Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021

Baroness Tyler of Enfield Excerpts

Tuesday 20th July 2021 Lords Chamber

[Baroness Tyler of Enfield (LD) [V]]

My Lords, this is an extremely tricky issue, and I find myself deeply conflicted. On the one hand, I strongly support the principle of mandatory vaccination of care home workers, for reasons I will explain. On the other hand, I think the Government have gone about it in entirely the wrong way. As so often in this pandemic, we are trying to reconcile forces that pull in entirely opposite directions—in this case, the public health need to safeguard some of our most vulnerable citizens, which in my view is overwhelming, pitched against the individual liberties of care home workers.

For me this is deeply personal. My mother is a long-term care home resident and in the first wave of the pandemic, when hospital patients were being transferred to the home without proper testing, there was a significant number of deaths. I need hardly say that this was deeply distressing for my whole family and, I know, many other families up and down the country.

Care homes have a duty of care to their residents, which in my view they are not fulfilling if they do not require care workers who perform close-contact and intimate tasks to be fully vaccinated, unless they have a medical exemption. In my view, anything else would be negligent. Let us never forget the human tragedy this cruel pandemic has wreaked in care homes. Some 20,000 care home residents died in the first wave, accounting for 44% of all excess deaths for that period in England and Wales. We surely owe it to all who died and their families to ensure that care home residents receive every possible protection at a time when cases are rising again with a far more transmissible variant. Today we learn from the latest ONS figures that care home deaths are on the rise too.

Months ago, Professor Chris Whitty expressed the view that front-line health and care workers have what he termed a “professional responsibility” to get vaccinated, to reduce the risk that Covid poses to patients and care home residents. It seems odd that the mandatory hepatitis vaccination for some front-line health workers is hardly, if ever, queried.

I regret that today we are not looking at both NHS and social care workers together. According to the evidence provided to the Secondary Legislation Scrutiny Committee, published only yesterday, take-up of the first dose in the care home workforce stands at 85.6% but with significant variation, as the Minister set out.

It is clear from the two reports of the Secondary Legislation Scrutiny Committee and the debate in the other place on 13 July that this SI is deficient in many respects. The confusing data provided in the Explanatory Memorandum, the lack of an impact assessment—particularly on the workforce implications—and detailed operational guidance not being available until the end of the month are inexcusable. Frankly, I also found it peculiar that the regulations cover a range of tradespeople and other service providers who are unlikely to have close contact with residents. In reality, proper parliamentary scrutiny was pretty much impossible. I totally get that.

I have argued from the outset that far more support was needed to improve vaccine take-up rates among care workers. In early days, slow vaccine take-up was partly due to practical problems, such as vaccinators coming to homes with enough vaccine only for residents, staff being expected to travel to vaccination centres but not given time off or money to get there, and those staff not on duty when vaccinators came missing out. Despite all the efforts made locally to encourage staff to have the vaccine, crucially, the Government should take more proactive steps for carers to be paid for time spent on getting vaccinated, especially if they have to come in when they are not on shift and if they have to take time off because of any short-term reaction to the jab. These things are critically important to low-paid staff, some of whom are on zero-hours contracts.

GPs spending time in care homes talking to staff who are vaccine hesitant has proved highly effective. On top of this, I feel the Government should step in to help with the costs of redeployment and retraining for staff who still refuse to have the vaccine. Without seeing the operational guidance, we do not know whether this will happen.

It is with a heavy heart and after much thought that I am unable to support the amendment in the name of the noble Baroness, Lady Wheeler. I am sympathetic to its intent and broadly support the first three elements, but I cannot support the final element, which says that stronger supporting evidence for requiring staff to be vaccinated is required. The case is clear, and we need to see both more action and more support to ensure that more lives are not lost. However, we need to see the right action.

I plead with the Government, even at this late stage, to think again and to provide the help and support I have outlined above. I also feel that it sends out the wrong message to the public, who will not be following the minutiae of parliamentary procedures and impact assessments and the like. The message will simply be that we do not support the principle of mandatory vaccine for care workers other than those with the medical exemption, which I do, and strongly. This is the right policy but, sadly, the Government have gone about it in entirely the wrong way. It should also apply to NHS workers and it was wrong to exclude them. However, two wrongs emphatically do not make a right.

