NHS: Accident and Emergency Services
Earl Howe Excerpts(12 years, 3 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the Government recognise the severity of this issue and acknowledge that there was a dip in performance. We are taking robust action to address these issues and the 95% standard on four-hour A&E waiting times has now been met for the 12 consecutive weeks ending 14 July. The Government and NHS England are now looking at how we address the long-term issues facing A&E and the wider NHS.
Lord Hunt of Kings Heath
My Lords, the crisis in A&E happened on this Government’s watch as a result of the disastrous structural changes that they embarked on, the drastic cuts in social services and the disastrous launch of the 111 service. The noble Earl has talked about robust action being taken, but he will be aware that yesterday the Health Select Committee made it clear that local urgent care boards are simply not getting to grips with the problem. We are therefore heading for another very difficult winter, with many services at breaking point. Will Ministers take responsibility? Why, when the noble Earl talks about robust action, is the Government’s emergency care review only to be implemented next spring, six months too late?
Earl Howe
My Lords, I do not share the noble Lord’s analysis of the problem. A&E departments are currently meeting targets, but the long-term pressures have been building up for many, many years. Over the past decade, emergency admissions have risen by 35% and an extra 1 million patients have attended A&E compared to three years ago. This is not anything recent. The Government’s reforms will, if anything, help to ease the pressure because doctors now have the freedom to provide the health services their patients really need. The action we are taking in the immediate term is to encourage doctors and all the key players in the health system to get together in urgent care boards to make sure that next winter we see a much easier picture.
Lord Trefgarne
My Lords, is it not the case that the problems now being faced by many A&E departments are the result of changes to GP contracts introduced by noble Lords opposite many years ago?
Earl Howe
My Lords, there are many factors at play here. There is no doubt that the GP contract severed the legal responsibility that individual GPs had to look after their patients out of hours. It would be idle for me to stand here and say that that has had no effect on A&E attendances. Patients are confused now about whom to contact out of hours and many turn up at A&E when perhaps they should not have done so.
Lord Kakkar
My Lords, I declare my interest as professor of surgery at University College London and chair of quality for University College London Partners. What progress has been made in the commissioning of integrated care services across hospitals and the community for frail, elderly patients with multiple co-morbidities, who frequently have to attend A&E for the lack of such services?
Earl Howe
Not for the first time, the noble Lord hits on an extremely important aspect of the problem that we are facing. It is the frail elderly who often turn up at A&E with a crisis in their health when that crisis could have been averted. That is why Sir Bruce Keogh has been tasked to look across the piece at the whole system to see how we can ensure that the frail elderly in particular are served better by the health service, not least to prevent the exacerbation of long-term conditions.
Lord Dubs
The Minister has suggested that the problems of A&E are going to get worse in future. How will the Government’s attempt to tackle those problems be helped by the closure of A&E departments in many parts of the country? In particular, how will they be helped in west London with the impending closure of A&E departments at Hammersmith and Charing Cross hospitals?
Earl Howe
As the noble Lord will be aware, the latter issue is currently being scrutinised by the Independent Reconfiguration Panel, so it would be wrong of me to comment on that. On the question of reconfigurations generally, we are clear that this is a matter for local decisions by doctors, nurses and all those with a stake in the system. It is not for Ministers to issue edicts from the top. We are clear that any reconfiguration of A&E services has to take into account the capacity of the system to absorb any closures of A&E and the capacity of community services to step in where that is appropriate.
Baroness Jolly
My Lords, there is emerging evidence that younger people are using A&E as their first point of contact with the health service rather than their GP or out-of-hours services. Are there any plans to run local campaigns to remind people that accident and emergency units are just that? They are for accidents and emergencies and not coughs and colds.
Lord Richard
My Lords, the Minister said that the Government are taking robust action. What robust action?
Earl Howe
We have been taking action in several areas. We released additional money to ensure that immediate pressures were relieved in the health service in the spring and, as I have said, that was successful. We are encouraging, and have ensured, the setting up of urgent care wards, which amount to the kind of discussions across the system in local areas that are needed to ensure that there are no blockages in that system. More fundamentally, we have tasked Sir Bruce Keogh to undertake the work that I referred to earlier, looking at the root causes of why there have been these pressures on A&E. There is no single answer to that question.
Baroness Finlay of Llandaff
My Lords, I declare my interests, including that my daughter is an A&E consultant in London. Are the Government planning specifically to put in some additional resources to support A&E departments now, given that the consultants need more infrastructure support, including people at a much lower grade—clerical staff, care assistants and alcohol support workers—to cope with the peaks that occur of those who have come in having abused alcohol, who take staff away from the other very sick patients, who are often in resus and whom they are also trying to look after at the same time?
Earl Howe
The answer to the noble Baroness’s question is yes. We are looking very carefully at workforce issues and the mix of skills needed in those A&E departments that have been struggling. I refer not simply to A&E consultants but also specialists in their field—perhaps alcohol is a good example—who can deflect the pressure away from staff looking after acutely ill patients.
Baroness McIntosh of Hudnall
My Lords, building on the question from the noble Baroness, Lady Finlay, is there evidence that current difficulties in the administration of A&E departments are discouraging young doctors from regarding emergency medicine as an attractive specialism? Are the Government doing anything to encourage them to look at emergency medicine more favourably and to ensure that, if they do so, there will be jobs for them in the departments?
Earl Howe
That is very much in the focus of Health Education England, which oversees workforce issues in the health service. There has been a shortage of A&E consultants for some time and Health Education England is looking at that area very carefully. A&E is a discipline that has not traditionally proved attractive to trainee doctors for a number of reasons. It is very stressful and the remuneration is perhaps less than in other areas of medicine. That needs to be addressed and is very much an area of scrutiny.
Baroness Masham of Ilton
My Lords, following on from that, is the Minister aware that half as many again emergency doctors are needed? What is he going to do about recruiting?
Health and Social Care Act 2012 (Consequential Amendments) (No. 2) Order 2013
Earl Howe Excerpts(12 years, 3 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, we had many debates in this House on the Health and Social Care Act 2012 during its passage as a Bill last Session. In this Session we have also debated some significant items of secondary legislation that put in place key elements of the new system, including the regulations that we have just debated.
This draft order, however, is very different from those instruments. It is short, and it raises no new issues of substance. Since it seeks to amend primary legislation, it is right and proper that it is subject to affirmative resolution but it is made under a narrow power to make provision in consequence of the Act. I cannot claim that the amendments it makes are of significant interest. They are minor adjustments, generally needed as a direct consequence of the Health and Social Care Act 2012, which I shall now refer to as the 2012 Act. They help to keep the statute book up-to-date and coherent, but they involve no new policies. Consistently with this, neither the Joint Committee on Statutory Instruments nor the Secondary Legislation Scrutiny Committee has seen a need to draw special attention to the draft order.
Before I explain what the draft order does, it may be helpful to start with a very brief reminder of the relevant provisions of the 2012 Act. That Act made a number of changes to the architecture of the National Health Service in England. Before the 2012 Act came into force on 1 April this year, the functions of commissioning and providing health services were conferred by legislation on the Secretary of State and were delegated by him to bodies such as primary care trusts. The Act, however, now gives the function of commissioning health services direct to the NHS Commissioning Board—also known as NHS England—and to clinical commissioning groups; while primary care trusts have been abolished. The Secretary of State continues to be under a duty to promote a comprehensive health service. He has ministerial accountability to Parliament for the health service. He is under new duties to keep under review the effective exercise of functions by the national-level bodies, such as the NHS Commissioning Board, and to report annually on the performance of the health service. That is the framework established by the 2012 Act.
I turn now to the individual amendments made by the draft order. The first amendment is to the Disabled Persons (Services, Consultation and Representation) Act 1986. The 1986 Act creates a requirement to assess the needs of people who are discharged from hospital after at least six months’ inpatient treatment for mental disorder. Section 7 of the Act sets out the services to which such an assessment must relate. Schedule 5 to the 2012 Act amended Section 7 of the 1986 Act to reflect, for example, the abolition of primary care trusts and the fact that it is clinical commissioning groups which now have to carry out the assessments in England.
However, that schedule did not update the reference to the services to which the assessment should relate. These are currently described as services that the Secretary of State is under a duty to provide under the NHS Act 2006. The order removes that reference, and updates it to take account of the changes in responsibility for commissioning and providing health services in England that were made by the 2012 Act. In making that change, we are able also to refer correctly to the bodies that provide services for the purposes of the Scottish and Welsh health services, and to the Acts under which they do so.
The second amendment made by the draft order is to the Community Care (Delayed Discharges etc.) Act 2003. That Act puts in place arrangements to ensure the safe and timely discharge of patients from hospital. Under the 2003 Act, the responsible NHS body is required in certain cases to issue an assessment or discharge notice, and the relevant local authority is required to assess the patient and put in place a support package by the named day. Schedule 5 to the 2012 Act made some amendments to the 2003 Act, but not those required to ensure that the arrangements continue to apply to NHS patients in independent hospitals. The draft order therefore makes the necessary amendments by adding NHS England and clinical commissioning groups to the definition of “NHS body” in Section 1 of the Act. This puts those bodies under a duty to issue the relevant notices in relation to patients discharged from independent hospitals commissioned by them.
Lastly, the draft order amends Section 256 of the National Health Service Act 2006. That section deals with the powers of certain NHS bodies to make payments towards expenditure on community services. Schedule 4 to the 2012 Act replaced the references to primary care trusts in the main body of Section 256 with references to the NHS Commissioning Board and to clinical commissioning groups, but unfortunately it did not amend the reference to primary care trusts in the cross-heading to the section. The draft order corrects that oversight.
In conclusion, I hope that I have demonstrated that the draft order contains changes that are consequential on the Act. It makes some minor but necessary changes to keep the statute book coherent and up to date. I commend the draft order to the House. I beg to move.
National Health Service (Licence Exemptions, etc.) Regulations 2013
Earl Howe Excerpts(12 years, 3 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, the regulations that we are now considering, which were laid before this House on 4 July, exempt some types of providers of NHS services from the requirement to hold a licence from Monitor. Providers who will not be required to hold a licence are as follows: NHS trusts; providers which are not required to register with the Care Quality Commission; small providers of NHS-funded healthcare services whose annual turnover from the provision of NHS services is less than £10 million; providers of primary medical and dental services; and providers of NHS continuing healthcare and NHS-funded nursing care.
The Health and Social Care Act 2012 gave Monitor a new role in regulating providers of NHS services, and the licence is a key tool for Monitor in carrying out its new functions. The Act strengthens sector regulation by building and improving on Monitor’s previous role as the regulator of foundation trusts and makes sector regulation more comprehensive by extending Monitor’s role to all providers of NHS services. While the 2012 Act allows licensing to apply to all providers of NHS services, these regulations provide for exemptions to this requirement for certain types of provider where the licence would not give additional protection for patients or would impose an unfair burden on providers.
Regulation 2 defines a licence holder as the legal entity responsible for delivering NHS services to patients, the body receiving NHS funding and providing care directly to patients. This approach mirrors that for CQC registration. Regulation 2 also ensures that, where a provider has subcontracted elements of a service, the subcontractor is considered a separate entity and thus in need of a licence.
Regulation 3 confirms that no exemptions apply to foundation trusts. This is consistent with the position under the 2012 Act that all foundation trusts must hold a licence.
Regulation 4 provides that NHS trusts will not be required to hold a licence. This is because directions from the Secretary of State require the NHS Trust Development Authority to set and enforce requirements on NHS trusts similar to those set by Monitor's licence. The NHS Trust Development Authority must seek and consider advice from Monitor in setting these conditions to ensure that the requirements for NHS trusts will provide similar protection for patients’ interests compared with those set by Monitor through the licence.
Under Monitor’s licensing regime, a commissioner may request that a service be subject to additional regulation to ensure patients’ continued access to that service. Any provider of such commissioner-requested services will not be eligible for an exemption under the regulations even if the provider otherwise qualifies for an exemption. Where commissioners have designated a service as a commissioner-requested service, Monitor must be able to intervene in order to secure continuity of that service. I should highlight to the House that this particular override would not apply to NHS trusts because the NHS Trust Development Authority will be able to undertake similar interventions on an NHS trust which becomes unsustainable. Regulation 9 provides for this.
