NHS: EU Legislation
Earl Howe Excerpts(12 years, 5 months ago)
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Lord Kakkar
To ask Her Majesty’s Government what recent assessment they have made of the impact of European Union legislation on training and service delivery in the National Health Service.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
We are aware that concerns exist about the impact of EU legislation on some areas of training and service delivery within the NHS. That is why we recently announced the review of the implementation and impact of the working time directive, to be led by the Royal College of Surgeons. This follows the balance of competences review for health, which included concerns about the impact of this directive on continuity of care and doctors’ training.
Lord Kakkar (CB)
My Lords, I declare an interest as professor of surgery at University College London. In 2010, the then Secretary of State for Health and Secretary of State for Business, Innovation and Skills were due to commence robust negotiations with our European partners on the working time regulations. Despite the welcome announcement of the current Health Secretary’s further review of the impact of those regulations, do the Government stand by their commitment to repeal this detrimental legislation as it applies to healthcare? This is now increasingly cited by coroners as having contributed to patient harm. Moreover, our trainees tell us that it is now undermining their ability to acquire the necessary skills for future independent consultant practice. Patients and doctors alike now blame these regulations for a destruction of professionalism in our health service.
Earl Howe
My Lords, it is the impact on our health service that we want the Royal College of Surgeons to look at specifically. In the coalition agreement, we committed to limiting the application of the working time directive in the UK, including in the NHS. Nobody wants to go back to the bad old days of tired doctors, but it is important for the working time directive to have more flexibility for a health service that operates on a 24-hour basis. Increased flexibility for the NHS would allow it to take account of local needs and practices, while at the same time ensuring the health and safety of the workforce. We stand prepared to work with partners in Europe to that end. I believe there is strong support in the NHS for this.
Lord Ribeiro (Con)
My Lords, I thank my noble friend for acknowledging the role that the president of the Royal College of Surgeons is playing to ensure that the European working time directive is not having an adverse impact on patient care. In the United States, the duty hours that surgeons work are limited to 80, although flexibility has been introduced into their working so that trainees nearing independent practice can work more flexibly and for more hours. As 80% of surgical trainees currently work more than 48 hours a week, is it not time that we applied some flexibility to the European working time directive?
Earl Howe
My noble friend speaks, as always, with great authority on these matters. The independent review is by clinicians and of clinicians, looking specifically at the issues associated with the implementation of the directive. It means that any issues that are identified and can be acted on without needing to change the law—which was one of the points underlying my noble friend’s question—could lead to swift and effective action. In addition, my noble friend might like to know that the review will be looking at how the directive interacts with the junior doctors’ contract. It is intended to provide a sensible front-line view of doctors’ working hours.
Lord Lea of Crondall (Lab)
My Lords, does the Minister accept that the idea that the working time directive is universally denigrated by all members of staff of the National Health Service is very far from the truth? Does he also accept that there is a need to protect patients and the health of doctors themselves by having something along the lines of the working time directive, and that the Royal College of Surgeons ought to accept that that is the case?
Earl Howe
My Lords, I stress that this is not a step to find a way to make doctors work longer. As I said a moment ago, it is clearly in nobody’s interest to go back to the days when doctors were constantly tired and worked excessive hours. However, when senior clinicians tell us, as they have, that the implementation of the directive is harming patient safety and doctors’ training, we have to take that seriously. That is why we want to take a closer look at how this directive is impacting on the ground.
Lord Willis of Knaresborough (LD)
My Lords, I welcome my noble friend’s very strong comment that the working time directive has huge benefits, as well as clearly having challenges. However, in terms of this review of surgeons’ training, will he also look at the fact that for at least two and a half days a week most of our theatres are absolutely empty, with no activity taking place? One of the big requirements is that there should be more activity in terms of elective surgery within our hospitals—which would itself help the whole training issue.
Lord Crisp (CB)
My Lords, this argument has been going on for a very long time—at least a decade. Will the Minister let us know when he expects the review to report and when he thinks that some action will come about as a result of it?
Lord Hunt of Kings Heath (Lab)
My Lords, I refer noble Lords to my health interests in the register. The noble Earl will be aware that this country has introduced a strong process of revalidation of doctors and continuing professional development. Can he assure the House that doctors who come to practise in the UK from other European countries will have been subject to as strict a regime as that in the UK?
Earl Howe
My Lords, the noble Lord will know that doctors from the European Economic Area are deemed to have professional skills equivalent to those of doctors trained in this country. When doctors come from outside the European Economic Area, then, indeed, the GMC puts procedures in place to ensure that the skills of those professional people match those that we would wish to see in the National Health Service.
Viscount Bridgeman (Con)
Can the Minister confirm that the proposed amendment to the free movement directive now gives competent authorities the powers to test EEA nurses for English proficiency before they get clearance to practise in the UK? If that is so, is it, in the Minister’s view, adequate in the interests of patient safety?
Earl Howe
My Lords, my department is absolutely committed to ensuring that regulated healthcare professionals are not able to work in the NHS without adequate English skills. The revision of the mutual recognition of professional qualifications directive, which impacts on registrations from within the EEA, clarifies that regulators such as the NMC can undertake proportionate language controls on professionals following registration.
Care Bill [HL]
Earl Howe Excerpts(12 years, 5 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, the reason for this Motion is that the Government wish to give the House the opportunity to amend the order in which we take our Report stage debates today. Last week, I became aware of some concern that my Amendment 168A, relating to trust special administration, would have fallen for debate at a rather late hour this evening. I assure the House that this was not by design and that the Government are more than happy to facilitate an earlier debate. Clearly, the issue of trust special administration is an important one. I understand the wish of some noble Lords to debate it fully in prime time. Accordingly, the Motion in my name would allow the debate on Amendment 168A to be taken at the start of today’s proceedings on the Bill. I should also indicate to the House that in response to the request put to me last week by the noble Lord, Lord Hunt of Kings Heath, I would have no objection to relaxing the rules of debate that normally apply on Report so that this amendment can be debated in full if that, too, is the desire of the House. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I am most grateful to the noble Earl, Lord Howe, following my intervention last week. I made a similar proposition to the usual channels last Thursday, only to be told that there would be dire consequences for everything that your Lordships hold dear. I am glad that sense has none the less prevailed. I very much welcome this and support the noble Earl in his Motion.
Ageing: Public Services and Demographic Change Committee Report
Earl Howe Excerpts(12 years, 5 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I begin by congratulating the noble Lord, Lord Filkin, not only on raising this important debate but on chairing the committee that produced Ready for Ageing?. I thank the other members of the committee for their work on this valuable report. I am sorry that we were unable to discuss the report earlier in the year. However, had we done so, we would not have had the advantage or the pleasure of listening to my noble friends Lord Livingston and Lord Borwick deliver their superb and wise maiden speeches.
The committee’s report covers a number of very important and fundamental issues. As a result, it has provoked discussion and debate across government about how we can continue to work together most effectively to meet the needs of an older population. This country faces major demographic and economic challenges as a result of an increasingly ageing population. We welcome the committee’s report, which shares the Government’s ambition of making this country a great place in which to grow old. If we think about what such a country should look like, it is a place where older people get excellent care and support when they need it, where people are supported to live independently, where people plan and save to ensure a good retirement income in later life and where we make the most of the skills and talents everyone has to offer.