[Lord Lansley (Con)]

My Lords, I am very glad to follow the noble Baroness, Lady Tyler of Enfield. Like her, I would not be in a position to be able to support the amendment to the Motion. I support this statutory instrument but, I have to say, with some reluctance—and it is not simply because of the procedural issues. It is a step we should take only in a health emergency. I will come back to that point before I conclude.

I am grateful to my noble friend, who explained the SI with his customary clarity, but we are especially grateful to the Secondary Legislation Scrutiny Committee, whose painstaking work has illustrated many of the issues, including those I want briefly to refer to. I am looking for my noble friend in responding to this debate to give one explanation and two sets of assurances.

The explanation is because I simply do not understand why care homes have been brought forward and legislated for in this way where other settings have not been. I cannot understand the difference between a care worker going into a domiciliary care setting with a vulnerable person and how that differs from a care worker in a residential care home. I cannot understand how the vaccination of a residential care worker is different from the vaccination of a healthcare worker in a geriatric ward in a hospital. Why are these things different? If the Government are going to move forward on this, they should have moved forward on all these settings together and should have had the clear argument presented rather than what appears to be a piecemeal argument. I hope that my noble friend will explain why the Government have proceeded in this piecemeal fashion with a further consultation to come, which may lead to different conclusions even at the margin for other settings and for care homes, which will create unnecessary confusion.

Secondly, I am looking for an assurance about support for the care home sector. My noble friend said that the statement of impact—which I found on the government website but of course not published alongside the legislation—says that the Government’s central estimate is 40,000 potential losses of staff. This is in a sector where Skills for Care reported 112,000 staff vacancies in the autumn of last year and where we know that there is a dependence on workers from overseas, some of whom have gone back home and not returned. The sector needs help. The impact statement says that recruitment on average costs £2,500, which is £100 million for the sector in consequence of this measure. That is before you begin to look for the other support it needs from the healthcare system, its general practice colleagues, and in dealing with the insurance sector and others. I hope my noble friend will be able to say that the Government will add significantly—at least that £100 million—to the infection control fund, which is £1.1 billion, and do so in close consultation with the care home sector to give it the support that it needs.

Thirdly, and finally, the point of reassurance I am looking for is that I expected, having discussed this with Ministers, that this statutory instrument would be brought forward with a sunset clause. That is transparently something that should apply during the emergency. It would be reasonable if the Government had said, “This time next year, we should be deciding whether legislation of this kind should be renewed, and a sunset clause would enable that to happen.” I have no confidence that a review, as Regulation 7 says, means that if the review concluded that legislation in this form was not needed, it would not be retained. I am sorry, but I am afraid that from the parliamentary point of view, that is unacceptable. Therefore I am looking for my noble friend to make it absolutely clear that if Ministers conclude next year that the review says that this legislation is no longer needed, they will ensure that it is repealed.

Covid-19

Baroness Tyler of Enfield Excerpts

Thursday 15th July 2021 Lords Chamber

[Lord Bethell (Con)]

My Lords, the position of the immunosuppressed is one that we have a huge amount of sympathy for. Those who have blood cancer face a particular challenge. I was very grateful to meet Blood Cancer UK and discuss this matter. The PHE report makes the very clear point that those with suppressed immune systems may have a very strong vaccine response, particularly after two weeks after two doses. Just because someone has a suppressed immune system, it does not mean that the vaccine has left them completely unprotected. I completely accept that the responses of one group and another group may be quite different and it is difficult to lump everyone together. That is why we are investing in the OCTAVE study; I am hopeful it will be published by the end of the month. That will provide some, but not all, the information we need to elaborate on that guidance.

[Baroness Tyler of Enfield (LD) [V]]

My Lords, with government scientists predicting that up to 4,800 people a day could be admitted to hospital with Covid if England rushes back to normality at the same time as health experts are predicting a surge in flu and other respiratory viruses likely to lead to severe pressures on the NHS, what contingency plans are the Government putting in place to deal with these pressures without leading to the backlog of other much-needed care and treatment growing ever bigger? Will these contingency plans be published?