Regulation 5 provides for an exemption from the requirement to hold a licence for providers of primary medical or primary dental services under contractual arrangements made under Parts 4 and 5 of the National Health Service Act 2006 with NHS England. NHS England will ensure that such providers comply with requirements that will ensure equivalent protections for patients.
Lord Hunt of Kings Heath
My Lords, I am sure that the whole House is indebted to the noble Earl for his lengthy explanation of the order before us. I just want to ask him three or four questions.
I noticed in the Explanatory Memorandum that there is an intention to review how licences are working and that it is to take place during the next Parliament. I must say that I thought it was rather presumptuous of officials to assume that this will be done. Of course, it is for me to point out that Governments cannot bind their successors to action to be taken, so I look forward to a Bill that will perhaps do away with some of the requirements that will be necessary.
The noble Earl will not be surprised if I ask him a question about the NHS Trust Development Authority. Reference was made in his remarks and in the Explanatory Memorandum to the relationship of the NHS TDA to the other regulatory bodies. Can he update the House on how long he now thinks that the NHS TDA is likely to be in existence? Of course, this relates back to the question we debated in the Bill, which is: what is his expectation in relation to non-foundation trusts and the pipeline, if you like, towards foundation trust application? Can he also give an indication of which services are likely to be designated as commissioner-requested services?
Paragraph 7.15 of the Explanatory Memorandum says that Regulation 7,
“exempts any provider that is not required to register with the CQC from the requirement to hold a licence from Monitor … This exemption would cover, for example, providers of ophthalmic services”.
Can the Minister tell us the rationale for why ophthalmic services are excluded? Is it to do with the fact that they are regulated in a different way?
The Explanatory Memorandum, at paragraph 7.16, says that NHS England is,
“well placed to enforce standards in relation to primary medical and dental services”.
As there has been a considerable amount of debate in the last few months about the quality of primary medical services and out-of-hours performance, can the Minister say anything about how NHS England will go about its business in ensuring standards in primary medical services? There are questions about whether it has the capacity to do that, and any reassurance on this subject would be welcome.
Finally, on exemptions, as I understand it, CCGs, when commissioning services from GP practices, are not exempted by Regulation 5. However, if the practice is large and goes over the £10 million threshold under Regulation 8, it may be covered, whereas if its turnover is below £10 million it is exempt under Regulation 8. The Minister will know that when we debated the Bill that became the Health and Social Care Act 2012 we had a great deal of debate about conflicts of interest. I have never been satisfied that that problem has been resolved satisfactorily. If, under these arrangements, CCGs are commissioning services from GP practices—remember that those practices are members of the CCG, so there is always a potential conflict of interest—I would have been more reassured if there had not been an exemption for practices with a turnover of less than £10 million. I would have thought that most traditional GP practices would fall below that threshold.
I understand the rationale for not wanting to catch small businesses under the regime, but does the Minister accept that when CCGs are commissioning services essentially from themselves—in the sense that GP practices make up the CCG—greater safeguards should be built into the regulations?
Other than that, these regulations are unexceptionable. I should, of course, remind the House of my interests in health, as president-elect of GS1, chair of a foundation trust and a consultant and trainer with Cumberlege Connections.
Earl Howe
I am grateful to the noble Lord for his questions, some of which I shall write to him about. He first asked me about the review of licensing exemptions that the department plans to carry out in 2016-17. He is, of course, right to say that no Government can commit their successor, of whatever colour, and it will be open to a successor Government, if they are of his party, to revise that aspiration. However, we think it right that after such an interval, the department should look to see whether the exemptions are continuing to prove appropriate, and if they are not it should propose amendments. I do not think that is a very controversial aim.
On the working life of the NHS Trust Development Authority, it will not have escaped the noble Lord’s notice that the original lifespan that we marked out for the TDA will now be exceeded. We have quite consciously, and rightly, determined that the process for approving foundation trusts should be extended, bearing in mind the outcome of the Francis review and the need for trusts, some of which by their very nature will prove more difficult to bring to foundation status, to focus on those aspects of the Francis report which need to be addressed if they are to be worthy of foundation trust status. Therefore, the length of life of the NHS TDA will undoubtedly extend into 2015. I cannot be more specific than that at this stage. It is a special health authority established by order. We will review that order in the normal course of things in three years’ time to assess whether there is a need for the authority. That is mentioned in the Explanatory Memorandum to the establishment order.
The noble Lord asked me why ophthalmic services are exempt. It is because they are not subject to registration by the CQC. We will of course keep those exemptions under review, as I have said. If evidence emerges to suggest that we should extend the licensing or make further exemptions, we will do so. When I spoke to the ophthalmic sector, it said that it did not see the need for a licence from Monitor, and we have taken account of its views.
The noble Lord asked me for some examples of commissioner-requested services. It is difficult for me to do that because they will be services which commissioners deem are in need of additional regulation to protect patients’ interests. Monitor has published guidance for commissioners to help them determine the considerations around commissioner-requested services. It will very much depend on the needs of the local population and what services are considered to be indispensable in a particular area.
The noble Lord asked me why GPs and dentists are exempt. As he knows, providers of primary medical services and primary dental services under contract to NHS England will be exempt from the requirement to hold a licence. As NHS England holds the contract with providers of those services, it is clearly well placed to place requirements on those providers that are similar to some of those in the licence. An agreement between Monitor and NHS England will underpin the arrangements. Monitor and NHS England are currently working on that. GPs and dentists sometimes provide other types of services under contracts with commissioners other than NHS England, such as minor surgery clinics or diagnostic testing services. They will be subject to licensing in respect of these services but at the same time be eligible for the de minimis threshold exemption. In addition, all providers of designated commissioner-requested services will require a licence, even if they would otherwise qualify for an exemption. It is therefore conceivable that a service provided by a GP practice might be considered a commissioner-requested service, but that is a speculative assumption on my part.
The noble Lord referred to conflicts of interest when such services are commissioned from GP practices by clinical commissioning groups. As I am sure he knows, there are clear rules around conflicts of interest. While GP practices are, by definition, members of a clinical commissioning group, the commissioning process must be done as much at arm’s length from an individual GP practice as possible. If someone in the clinical commissioning group has a direct personal or professional interest in the decision being taken, he or she must follow the rules surrounding that conflict.
The noble Lord asked me how NHS England is going to maintain standards in primary medical services. I have largely covered that point. NHS England will monitor the quality of care being delivered under the contract via the local area teams. Clinical commissioning groups are themselves engaged on peer-review exercises of their member practices which will, in turn, inform NHS England’s assessments.
I think I have answered all the noble Lord’s questions, but if I have not I will follow up in writing.
Antibiotic-Resistant Bacterial Infections
Earl Howe Excerpts(12 years, 3 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I shall begin by saying how grateful I am to the noble Lord, Lord Crisp, for securing this important debate, and indeed to all speakers for their thoughtful contributions. The Government recognise that few public health issues are of greater importance than antimicrobial resistance. The scale of the threat was set out this March in Volume 2 of the Annual Report of the Chief Medical Officer on Infection and the Rise of Antimicrobial Resistance. Her call to action highlights the key issues that we need to tackle. These include, for example, good infection prevention and control measures to help prevent infections rather than a reliance on antibiotics, plus good techniques for diagnosing and deploying the right treatment. Equally important is ensuring that patients and animal keepers fully understand the importance of the treatment regimens prescribed, coupled with stronger surveillance measures to identify quickly new threats or changing patterns in resistance, and working to develop a sustainable supply of new antimicrobials.
Noble Lords will know that antimicrobial resistance refers to the ability of certain bacteria to survive after exposure to an antimicrobial that normally would be expected to kill them or inhibit their growth. Antimicrobial resistance affects us all, but some groups in society are particularly susceptible to infections and will feel the impact of antimicrobial resistance more than others. These groups include children, older people, and those with weakened immune systems such as cancer patients undergoing treatment, transplant patients and HIV/AIDS patients. An increase in difficult-to-treat infections will affect everyone as most of us will belong to vulnerable groups at some stage in our lives. Moreover, we know already that mortality is greater with resistant infections.
Antimicrobial resistance has obvious human costs, but it is also costly in terms of healthcare expenditure. It is estimated that antimicrobial resistance costs the European Union approximately €1.5 billion in healthcare expenses and lost productivity each year. This is indicative not only of the scale of the problem but of the fact that antimicrobial resistance requires action at the national and the international level.
At the national level, we will be publishing a comprehensive new cross-government five-year strategy to tackle antimicrobial resistance, which will have three strategic aims. The first is to improve the knowledge and understanding of antimicrobial resistance, through better information, intelligence and supporting data and through developing more effective early warning systems to improve health security. The second key aim is to conserve and steward the effectiveness of existing treatments, through improving infection prevention and control and through development of resources to facilitate the optimal use of antibiotics in both humans and animals. The third aim is to stimulate the development of new antibiotics, diagnostics and novel therapies by promoting innovation and investment in the development of new drugs and by ensuring that new therapeutics reach the market quickly.
A key component of antimicrobial stewardship is infection prevention and control. I would like to take this opportunity to reassure your Lordships that we will maintain a focus on healthcare-associated infections. Existing provisions, such as that requiring all healthcare providers to demonstrate compliance with the code of practice on the prevention and control of infection, will remain in place. The new NHS infrastructure also offers opportunities. For example, antimicrobial resistance has been included in key documents such as the Government’s proposed mandate for the NHS for 2014-15, which is currently subject to public consultation.
The noble Lords, Lord Crisp and Lord Turnberg, and the noble Baroness, Lady Masham, rightly noted the need for improved diagnostics. Public funders of research already invest widely in the development and evaluation of rapid diagnostic tests for infectious agents. In fact, just this month, the NIHR launched a themed call for antimicrobial resistance research and the development of new tests. The research and development of new tests is within the scope of this initiative.
Another example of what the Government are doing is that, from April 2014, the NIHR aims to fund 12 health protection research units for five years. These will be partnerships between universities and Public Health England. A number are expected to cover infectious disease areas and could potentially aim to include research on rapid diagnosis within their research programmes. From 1 September 2013, the Department of Health will provide a total of £4 million over four years to establish four National Institute for Health Research diagnostic evidence co-operatives to catalyse the generation of evidence on the clinical validity, clinical utility, cost-effectiveness and care pathway benefits of in vitro diagnostics. Based in NHS organisations and involving multidisciplinary teams, they will enable collaboration between a range of stakeholders, including providers of NHS pathology services and NHS commissioners. Two of the four DECs have identified diagnostics for infectious diseases as areas of focus.
The Government are well aware that they cannot deliver the action required to tackle antimicrobial resistance on their own. We need a societal shift, where antimicrobial resistance is seen as a priority that everyone can help address. To this end, we will continue to use the annual European Antibiotic Awareness Day to provide online educational materials that the NHS can use for local initiatives. In previous campaigns we reminded people that colds, and most coughs and sore throats, get better without antibiotics. That is because they are caused by viruses and not bacteria, and antibiotics only work on bacteria.
Although the scientific consensus is that use of antimicrobials in human medicine is the main driving force for antimicrobial-resistant human infections, use in the veterinary sector contributes to overall resistance rates. I listened with care and interest to the noble Lord, Lord Trees, on this aspect. We recognise that antibiotics, used responsibly, remain a vital part of the veterinary surgeon’s toolbox, without which animals suffering from a bacterial infection could not be treated effectively. As the noble Lord, Lord Trees, emphasised, the use of antibiotics in veterinary medicine is controlled by veterinary prescription and is equivalent to the arrangements for humans. In this way we are minimising antibiotics being used routinely and encouraging their responsible use. The Government’s position on the use of antibiotics in farming is very clear; we do not support the routine prophylactic use of antibiotics in animal health. I am pleased to say that Defra will be strengthening its guidance to ensure that this point is brought out very clearly. We very much welcome the support of the Royal College of Veterinary Surgeons on these prescribing issues.
Both the noble Lord, Lord Trees, and the noble Lord, Lord Crisp, referred to the vital need for international action. The Government recognise that to achieve many of the objectives of their strategy it is essential that the international community is actively engaged, and I can tell the Committee that the Government have been at the forefront in galvanising action at an international level. For example, this May my right honourable friend the Secretary of State for Health delivered the keynote address at the World Health Assembly, with antimicrobial resistance as a focus. Last month we ensured that antimicrobial resistance was a focal point of the G8 science meeting on 12 June. Furthermore, we held a special event at Chatham House to engage international experts on ways and means to tackle this complex problem. The noble Baroness, Lady Masham, and the noble Countess, Lady Mar, will be reassured to know that incentivising the development of new drugs was covered at this meeting, and I assure the noble Lord, Lord Turnberg, that the UK will continue to progress this issue.