We know the challenge is significant. The quality of our later life is an issue which affects us all. The noble Lord, Lord Bichard, was right that cross-government co-ordination and focus are crucial to achieving success. We all have responsibility for ensuring we make the most of the extraordinary opportunity of increasing life expectancy, as the noble Baroness, Lady Finlay, rightly pointed out. These challenges are for individuals and communities, for local and national government and for the private and third sectors.
The Government’s response to Ready for Ageing?, published in July, describes the far-reaching programme of reforms we have put in place, as well as the plans we have for further work, which we believe will begin to address the challenges that the noble Lord and his committee have set out. The noble Lord, Lord Warner, was correct to highlight the pressures on the NHS. For example, the NHS handles more than 2 million unplanned admissions to hospital a year for people aged over 65. These account for 68% of hospital emergency beds and the use of more than 51,000 acute beds at any one time. It would simply not be sustainable for those admissions to go on increasing in line with demographic changes. We know that, to adapt and respond to future need, the health and care system needs to change. The challenges set out in the report create an opportunity for the NHS and local authorities to innovate and explore new ways of working, better to meet the needs of the local populations and optimise the use of available resources.
I listened with a very considerable measure of agreement to the noble Lord, Lord Bichard. Our vulnerable older people plan will strengthen primary care to make sure vulnerable and elderly people, including those with long-term conditions, have the support they need to keep them in better health and out of hospital. These are urgent and absolutely necessary changes to help ensure that our health service is person-centred, efficient and sustainable for the future. It is our ambition that people should receive high-quality, integrated and person-centred services that deliver the best outcome to the service user and make the system as a whole more efficient.
The noble Lord, Lord Filkin, questioned whether bottom-up change would be sufficient to transform health services. On 26 June, we announced the establishment of a £3.8 billion integration transformation fund, a pooled fund between local government and health to drive forward better integration between health and care services. It is perhaps more of a top-down initiative than the Government have been used to, but we felt that it was necessary.
The noble Baroness, Lady Finlay, and my noble friend Lord Mawhinney referred to the need for a 24/7 NHS, and my noble friend questioned how we would create that. Professor Sir Bruce Keogh, medical director of NHS England, is undertaking a review, consulting patients, the public and NHS staff to help shape the future of urgent and emergency care services. The review is investigating the provision of urgent and emergency care as part of a drive to promote more extensive seven-day services in the NHS and developing a national framework to build a safe, more efficient system. I can tell my noble friend that we are holding Sir Bruce to account for delivery of that framework. We urgently need to improve the way we offer care between our hospitals, primary and community care, and social services. Better integration and communication between these services is the key to success.
I can tell the noble Lord, Lord Crisp, that the NHS is planning for the longer term. In July, NHS England published NHS: A Call to Action. This is a first step in a sustained programme of engagement between NHS users, staff and the public around how the NHS will meet future challenges, including an ageing population and a significant increase in the number of people with long-term conditions. We are also consulting on major changes to the way in which people plan and pay for their care. The reforms will give everyone the peace of mind that they will get the care they need, and that they and their home will be protected from huge costs if they develop very complex care needs.
My noble friends Lord Borwick and Lord Griffiths and the noble Baroness, Lady Greengross, were absolutely right: enabling older people who can work to stay in work is critical to the economy and pension sustainability, and to the financial health and social well-being of individuals. The noble Lord, Lord Hunt, made that point as well. We have abolished the default retirement age, meaning that most people can now retire when the time is right for them. However, employment rates for older people remain lower than for some of their younger counterparts, and we must ensure that older people who wish to contribute in the workforce have the opportunity to do so. To that end, we have announced our commitment to publish an extending working life framework for action early next year.
The state pension reforms, which are currently in the House of Commons, will replace the two-tier pension system with a simpler, single-tier state pension for future pensioners. The full rate of the new state pension will be set above the basic means test, helping to provide a clear foundation for retirement saving. The reforms will underpin the rollout of automatic enrolment, which will see 6 million to 9 million people saving more, or saving for the first time, into a workplace pension. I can tell my noble friend Lord Griffiths that increasing the basic state pension by the triple lock is part of the secret here—a minimum of inflation, earnings or 2.5%. From April this year, the basic state pension has represented a higher share of average earnings than at any time since 1992.
The noble Lord, Lord Hutton, with his insight into these areas, spoke with great authority about defined contribution pension schemes. Automatic enrolment and the single-tier pension will provide a firm foundation for saving for retirement, but if the current forms of defined contribution pension saving become the default alternative to defined benefit schemes, the pension income of future generations from workplace pensions will be more uncertain than for past generations. Over the past 12 months, the defined ambition project, a joint project between DWP and the pensions industry, has been exploring options in a middle ground that do not leave either individuals or employers shouldering the entire risk of pension saving. The Government will shortly publish a consultation paper outlining the conclusions from this work and proposals for defined ambition pensions. Following the response, the Government will consult on draft legislation.
The noble Lord, Lord Filkin, and my noble friend Lady Thomas referred to the imperative of housing, as did the noble Baroness, Lady Wilkins. The Government are providing £315 million to help to develop specialist housing for older people and adults with a disability. That tailored accommodation will help people to retain their independence for as long as possible and provide a better quality of life at the same time as maintaining links to family and friends and retaining ties to their local communities.
I can tell my noble friend Lady Thomas that the care and support specialist housing fund will be paid out in two tranches. The first tranche will provide 3,000 extra specialist houses for older and adult disabled people; the second will support development of private sector housing for that group. All that is in addition to £4.5 billion being invested over the spending review period to deliver 170,000 affordable homes by 2015 for rent and affordable home ownership. That investment will lever in £15 billion of private sector investment, a total of £19.5 billion invested in new affordable housing. The National Planning Policy Framework, published last year, should deliver a wide choice of homes and plans for a mix of housing based on demographic trends and the needs of different groups in the community, such as older people.
Those are just a few examples of the wide-ranging reforms that are detailed in the Government's response to Ready for Ageing?. To follow up a point made by my noble friend Lord Livingston, work that we are doing today will mean that future generations will not be burdened with huge debts. As Albert Camus said:
“Real generosity towards the future lies in giving all to the present”.
Public provision must continue to adapt and respond as the needs and expectations of the population change. At the same time, individuals must take personal responsibility for planning for their later life, making choices and exercising control.
However, we are conscious that that is not the whole answer. I can reassure the noble Lord, Lord Filkin, and my noble friend Lord Ridley that work is ongoing across government to identify the scale of the challenges ahead. At a ministerial level, we will then consider how we should meet those challenges. I say to my noble friend Lord Mawhinney that this is definitely a matter for government. We will use this work to look for opportunities to innovate and explore new ways better to meet the needs of our local communities and optimise the use of available resources.
The Department of Health does not make its own projections of demographic changes, but is informed by work undertaken by academic experts in the field. Their models were developed under a programme of research funded by the Department of Health and other funding agencies. Inevitably, although they are plausible assumptions, there is significant uncertainty about the direction of future trends, and there is no consensus among academics. However, the department is confident that it is informed by the best modelling and evidence available.
My noble friend Lady Thomas rightly observed that social care funding is dropping. She made the point that it was not keeping pace with demand. I would not want to belittle the pressures on local government budgets. However, interestingly, the Health and Social Care Information Centre has recorded a drop in demand for social care. Local authorities report that preventive services, such as reablement of people leaving hospital, are successfully reducing demand on social care. We need to build on that.
