Health and Social Care Bill

Debate between Baroness Wheeler and Lord Newton of Braintree

Tuesday 13th March 2012 Lords Chamber

[Lord Newton of Braintree]

Having listened to the debate, I differ a bit from the noble Lord, Lord Wills. I have heard enough from the two distinguished lawyers who spoke beforehand to come to the view that my noble friend would be very unwise to rush down this path without more time than whatever there is—less than a week—before the intended Third Reading of the Bill to sort out the issue.

As always, my head has been left spinning by the lawyerly contributions from my noble and learned friend here and my noble friend down there. I just want to raise a couple of innocent layman’s questions that may even be a bit naive but which relate to the point that the noble Lord, Lord Lester, raised: what is the definition of all this?

I observe that the heading of the new clause does not talk about provision at the request of a public body, just provision of certain services, implicitly by anybody, whether or not commissioned by a public body. The first sentence reads:

“A person who is commissioned to provide”,

these services, undefined. Private people commission private services from private bodies in many areas—private hospitals, private residential care homes, private chiropodists, private this, that and the other. As far as I can see, the amendment extends the definition of public body to bodies that are not public by any reasonable definition and are not commissioned by public bodies to provide a service. That seems to me to be the natural construction. This is at least as much a question for the noble Baroness, Lady Greengross, as for the Minister, but that is how I read it. If that is its purport, it is not sensible and we should not rush into it.

[Baroness Wheeler]

My Lords, these Benches strongly support the amendment tabled by the noble Baroness, Lady Greengross, and the noble Lords, Lord Low and Lord Rix, to which I have added my name. It is frustrating that we appear to have moved no further forward from Committee, when the noble Baroness, a plethora of respected organisations representing older people, mental health, disability and human rights organisations, as well as the Equality and Human Rights Commission, were saying that there was a real problem which needed to be addressed by primary legislation. There are powerful arguments for amending the Bill in line with the amendment. They have again been ably made by noble Lords and I do not need to go over them again.

I believe that my noble friend Lord Wills addressed key points raised by the noble and learned Lord, Lord Mackay, and other noble Lords—as far as I was able to follow as a non-lawyer—and indeed acknowledged that this was unfinished business on the part of the previous Government. We amended the Health and Social Care Act 2008 to address this issue in respect of residential care. What has changed dramatically since then is that well over two-thirds of home care services are now provided by the private and voluntary sectors and this Bill is likely to increase the proportion of contracted-out provision still further.

The Government’s view, expressed in Committee, that any further legislation would cause uncertainty in other areas outside health and social care is a strange one. In this light, the obvious counter-argument is that the 2008 Act has already opened the door and, in my view, that factor only strengthens the case for the loophole to be closed off. Analysis by key human rights lawyers, counsel for the Equality and Human Rights Commission, key charities and civil liberties organisations have all endorsed this approach and stressed that case law does not support the Government’s view. As we have heard only recently, the Joint Committee on Human Rights’ report on independent living again called for the current Bill to be amended to extend the public function definition to the provision of care at home. For me, that is the key point. All these organisations still argue strongly that there is a loophole that needs to be addressed.

Moreover, the Government’s argument, again in Committee, that the YL v Birmingham City Council judgment has not been challenged to demonstrate that home care services are not covered by the Act or existing legislation is also weak, in my view, and does not inspire confidence in what might happen in the future. My understanding is that the subject of the YL judgment was residential care and the scope of the 2008 Act is therefore limited to that.

I hope that the noble Earl will have good news for us that the Government have rethought this issue and recognise the very real problem and concern that exist for the future. I hope that he will accept this amendment. We all agree about the importance of taking a human rights approach to care provision, with dignity and respect for older people embedded. The current loophole in the provision of personal care in the home by third or voluntary sector providers is of deep concern to thousands of recipients of home care. We need to ensure that this key opportunity to achieve clarity in this matter in the current Bill is not missed.