A number of noble Lords, not least the noble Lord, Lord Crisp, referred to the barriers to producing new drugs. The discovery and development of new drugs takes time—up to 10 or even 15 years—and a barrier to developing new antibiotics is, as the noble Lord, Lord Crisp, rightly said, the relatively low private return on investment for antimicrobials relative to making investments in other therapeutic areas. Our work on strengthening international collaboration will be key to new drug development because international agreement to address this issue, as I said, is essential; it is too large an issue to tackle alone. We will build on existing international research collaborations, including public/private partnerships, as well as taking action internationally.
The noble Baroness, Lady Masham, referred to PVL. We agree that the PVL toxin needs to be recognised and treated rapidly. Guidance is available for professionals and is currently being reviewed. However, the available evidence indicates that the prevalence of PVL infections is low in the UK. She also referred to E. coli. E. coli bloodstream infections are increasing year on year. The department’s expert advisory committee asked the HPA—now Public Health England—to undertake enhanced surveillance of E. coli and to have experts advising on prevention strategies. However, many E. coli infections are not associated with healthcare.
Regarding the interim decision by the JCVI on the meningitis B vaccine, I will write to the noble Countess. The JCVI has just published on its website today a call for comments from stakeholders. It will consider those responses before finalising its statement on meningitis B immunisation. The consultation is for six weeks.
The measures contained in our strategy are comprehensive and far-reaching. To ensure that they are brought to fruition, a high-level cross-government steering group will be established to oversee implementation, monitor progress and publish progress reports. The actions that I have outlined set out a broad canvas. We have heard the warnings from the CMO and we are acting on her message. The new UK antimicrobial resistance strategy will set out what needs to be done across a broad front, both nationally and internationally, and, using our combined efforts, we aim to be better placed to confront the spectre of antimicrobial resistance before it is too late.
NHS: Children’s Congenital Heart Services
Earl Howe Excerpts(12 years, 3 months ago)
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Lord Sharkey
To ask Her Majesty’s Government what assessment they have made of the recommendation of the Independent Reconfiguration Panel in its report of 30 April on children’s congenital heart services that NHS England must ensure that any new review process properly involves all stakeholders.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, NHS England is taking forward the new national review of congenital heart services as quickly and effectively as possible, basing its actions on the recommendations of the Independent Reconfiguration Panel. I am advised by NHS England that it will ensure that all stakeholders have a chance to contribute to its review. Any decisions must carry the confidence of the public and be focused on the best outcomes for all patients.
Lord Sharkey
My Lords, the now discredited Safe and Sustainable review proposed closing the Royal Brompton Hospital children’s heart surgery unit, yet over the past three years this unit, along with Newcastle, has been the best performing in the country. Will the Minister reassure me that, before there is another proposal to close this or any other unit, he will publish a detailed model showing exactly what factors will be taken into account in any future proposal and how each factor will be weighted?
Earl Howe
My Lords, the first point to emphasise to my noble friend is that the new review is the responsibility of NHS England. It is not a piece of work that Ministers are in charge of. NHS England’s advice to me is that it is too soon to describe what the exact process will be. However, I can say that NHS England is developing a process that is, in its words, “rigorous, transparent and inclusive”, particularly in the use of evidence and data. As I have said, there will be opportunities for all stakeholders to participate in the review—including, importantly, the current providers of children’s congenital heart services.
Lord Walton of Detchant
My Lords, can the Minister give any estimate of how long this saga is likely to smoulder on? By all national and international comparisons, the unit at the Freeman Hospital in Newcastle upon Tyne has proved to be absolutely outstanding, and awaiting the outcome of this lengthy process is delaying a number of important and significant developments. Can the Minister give us any assurance about how long this will take?
Earl Howe
My Lords, my right honourable friend the Secretary of State wrote to NHS England as soon as the IRP’s report was published to say that it will need to work with all interested parties to ensure that progress on its new review of congenital heart services is made as quickly as possible. NHS England’s aim is that by June 2014 it will have developed, tested and revised a proposition for the review and undertaken work to identify a preferred approach to implementation.
Lord Woolmer of Leeds
My Lords, does the Minister recognise that the south Asian communities of Yorkshire, who felt deeply neglected by the previous review, will be watching with great care to see whether this review takes account of travel times and ensures that those communities most at risk of these issues are not only properly consulted but fully weighed in the balance?
Earl Howe
Yes, my Lords. The point that the noble Lord makes is extremely important. I think that there were a number of people who, for whatever reason when the Safe and Sustainable review was going on, felt left out of the picture. NHS England is clear that that should not happen again and that lessons have to be learnt so that this is a genuinely inclusive process.
Baroness Masham of Ilton
My Lords, does the Minister agree that adult and children’s services for congenital heart disease should be located on the same site to ensure continuity of care? When young people reach the age of 16, they seem to be thrown out of children’s service provision.
Baroness Howarth of Breckland
My Lords, during the previous difficulties and confusion when there was much lobbying and debate, the people who found it most difficult to follow the information and the evidence were parents. Presumably, they are the most important stakeholders, particularly in the case of children’s congenital heart disease. Can the Minister convey to NHS England the importance of finding clear and sometimes simple ways of helping parents at a time when they are stressed, anxious, worried about the geography and not able to understand the outcomes? They do not always have the best information with which to make decisions.
Lord Hunt of Kings Heath
My Lords, I refer the House to my health interests as set out in the register of interests. In the mantra of the market in the health service, which the noble Earl and his party are so wedded to, can he tell me when the Competition Commission can be expected to intervene in this issue, given that under the market mantra the decision to reduce the number of children’s heart centres reduces choice?
Earl Howe
My Lords, before I answer that, perhaps I may be so bold as to offer the noble Lord my congratulations on his silver wedding anniversary. I recognise why he has asked that question. It is too early to prejudge the final outcome of NHS England’s review, and I should stress that there is no preconceived result in its head. What I can say is that NHS England will need to engage with all key stakeholders throughout this review, including around any competition considerations.
Lord Mawhinney
My Lords, if I understood my noble friend correctly, he said that it would take until 2014 to test the process and then the review has to take place. Given the years that have been consumed in the past and that will be consumed in the future, what does my noble friend think all this is doing to the quality of service that is being provided and to the morale of those who are providing it?
Earl Howe
NHS England fully recognises that morale is extremely important and that it is fragile in certain locations. That is why the timescale is actually quite ambitious. Contrary to what my noble friend has said, its aim is to have a preferred approach to implementation ready by next June, which, given the scale of the task, is a major piece of work. It will of course build on the modelling and analysis that has already been done, so it is not going to be a wasted effort. In the mean time, I can reassure the House that children’s heart surgery is being delivered safely in all locations.
Care Bill [HL]
Earl Howe Excerpts(12 years, 3 months ago)
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Lord Hunt of Kings Heath
My Lords, this is an important debate and the collapse of Southern Cross has brought it home to us how the risk of financial failure is likely to be a continuing problem in this sector. That is why it is important to understand whether the regulatory regime that the Government are proposing will be robust enough and whether it will have access to the kind of information that will enable the regulator to take a view on the viability of those companies which seek to do business in this area.
We are going back partly to our earlier debates when we discussed the new failure regime. At that time, I referred to the Department of Health factsheet that we were given, which said that the new failure regime will give regulators clear roles in tackling failure. However, I do not think that is actually so in practice. According to the department, the Care Quality Commission will focus on exposing problems and requiring action while Monitor and the NHS Trust Development Authority, which deal with non-foundation trusts, will focus on intervening if a poorly performing provider is unable to resolve the situation by working with commissioners. As we have heard today, the CQC retains enforcement powers for social care, general practice and independent sector providers. This whole picture is very confusing and in his Mid Staffordshire inquiry Robert Francis made it clear that regulatory complexity can contribute to system failings.
I am still unclear about the interrelationship between Monitor, CQC and the NHS Trust Development Authority so as to know whether they are going to work together to ensure that problems are acted on. I am still unclear whether when Monitor and the NHS Trust Development Authority are asked to intervene as a result of the CQC’s concern about findings in relation to safety and quality, they simply carry out the instructions of the CQC or have to go through the same process to satisfy themselves as public bodies with specific statutory duties—certainly in the case of Monitor—whether they share the concern about quality or simply take the CQC’s word on trust. As the actions of these regulators are likely to be tested in the courts, one way or another, clarity at this stage would be very welcome indeed.
My noble friend makes the case that, because of its expertise and experience, Monitor would be a better bet for looking at financial issues to do with care providers. It is very difficult to understand why bits of the system have been dealt with differently and the CQC is considered acceptable in relation to private care providers for adult social care and so on but not for NHS foundation trusts. The Government have brought a rather curious mish-mash to your Lordships’ House.
On my noble friend’s second amendment, I share his view and am not sure that NHS England is the right body to have a duty to scrutinise the commissioning plans of local authorities. However, I very much agree with my noble friend that it is very important that there is a method of checking on the performance of local authorities in their commissioning of adult social care services. My noble friend mentioned Winterbourne View as an example of where a number of local authorities placed clients but having placed them paid no attention to their experience. That was a salutary warning about the problems of local authority commissioning.
I wonder whether the CQC ought to be the body which undertakes that responsibility. Clause 5 sets out that the local authority is responsible for promoting diversity and quality in provision of services. The local authority clearly has responsibility for ensuring that there are sustainable providers in the market. I also refer my noble friend to Clause 80 which sets out the CQC’s responsibilities in performance assessment and performance ratings. My noble friend will see that under Clause 80(2) the proposed new Clause 46(3) of the Health and Social Care Act 2008 sets out that:
“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social service provided or commissioned by the authorities as may be prescribed”.
My reading is that the CQC is given powers to do what my noble friend wants. The question—we debated this when we debated Clause 5—is the extent to which the Government are so going to prescribe. I would like to hear from the noble Earl, if possible, that the Government have reflected on our earlier debate and have come to the view that it would be a very good thing to prescribe that all local authorities should have their commissioning performance reviewed by the CQC as a matter of priority.
My noble friend raised the question of Winterbourne View. We debated the problem of the contracts local authorities have set with private providers where they are contracting staff on very low rates of pay. These are the same providers which in some cases are giving 15-minute periods of service, with staff on zero-hour contracts and often having to pay the cost of their travel. I do not believe that those are the right circumstances in which a quality service could be given. That is why I believe that the CQC should prioritise the commissioning responsibilities of local authorities. If it did, it would answer the question posed by my noble friend.
Earl Howe
My Lords, I begin with an observation that I hope is incontrovertible: it is unacceptable for care users to be left without the services that they need, particularly where the interruption of those services, or the worry that this might happen, could badly affect their well-being and place unacceptable stress on them and their families, friends and carers. As the noble Lord, Lord Hunt, rightly observed, the collapse of Southern Cross in the autumn of 2012 highlighted the importance of this principle. Although no one was ultimately left without the services they needed, many people suffered from a considerable amount of stress and anxiety as a result of worries over whether the services that they, their friend or their relative relied on would stop being provided. At the time, there were no formal mechanisms for the Government to ensure that that was the case.
The Government are therefore introducing, through the Bill, a new system of financial oversight of the 50 to 60 providers of care and support that are the most difficult to replace. The system will provide local authorities with early warning that one of those providers is likely to fail or could fail, and will support authorities to ensure that, if a provider does fail, the continuity of care is maintained. The Care Quality Commission will assess the financial sustainability of all providers that are part of the regime, ensure that providers are taking adequate steps to tackle any risks to the sustainability of their business and support local authorities to tackle the risk of individuals suffering gaps in the services that they rely on when providers fail.
I sympathise with the arguments set out by the noble Lord, Lord Patel of Bradford, in favour of this function being undertaken by Monitor. He should be under no misapprehension: the decision about which regulator should undertake this role was a finely balanced one. This would have been a new role for either regulator. For the CQC, although its existing powers extended to some financial issues, it had not in practice used them significantly. For Monitor, this would have been an extension into a new market and type of provider with which it had had no previous experience. In the end, we came to the view that the CQC was the most appropriate body to perform this market oversight function, for three key reasons. First, this approach ensures that there will be a single regulator for care and support providers. The financial performance of a provider, whether exceptionally good or exceptionally poor, can be a leading indicator of serious quality failures. The CQC will be able to integrate quality and financial information and assess both together.