The noble Lord, Lord Hunt, called for greater literacy in decisions about paying for care, and I completely agree. I am sure that he will therefore welcome the new advocacy powers that we have inserted into the Care Bill, which local authorities will be able to exercise.
My noble friend Lord Wei asked about the use of crowdsourcing as part of the chief scientist’s analysis. I can tell him that the chief scientist’s work is still being scoped, but I shall pass on my noble friend’s suggestion.
My noble friend Lady Tyler spoke powerfully about loneliness among the elderly, which is a serious issue blighting the lives of many people. We know that the quality of people's relationships has a massive impact on their physical and mental well-being. If we improve social and local connections, we can keep people healthier, active and more resilient for longer. If we do not, as she rightly said, people will continue to have their lives cut short. We are raising awareness of the issue and helping local health and well-being boards and commissioners to get better at measuring the issue in their local communities. This will help them to come up with the right targeted solutions and to drive local improvements that really make a difference. Loneliness and social isolation are problems that government alone cannot solve. For older people, as the right reverend Prelate was right to say, extending working life may be part of the answer, along with encouraging neighbourhood action, volunteering and participation.
The noble Lord, Lord Filkin, raised volunteering, as did the noble Lord, Lord Hunt of Kings Heath. It is vital that the voluntary sector, business and individuals work together to find the right solutions. The Government, alongside Age UK and the Age Action Alliance, are supporting a whole strand of work: a growing network of more than 465 organisations from all sectors of society, including businesses and the voluntary sector, working alongside older people to find practical solutions to the issues that the noble Lord, Lord Filkin, highlighted in his report. ILC-UK, the organisation with which the noble Baroness, Lady Greengross, is involved, is a member of the alliance along with several government departments and businesses such as Microsoft and all the major energy companies.
My noble friend Lord Livingston spoke about carers, and rightly said that they needed support. A summit last year, co-hosted by the Government and Employers for Carers, agreed that a task and finish group would be set up to consider national and international evidence on good practice to support carers who wish to remain in the labour market and to support employers to grow their businesses. He spoke, too, about the use of technology; it is a key priority for government to bring the technology revolution to health and care. We believe that at least 3 million people with long-term conditions could benefit from the use of telehealth and telecare services. Their use can also, incidentally, help social inclusion.
My noble friend Lady Tyler called for the Government to report back on progress. The Government’s response to this report is a first step in an important dialogue between the Government and the public, which must and will continue into the next Parliament. As part of this dialogue, the Government have committed to writing to the House of Lords Liaison Committee in a year’s time to update on the progress of their reforms, as well as providing any new evidence on challenges that might have arisen since the original report was published. This debate has contributed further to that dialogue and I thank the noble Lord, Lord Filkin, for bringing us together today and for his tireless work in raising the profile of these important issues.
Business of the House
Earl Howe Excerpts(12 years, 5 months ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, before we move on to Report, I would like to raise a point arising from an amendment to the Care Bill that the Government laid late last night—indeed, some might say “sneaked out 10 minutes before the start of the England-Poland game”. This matter will come to be decided by your Lordships on the last day of Report on Monday night.
Amendment 168A is not a technical or insubstantial amendment; it relates to the powers of special administrators in dealing with NHS trusts that are considered to have failed. It follows what happened in south London. Following the appointment of special administrators, proposals were made to downgrade Lewisham Hospital’s accident and emergency department, even though Lewisham is a well run and much supported hospital. This hospital was completely outside the remit of the special administrators. This led to court proceedings where the Government had to back off in relation to the changes to Lewisham Hospital.
This amendment would essentially permit what the Government wanted to happen with Lewisham Hospital, but which was stopped, to be able to happen in future. Whether or not the Government are right or wrong, this is a very important subject. It deserves full scrutiny in your Lordships’ House, not to be taken as last business on the last day of Report when the House has had no other opportunity of discussing this important matter. I ask the noble Earl, Lord Howe, to agree that this amendment be recommitted to a Committee of the House in order that it can receive full and appropriate scrutiny.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I do not propose to debate this amendment now, but I will refer the noble Lord’s request through the usual channels.
Care Bill [HL]
Earl Howe Excerpts(12 years, 5 months ago)
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Lord Hunt of Kings Heath
My Lords, this has been a very important debate and I am sure we are grateful to the noble Lord, Lord Low, for the persuasive way in which he moved his amendment. There was a lack of certainty about the scope of the Human Rights Act, arising from the YL case which decided that a private care home providing residential care services under contract to a local authority was not performing a public function and its residents were therefore excluded from the protection of the Human Rights Act.
The noble Lord, Lord Skelmersdale, was right to remind us that we are on Report, but I wanted to reflect on a point made by the noble Lord, Lord Pannick, in Committee. To an extent, it is an answer to the noble Lord, Lord Faulks. What the noble Lord, Lord Pannick, said is that the vulnerability of the person receiving care and the risk of abuse is the reason why he thought the law should impose duties on the provider under the Human Rights Act. In all those circumstances, it should encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases.
In Committee, we heard from the then Minister, the noble Baroness, Lady Northover, who relied on two defences of the Government’s position. The first was—as the noble and learned Lord, Lord Hope, has reminded us—that those providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves bound by the duty. I am sure that we should all consider ourselves to be bound by many things, but the fact that we consider ourselves to be so does not mean that we are bound by them.
The Government’s second defence was that the Care Quality Commission as the regulator is subject to the Human Rights Act and that may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. It is a duty that falls on the CQC itself, and I remind the House that we are talking about thousands and thousands of providers of services. I do not think that it is a sufficient defence for people who are caught in a vulnerable situation. The noble Lord, Lord Faulks, expressed doubts about including a private function and he pointed to a number of safeguards that already exist, including Section 6 and the CQC, but the vulnerability of so many of the people who we are concerned about seems to express a need for greater statutory provision.
I also remind noble Lords that many of the people we are talking about will move in and out of private care and public care, and at some point under this legislation will actually be in receipt of public support as well as contributing to the cost of their care. We know that when the cap comes in, people will then be entitled to public support, but that does not cover the hotel costs which are estimated at around £12,000 a year. Many people will be in receipt of public support while also having some form of private contract and top-ups, which we have discussed. It would ensure that people had a relationship both in terms of public support and a personal relationship with their private providers. For all these reasons, the argument put by the noble Lord, Lord Low, is very persuasive indeed.
In Committee, the noble Baroness, Lady Northover, said that she thought that talks would be undertaken. I am not aware of those talks and certainly the Opposition have not been invited to them. I hope that the noble Earl will be able to report on what discussions have taken place. At this point, however, we should note the arguments that have been put and I have great sympathy with the noble Lord, Lord Low.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, noble Lords have spoken eloquently in support of these amendments and I appreciate the strength of feeling across the House. This is an important issue that is fundamentally concerned with the safeguarding of vulnerable people. While I always hesitate in the extreme to disagree with so many distinguished noble Lords, including noble and learned Lords, I have to say to the House emphatically that these amendments are neither necessary nor an appropriate way to achieve the objectives that are being sought.