[Lord Bethell (Con)]

My Lords, we acknowledge the risks. The noble Baroness is entirely right about flu; the relatively low levels of both flu and RSV in the last 18 months mean that many will not have the immune system that they normally would, and flu is a present danger. That is why we are working so hard on the flu vaccine programme and bundling Covid boosters and flu vaccines for those in the right prioritisation lists. I encourage absolutely everyone to make sure they get their flu vaccine when it comes around. Given the range of uncertainties, we are working with the NHS on its plans for this winter. We will ensure that the service has what it needs to meet those challenges.

Covid-19 Update

Baroness Tyler of Enfield Excerpts

Tuesday 6th July 2021 Lords Chamber

[Lord Bethell (Con)]

I applaud the noble Lord for his advocacy of mask wearing, but of course this issue cuts both ways. He is right that we need to build back trust in sharing space with one another, but I am not sure that mandatory mask wearing either builds trust or erodes it. If we give people the impression that wearing masks is somehow a panacea that protects everyone on a tube train or in a lift, that is a false impression. Masks are not a panacea. In fact, for some people, they can be a source of grave concern and be enough to send them back home to seek safety. I take the noble Lord’s point that we have to be clear about this, but I am not sure that mandatory mask wearing, or even ubiquitous mask wearing, is either a universal antidote to the spread of the disease or necessarily builds trust in the manner he describes.

[Baroness Tyler of Enfield (LD) [V]]

My Lords, continuing on this theme: “masks work” is the clear message from Public Health England. Both Sir Patrick Vallance and Professor Chris Whitty have said that they will continue to wear a mask in crowded indoor spaces, primarily because it protects others. Critically, it does not hold back the opening up of the economy, but rather provides a safeguard as social distancing rules are relaxed. Can the Minister tell me why there is so little in the Statement about our social responsibility to others, including front-line transport and shop workers, and the clinically extremely vulnerable? In this scrapping of masks, we are condemning millions with poor immune systems to be trapped in their homes, too afraid to go to the shops or their workplace or to use public transport.

[Lord Bethell (Con)]

Since this is the second question on masks, I hope the noble Baroness will not mind if I go off on a tangent. Masks do work a bit; they are not a panacea. What is really important is that when you are ill, you stay at home. That is the big behavioural change that will make a big difference in the year to come. That is where Britain has got it wrong in the past. Too often we have put our workmates, fellow travellers and school friends at risk by heroically going into crowded indoor places and coughing all over them. I hope that is one habit that will stop and that that will be a legacy of this awful pandemic.

Covid-19 Update

Baroness Tyler of Enfield Excerpts

Tuesday 29th June 2021 Lords Chamber

[Lord Bethell (Con)]

My Lords, the noble Lord is entirely right that the Porton Down verification team has looked extremely closely at all lateral flow tests and their sensitivity to the delta variant in particular. There is suggestion and some indication that for very low viral loads, the LFTs are not quite as sensitive, or if they are sensitive, the band is less easy to read. However, for higher viral loads—in other words, the kind of viral loads that the body needs to carry to be infectious—there is no change of sensitivity. Therefore, from that point of view the LFTs continue to perform their original purpose very effectively but we need to keep a very close eye on sensitivity with the new variants.

I pay tribute to all UK companies which are coming forward with LFT, PCR or genomic sequencing tests. I am extremely proud of the progress that the UK diagnostics industry has made. We have extremely high standards and extremely high validation and authorisation protocols through Porton Down. Those standards are very difficult to achieve but we are working extremely closely with UK companies to try to get them over the line so that they can play an important role in our response to the pandemic.

[Baroness Tyler of Enfield (LD) [V]]

My Lords, the Statement places great emphasis on regaining freedoms but has relatively little to say on the specifics of how we learn to live with Covid, as we surely must, given the rising number of new cases and concerns about new variants. Apart from a very brief mention of care workers, there were no other details of how the planned end of restrictions on 19 July will affect care home residents and their families. Can the Minister say what thought is being given to how we learn to live with Covid in care settings and when we can expect to see detailed guidance on this which balances the need for protecting the elderly and vulnerable from infection and improving the quality of their daily lives?