Secondly, the CQC is better placed to implement this regime because of the existing working relationships that it already has with providers through its current role. This should also contribute to minimising the regulatory burden on providers by ensuring that they have to work with and provide information to only one regulator rather than two. Thirdly, the CQC already has established working relationships with local authority commissioners. The main objective of this regime is to support local authorities in managing the failure of a difficult-to-replace provider. The CQC’s existing relationships will be invaluable in assisting it in performing this function effectively.
The noble Lord, Lord Hunt, questioned that rationale and pointed particularly to the advantages of Monitor undertaking the role, not least because of its current functions. I am the first to accept that Monitor has existing expertise in financial regulation, but it does not have experience in the care and support services market. The nature of Monitor’s licensing regime differs from this market oversight role in two key ways.
Lord Hunt of Kings Heath
Is the Minister satisfied that the CQC will be able to have access to sufficient information about the ownership of these companies? To pick up the point made by my noble friend, ultimately, when a home is at risk of going down, there is a danger that the interests of shareholders are put before the interests of the residents. Clearly, issues to do with ownership become very important there.
Earl Howe
The noble Lord makes an extremely important point, and one that has not been lost on us. We recognise that ownership structures can be extremely complex and that true ownership can be hidden from normal view. It is one of the factors that we will have to build into our discussions with the CQC. I do not pretend that there is an easy answer because some businesses quite consciously and deliberately set themselves up to ensure that it is very difficult to probe the true state of their financial affairs and their true ownership. As and when I can come back to the noble Lord on where we are with that, I will be very happy to do so.
Lord Mackay of Clashfern
My Lords, I crave my noble friend’s indulgence. I am concerned about the warnings in advance of a collapse. That seems to be an area of very considerable importance, and I wonder whether Monitor is supposed to be responsible for trying to forecast that. Secondly, if that is correct, obviously the discussions will need to ensure that it has the necessary expertise to do that and, as the noble Lord has said, that is a pretty difficult task.
Earl Howe
My noble and learned friend is, of course, right. That goes back to a question posed in an earlier group by the noble Baroness, Lady Wheeler, about what the definition is of business failure. We propose to define in regulations circumstances in which a provider can be deemed to have failed. Those circumstances may include a situation in which a provider is struggling to service its debts as they fall due or has breached its financial covenants under loan agreements, or an administrator, liquidator or receiver has been appointed—which is a clear-cut case of failure. As I said, this will be defined in regulations because we want to capture these various different scenarios where a business can be deemed to have failed. We will, of course, consult on the regulations before they are laid. No doubt what I have just said will be refined and augmented during that process.
Lord Warner
The Minister mentioned that the Government will look very closely at some of these ownership issues and their opacity. Will he be willing to look at some of the other sectors which have been regulated? I would cite water and the electricity and gas industries, where we are already seeing the emergence of a clear conflict between the rights and needs of shareholders and those of consumers. There are lessons to be learnt from these other sectors, which now have a lot of experience of regulators trying to hold the balance between those who invest and those who are receiving the services from the providers of those services. Consolidation has also taken place in those industries, particularly in the energy sectors.
In this sector, we are seeing the early stages of consolidation, which is moving apace. Given the vulnerabilities of the people who live in these homes, it is conceivable that some ownership patterns could simply not be acceptable in this particular sector because of the high risk that they pose for the users of the services. Will the Government look at those other sectors and at that issue as they start to consider this? I am the last person to want to stop new entrants coming into a market, but Southern Cross was a wake-up call for us. We have to see whether certain ownership patterns have too much of a conflict of interest between the investor and the user of the services for us to be able to be comfortable that they could ever deliver the bacon in a satisfactory way.
Earl Howe
The noble Lord is absolutely right. We are entirely open to looking at the lessons to be drawn from other sectors and the regulators of other sectors. I am sure that important messages will come from such sectors of the kind the noble Lord describes—no doubt not just the energy and water sectors but others, too.
I will move on to the question of whether there should be central oversight of local authority commissioning practices. I wholeheartedly agree with many of the arguments that have been expressed this evening. Commissioning practices which risk undermining personal dignity and lowering quality are simply not acceptable. That is why Clause 5 of the Bill introduces a duty on local authorities to shape high-quality, diverse and sustainable markets in care and support services. Clause 5(4) requires local authorities to have regard to this duty when commissioning services. As I said when the Committee discussed Clause 5, we are aware that there are examples of poor commissioning practice across the country. We need to move away from overly prescriptive commissioning that focuses only on price or time slots, to consider how it can do things differently and deliver better outcomes in quality care.
In relation to the option of central oversight of local authority commissioning that the noble Lord, Lord Patel of Bradford, suggested, the Bill leaves open the possibility of the CQC conducting reviews of local authority commissioning. However, by enabling the CQC to review local authority commissioning, if it is prescribed in regulations, the Bill gives us the opportunity to discuss this option further. In particular, we are considering whether the new chief inspector, who will work with local authorities that commission care and support, should have a formal role in assuring the performance of those authorities, building on the strength of the current programme of improvement activity and peer assurance led by councils.
I emphasise at this stage that if there is to be central oversight of commissioning, the CQC, as a consequence of its links with the chief inspector and its existing relationships with, and expertise in, the social care sector, will be the most appropriate body to undertake this function. Although we have not closed our minds to the option of central oversight of local authority commissioning, the fundamental problems underlying poor commissioning practices are cultural and structural. Central oversight on its own will not necessarily tackle these issues.
The noble Lord, Lord Warner, asked how we could be satisfied that local authorities’ commissioning will be of a suitable quality. It goes without saying that it is for local authorities to decide the most appropriate way for them to fulfil their duty of commissioning and of shaping local markets, responding to local needs and circumstances. They will be accountable locally for those decisions. However, we are working with local authorities to support them to develop their capacity to shape local markets. We launched a programme of support last year and intend to continue working with local authorities to improve commissioning practices. We are committed to working with the sector to support local authorities to shape diverse and high-quality markets, including through improving commissioning practices, through the recently announced homecare challenge and through a programme to support the authorities in their market-shaping capacity.
In conclusion, I fully understand and sympathise with the issues raised by the two amendments. However, I hope that I have been able to shed some light on why the Government have come to their view on the issues. In so doing, I hope that I have provided a measure of reassurance to the noble Lord, Lord Patel of Bradford.
Lord Patel of Bradford
My Lords, I thank the Minister for his detailed response. On the first amendment, which deals with financial regulations, he singled out three issues that were relevant to why the CQC was chosen: having a single regulator, better relationships with local authorities and better relationships with commissioners. That goes some way towards reassuring me, but I still feel, coming back to the comments of my noble friend Lord Warner, that this is not necessarily about relationships and capacity but about the expertise and skills required in a very complex financial arena. That is the key.
If I were naive, we lived in an ideal world and I was providing care homes, and either my accountant was not very good and I did not know that I was going bankrupt or I wanted to carry on and would do everything possible to keep the company running, regardless of my relationship with the CQC, that is where somebody with the real financial expertise required in this day and age could come in and spot what was happening. I am not 100% reassured that the CQC will have that capacity or expertise. I suppose that I recognise that Monitor does not understand the social care sector as well but it has the financial expertise that I think is invaluable. I may want to return to this issue again and to have a further discussion about it.
However, I am far more reassured by the response that the noble Earl has given me on central commissioning. I suppose that I stipulated NHS England in the amendment because I could not think of another body. Having said that the CQC does not have the capacity to do this, I could not say that the CQC should be doing it. However, I am reassured that the potential is there for central oversight through regulations and other areas. In the mean time, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
My Lords, it was remiss of me not to declare an interest during our debate today as president-elect of GS1, chair of a foundation trust and consultant trainer with Cumberlege Connections.
Perhaps I, too, may raise the connection of this Bill with the Children and Families Bill. As my noble friend Lord Warner said, with the Care Bill applying to adults from the age of 18 and the Children and Families Bill setting the framework for children and young people up to the age of 25, there is a clear overlap in their jurisdiction in the context of social care provision. Education, health and care plans under the Children and Families Bill also include an assessment of a child or young person’s social care needs, which means that young people between the ages of 18 and 25 may be eligible both for an EHC plan and an adult care and support plan. That seems to reinforce my noble friend Lord Warner’s comments.
My understanding—perhaps the Minister could confirm this—is that the Government are considering bringing forward amendments to the Children and Families Bill to make sure that the two link together. If that is so, the problem that we have is that the Children and Families Bill will not go into Grand Committee until we come back in October, whereas this Bill should have cleared the House by about the fourth week in October. It would be very disappointing if we, in debating this Bill, were not able to see the changes that the Government were going to make to the Children and Families Bill so that we could make sure from our perspective that the two hung together. Can the Minister assure us that, if the Government are contemplating some amendments, we could see them so that we could debate them within the context of this Bill?
Earl Howe
My Lords, I thank Members of the Committee, and especially the noble Lord, Lord Patel, for a debate which illustrates the significance of transition to young people and their families and the need to get the legal framework right for them.
As we have heard, these amendments cover a range of issues. In respect of Amendments 92D, 98 and 100, I have listened with interest to concerns about the absence of a requirement that transition assessment should take place at a particular age. We are in agreement that the timing of assessment is crucial, but this is essentially a question of approach.
The Care Bill proposes that two tests be used to ensure that assessment takes place at the right time for each young person or carer. We believe that this is preferable to rigid timescales which take no account of an individual’s needs or circumstances. First, a local authority may assess a young person, their carer or a young carer where it appears to the local authority that the child or carer is likely to have needs upon the child turning 18. This is to be used in conjunction with the second consideration, whether assessment would be of “significant benefit”. This recognises that a one-size-fits-all approach is not in the best interests of young people or their carers.
Amendments 92B and 92C would limit the group of young people who can benefit from transition planning to those who are already in receipt of services. We would not wish to impose any such restriction. Indeed, this restriction was removed following public consultation and pre-legislative scrutiny, because transition planning may equally benefit those who are not currently in receipt of services.
I have heard the concerns expressed that local authorities are not under a duty to assess in every case. This is indeed true, and for very good reason. Some young people will not have needs for care and support after the age of 18. It will not be appropriate, nor indeed will it be in a young person’s interests, to assess in every case.
I listened with interest to concerns about provision for carers of children. We need to be clear about this. Support should be available where it is needed. The question is the source and nature of that support. Clause 59 provides a power, rather than a duty, for local authorities to provide support because existing children’s legislation already includes provision for support to a child’s carer. Duplication of existing legislation may cause confusion and is unnecessary. This power is intended to enable support to be provided under adult legislation where a certain service is available only locally via that route.
I turn now to planning for transition and Amendments 92BA and 94. Provision for transition assessment is focused on the outcomes that the individual wants to achieve. I can reassure the noble Lord, Lord Patel, that such outcomes may include employment, education or housing. I also share the noble Lord’s expectation that, when a child has an education, health and care plan, any assessment under these clauses should take the EHC plan into account and the assessment should be integrated into that plan.
The Care Bill and the Children and Families Bill include provision that assessment can be joint, including joined-up assessments in relation to an EHC plan. These issues will be addressed by both the guidance supporting the Care Bill and the Department for Education’s SEN code of practice.
In respect of Amendment 94, I briefly add two further points. First, when a young person over the age of 18 has an EHC plan, and as such the care part of that plan is provided under this Bill, we would expect co-operation between adult and children’s services in relation to any review of the plan under Clause 6(5)(a) and (b). Such co-operation for those under 18 who are in transition is provided for by Clause 6(5)(c). This would include co-operation with the preparation, maintenance and review of the EHC plan as provided for by the Children and Families Bill, in respect of children. Guidance can ensure that this is clear.
Secondly, requiring a local authority to make arrangements to secure provision for children and young people with a transition plan would not be appropriate. Services to children cannot be provided under the Care Bill. Children’s legislation provides for this. Services to young people over the age of 18 would be provided, if necessary, under provisions earlier in Part 1.
In relation to Amendment 104ZA, I agree on the need to ensure continuity of care. However, we must avoid creating overlap or confusion with local authorities’ existing duties in relation to children, including rights to assessment and support under the Children Act 1989. For this reason, it would be preferable for the young person to request assessment as they see fit and for the local authority to initiate this conversation with the child. The request itself is not envisaged as a formal process. Indeed, for some young people the request will form part of a conversation the local authority initiates about transition to adulthood. Guidance can be used to make this point.