As I said before on this issue, the Human Rights Act is about public functions; in other words, it is legislation that concerns the interface between the individual and the state. This philosophy underpins the European Convention on Human Rights and therefore also the Human Rights Act. The noble and learned Lord, Lord Hope of Craighead, to whom I listened with great attention, referred to the case of YL in response to my noble friend Lord Willis, and he urged that the judgment in that case should be accepted and that we should essentially move on. I respectfully agree with that, but I suggest that the key point in this context is what the previous Government did through the Health and Social Care Act 2008. The Act strengthened the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements that are in line with the relevant provisions of the European convention, and this applies to all providers of regulated activity, which includes personal care whether publicly or privately funded.
Earl Howe
My Lords, I have just described one of those perverse consequences: that we would purport to be giving rights to people which could not be pursued before the European Court of Human Rights. If I could correct the noble Lord, I was not seeking to suggest that the previous Government had addressed the issue that I have been talking about. They addressed part of the issue in the Health and Social Care Act 2008, but there is another dimension to it, as I have said. The amendment would risk creating an asymmetry, which once again risks creating legal uncertainty and confusion.
What people using services and their families want and need is reassurance that they will be treated with care, compassion, kindness and skill. This amendment would not provide any of those things. People are not, surely, really exercised about which route of redress they have if things go wrong so long as they have one, which they do; what they expect is for things not to go wrong in the first place.
I do not accept the argument that putting this measure into legislation will deter those who abuse or neglect, or galvanise providers into preventing those things. It would not send some kind of message that should not otherwise already be amply clear to all providers of care and support: that poor-quality care is unacceptable.
What I think will make much more of a difference are the stronger measures to improve care that the Government are proposing: the emphasis the CQC is placing on individual experience as opposed to paperwork, the improvements in commissioning and the safe routes for whistleblowers. We are amending the requirements that providers have to meet to enable the CQC to take effective action against providers that do not provide acceptable levels of care. With these things in place, it is my view that when things go wrong we will have a strong and effective mechanism for dealing with the situation. For all these reasons I say to the House that the amendment should be decisively and emphatically rejected.
I now turn to Amendments 138A and 138B, also in the name of the noble Lord, Lord Low. Their effect would be that, where a local authority delegates a function, in addition to the local authority remaining subject to all of its legal obligations in the way the function is discharged, the person authorised under the delegation would also be directly subject to those same obligations. These would include, for example, obligations arising under the Human Rights Act. The amendments are unnecessary because when it delegates its functions, Clause 75(6) is clear that the local authority remains responsible for the way that that function is discharged. The person using care and support will therefore always have a route of redress against the local authority even if the local authority has delegated the discharge of the function to a third party.
Furthermore, these amendments could prove unhelpful because, by making both the local authority and the contractor liable, they could create a lack of clarity about who is ultimately responsible for complying with the local authority’s statutory obligations when a function is delegated. We believe strongly that it must remain absolutely clear that the ultimate responsibility lies with the local authority and that it cannot absolve itself of this in any way. This is an important principle of allowing local authorities to delegate their functions and we do not want to cast any doubt on this.
The underlying intent of these amendments is unexceptionable as they are about protecting the rights of people using health and care services. However, I am absolutely and firmly resolved that these amendments will not achieve what we all want, which is that everyone receives safe, dignified and respectful care and that we must prevent abuse in the first place. With that, I can only express the hope that the noble Lord will think again and decide to withdraw Amendment 83.
Lord Warner
Before the noble Earl sits down, can he clarify something from his earlier remarks about the Human Rights Act? I ask with a certain amount of humility but also from the perspective of one of the people who wrote the Labour Party’s policy in 1996 on the incorporation of the European Convention on Human Rights into what became the Human Rights Act in this country. When that Act was framed, the definition of a public function, or the nature of a public function, was one which did not to a great extent anticipate the move over the next 10 to 15 years in which public services would actually be undertaken and provided by private and voluntary bodies. It simply did not do that. However, the terminology was wide enough at the time to embrace an organisation like Channel 4, which had a mix of public and private functions. It was incorporated, as I recall, into that legislation on the basis of its partial role in performing public functions.
The noble Earl seems to accept that, over time, case law can change the definition of the nature of a public function. He seems to be saying that we have to plod through the courts, case by case, to change the definition. I rather lost him when he then tried to argue that you cannot do it by groups of cases, which is effectively what this amendment does. Is the noble Earl saying that the definition of the nature of a public function—in the law as it is—cannot be changed by cases and can only be changed by amending the primary legislation itself?
Earl Howe
I think that I covered that point when I said that the courts have ruled that there is no single test to determine whether a function is of a public or a private nature. They have also pointed out that there are serious dangers in trying to formulate such a test, which is what the amendment is trying to do, in its own way. If we go back to the noble Lord’s example of the 90 year-old lady in the care home and even if the Human Rights Act were to apply, it is impossible to predict the outcome of an application to a court for—let us say—an injunction to prevent her removal, because each case is fact-specific. It may be found that the lady’s human rights were not violated, but it is not possible to predict that in advance. I hope that clarifies the position and answers the noble Lord’s question.
Lord Low of Dalston
My Lords, I thank the Minister for his response, although it obviously leaves me a little disappointed. I do not propose to respond on Amendments 138A and 138B, because I do not propose to press them to a Division when we finally reach them. However, I should like to say something in response to what has been said about Amendment 83.
First, I thank all noble Lords who have spoken, especially those who have spoken in support from all quarters of the House. It has been a high-calibre debate which does credit to a House noted for characteristically engaging in debate of a high calibre. This one was, I think, particularly authoritative. Without wishing to be invidious in any way, I particularly give thanks for the exceptionally thoughtful, careful and authoritative analysis to which we were treated by the noble and learned Lord, Lord Hope of Craighead.
I also observe that we were deprived of the analysis of two of my other supporters who attached their names to the amendment, the noble Lords, Lord Pannick and Lord Lester, who were unable to be here. In those who added their names to the amendment, those who have spoken and those who would have spoken had they been here, we could not have had a more authoritative and heavyweight line-up in support of the amendment in this House.
There has been general agreement that the matter should be put beyond doubt. Indeed, as the noble and learned Lord, Lord Hope, pointed out, it would actually be dangerous if we were not to do so. If I understood the noble Earl correctly, he said that we should stick with the position that was arrived at as a result of Section 145 of the Health and Social Care Act. As the noble Lord, Lord Wills, made clear, when he said that noble Lords should not pray in aid the position arrived at by the previous Government, this is unfinished business. No one can pretend that we have reached a final resolution of these matters with Section 145 of the Health and Social Care Act. That is why it is so important that we should take the opportunity presented by the Bill to take the further steps necessary to put the matter beyond doubt.
We have heard what the noble Earl had to say in response to the debate, but I confess that I am baffled. Between Committee and Report, the Government seem to have executed a complete volte face and completely changed their position. The position explained to us in Committee was that the Government did not believe that the amendment was necessary because the matters that it sought to put beyond doubt were already provided for. Today, the noble Earl tells us that he must urge the House to reject the amendment because the matters should not be provided for. The Government need to make up their mind what their position is.
The Minister also made the point that we should not take this step because it would deliver to service users rights over and above those available under the ECHR. I am sorry, but I simply do not understand that point. The amendment simply delivers to service users rights which are available under the Human Rights Act, which is predicated upon the ECHR. Even the noble Lord, Lord Faulks, agrees, I think, that we should put the matter beyond doubt; he just does not think that we should put it beyond doubt in this way or that the Human Rights Act should be extended this far. Having listened to all the debate, I submit that the noble Lord, Lord Faulks, and of course the Minister in adopting his remarks, are on their own in this matter in the House. There is general agreement not only that we should put the matter beyond doubt, but that we should put it beyond doubt in the manner which this amendment secures. Indeed, until today this agreement used to include the Government.