[Lord Bethell (Con)]

My Lords, the noble Baroness’s question is entirely reasonable and I wish I could be more specific on the precise timing. The honest truth is that we look at the data every day; our experience through this pandemic is that our understanding improves every day and therefore the guidance that we provide is often provided at a relatively late stage. It is an unfortunate aspect of this awful pandemic and one that I know noble Lords have commented on with vigour in the past, but it is an unavoidable fact of life. However, the comments made very thoughtfully and persuasively by noble Lords about the conditions in care homes, the restrictions that are put on residents and the pressure that that puts on them and their families have been heard loudly and clearly by all those in the department and across government, and we will seek to address those concerns when the moment is right.

Social Care and the Role of Carers

Baroness Tyler of Enfield Excerpts

Thursday 24th June 2021 Lords Chamber

[Baroness Tyler of Enfield (LD) [V]]

My Lords, I congratulate my noble friend Lady Jolly on her excellent opening speech and declare an interest, as I have a close family member in a care home. As we have just heard, the pandemic has cruelly exposed the plight of those dependent on social care. The NHS provides free care for all, based on need, but there is no equivalent care service to which families can turn when they or their loved ones need help, causing untold heartache. Only countless money and time from individual families is stopping the system from complete collapse. Age UK has estimated that more than 1.5 million people are missing out on the care they need, and the cost of inaction is falling on the shoulders of 11.5 million unpaid carers, some aged 80 and above. This national scandal is no longer hidden from view due to Covid, but it is something the country increasingly understands and feels is grossly unfair.

Not just the elderly are affected. Younger disabled adults make up half the costs of the adult social care budget and generally do not own their own houses. The NHS provides insurance against the cost of health- care, primarily paid for through taxes, but there is currently no way for individuals to insure themselves for social care. Addressing this requires bold action and a strong political will. We need a comprehensive programme of reform for social care, both now and in the future, and I believe that programme needs three key pillars.

The first is to shore up a fragile and highly fragmented sector reeling from the impact of Covid, increased costs and low occupation rates, with some care homes becoming increasingly unviable financially. Immediate funding is needed to improve the quality of care and introduce minimum standards.

The second is individual funding. A cap on individual social care costs, as proposed by the Dilnot commission 10 years ago, alongside a more generous means test for access to publicly funded social care, would at least fix one of the system’s big problems: the lack of protection for people and their families against potentially catastrophic care costs. The architecture for doing this already exists; Dilnot’s proposals were put into legislation in 2014, with cross-party support.

Thirdly, we urgently need a new deal for the care workforce, with action on pay, training and development, career progression, professionalism and recognition. Care staff, who have given so much during the pandemic, deserve to be paid well above minimum wage.

A reform package including all these elements, as we heard from the noble Lord, Lord Hunt, is estimated at around £12 billion or 0.6% of GDP. How are we going to pay for it? That needs to be the subject of a separate debate but, at this stage, I think we need a solution that takes intergenerational fairness into account. During the pandemic, tens of thousands died before their time in care homes from Covid. The best possible legacy we can give all those who lost loved ones is to ensure that we fix the care system, so a similar tragedy can never happen again.

Covid-19: Care Homes

Baroness Tyler of Enfield Excerpts

Thursday 17th June 2021 Lords Chamber

[Baroness Tyler of Enfield (LD) [V]]

My Lords, respected health commentators and statisticians say that excess deaths—that is, deaths above the expected number—is a more accurate way of looking at the scale of deaths in care homes due to Covid. Care home residents make up just 0.7% of the population. In the first wave of the pandemic, deaths in care homes accounted for 44% of all excess deaths for that period in England and Wales. What does the Minister think this says about the effectiveness of the so-called protective ring thrown around care homes and what lessons have been learned?

[Lord Bethell (Con)]

My Lords, we were never in any doubt from the very beginning that the virus presented a huge threat to care homes. They are where the elderly and the vulnerable are housed, in conditions where it is extremely difficult to enforce infection control and where there is a large amount of intimacy between residents and staff. We knew from the experience of other countries that care homes were very likely to be an area where infection and severe illness, and potentially death, would be highly prevalent. There is no doubt that care homes suffered the brunt of this virus, and for that matter I am extremely sad indeed. Noble Lords should realise that we put every measure in place that we humanly could have done. We gave a huge amount of resources, including £2.8 billion via the NHS specifically to support enhanced discharge processes and the implementation of the discharge to assess model.