Young people and their families will need information in order that they can understand the adult care and support system and, crucially, that they are aware of their right to request assessment. Clause 4 requires local authorities to establish and maintain an accessible system for information and advice including information and advice about how to access the care and support that is available.
Through Amendments 95, 96 and 97, the noble Lord, Lord Patel, the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Patel of Bradford, have also expressed concern that there should be provision to support children with care needs to move between areas, without the fear of experiencing a gap in their care and support. I agree. Provision for people over the age of 18 already exists at Clauses 36 and 37 and provision for children with an Education Health and Care plan exists in the Children and Families Bill. If a young person under the age of 18 who has had an assessment under the provisions of Clauses 55 or 60 moves to a new area, the general duties of co-operation, in particular with other local authorities under Clause 6(6)(b), would also apply.
I should like to reassure the noble Baroness, Lady Pitkeathley, in relation to Amendments 93B, 100A and 104ZZA that consideration of “other matters”, a person’s own capabilities and the other support that may be available does not exclude the provision of more conventional care and support services where needed. Indeed, when the child becomes 18, if the individual’s needs are eligible, the local authority must meet them, in accordance with Clause 18, if the adult wants the authority to do so, and those requirements are not diminished by these three paragraphs. The intention is to recognise that, in order to make the right connections to the local community and the variety of support available, the local authority should consider how these matters, along with more formal care and support provision, could be of benefit in achieving the adult’s outcomes.
The noble Baroness suggested that carers might be pressurised by these provisions into providing care. It is certainly not our intention that pressure is put on carers. The clauses make it very clear that a carer must be willing and able to provide support and that the impact upon carers’ well-being must be considered.
She flagged up the concern that the new provisions in Clauses 56, 58 and 61 are departures from the draft Bill and asked why that was the case. The Bill as introduced includes greater clarification as to the nature of the assessment that should be carried out and what should be considered. It is largely for drafting reasons that we split the subsections relating to children, children’s carers and young carers into two subsections for each group.
The noble Lord, Lord Warner, pointed out that, in his view, the Bill is framed as though young people are strangers to the local authority. The Bill makes provision both for those who are receiving children’s services and are known to social services and for those who are not currently receiving care and support. Clause 6 provides a duty to co-operate, including within the local authority. In particular, in relation to children transitioning to adulthood, there is a duty for those internal discussions to take place. The request mechanism in the Bill is not intended to be a formal or bureaucratic process, as I mentioned earlier.
The noble Lord, Lord Hunt, asked me to confirm whether the Government are considering bringing forward amendments on carers, and expressed his concern that the timing of the Children and Families Bill relative to this Bill is unfortunate. I can tell him that my noble friend Lord Nash, at Second Reading of the Children and Families Bill in your Lordships’ House, said:
“As my honourable friend the Minister for Children has said, we are considering how the legislation for young carers might be changed so that rights and responsibilities are clearer to young carers and practitioners alike. We will also look at how we can ensure that children’s legislation works with adults’ legislation to support the linking of assessments, as set out in the Care Bill, to enable whole-family approaches”.—[Official Report, 2/7/13; col. 1201-02.]
The Minister for Children and Families and the Minister for Care and Support have met the National Young Carers Coalition to discuss the key principles for taking this work forward over the summer, as well as how we can most effectively involve the NYCC during this period.
Finally, the government amendment in this group will ensure that the provision added to Clauses 58 and 61, following consultation and pre-legislative scrutiny, specifying that a needs assessment must include an assessment of the impact of the adult’s needs for care and support on their well-being, is also added to Clause 56.
We have had much discussion recently about the need to ensure that services are organised around the needs of individuals. I hope that I have been able to explain how this legislative framework for transition is focused on meeting that aspiration. I hope, too, that I have provided some reassurance about the approach we are taking to smooth the transition to adult care and support. I hope that the noble Lord, Lord Patel, will feel able to withdraw his amendment.
Lord Patel
My Lords, I thank the Minister for his response, which was as detailed as my amendments. I am reassured by some of the things that he has said, and how the Bill addresses those issues. Although the Minister does not agree with me, there is an issue about specifying the age of 14 as the time of assessment for this small number of vulnerable children. There is a need to do so. However, at this point I do not wish to prolong it. I beg leave to withdraw the amendment, but I hope that we will have further discussion outside the Chamber.
“( ) the impact on the matters specified in section 1(2) of what the child’s needs for care and support are likely to be after the child becomes 18,”
Care Bill [HL]
Earl Howe Excerpts(12 years, 3 months ago)
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Lord Campbell-Savours
My Lords, I intervene briefly to ask the Minister a rather pedantic question. Subsections in Clause 35 all use the word “may”. There is no actual requirement for the Government to introduce regulations and therefore for local authorities to be placed in a position whereby they can charge. Why has it been left open, rather than using the word “shall”? If we could take the wording as meaning “shall”, can we assume that each further instance of the word “may”—that is to say:
“The regulations may specify costs … The regulations may require or permit adequate security…The authority may not charge interest under regulations…The regulations may make other provisions”—
is part of a whole package? Or, if “may” does mean “may”, might only individual parts of this clause be introduced, as opposed to the whole clause? For example, subsection (2) states that:
“The regulations may specify costs which are, or which are not, to be regarded as administrative costs for the purposes of subsection (1)(b)”.
If that particular part of the clause were not implemented, it would leave local authorities open to decide for themselves what the administrative costs could be. Whatever internal reasons they may have—and my noble friend Lord Lipsey referred earlier to the reluctance of local authorities—should local authorities have that ability to be flexible? I am seeking to establish whether, if this is all going to happen and we should read “shall” for “may”, all the subsections of Clause 35 will be implemented and that isolated subsections will not be introduced in the regulations. That might create difficulties that we are not foreseeing during the passage of the Bill.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
I am grateful to the noble Lord, Lord Lipsey, for his amendments. He has a unique perspective, having first put forward the idea of deferred payments—as he reminded us—when a member of the 1999 royal commission. The Government share his disappointment that deferred payments are patchy and inconsistent across the country. Many people going into care face difficult decisions as a result, and authorities lose money when they offer a deferred payment because they cannot charge interest.
We also share the noble Lord’s commitment to ensuring that deferred payments work better in the future. We agree with the Dilnot commission that deferred payments should become a full and universal offer across the country for people who have to sell their homes to pay for residential care. We intend the scheme to be cost neutral to local authorities, as the commission also recommended.
We are proud to introduce this universal scheme from April 2015. It will provide much needed peace of mind to the 40,000 people who sell their homes each year to pay for care. As well as offering time to make decisions and choices over what happens to their home —a point well made by the noble Lord, Lord Lipsey—it will open up new options, such as renting it out.
In his amendments, the noble Lord raises important questions about implementation. These concern the interest rate, the use of a deferred payment to purchase insurance, support for authorities to implement deferred payments and the timetable. Before turning directly to those amendments, it may be helpful if I briefly outline our plans.
Clauses 34 and 35 contain the necessary powers for us to introduce deferred payments. All authorities will offer deferred payments and it is our intention that people at risk of selling their home to pay for residential care will qualify. They will be able to defer reasonable residential care and accommodation fees, in the care home of their choice, for the whole of their lifetime. We are currently consulting on more detailed proposals on who will qualify and what fees they can defer, and are gathering more evidence on the costs and practical issues involved with offering deferred payments.
One practical issue that we are exploring in our consultation is the possibility of situations in which the authority cannot secure its debt through a legal charge on the property. This is why the Bill provides for other forms of security, including third-party guarantees. The noble Lord, Lord Lipsey, expressed doubts about this provision and wondered whether the proposals in the Bill may put people off taking out a deferred payment plan. Our guiding principle here is that we want as many people as possible to benefit from deferred payments, but it is equally important that local authorities are able to secure their debt.
Traditionally, deferred payments have been secured by registering with the Land Registry a legal charge on the person’s land, but this might not always be possible or offer sufficient security to allow the authority to recover its costs. Examples of this might include when a charge cannot be secured by registration with the Land Registry or where there is reasonable doubt about the person’s ability to afford the care home of their choice over the longer term, but we are consulting on whether there are situations in which offering a deferred payment is particularly challenging and, if so, on what a constructive way forward might be. That might include use of a different form of guarantee such as a solicitor’s agreement or the involvement of a third party. It is important that the Bill contains this flexibility so that when we design deferred payments to accommodate all situations that might arise, individuals’ preferences about the type of security that they wish to offer can be built in. I hope that this will persuade the noble Lord to withdraw his amendment, at least for the time being.
These issues will, in turn, inform how we set the interest rate, which has to strike an important balance. The rate must be enough to help authorities cover their lending costs but be affordable to people going into residential care who are at risk of selling their home. I understand the intention of Amendment 92ZZW to fix the interest rate at a predictable level but, as the noble Lord, Lord Lipsey, might have sensed—the noble Lord, Lord Warner, may have alerted him to this—I am concerned that setting the rate in the Bill before we have finalised other aspects of the scheme is premature. We will announce the proposed interest rate following the consultation and decisions on the wider design of the scheme. This will be set out in the regulations that we will consult upon in 2014. It will be a nationally set, maximum interest rate and local authorities will not therefore be able to charge excessive rates.
I have tabled government Amendment 92ZZAA, which would introduce a new clause allowing authorities to make alternative arrangements for people who would not wish to have a deferred payment because of their religious objection to paying interest. I am grateful to the Islamic Bank of Britain for its help on this amendment. We will work with the bank over the summer to produce detailed proposals, and ensure deferred payments are available to such people.
Lord Lipsey
My Lords, I wonder if the noble Earl could clarify what he said about equity release as an alternative to deferred payments. There seem to me to be two absolutely insuperable objects to that working. One is that you could not have both a deferred mortgage and an equity release on the same property. You cannot have two things secured. More importantly, you cannot get equity release on a house that is empty. The rules of the Equity Release Council—I am on its advisory board—do not permit that. That is not a possible solution to the problem which I put forward.
Earl Howe
I have received advice that, technically, that is not so, but I am more than happy to engage the noble Lord in discussion after this debate. It would largely depend on the availability of a deferred scheme, agreed to by a local authority. It would also largely depend on the quantum of the debt that was already in existence. Of course, setting aside this particular issue, there could be a property on which there was pre-existing debt of a considerable size. It would largely be for the local authority to judge in individual cases whether it was in a position to offer a deferred payment scheme, looking at the facts of the case. I do not think one can make generalised remarks about this. We think that technically it is possible for an equity release scheme to exist alongside a deferred payment loan. As I say, I am sure that the noble Lord, with his insight into the market, will be able to put us right if we have misread the situation.
Lord Warner
While we are on this topic, it seems to me that there is an issue for the Government to think about. What is the market rate for equity release, compared to the market rate for deferred payments? If you are not very careful, you could end up with a situation where one is incentivised over the other. I wonder what consideration the Government will give to that issue.
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.
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.
Lord Warner
I am sorry to interrupt the Minister, but he skipped past the whole issue of 152 schemes rather rapidly in his answers and brushed aside most questions. Have the Government actually considered a national scheme, which was one of my questions? Does the Minister realise that only a small number of local authorities are actually running deferred payment schemes? It is a very small proportion of the total. The overwhelming majority of them have no experience whatever of running a deferred payment scheme; very few of them are used to valuing assets. These are all new complexities, but the Government are not going to be producing their draft regulations until 2014, by the Minister’s own admission. This is a recipe for a total shambles.
Lord Hunt of Kings Heath
My Lords, the noble Earl has said, and I am sure it is welcome, that the Government intend to set a maximum interest rate to be charged by local authorities. Does he agree that, since it is a crucial part of a deferred payment scheme, setting a rate nationally is consistent with a much more uniform approach? That is why I would have thought my noble friend’s amendment would be a sensible way forward. It is not being mandatory and does not go as far as my noble friend Lord Warner, but simply asks for a model scheme to be introduced.