I think we should put the matter to rest, as the Minister has said, decisively and emphatically in the terms this amendment provides for and which the Government, until very recently, supported in substance, so I wish to test the opinion of the House.
Baroness Gardner of Parkes (Con)
My Lords, I particularly wish to speak on Amendments 83A and 84, but I could just as easily have spoken on any one of these amendments—there is such a big group of them—because the issue that I wish to raise is my concern over this care issue falling down between this Bill and the Children and Families Bill. The timing of these two Bills makes it very difficult unless the Minister, having heard all these debates that everyone will give now, and the comments on these issues, gives us an undertaking that he will liaise with the noble Lord, Lord Nash, and that between them they might try and sort out where it is going to go. This is what worries me: that it will end up going nowhere or come up from the noble Lord, Lord Nash, in a form that will make it too late to bring back here, unless the Minister says that he will look at everything said today and bring back an amendment—or at least accept an amendment if we could all agree on one.
So much of what has been said made sense. The comments of the noble Baroness, Lady Finlay, were fascinating, and the noble Lord, Lord Patel, put it all very clearly. The noble Baroness spoke more on issues about which I am particularly concerned. My eldest grandson is a Down’s child. His Down’s is fairly severe. He has been fortunate in having wonderful care at a Mencap home. He is 22 and this is his last year of receiving full support. He was very happy at the home for some years, until a glitch appeared in the past year. In his unit, a number of residents are put together to live a normal life and to learn how to go out and live in society. Unfortunately, a very aggressive boy was put into the group. No one knew that he was aggressive. He attacked the staff quite violently. As a result, others—I do not know whether it was just my grandson, or whether it was others as well—copied him. This is a terrible risk. If we do not supervise people and have continuing care and assessment of them, how do we know that they will not meet a violent person who behaves in this way, either deliberately or for some other reason—for example, because they are violent and cannot help trying to impose violence on everyone else? It is a real worry not only for the person but for society and the community.
The noble Baroness, Lady Finlay, spoke about the parents who care so much. The parents of this boy are both very clever doctors. One of his siblings is just starting medicine and the other hopes to in the next year or so. So he has siblings who would be able to care if his parents die before him. However, people with Down’s syndrome can live to a considerable age. I have met people of 50 and 60 who have the syndrome. In many cases, their parents will not be alive. It is a huge responsibility to pass on to siblings. Therefore, it is important that, as far as possible, these people should be brought into society to live as normally as they can. As they grow older, they usually grow bigger and stronger. Therefore, they are more of a worry to themselves and to other people. It is terribly important that the assessment of cases for continuing care should be made, and should continue to be made—and not just at 25. If people are going to live to 50, they may need support until then.
A number of the amendments put down by the noble Earl, Lord Howe, cover that issue, but without defining it clearly. This is why I am speaking in general on the amendments in this group. It is important that this should be clear. I have added my name to an amendment of the noble Lord, Lord Rix, in the Children and Families Bill. It is in response to the implication that the Government are thinking of taking out care completely: that once education finishes, nothing more will follow. That is why it is so important to be assured in this Bill that something else will follow.
My daughter tells me—and she has sent me a letter from another parent—that there is great concern that parents are not listened to nearly as much as other people are. The noble Earl’s Amendment 84 does not really cover anyone except a remote person in a local authority who will be responsible for needs. There is nothing to say that they will consult, or even consider the views of, parents or the person who is doing most of the caring for the person concerned. None of the amendments in this group quite reaches what is necessary to cover the issue. I hope that when the Minister sums up, he will give an assurance that will leave the way open for this to be considered at Third Reading. The rules on what can be brought back at Third Reading are very specific. If today we all ended up either winning or losing on some particular thing, it would not necessarily mean that we could modify it in a way that we all thought was better and brought a better answer. I support Amendment 83A and probably quite a number of others, but I will not go into the details because my argument applies both for and against so many of these amendments and I do not want to waste the House’s time by speaking more than once.
Earl Howe
My Lords, I am pleased that I have been able to table amendments that significantly strengthen these important provisions, and I am grateful to noble Lords for acknowledging that. Currently, assessment under the transition provisions has to be requested and I sympathise with the concern that in some instances, people who are unaware that they can request an assessment may lose out.
Amendments 84, 87, 89, 92, 94, 96, 98, 102, 103, 106, 108 and 113 remove the need to request the assessment. I have also tabled Amendments 85, 95, 99 and 104. They will replace provision that local authorities may assess a child, a child’s carer or a young carer when it appears to them that it will be of significant benefit to the individual to assess and where they are likely to have needs once they turn 18, with a duty that a local authority must assess in these circumstances.
Amendments 110 and 111 reflect an amendment to the young carer’s amendment to the Children and Families Bill. This is an example of the detailed work undertaken to ensure that the two Bills work together. I want to reassure my noble friend Lady Gardner in that context that we have done a great deal of work over the summer to make sure that that is indeed the case. Amendments 83A, 84A, 89A, 93A, 94A and 94B, tabled by the noble Lord, Lord Patel, and the noble Baroness, Lady Finlay, reflect concern that a local authority may leave it too late to carry out an assessment. I need to be very clear about this. The amendments I have tabled place a duty on local authorities that they must assess at the time where it appears to them that there is likely to be a need when the young person turns 18, and it is of significant benefit to that individual to assess at that time. My noble friend Lady Gardner was worried that the government amendments might not be sufficiently precise or prescriptive. The clauses are formulated in this way precisely so that assessments happen at the right time, whether that is before or after the age of 14, depending on the individual. The Bill approaches transition planning with a firm focus on assessing at the right time for the individual by the new duty to assess where it would be of significant benefit to the individual. I am not persuaded that the interests of young people are best served by prescribing when assessment should take place.
Lord Hunt of Kings Heath
I understand what the noble Earl is saying: it is difficult to prescribe in legislation. However, does he take the point that experience suggests that in the main assessments do not take place early enough, so when the young person is a little older it is often too late to put in the necessary arrangements? Behind the stricture of saying that it should be done at that age lies a real concern about how it works out in practice.
Earl Howe
My Lords, I accept that that is a problem in many cases and it needs to be addressed. It should be addressed satisfactorily by the government amendments in combination with guidance, which I am about to refer to.
To prescribe the age thresholds proposed would run the risk of failing young people and their families by creating a system that is run according to the age of an individual, rather than according to what is best for the individual at a given time in their life. I remain absolutely committed to ensuring that the question of when to assess a child, carer or parent carer is further addressed in guidance. This will do justice to the broad range of needs and circumstances of young people and their families at the point of transition. Guidance will be developed with the involvement of stakeholders.
“(2) A local authority may combine a child’s needs assessment or young carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the consent condition is met in relation to the child to whom the child’s needs or young carer’s assessment relates and—
(a) where the combination would include an assessment relating to another child, the consent condition is met in relation to that other child;(b) where the combination would include an assessment relating to an adult, the adult agrees.(3) A local authority may combine a child’s carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the adult to whom the child’s carer’s assessment relates agrees and—
(a) where the combination would include an assessment relating to another adult, that other adult agrees, and(b) where the combination would include an assessment relating to a child, the consent condition is met in relation to that child.(3A) The consent condition is met in relation to a child if—
(a) the child has capacity or is competent to agree to the assessments being combined and does so agree, or(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that combining the assessments would be in the child’s best interests.”