Covid-19: Proof of Vaccination

Baroness Tyler of Enfield Excerpts

Monday 14th June 2021 Lords Chamber

[Lord Bethell (Con)]

My Lords, I am very alive to the concerns of the disabled. We have to balance the need to limit the spread of this virus to save lives, but in a way that is fair and just to all people. We are very much engaged with disability and other charities to ensure that that works. The noble Baroness is right that there will be some people for whom the vaccine does not work and who could yet catch the disease. We need to make provision for those people, and we are working on that.

[Baroness Tyler of Enfield (LD) [V]]

My Lords, I am concerned for the significant numbers of people with existing mental health problems who often do not feel comfortable with smartphone devices, as the information overload such phones can provide can exacerbate their feelings of stress and anxiety. I am pleased to hear the Minister say that other channels will be available to these people, but what arrangements are the Government putting in place to ensure that they are aware that options other than smartphones exist that they will be able to use?

[Lord Bethell (Con)]

My Lords, all the promotions for vaccine certificates through travel agents and GPs make very substantial reference to the availability of paper letters and the channel of being able to call 119 to receive them. I completely sympathise with those who do not want to use their mobile phones for everything, and some will prefer a letter in the pocket to an app on their phone.

Health Protection (Coronavirus, Restrictions) (Steps and Other Provisions) (England) (Amendment) Regulations 2021

Baroness Tyler of Enfield Excerpts

Monday 7th June 2021 Grand Committee

[Baroness Tyler of Enfield (LD) [V]]

My Lords, at the risk of sounding like a broken record, I start by pointing out that we are yet again debating whether to approve a statutory instrument that came into effect three weeks ago, as part of a road map that was set out months ago. At this point in the pandemic, the urgency rationale just does not hold water, so it has become either a bad habit that the Government are unable to kick or simply contempt for parliamentary scrutiny. Neither is a good sign for a healthy democracy.

Turning to the substance, it feels somewhat ironic that these regulations bring back international travel for leisure. In recent days we have witnessed chaos over last-minute changes to the green list, causing huge problems for passengers and the travel industry alike. With long queues at packed airports in Portugal as people try to purchase tickets, often at vastly overinflated prices, on planes packed to seating capacity, and with people reporting difficulties getting pre-departure tests, is this really the best we can do?

As far as I can see, the amber list is simply causing confusion as to whether or not it is okay to travel to a country for leisure. We would not want to encourage people to drive through amber at traffic lights, so why are we giving this option for travel? Is not a straightforward “Yes, you can travel there” or “No, you can’t” easier for all to understand and plan around? Can the Minister say what plans the Government have to review the effectiveness of the traffic light system and our border control measures, including verifying test results for international travel?

Like others, I am sure, I was interested to read that the Chancellor of the Duchy of Lancaster is now participating in a pilot offering daily lateral flow testing for seven days as an alternative to isolation, following his trip to Portugal. It appears from press reports that other football fans receiving similar such texts from NHS Test and Trace were told to self-isolate for 10 days. Can the Minister explain the criteria to qualify for this pilot, when it was introduced and when its results will be published?

Test, trace and isolate remains a hugely important weapon in our armoury for fighting this virus. As restrictions ease, surely we should adapt our isolation support and testing strategies to incentivise isolation. From these Benches, we have called time and again for financial support to enable people on low incomes to isolate effectively. With cases now thankfully at lower levels, can the Minister say what resources are being provided, and to which local authorities, to allow the isolation pilots he referred to—he referred to payments of £500—to happen?

Much store is being placed on the announcement the Government will make on 14 June regarding step 4 of the road map, currently scheduled for 21 June. Over the weekend, some leading scientists have been calling for the easing of restrictions to be delayed. We have been repeatedly told that the Government will be driven by the data on the four tests, including the risks posed by new variants of concern, rather than simply the dates in the road map. With some regulations due to expire on 20 June, as my noble friend Lord Scriven pointed out, what is the scope for extending these regulations if the data requires it? Will we have fresh legislation? What is the contingency plan? Finally, what additional resources are being given to handle variants of concern? I hope the Minister can reassure me on these points in summing up.