Earl Howe
We are absolutely on side with the suggestion that there needs to be a uniform approach to the essentials of this scheme. That includes a national maximum interest rate. I suggest to the noble Lord, Lord Warner, that we do not need a national body running an all-singing, all-dancing, nationally mandated deferred payment scheme. We want to build on the good work already going on out there. The noble Lord made a fair point that only a minority of local authorities currently operate deferred payment schemes. Of those that do, many provide us with a very good basis on which to build and share knowledge with other local authorities. That can start now before the regulations are drawn up. We can and will start work with local authorities to ensure that they are gearing themselves up in the right way to approach this task.
Earl Howe
We fully expect a range of views about how to implement the proposals that we have set out in the consultation document. However, what we do not anticipate is wholesale objections to the very idea of the proposals, because by and large they are widely accepted as being the right ones. We need to ensure that they are capable of being implemented in a practical way.
Lord Campbell-Savours
I am sorry to press the Minister, but the point is that some local authorities—let us say Westminster, Maidenhead and Windsor or Wandsworth—may want to raise the charges for administrative costs while other authorities might be more sensible and reasonable about what those costs are. There has to be national uniformity in that area, and we should be given assurances today that there will not be flexibility, which would invite differential administrative costs between local authorities and trouble for many people.
Earl Howe
I can reassure the noble Lord that we are aiming to have uniformity. Merely because one local authority may present us with some rather maverick objections, I do not think that I could possibly envisage us capitulating to that kind of pressure. We want to see a system where people, wherever they live in the country, can rely on some clearly set-out rules and can thereby have peace of mind if they take out a deferred payment scheme. I hope and sincerely believe that the noble Lord’s fears will prove groundless, but I am happy to clarify as much of that as I can, given that we have only just gone out to consultation, in the letter.
Lord Deben
I wonder why the particular councils which were chosen by the noble Lord are all among the best councils in Britain, which would certainly behave in the most generous way.
Earl Howe
My noble friend is, of course, completely right. They are model councils of their kind. It is rather fanciful to present them as possible examples of councils that might wish to do badly by their residents.
This is a major reform that we have committed to introduce in this Parliament. While I am the first to agree that that in itself should not drive the timetable, we think that the timetable is achievable. We are consulting to get the details right and working with the care sector to ensure that implementation goes as planned. The noble Lord raised some important points. I am sure that he knows me well enough to accept that this is not the last occasion when I shall look at the points that he has raised. I shall do so further. For the time being, I hope that I have responded to his satisfaction, at least on some of the amendments, and that he will feel able to withdraw the amendment.
Lord Lipsey
My Lords, I genuinely thank the Minister for that response. I do not want to be the least bit churlish about these amendments which, after all, finally put into practice an idea that came to me in the bath 14 years ago. It does not happen very often, but this time we are on the verge.
I warmly welcome the Minister’s assurance that there will be a national interest rate for deferred loans. That completely deals with the point raised by my amendment on interest rates and my point about Wonga rates of interest and is a tremendous breakthrough for this scheme, so I thank the Minister most warmly for that.
Moving to slightly more churlish mode, on whether we have 152 schemes or one, on balance, I buy the Minister’s arguments against having a separate national organisation imposing this or a compulsory national scheme, but that is not the proposal made in my amendment. My proposal was that the Government produce a model scheme that those who wished to could adopt. It might have some bits that could be added on or taken away as local options within the national scheme, but it would at least stop work being done 152 times over. As my noble friend Lord Warner pointed out, some people are working with this stuff for the first time because they have never brought in a deferred payment scheme. I ask the Minister, among the other things that he has kindly offered to consider, to have another look at that specially to see whether we can find some mileage in it.
I got no change on the time of introduction of the scheme, not perhaps greatly to my surprise, but I still believe in my guts that, as this process moves forward, it will become more and more apparent that it is not sensible to aim for 2015. I do not ask the Minister to comment on that now, but I give him an assurance that I—and I hope my Front Bench will do the same—will not accuse him of a U-turn if later on he finds that it is not sensible. A syndrome in government that comes up time and time again is that a Government announce a timetable and, when it is quite clear it cannot be met, go on fighting like made to preserve their original timetable. I shall not say the words “unified benefit”, but I easily could. This does not make any sense. We are all after the same thing here, and if the Minister decides—and I am sure that he will make a very good judgment on this—that it cannot sensibly be met, let him say so openly and we shall be welcoming, not critical.
My final point emerges partly from what we were just talking about: things on which the Government will possibly think again. The noble Earl very generously said that there are lots of things on which he will want to engage in discussions; at one stage he said, “at least not for the time being”, and has made many remarks of that kind. I will make a purely practical point. It is 22 July and the House will return to the Bill relatively early in October, although I do not know when, and many noble Lords are planning to be away for parts of that period. All of us want to resolve as many of these issues as we possibly can without the need for confrontation or debate in this House or, heaven forefend, Divisions, if they can be avoided. Therefore it is rather important that we all reflect on how we can set up a mechanism so that we can continue over this period to discuss the outstanding issues. I know that the Minister will reflect, but he and his officials may want to have discussions with some of us who are involved, so that by the time that we get to Report we will have made use of this Committee stage and found a way to move the House and the Bill forward without unnecessary rancour. With that, I beg leave to withdraw the amendment.
“Alternative financial arrangements
(1) Regulations may, in such cases or circumstances and subject to such conditions as may be specified, require or permit a local authority to enter into alternative financial arrangements of a specified description with an adult.
(2) “Alternative financial arrangements” means arrangements which in the Secretary of State’s opinion—
(a) equate in substance to a deferred payment agreement or an agreement of the kind mentioned in section 34(8), but(b) achieve a similar effect to an agreement of the kind in question without including provision for the payment of interest.(3) The regulations may make provision in connection with alternative financial arrangements to which they apply, including, in particular, provision of the kind that may (or must) be made in regulations under section 34 or 35 (apart from provision for the payment of interest).”
“( ) The reference in subsection (1) to this Part does not include a reference to section 28 (independent personal budget).”
“( ) Section 22 (prohibition on provision of health services) is to have effect—
(a) in its application to a case within sub-paragraph (1)—(i) as if the references in subsections (1) and (6) to the National Health Service Act 2006 included a reference to the National Health Service (Wales) Act 2006, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Local Health Board; (b) in its application to a case within sub-paragraph (3)—(i) as if the references in subsections (1) and (6) to the National Health Service Act included a reference to the National Health Service (Scotland) Act 1978, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health Board or Special Health Board;(c) in its application to a case within sub-paragraph (4)—(i) as if the references in subsections (1) and (6) to a service or facility provided under the National Health Service Act 2006 included a reference to health care provided under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health and Social Care trust.”
People with Learning Disabilities: Health Inequalities
Earl Howe Excerpts(12 years, 3 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I thank all the speakers in this excellent debate for their very powerful contributions, not least the noble Baroness, Lady Hollins. I want to start by paying tribute to Mencap, which has been campaigning vigorously against the preventable deaths of people with learning disabilities. Mencap has revealed fundamental failures in communication between care providers, on the one hand, and parents and carers, on the other, as the main cause. However, it has also concluded that the only other explanation for these preventable deaths is prejudice. The disturbing reality is that this prejudice, although rarely revealed in words, finds its expression in deeds, sins of omission and neglect. Any failure to understand what should be a fundamental tenet of NHS practice is shameful: every life is different, yet every life has the same value.
I want to take this opportunity to make the Government’s position clear. Mencap’s report, Death by Indifference, marked the start of six years of shocking revelations of inhumane and degrading treatment, culminating in the recent publication of the Confidential Inquiry into Premature Deaths of People with a Learning Disability. We established the confidential inquiry in 2010 and funded and supported it for three years. As Sir Jonathan Michael’s report, Healthcare for All, recommended, it was time limited. Its purpose was to provide evidence on the relevant issues and guidance on preventing premature deaths. It has done this very effectively and I thank the confidential inquiry team for its excellent work.
This important report reached the conclusion that people with learning disabilities are continuing to die or experience poor outcomes because they are not getting the right care, and noble Lords have cited some graphic and disturbing examples this afternoon. Although the report makes for sobering reading, it gives us a clear indicator of the areas that need to be tackled, preparing the ground for the Government’s response to the confidential inquiry which was published last Friday. Our response makes clear our determination to eradicate substandard practice and to work in partnership across the health and care system to deliver the improvements that we all want to see.
In our response, we set out a series of specific actions. We will use the information strategy for health and care to improve how we identify and respond to people with learning disabilities and their health and care needs. We will link data about cause of death with other information to better understand and respond to premature mortality among people with learning disabilities. We expect local organisations to use local mortality data to inform joint strategic needs assessments and joint health and well-being strategies. We will support named healthcare coordinators being available to people with learning disabilities. They will coordinate a person’s care, talk to other professionals and be involved in planning the individual’s care.
NHS England will review plans for learning disability annual health checks. We know that appropriate health checks can identify needs which can then be addressed by referral to appropriate services. We will try to strengthen the NHS standard contract to improve the care of people with learning disabilities. We know that the contract is a powerful lever to incentivise good practice. We will monitor, through the mandate, the progress the NHS is making to ensure that people with learning disabilities in vulnerable circumstances receive safe, appropriate, high-quality care all the time.
We will work with partners to review awareness and understanding of the Mental Capacity Act and how it works in practice in making sure that people receive appropriate care at all times, including at the end of life. We will work with partners to review guidance on cardiopulmonary resuscitation. NHS England will appoint a national clinical director for learning disabilities, who will help improve the experience of people with learning disabilities in care. Local areas can set up their own arrangements to review mortality in people with learning disabilities. Some are already doing so, working with the confidential inquiry team. This work will be shared more widely for other areas to develop similar approaches. Building a strong understanding of what is happening in local provision will be critical to making change happen.
Over all that, in the Health and Social Care Act, we have a new specific statutory duty on the Secretary of State, NHS England and clinical commissioning groups, with the aim of focusing on reducing inequalities throughout the health service in both access to services and outcomes achieved. This will be an enormously powerful tool in addressing the health inequalities which people with learning disabilities face.
However, the response to the confidential inquiry is just part of a programme of activity from government and partner organisations designed to deliver system change and a shift in culture and attitudes. Changes in health and social care delivered by the Health and Social Care Act 2012 provide the building blocks for that shift. First, safe, appropriate, high-quality care is a key priority for NHS England. The noble Lord, Lord Hunt, asked about the capacity of NHS England to focus in this area. It is under a specific legal duty to tackle inequalities and advance equality. Priority areas where we expect progress to be made by 2015 include supporting people with multiple long-term physical and mental health conditions and improving their quality of life, and preventing people from dying prematurely.
Secondly, the NHS Outcomes Framework 2013-14 will allow us to measure the quality of services and outcomes for people with learning disabilities. This framework includes an indicator on preventing people with learning disabilities from dying prematurely. Improvements for people with learning disabilities will also be a crucial element of success across the framework as a whole.
Thirdly, Transforming Care, our national response to Winterbourne View hospital, sets out a programme of actions to ensure that people with learning disabilities or autism no longer live inappropriately in hospital, and receive optimum care. A wide range of delivery partners signed up to a programme of action designed to deliver transformed care in the Winterbourne View review concordat. The concordat sets out a number of specific actions for NHS England, including ensuring that all primary care trusts develop registers of people with learning disabilities or autism who have mental health conditions or behaviour that challenges, and making clear to clinical commissioning groups that they are expected to maintain local registers and, with the local authority, review individuals’ care. All reviews will be completed by the end of July. By next April, every area will have a joint plan to ensure high-quality care and support in line with best practice. By next June, everyone will have moved to community-based support where appropriate.
Baroness Hollins
I hope the noble Lord will forgive me. The Winterbourne View concordat does not address the physical health needs that we are talking about in this debate. I asked whether the Government might consider a similar concordat to look at the physical health needs of people with learning disabilities. Would the Minister care to comment?
Earl Howe
My Lords, I would like to deal with some of the points raised in the debate. Can I say, as I always do, that if I fail to cover all the questions raised, I will of course write to noble Lords afterwards? On the issue of a concordat, which was raised also by my noble friend Lady Jolly, our response makes clear that we have already been able to take action in some areas—for example, by asking organisations to review and update guidance. In other areas, progress relies on several issues, such as new and emergent organisations developing their strategic approach, and key individuals being in post. Across all of the actions, there is a broad timescale with a commitment to provide regular updates on progress. The Department of Health will continue to review progress through the Learning Disability Programme Board.