“Independent advocacy support: involvement in assessments, plans etc.
(1) This section applies where a local authority is required by a relevant provision to involve an individual in its exercise of a function.
(2) The authority must, if the condition in subsection (4) is met, arrange for a person who is independent of the authority (an “independent advocate”) to be available to represent and support the individual for the purpose of facilitating the individual’s involvement; but see subsection (5).
(3) The relevant provisions are—
(a) section 9(5)(a) and (b) (carrying out needs assessment);(b) section 10(7)(a) (carrying out carer’s assessment);(c) section 25(3)(a) and (b) (preparing care and support plan);(d) section 25(4)(a) and (b) (preparing support plan);(e) section 27(2)(b)(i) and (ii) (revising care and support plan);(f) section 27(3)(b)(i) and (ii) (revising support plan);(g) section 59(2)(a) and (b) (carrying out child’s needs assessment);(h) section 61(3)(a) (carrying out child’s carer’s assessment);(i) section 64(3)(a) and (b) (carrying out young carer’s assessment).(4) The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—
(a) understanding relevant information;(b) retaining that information;(c) using or weighing that information as part of the process of being involved;(d) communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).(5) The duty under subsection (2) does not apply if the local authority is satisfied that there is a person—
(a) who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement, and(b) who is not engaged in providing care or treatment for the individual in a professional capacity or for remuneration.(6) For the purposes of subsection (5), a person is not to be regarded as an appropriate person unless—
(a) where the individual has capacity or is competent to consent to being represented and supported by that person, the individual does so consent, or(b) where the individual lacks capacity or is not competent so to consent, the local authority is satisfied that being represented and supported by that person would be in the individual’s best interests.(7) Regulations may make provision in connection with the making of arrangements under subsection (2); the regulations may in particular—
(a) specify requirements that must be met for a person to be independent for the purposes of subsection (2);(b) specify matters to which a local authority must have regard in deciding whether an individual would experience substantial difficulty of the kind mentioned in subsection (4);(c) specify circumstances in which the exception in subsection (5) does not apply;(d) make provision as to the manner in which independent advocates are to perform their functions;(e) specify circumstances in which, if an assessment under this Part is combined with an assessment under this Part that relates to another person, each person may or must be represented and supported by the same independent advocate or by different independent advocates;(f) provide that an independent advocate may, in such circumstances or subject to such conditions as may be specified, examine and take copies of relevant records relating to the individual.(8) This section does not restrict the provision that may be made under any other provision of this Act.
(9) “Relevant record” means—
(a) a health record (within the meaning given in section 68 of the Data Protection Act 1998 (as read with section 69 of that Act)), (b) a record of, or held by, a local authority and compiled in connection with a function under this Part or a social services function (within the meaning given in section 1A of the Local Authority Social Services Act 1970),(c) a record held by a person registered under Part 2 of the Care Standards Act 2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008, or(d) a record of such other description as may be specified in the regulations.”
Lord Mackay of Clashfern
My Lords, it occurs to me that the problem has been created by the use of the word “fraudulent”. It tends to suggest that the word “otherwise” is in some way connected with that. I wonder whether one could not take out that whole phrase in brackets. The idea is that, because of some mistake, something extra has been paid out. Ordinarily, it might be perfectly all right to recover that. You do not need to look into the detail of why it was wrong. The person in question—vulnerable people particularly, and those who are not so vulnerable, more recently arrived—may fall into error. The error may result in extra payments out by the local authority which, in ordinary circumstances, it should be able to recover. “Fraudulently” gives an idea of people trying to put something over on someone, and “otherwise” tends to be coloured by the same adverb. Perhaps this problem could be dealt with in that way.
Earl Howe
My Lords, we agree with the general view expressed by noble Lords that we must ensure that vulnerable elderly people are protected and are not discouraged from seeking help when they need it. However, I do not agree with the conclusions reached by the noble Lord, Lord Lipsey, and I regret to have to say that the manner in which he has expressed his concerns risks causing unnecessary worry to people who need care and support. Let me be clear: this power is not there to punish people, as the noble Lord put it, and should be used by local authorities only as a last resort, as I shall explain. Its purpose is to ensure that any charges that should have been paid can subsequently be recovered. It is not to penalise people unduly. But neither should the system reward mistakes or prevent unpaid charges being recovered. This would not only undermine the principle of personal responsibility, it could also result in local authorities having less money to provide care and support to those who need it the most. In practice, it means in some cases a licence to subsidise the better off at the expense of the worse off. Is that really what the noble Lord wants? The use of this power is to recover a debt and is not intended to imply a judgment about the person’s culpability. It does not look for the mens rea; it exists to ensure only that charges not paid can be recovered, as the equivalent current powers do now.
The principle of this provision is not new; the power is 60 years old. The noble Lord likes to make out that we are doing something radically new, but that is not the case. We recognise that there may be a number of reasons why someone has not paid the full amount of the charges due to the local authority, including misrepresentations of their assets which were entirely unintentional. But even where the reason is an accident or a mistake, local authorities still suffer a loss and must be able to recover that loss if there is no other means of doing so. This is public money.
One of the objectives of the Bill is to make access to care and support easier and more focused on people with care and support needs and their families. We expect local authorities to help and support people with care and support needs, discussing any concerns they have and providing advice and assistance as appropriate. This would include advice to help people understand the process of financial assessment and their responsibility to disclose financial assets. I absolutely fail to see why the noble Lord thinks it is socially just to allow people who misrepresent or fail to disclose their assets, whether intentionally or not, to receive more than their fair share of financial support. I reiterate that to do so would reduce the resources available to other people with care and support needs. That is what his prescription amounts to. I am concerned that this amendment would risk making it much easier for people to take advantage of the system and avoid charges and subsequent legal action. What the noble Lord is suggesting is that people could be as careless as they liked when filling out the form. Is that what he wants? The high evidential burden that local authorities would have to meet to recover debts risks making this power largely useless in practice. It would leave local authorities facing costly and uncertain legal action if they chose to pursue the matter.
Let me be clear on another point. A local authority should not, as a matter of course, use these powers to recover debts without first having discussed other options with the individual concerned. In most cases, especially those where the failure to pay the correct charges was inadvertent, there would be other simpler routes to follow, such as agreeing a repayment plan which allows for recovery over time in a way that is manageable. The noble Lord suggests that local authorities may exercise these powers in a way that will drive people out of their own homes. Quite aside from the fact that we have no evidence that local authorities behave in that way and have used their existing powers like that, I have to say that I find that assertion particularly unconvincing.