Finally—I think I am in very much the same place as the noble Lord, Lord Lansley, on this—the stark truth is that the virus, with its inevitable mutations and variants, is not going away any time soon. Like it or not, we will have to find a way of living with Covid-19 for some time to come. That will mean changes in how we conduct our everyday lives, including how we do our business in this Chamber. This may be an inconvenient truth to some, but the alternatives are far worse. We need to get away from the current narrative that a so-called freedom day is coming fast and that everything can go back to precisely how it was pre-pandemic. We will have to learn to do things differently, and that needs a more grown-up, nuanced conversation which does not revolve around the two extremes of dropping all measures immediately or returning to lockdown. I think that is what most people want and expect.

Care Homes: Insurance Indemnity

Baroness Tyler of Enfield Excerpts

Wednesday 19th May 2021 Lords Chamber

Asked by

[Baroness Tyler of Enfield]

To ask Her Majesty’s Government what assessment they have made of the merits of underwriting insurance indemnity for all care homes on an equivalent basis to the National Health Service.

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

My Lords, the differing indemnity and insurance arrangements for the NHS and for care homes reflect the different systems of securing health and adult social care. For the NHS, there are established indemnity schemes, administered by NHS Resolution. In the care sector, providers purchase insurance from commercial insurance markets. This is a requirement of registration with the Care Quality Commission.

[Baroness Tyler of Enfield (LD) [V]]

My Lords, due to Covid, many care homes have found insurance prohibitively expensive, hard or even impossible to find, and that which is available often not covering Covid. Yesterday, I spoke to a care home manager who was told that renewing his existing insurance would cost 880% more than the previous year, and just one Covid claim could result in the care home having to close its doors, causing great distress and disruption to residents and their families. Against this backdrop, can the Minister say what plans the Government have to extend indemnity to all care homes for a reasonable period, not simply the small number now covered as part of the designated care site schemes, to put them on an equal footing with the NHS and ensure that they are able to help the NHS during any third wave? Will the Minister agree to meet me to discuss the options?

[Lord Bethell (Con)]

My Lords, I acknowledge the challenge faced by care homes on the insurance market, but CQC statistics suggest that, in fact, the insurance industry has done an enormous amount to meet the needs of care homes and that many of the pressures on care homes have been the result of Covid outbreaks. We have brought in the designated settings indemnity support, as the noble Baroness knows, and we have given £6 billion to local authorities to support care homes. Putting care homes on the same footing as the NHS would not meet the needs of the care home sector, so that is not something we are looking at currently.

Covid-19 Update

Baroness Tyler of Enfield Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Bethell (Con)]

My Lords, I am a big supporter of the “fast and hard” principle. In our response in Bolton, Bedford, London and elsewhere, we have demonstrated that principle in our handling of the Indian variant. I point out that the use of testing and social distancing measures in schools has been enormously effective. One of the remarkable aspects of the infection rate so far is that transmission levels among school-aged children have not increased in the way that SAGE and others, including myself, once feared. We should take a “glass half-full” moment to applaud that fact. I reassure the noble Lord that we will absolutely make these decisions on the data. Space has been put in between the steps for exactly that reason, and we are not going to rush it.

[Baroness Tyler of Enfield (LD) [V]]

My Lords, could the Minister outline the Government’s plans for test and trace as lockdown is lifted, particularly in areas such as Bolton and Bedford where surge testing is currently being deployed? With former centrally based Public Health England staff being disbanded and senior civil servants returning to their own posts, what financial resources are being passed to the local resilience teams, run by local directors of public health, to operate test and trace, which will be so critical to controlling the spread of the virus alongside the vaccine rollout?

[Lord Bethell (Con)]

My Lords, the outbreak in Bolton, Bedford, London and elsewhere has demonstrated, if that were needed, the paramount importance of keeping resources for test and trace at a critical level, and that is what we have done. Since the national infection rate is lower, there is a much greater emphasis on the kind of surge activity and outbreak management that the noble Baroness describes. Sequencing has proved to be an essential part of that process, and we have brought sequencing from the back of the laboratory to the front line of test and trace operation. Every single positive case is now treated as though it were a VOC, with the same amount of tracing and sequencing that a VOC would have had a few weeks ago. We have the full operation on standby. Should another wave of infections arrive, as it may well do with the relaxing of social distancing, we have the systems in place to be able to deal with it.