountability of the NHS to the Secretary of State and, through him, to Parliament. Here, however, we have neither. The Bill concentrates power over the NHS in the hands of a Minister who is poorly accountable to Parliament in the exercise of much of his power.

Health and Care Bill

Debate between Baroness Pitkeathley and Lord Howarth of Newport

Committee stage & Lords Hansard - Part 1
Tuesday 11th January 2022 Lords Chamber

[The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)]

My Lords, I remind the Committee that I must call the noble Lord, Lord Howarth, who is taking part remotely, to respond to the debate on Amendment 3.

[Lord Howarth of Newport (Lab) [V]]

My Lords, I very much appreciate the recognition by the noble Earl of the validity of the concerns put forward by the proponents of these two amendments, and his acknowledgment that the board of NHS England must contain balance and diversity. I also recognise the force of the points made by the noble Baroness, Lady Harding, and the noble Lord, Lord Mawson: it is essential that the chair should have power to ensure that the board is cohesive. I noted that the noble Baroness, Lady Walmsley, had reservations about the principle of representativeness which is stated in Amendment 2.

We have had a very useful debate. In light of the reflections put forward in the debate, particularly what the Minister, the noble Earl, Lord Howe, has said, I beg leave to withdraw my amendment.