On records, data and information we are working with the Health and Social Care Information Centre, NHS England and the Improving Health and Lives Learning Disability Observatory to address the issues. There are several areas we need to look at. For example, we know that there is already information in GP practice learning disability registers. We want to make better use of this by linking it to other data that is already collected. We will have an update on progress by the end of the year. I will write to supplement those comments because my time is running short.
My noble friend Lady Tyler asked what support the Government will give to local areas to implement the confidential inquiry recommendations. The department is working closely with the public health observatory to make sure that its work to share good practice includes the issues raised by the confidential inquiry. We have already suggested to the inquiry team that we need to work in partnership with NHS England and other stakeholders. To make progress on the actions we need to align with work that the inquiry team is already doing at a local and regional level.
The noble Baroness, Lady Hollins, asked when the outcomes framework indicator on premature deaths will be live. It is live from 2013-14. We are currently collecting data to underpin the indicator and we will have data by November of this year.
The national mortality review body was a subject raised by many noble Lords. The department and the confidential inquiry team organised a meeting in March to discuss the proposal for a mortality review body. I am aware that the noble Baroness, Lady Hollins, and other stakeholders with expert knowledge and interest attended that meeting. Our response confirms that NHS England will consider the proposal to establish a national mortality review body, including looking at the costs and benefits by March next year. Noble Lords expressed their concern about that timeline and I have no doubt that NHS England will take note of the strength of feeling expressed by noble Lords on this issue during today’s debate.
I have a lot more to say about liaison staff, the Mental Capacity Act, reasonable adjustments and other themes, not least those raised by the noble Baroness, Lady Emerton, on care pathways and the role of nurses. I will write on all of those issues. I want to end with a reassurance that people with learning disabilities and family carers remain at the heart of everything we do. The Government must lead by example. That is why the Learning Disability Programme Board includes learning-disability self-advocates and family carers as well as a self-advocate and the chief executive of Mencap. We have a long way to go but change must be effected at scale and pace. There can be no more excuses or procrastination from any part of the system if we are to achieve our collective goal of a society where everyone is valued and has the chance to lead productive and, most importantly, healthy lives.
National Health Service (Licensing and Pricing) Regulations 2013
Earl Howe Excerpts(12 years, 3 months ago)
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Care Bill [HL]
Earl Howe Excerpts(12 years, 3 months ago)
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Lord Hunt of Kings Heath
My Lords, I, too, have a great deal of sympathy for the core of my noble friend’s proposal to change the means test to increase personal allowances to support people so that they have enough money for what he described as “small treats”. Like my noble friend Lord Warner, I should be interested in the noble Earl’s response to that point.
I also sympathise with my noble friend’s second proposal to help those with modest assets by making the means test less severe. It is clear to most of us that the benefits of Dilnot will go to the better off. I think that one must be sympathetic to my noble friend’s aim of trying to spread the benefits more widely. Of course, that comes with a cost, and my noble friend’s answer to that is the proposal to abolish the nursing care allowance or to phase it out. Perhaps the term is grandparenting; I am not sure of the phrase but the Lords reform proposals come to mind—the transition.
Whether that is the right approach must of course be subject to some debate, and I would certainly need some convincing about the phasing out of the nursing care allowance. However, I think that my noble friend has done us a service and I hope that we will have further discussions on it between now and Report.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, on one level I sympathise with the intention of the noble Lord, Lord Lipsey, to redistribute funding between health and care and support so as to increase the personal expenses allowance and local authority support for those in residential care. However, we need to face the reality of the current economic climate. One important aspect of our reforms is that the greatest support will go to those with the greatest need, and that is surely the policy aim that we need to keep most closely in mind in this context.
Currently, the NHS funds nursing homes to support the provision of registered nursing care. This reduces the burden on the NHS of having to provide NHS nurses in residential care homes. Removing this funding would risk increasing costs elsewhere in the NHS, but it would also breach a serious point of principle. If we were to stop people in residential care homes from being eligible for NHS-funded nursing care, it would undermine one of the founding principles of the NHS, which is that it should be a service free at the point of delivery. I am sure that noble Lords would agree that we would not like to see that.
I understand why the noble Lord seeks to increase the personal expenses allowance. If someone is contributing to the costs of their residential care from their net income, for example from their pension, the personal expenses allowance is the amount people can retain to spend as they wish. This is currently set, as he rightly said, at £23.90. The amendment would increase it to £32.75. When living at home, people pay for their food and heating from their income. It is right that people should continue to contribute towards these costs in residential care. The personal expenses allowance reflects the fact that for most people these costs represent a large proportion of their income, but it allows people to retain some of their income for other uses. The reality is that spending additional resources on the personal expenses allowance would reduce the resources available to provide support to those with the greatest needs.
I heard what the noble Lord, Lord Lipsey, said about the loss of the attendance allowance meaning that people would be worse off. Local authorities should support people to maximise their income. If a given individual would be better off receiving the attendance allowance, the local authority should support them to achieve this. We will bear this in mind as we draw up the regulations.
I turn now to Amendment 91, which relates to financial assessments. One of the problems the Dilnot recommendations attempt to tackle is the cliff edge between being a self-funder and being supported by the local authority. By extending the means test for people in residential care, we aim to avoid a situation where a small change in a person’s capital results in a large change in what they pay for care.
From 2016, the maximum tariff income for someone with £118,000 in assets will be £404 per week. If we reduced the rate at which people contribute toward their care costs from their assets to £1 per week for every £500 of assets, the contribution for someone with £118,000 in assets would become £202 per week. This means that an individual facing a typical care home fee would be over £200 per week better off if they had assets of £117,000 than if they had assets of £119,000. This would reintroduce the cliff edge that surely none of us wants to see.
I believe that our plans represent a fair balance between the individual and the state. People with care needs will receive additional support with care and support costs through the extended means test, safe in the knowledge that health services will remain free at the point of use and that they are protected by the cap from unlimited care costs. I hope the noble Lord will see that there is method in the Government’s proposals. While I totally understand much of his rationale, I think our proposals have a better balance. I hope that he will feel able to withdraw his amendment.
Lord Lipsey
My Lords, I am usually extremely complimentary about the noble Earl’s replies to debates, but I do not think that he lived up to his normal standards in that one. He seems to be under a number of illusions. He seems to think that this Bill increases the amount of public spending that goes to the worse off, rather than the better off. It does not. The Bill incorporates what is a most extraordinary priority in terms of distribution, for reasons that I believe to be compelling. Concentrating money on those most in need may indeed be the Government’s general philosophy, I do not know, but this certainly is not implicit in this Bill.
The noble Earl seems to say that if you do as I suggested on the nursing care allowance, you would increase spending by the NHS. The exact reverse is the case. The nursing cost allowance is paid for by the NHS. I am subject to correction, but I believe it to be paid for by the NHS, so you would have an immediate reduction in NHS spending of some £500 million-plus a year.
Earl Howe
My Lords, having disappointed the noble Lord, Lord Lipsey, on the previous group of amendments, for which I shall try to make amends over the summer holidays, I hope to do a little better with this one but I predict that he will not be completely satisfied with my answer.
People should be supported to receive the care they want and should be able to use their own assets to achieve this when they can afford to do so, but this should never be an excuse for local authorities to underfund the cost of meeting people’s needs. I agree with the noble Lord that people should be able to spend their money on purchasing more expensive care and support for themselves if they wish to do so, provided this is affordable. We are seeking better to understand the impact of such a relaxation and the protections that are appropriate for vulnerable people. It would clearly be undesirable for a person to spend their life savings on residential care and late in life be faced with the prospect of having to move to alternative accommodation purely on affordability grounds. I take that point absolutely. In addition, we want to consider the implications for the ability of local authorities to arrange services for other people. If individuals were to use their resources to purchase more expensive care, this could ultimately reduce local authorities’ income from charges. This in turn would reduce the amount of care the local authorities could arrange for other vulnerable people. There are a number of factors at play here, which we need to think through a bit more.
In principle, people should be able to use their savings to purchase more expensive care if they want to. We are determined to clarify and modernise the care and support arrangements in a way that is fair and reasonable to people who need care, their families and the taxpayer. The revised arrangements for people to use their savings to pay for their own care will be set out in regulations made under Clause 30(2) of the Bill. Through the public consultation on funding reform, we are seeking better to understand how relaxing the existing restrictions on making additional payments, which the noble Lord, Lord Lipsey, outlined, might impact on the wider care and support system. The evidence we hope to gather from the consultation will inform the regulations that will set out the revised arrangements. Those regulations will also be subject to further public consultation. In view of that, which is really a long-winded way of saying that this is work in progress but we are on the noble Lord’s side, I hope he will feel able to withdraw his amendment.
I can clarify one point in relation to when local authorities take over responsibility for funding care. It may be appropriate for the local authority to meet any additional cost, for example, where moving the person receiving care and support would adversely affect their health. However, where paying the higher cost might limit the local authority’s ability to support other individuals with care and support needs, the person may have to move to less expensive accommodation. In making any decisions, the local authority has to consider the exercise of its duty to promote that individual’s well-being.
I hope that those are helpful remarks. I would be happy to discuss this issue with noble Lords between now and Report.
Lord Lipsey
My Lords, I thank the Minister for that reply. Having berated him for his previous speech, I can more than fulfil his expectations on this. He has done all that I could have hoped for and more. It will be extremely well received in the world outside that the Government are finally getting to grips with this long-outstanding anomaly. I do not blame this Government. Various Governments have been exactly the same. We are going to get a solution that is essential if the Dilnot scheme is to work as we meant it to work. It is very good news to hear the Minister state so strongly in principle that if people want to use their own money to top up their fees, they should be able to do so, although I understand his reservations about the impact that might have on the local authority market. I look forward to his further work on the subject and to discussing it with him and his officials, as will, no doubt, other noble Lords who have an interest in this. I beg leave to withdraw the amendment.
Baroness Wheeler
My Lords, this has been a valuable debate and important issues designed to probe and improve aspects of these crunch stages in the care and support journey have been raised. The amendments relate to the duty of the local authority in respect of the care and support plan for the adult, the support plan for the carer, the personal or independent budget resulting from the assessment of the adult’s and carer’s needs, and care accounts and direct payments. This is a large grouping and we have nine amendments. I will speak to them as they relate to other amendments in the group as briefly as I can.
Amendment 92ZZG seeks to specify in the Bill that the adult or carer needs in the care and support plan or support plan include both social care, to be met by the local authority, and health needs, to be met by NHS bodies in the area. This requirement would reinforce the need for local authorities and primary, secondary and community health services to work closely together for the benefit of the adult and the carer. It would also provide a clear, joined-up picture of the adult and/or carer’s interlinking care and support and health needs and how they are to be met. Amendments 92ZZP and 92ZZQ also provide for this important joining-up mechanism to apply to the care and support plan and support plan reviews by underlining that in the review process, local authorities must have regard to any changes in the health needs of the adult or carer, including any health provision that they are entitled to receive.
Amendment 92ZZK, in the name of the noble Baroness, Lady Browning, extends the intent of our amendment by specifying that in a young person’s care and support plan, both health and education, in addition to care and support, should be included, integrating with any existing plan in these areas. The importance of this amendment to young people with autism—or indeed to their carers, as the amendment is not specific—has been underlined by the noble Baroness.
The noble Baroness, Lady Greengross, has tabled a number of amendments. In the time available I will refer to four of them. Amendments 92ZZCA and 92ZZR address the need for the Bill to be explicit and thorough in relation to the assessment and eligibility entitlements where the adult lacks mental capacity to arrange for the provision of care and support. The amendments are designed to ensure that the local authority provides free care and support in the circumstances where the person authorised to represent the adult under the Mental Capacity Act 2005 asks for the care and support on the adult’s behalf.
Amendment 92ZZR addresses concerns raised by the Alzheimer’s Society and other groups that Clause 28(7) does not offer adequate protection to people who lack capacity and puts people with deteriorating conditions such as dementia at risk of falling through the gaps. Government Amendment 92ZZQC is designed to address this and the Minister’s recognition that the clause is open to misinterpretation is welcome. These are complex issues but we all recognise the importance of ensuring that the Bill is watertight in respect of adults lacking capacity to arrange care and support, and of having clarity in respect of the local authority’s duty to carry out a needs assessment and to continue to maintain their care account. Can the Minister reassure the House that the Government’s amendment addresses the concerns raised by noble Lords in this debate?