Local authorities are bound by the public law principle of acting reasonably at all times and must act in accordance with human rights legislation, as well as the well-being principle, which we have already debated. That alone should prevent a local authority using this power to force someone out of their home. The noble Lord is stretching our credulity if he is asking us to imagine a set of circumstances in which a court would make an order in favour of a local authority knowingly to evict a person from their home in this kind of situation. It would be counterproductive in the extreme. Should there be any possibility of this happening, we would use statutory guidance to make the position clear. Indeed, where I do think further action is needed is in the form of guidance. We will use statutory guidance under the Bill to set out the steps that we expect local authorities to take. For example, we would expect a local authority to discuss the situation with the cared-for person and their family when appropriate to establish what, if anything, is owed to the local authority; if there is a debt, to establish whether it is appropriate to recover it, because the local authority does not have to recover it—it can choose not to do so; and, lastly, if money needs to be recovered, to find an affordable way for the money to be repaid. As I have said, whether or not the person could have been reasonably aware of something that needed to be included in the financial assessment is one of the factors that the local authority should consider when deciding whether it is appropriate to recover a debt.
We plan to engage with local authorities in the wider sector on what happens at present and how this could be improved. I accept the need for effective communication about financial assessment and the recovery of charges. This highlights the importance of high quality information and advice, including financial advice, which was debated last week, and the importance of the new duties we are placing on local authorities in this regard. Should mistakes be made, people will not be criminalised, nor will any punitive charges be imposed, but ultimately it is right that mistakes are rectified so that individuals do not benefit from any errors they make, whether they were intentional or not. Neither local authorities nor those who rely on their services should be disadvantaged, but the amendment as it stands runs the risk of failing on all these counts.
I hope that I have reassured noble Lords that the debt recovery power, while to be used only as a last resort, remains important. There is nothing that people should fear from its use. I therefore hope that the noble Lord, on reflection and at this late time, will feel able to withdraw his amendment.
Lord Warner
My Lords, I want to speak to Amendment 122 in my name. This requires the Secretary of State to publish a review of the working of Part 1 and its funding before Clause 15 is brought into operation.
I have tabled this amendment because of my continuing concern that the Government are sleepwalking into the introduction of the new arrangements in this Bill without adequate funding provision and they do not really appreciate the parlous state of adult social care funding. I think my noble friend was being rather generous in his remarks. The situation is very bad. I have a cutting about the Equality and Human Rights Commission’s report into home care, published last week, in which the commission made it clear that council cuts could be affecting the human rights of older people. This is a serious situation.
People are very supportive of the basic architecture of the Dilnot and the Law Commission’s proposals enshrined in this Bill, and are very supportive of the Government bringing this Bill forward, but they simply do not believe that the funding is in place effectively to implement the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding and I think this is hardly surprising because the Government’s social care funding strategy seems almost designed to confuse. We have Eric Pickles signing up to quite swingeing cuts to local authority grants which inevitably reduces social care funding substantially. We then see Health Secretaries having to scrabble around to slip NHS cheques to local government to mitigate some of the Pickles cuts. Of course I do not want to be ungenerous to Health Secretaries, and these cheques are better than nothing, but they do not make good the shrinking base budget of adult social care that has been taking place over many years.
People like to claim and use bits of the Dilnot commission’s report that they favour and fancy. I would like to draw attention to pages 14 and 15, where we said:
“We know that the funding of social care for older people has not kept pace with that of the NHS. In the 15 years from 1994-95 to 2009-10, real spending on adult social care increased by around 70% for older people while, over the same period, real spending in the NHS has risen by almost 110%”.
We showed in this report that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding was going to need to change. It has changed, but not quite as we had expected or intended.
Adult social care will start the next financial year with a base budget about £3 billion lower in real terms than in 2010. So the base budget for social care is underfunded. That is where we start from. Most of the discussion that has taken place about the implementation of the Bill takes no account of the base budget deficit from which we are starting. That deficit is due only to get worse because there is another set of proposals under the DCLG settlement in Spending Review 2013 for another 2.3% cut in the budgets of local councils, which can only take even more money out of the local government budget for adult social care.
I have no doubt that the noble Earl will say much the same thing as he did in Committee about the Government’s proposal for a £3.8 billion pooled budget for 2015-16 to join up health and social care services. I welcome that. Most people welcome that. However, as the Minister acknowledged in Committee, only half of that £3.8 billion is new money, and only half of the new money will be paid upfront to local authorities as they start to implement the proposals under the scheme. The assurance that that new money will be in place takes no account of the further reduction of 2.3% that I mentioned in the spending of local councils in 2015-16.
We have a situation where the base budget is highly deficient, further cuts are coming out of local government expenditure by councils, which can only have a further impact on that base budget in 2015-16, when the new legislation is due to be implemented, and we have no guarantee that the lion’s share of that £3.8 billion pooled budget will be in the hands of councils when they start to implement the scheme. That is not a situation to fuel people outside with confidence that they will have successful implementation of the legislation.
The Government can protest as much as they like but, at the end of the day, we need public documentation —preferably, I would say, by someone as independent as the OBR, but I would even settle for the Institute for Fiscal Studies. If I cannot have that, I would settle for legislation requiring the Secretary of State to put some of that information in the public arena and before Parliament before the Bill is put into full operation. People who are to implement it and the public need far more convincing than they have received so far that all will be well financially, to give people a reasonable chance to implement this highly desirable, on the whole, well constructed Bill, successfully when the time comes.
Earl Howe
My Lords, I have listened with care to noble Lords as they have introduced their respective amendments and I am confident that we can all agree that the issues that they raise are vital to the successful implementation of government policy and are essential parts of good policy-making. Let me first address the questions about the cost and funding of these reforms. We have taken and will continue to take a robust, evidence-based approach to assessing the cost of the reforms. We are working closely with local authorities to help them to understand the costs at a local level, and we will use this knowledge to refine our national modelling further. Funding of care and support, including the reforms in Part 1, will be reviewed regularly as part of the spending review process, and the core elements of the capped-costs system will be reviewed within each five-year period.
Turning to the specific issue of the short and long-term costs of the national eligibility threshold, I can assure noble Lords that we have published an impact assessment fully setting up the costs and benefits of the policy. We have comprehensively assessed and funded those provisions. We have published impact assessments for all elements of the Bill and, in line with the Government’s approach to all new burdens on local authorities, those costs were fully funded in this year’s spending round. Those estimates are based on the best available evidence in the area. They have been produced in co-operation with academic experts and officials from across government.
“(aa) if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or”
Baroness Wheeler
My Lords, we fully support my noble friend in his valiant efforts once again to try to get this important issue on mental health aftercare sorted out. We recognise the Government’s concession in removing “the” from subsection (5)(a), but my noble friend is right that there still remains the very real risk that leaving the rest of the subsection in place could lead to local authorities arguing that,
“a need arising from or related to a mental disorder”,
was the requirement only to provide psychiatric, medical and follow-up services.
The statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising from the person’s mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. My noble friend’s amendment would instead define aftercare services as those services that reduce the risk of deterioration in the person’s mental condition and the likelihood of the person requiring readmission to hospital.
It is right that the definition of aftercare services focuses on reducing the likelihood of hospital readmission and does not lead to confusion or legal disputes about a local authority’s role in this or what services should be provided under Section 117 of the Mental Health Act. It is also right that aftercare continues to be viewed as a comprehensive range of generic services across healthcare, social care and other services such as suitable accommodation and community support.
Amendment 128A is a compromise offered by my noble friend that I hope the Government will take up because, as he said, he would prefer to delete Clause 5 entirely, so that the current position in relation to Section 117 remains unchanged. Mind, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association all consider that the best way to avoid confusion over the definition of aftercare is to remove Clause 71(5)(a) altogether.