The noble Baroness also raises a key issue in her Amendments 92ZZRA and 92ZZRB, which go to the heart of the choice agenda to ensure that the current right for individuals to choose a preferred care home, and the ability of their representatives to choose a home on their behalf when, for example, the individual has dementia, is upheld in the Bill. Currently the Bill does not make this mandatory on local authorities and it is important that it does. I ask the Minister how the Government’s policy on patient choice can be met when the Bill does not reinforce the current right for people to choose their preferred care home.
Our Amendments 92ZZRAA and 92ZZRAB probe this issue further and are intended to explore the Government’s appetite for including the right to express a preference for the nature and location of accommodation. We support the intention of the Government, the Law Commission and the Labour Party that the Care Bill should increase the choice and control of adults using social care and their carers. I am, however, intrigued to determine whether the Minister thinks that this right in Clause 30 might be made more meaningful if it were extended to include the nature and location of this accommodation. It is important to seek to give adults needing care and support both choice and voice, including them in decisions about them. I look forward to the Minister’s response.
I support the intention of my noble friend Lord Dubs in his Amendment 92ZZH to ensure that care and support plans or support plans specify contingency planning for an emergency, ensuring that plans reflect the flexibility needed for fluctuating conditions, such as MS and other conditions referred to by my noble friend, where there can be severe changes and rises and falls in care needs. Having discussions and planning in advance for this, so that the care is there when it is needed, would be a significant step forward.
It is also important to look at contingency plans in case the carer suddenly becomes ill or is unable to provide care. The self-direct assessment model includes discussion on contingency and risk, but the extent to which clear provision is covered in the care and support plan is patchy. Indeed, it is not always easy to be specific about what would happen because often the reality is that instant emergency care cover is hard to organise when relatives live a considerable distance away or the cared-for person is not able to summon emergency help themselves.
My noble friend also underlines the importance of including a review date in the plan. It would be valuable to require social services departments and providers to be clearer about not just the review date for the plan but what the monitoring and review process is, and what kind of client feedback, or complaints process, there will be, as well as client/carer involvement in assessing quality of care and standards of service. I suspect that very few care plans currently address these issues. Our Amendments 92ZZMA and 92ZZQB probe how a reasonable request for a review of a care and support plan is to be interpreted and, most importantly, to be interpreted fairly across the country. We support a national care service and a national entitlement to care.
We also in our Amendment 92ZZEC draw attention to the important issue of the need for the completion of the care and support plan and support plan to be conducted within a reasonable timeframe. The assessment is a worrying and often traumatic time for the cared for and carer, so knowing what the timeframe is from interview to completion, and then for the personal budget decision, is pretty important. Getting an early assessment and getting the clock ticking towards the cap will also be crucial, so there must be targets and timeframes for the local authority to adhere to and meet. Assessments under the self-directed support process in my local experience as a carer involved four meetings with social services, including with the domiciliary care agency provider and with the daycare provider, and a lot of supported work to be undertaken by the adult or the carer on the client’s behalf. Is the Minister confident that local authorities will really have the capacity and resources to cope with the demands of the new system, including the estimated quarter of a million additional assessments for self-funders that will need to be carried out?
Finally, our Amendment 92ZZSB seeks to implement the recommendation of the Joint Committee on lifting the Department of Health’s current ban on direct payments being used to pay for local authority services if the individual chooses to achieve the agreed outcomes. Our amendment would bring this into effect by underlining in the Bill that there should be no restriction in terms of type of provider placed on the services which can be purchased by direct payments. I hope that the Minister agrees, and I look forward to his response.
Earl Howe
My Lords, I thank all those who have contributed to the debate on an issue which is crucial to the Government’s vision for a personalised care and support system—the care planning process.
In relation to Amendment 92ZZCA, I hope I can reassure the noble Baroness, Lady Greengross, that it is already the case in the Bill—the Explanatory Notes make this clear—that where the adult lacks capacity to make a request, it may be made by someone else on their behalf. This is the effect of the Mental Capacity Act 2005. It is not necessary to set this out in legislation each time. We will also make this clear in guidance. Condition 3 in Clause 18(4) imposes a duty on the local authority to meet needs in cases where the adult lacks capacity and has no one to arrange care on their behalf. This is an additional safety net, enacting a provision previously set out in guidance.
On Amendment 92ZZEC from the noble Baroness, Lady Wheeler, it is vital that local authorities retain the ability to be proportionate to the needs to be met. For some people the care planning process may be relatively simple and therefore can occur relatively quickly, but that may not be the case for people with multiple complex needs. As we discussed earlier, there may be a need for experts to be engaged in some cases, and this should not be overlooked in order to meet a centralised target. Introducing a defined timescale may also have the unintended consequence of some plans being rushed in order to meet the deadline, or even introduce gaming into the completion of care plans. I hope that the Committee will agree that this does not fit very well with our vision of a personalised care and support system.
We will work with stakeholders to set out best practice for conducting care and support plans in guidance. This will include indicative but not definitive timescales for care plans. Amendments 92ZZG, 92ZZP and 92ZZQ in the name of the noble Baroness, Lady Wheeler, raise the issue of specifying health needs in the care plan. The Bill creates a clear legal framework to enable such integration to happen in practice. However, it is not for the local authority to specify in the care plan which needs the NHS should meet. Clause 25 requires local authorities to involve the adult and carer, and take all reasonable steps to agree the plan with them, which would include whether to refer to any health needs.
In relation to Amendment 92ZZGA in the name of the noble Baroness, Lady Emerton, we believe that everyone should receive a personal budget as part of their care plan to ensure individuals are made aware of the cost of their care and the contributions both they and the local authority need to make. Giving local authorities discretion on whether to provide a personal budget would undermine our aim of giving people more choice and control over their care and support. Removing this duty will also affect the ability of the local authority and adult to track progress towards the care cap. I realise—at least I hope I realise—that the amendment was a probing one.
Baroness Browning
I think the concern of the noble Baroness, Lady Emerton, was not about the discretion over whether or not to give the budget, but about discretion over how that budget should be spent. I think that she was concerned that the personal budget, if it were put into the plan in a certain format, might start to prescribe how the budget was spent. That, I think, is what she was concerned about and why she suggested the change of wording.
Earl Howe
I am very grateful to my noble friend and I think I had better reflect further in the light of those comments.
I completely agree with the noble Lord, Lord Dubs, in relation to Amendments 92ZZH and 92ZZJ, that a modern, comprehensive care and support system should be able swiftly and effectively to respond to changing patterns of need. But the issue of fluctuating or emergency needs and anticipated review dates should be left to the local authority and the adult to discuss and agree when going through the care and support planning process. Again, we will consider these matters when producing statutory guidance with partners.
I turn to Amendment 92ZZK in the name of my noble friend Lady Browning. As I have indicated previously, the transition of children to adult care and links between this Bill and the Children and Families Bill merit further consideration and will be discussed at a later date. But I share my noble friend’s expectation. Where an adult has an education health and care plan, their care and support needs assessment and plan should be integrated with it. Both the guidance supporting the Care Bill and the SEN code of practice will set out how we expect this to work.
I turn to Amendments 92ZZLA and 92ZZQA in the name of the noble Baroness, Lady Greengross. The Bill is intentionally very clear that the personal budget and independent personal budget must be the cost to the local authority of meeting the adult’s needs, not an arbitrary or hypothetical figure. I can reassure the noble Baroness that the local authority may not set the personal budget to an amount which is less than it would cost the authority to meet the adult’s needs. The personal budget or independent personal budget must reflect the cost to the local authority of meeting the adult’s needs, not the cost to the individual of doing so himself or herself. Otherwise, this would create an unfair advantage for those with more means who are able to pay more for their care and would therefore reach the cap quicker.
I turn now to Amendments 92ZZMA and 92ZZQB, spoken to by the noble Baroness, Lady Wheeler. Enabling adults to request a review of either the care and support plan or the independent personal budget without a determination of reasonableness may leave the process open to abuse and create frivolous reviews costing the local authority time and money. For example, it would not be reasonable to request a review when a review has recently been conducted and needs have not changed. If an adult request is considered unreasonable, then the adult should be informed of the grounds for the local authority’s decision. We will cover this further in guidance.
On Amendment 92ZZR, we wholeheartedly agree with the noble Baroness, Lady Greengross, that if an adult lacks capacity the local authority must carry out the assessment if it believes that this would be in the adult’s best interests. We have addressed this in government Amendment 92ZZQC. This puts beyond doubt that the provisions of Clause 11 should apply to any refusal of a needs assessment by an adult with an independent personal budget. As a result, where an adult lacks capacity or is at risk of abuse or neglect, the local authority must carry out the assessment if it believes it to be in the adult’s best interests.
On Amendment 92ZZRA, I can reassure the noble Baroness that it is the Government’s intention to make regulations on choice of accommodation in residential care.
I turn to Amendments 92ZZRAA and 92ZZRAB, spoken to by the noble Baroness, Lady Wheeler. It is important that people should, as far as reasonably possible, be able to choose the accommodation they live in. People may wish to move into a care home in a new area—for example, to be close to relatives—and they should be able to do this even if this is in another local authority area. I can reassure the Committee that we intend to make regulations that enable people to exercise choice of accommodation both within and outside their current local authority. However, we do not believe that it would be appropriate to require local authorities to find and arrange care in another local authority area. While some might choose to do so, others might lack the local knowledge effectively to undertake this task. The requirement may also potentially have significant costs and could reduce the funds available to support those with the greatest needs.
I turn to Amendment 92ZZRB of the noble Baroness, Lady Greengross. Our approach in the Bill is simple. It allows any “person” nominated by the adult to receive a direct payment on their behalf, provided of course that the conditions specified in the Bill are met. In legal terms, a “person” means anyone with legal personality. Therefore, Clause 31 already allows the local authority to pay the direct payment to a person of a type specified by the adult. This includes user trusts set up as companies and organisations set up as companies.
On Amendment 92ZZS, I understand my noble friend Lord Sharkey’s concerns, and I hope I can reassure him that the local authority cannot fulfil its duties under the Bill unless it tells the adult what he or she needs to know in order to make a decision and reach agreement about whether or not to take a direct payment. Further, the Bill contains a regulation-making power at Clause 33(2)(f) to set out cases or circumstances in which the local authority must review the direct payment to ensure that it is being used and managed appropriately.
I turn now to Amendment 92ZZSA of the noble Baroness, Lady Campbell, to which the noble Baroness, Lady Wilkins, spoke. There may be only a limited set of circumstances in which a direct payment would not be appropriate, such as where needs can be met only through local authority-provided care and support. It is not our intention to for this to be used to limit access to direct payments. However, it is important that this provision remains in order to ensure that the adult’s needs are met via the most appropriate method.
Finally, I turn to Amendment 92ZZSB, spoken to by the noble Baroness, Lady Wheeler. It has always been our policy that, as long as used legally, there should be no restrictions on the type of services purchased with a direct payment, provided it accords with the care and support plan. Indeed, this reflects current guidance. Clause 25 requires the care plan to detail the needs to be met by the direct payment and, under Clause 31, a direct payment must be an appropriate way to meet those needs. There is no need to state in the Bill the type of providers from which people can purchase care and support.
The noble Baroness asked me what kind of client feedback there will be in the planning process. I am sure that she will agree that deciding the way that care needs are to be met is at the heart of a person-centred care and support planning process. These decisions should be agreed between the local authority and the person after considering the range of options and the person’s own wishes and goals.
We have made a number of changes to the draft Bill to address some of the concerns that we heard—that the balance of the care and support planning process was not adequately weighted towards the wishes of the adult. The process must also include involvement with the carer or any other nominated person, so that all people who can contribute have the opportunity to do so. It will in some circumstances not be possible to reach agreement between the local authority and the service user on the care and support plan, much as that is the aim. In those cases, the local authority will have to act to ensure that the person’s needs are met and that any risks to their safety are prevented. I hope that I have reassured the Committee that the care and support planning process is robust, and that the noble Baroness will feel able to withdraw her amendment.
Baroness Greengross
My Lords, I thank all noble Lords who have raised issues and amendments in this discussion, which has been extremely interesting. I also thank the Minister for his response, which was very positive in all but one or two areas, where I am still not absolutely certain that we are clear on the different levels of payments in care homes. However, I shall come back to the House on Report or speak to the noble Earl later. Again, I thank everybody, and particularly the Minister for his very positive responses. I beg leave to withdraw the amendment.