I hope that the Minister will have some good news for my noble friend and for other Lords who, too, are very frustrated that the mental health aftercare issue has not been laid to rest in the way we thought it had under our discussions as far back as on the Health and Social Care Bill.
Earl Howe
My Lords, I first would like to echo the comments made by my noble friend Lady Northover during Committee, when she paid tribute to the excellent work of the noble Lord, Lord Patel of Bradford, in the mental health field.
I think we can all agree that setting out a definition of mental health aftercare in legislation is important. A clear legal definition will mean that the scope of aftercare will no longer be entirely open to interpretation by the courts, whose views have varied over time. The question is what that definition should be. As updated by government Amendments 129, 130 and 131, our proposed definition contains a carefully framed duty that reflects the Government's policy on the appropriate scope of the duty to provide free aftercare services for a very small group of patients who have been detained for treatment under certain sections of the Mental Health Act. It has carefully drawn limits because the Government do not consider that it would be appropriate for the Mental Health Act to impose a duty on local authorities to commission services that are based on needs which neither arise from, nor are related to, a mental disorder.
Therefore we believe that the amendment tabled by the noble Lord, Lord Patel of Bradford, goes too far and would create an inequity between this group of people and others with equivalent needs for care and support who are not eligible for free aftercare, either because they have been detained under other provisions of the Act or not detained at all. They will be means tested and will have to meet eligibility criteria for the social care part of their aftercare package, so may not receive any social care from the local authority. In addition, with an ageing population, local authorities will have to be able to differentiate “mental health aftercare” in order to know when the “aftercare” finishes and ongoing support for other reasons begins.
The noble Lord suggested that the case of Mwanza was not a stable basis for primary legislation. He said that it is, after all, only one case. There is a bit of a misunderstanding around this. The Mwanza case merely triggered a debate; the issue is whether the definition is a good idea and, if so, how it can most helpfully be drafted. The Government’s definition of mental health aftercare services builds on the definition recommended by the Law Commission. The Government accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. We propose a wider definition than that suggested by the Law Commission, including that Section 117 services may relate to as well as just arise from the person’s mental disorder, and that the aftercare should prevent deterioration as well as readmission to hospital.
Because our definition is more precise, I feel that it will be more helpful than the noble Lord’s in ensuring that clinical commissioning groups, local health boards and both English and Welsh local authorities more easily agree on the aftercare services to be provided, so that these services can be put in place promptly.
I reassure the House that the definition we are now considering is the result of extensive consultation. In consequence, we have added a positive objective to prevent deterioration as well as preventing readmission to hospital, and have further changed the clause to remove the definite article when referring to “the mental disorder”, for which the noble Lord made the case in Committee. This is intended to remove any doubt about our intention that the scope of aftercare covers more than just one form of mental disorder, and is not necessarily limited to the specific disorder or disorders for which a person was previously detained under the Act and which gave rise to the right to aftercare.
Baroness Masham of Ilton
My Lords, what will happen to the protection of the public from those who have schizophrenia?
Earl Howe
My Lords, the protection of the public is of great importance, as I need hardly say; but we are dealing here with quite a narrow point of definition about who should be entitled to free mental health aftercare. To expand the scope of that definition to include others would not be fair on many people, which is why I have argued that I believe we have positioned the definition in the right way. The noble Baroness’s question is a very relevant one in the broader context of how we look after those with mental illness, but I would like to think that this amendment should not affect her concern one way or another.
Lord Patel of Bradford
My Lords, I am clearly disappointed at the response. I was expecting at least a halfway point at which we could meet and perhaps change the definition once again. I will not detain the House for very long. The noble Baroness, Lady Barker, very clearly and succinctly put the benefits of Section 117 and the joint working that takes place. That is probably the only piece of legislation that has encouraged joint working really well and has worked.
The noble Earl talked about the Government’s definition, and that is what it is: a Department of Health definition. However, it does not ride with everybody else out there. Everybody that I have spoken to clearly says that this is the wrong way. I fear that the department has got itself in a corner because it has accepted the Law Commission’s recommendation on this point. It did not accept the other three recommendations, which clearly shows, to me, that the Law Commission does not understand Section 117 services properly. Although the department has accepted this recommendation, I think it has realised that the basis on which it has done so is not appropriate; the case is unique and unrepresentative.
We have talked about inequity. These people have their liberty taken away: they are locked up against their will. They have been in and out of mental health services; they have had a raw deal. That is why they are there. This is a reciprocal duty on behalf of society to make sure that we give them free aftercare services. Yes, other patients may not get that, but this group of patients is extremely vulnerable. There is also the issue of public safety. We should give them the services they require.
I could go on, but I will not. I am really disappointed. This matter deserves that the House makes its views known, so I want to test the opinion of the House.
Care Bill [HL]
Earl Howe Excerpts(12 years, 5 months ago)
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Baroness Masham of Ilton (CB)
My Lords, I hope that the Minister will take note of the very serious points which the noble Lord, Lord Patel of Bradford, has made to your Lordships tonight.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, these two amendments deal with changes to Clause 72 to impose a duty on local authorities to make safeguarding inquiries in prisons and approved premises. I thank the noble Lord, Lord Patel, for tabling these amendments. We strongly agree that a person with care and support needs should be protected against abuse or neglect wherever they live.
Prison governors and directors, and the probation trust in the case of approved premises, are responsible for safeguarding prisoners and for protecting them from abuse and neglect. They have in place procedures to follow in response to allegations of abuse or neglect, and they must provide assurance on this to the National Offender Management Service. The UK operates a comprehensive level of monitoring and scrutiny within prisons to ensure that prisoners are kept safe and secure and that governors and directors are accountable for taking steps to improve matters if necessary.
We have in place a fully independent prison inspectorate that carries out a rigorous programme of scrutiny; more than 1,700 volunteers on prison independent monitoring boards who monitor the treatment of adult prisoners; and a Prisons and Probation Ombudsman who investigates both the complaints of those in prison and all deaths that occur among prisoners. Her Majesty’s Chief Inspector of Prisons and the Prison and Probation Ombudsman require assurance that safeguarding procedures are in place and their implementation provides equivalent protection to that available in the community. Investigations by the Ombudsman will provide learning to improve effectiveness. The important thing is not to impose a duty on another body to conduct inquiries in prisons and approved premises, but to ensure that the procedures within the prisons and approved premises are informed by best practice and local expertise.
The Ministry of Justice and the National Offender Management Service have acknowledged that there is a need for improved directions on safeguarding to the Prison Service and probation trusts. They will be working with officials from my department and stakeholders to develop instructions and guidance that will give improved clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. The Ministry of Justice encourages prison staff to be involved with local safeguarding adults boards, but the nature of that involvement is best determined at local level.
The Ministry of Justice and the National Offender Management Service will be producing guidance for prison staff on safeguarding in conjunction with their partners. This will be consistent with the broader advice and guidance on safeguarding adults in the community and will ensure that the importance of active engagements with SABs is routinely reiterated to prison staff. Any particular safeguarding considerations for older prisoners and those with dementia will be part of this operational policy. The guidance will set out clear instructions on the need for structured relationships with local safeguarding boards; for example, the model being employed by Surrey, where a memorandum of understanding sets out how prison staff will benefit from the expertise of social services and local authority safeguarding teams. It will also set out how and in what instances referrals to SABs will be made.
I hope that I have reassured the noble Lord, Lord Patel of Bradford, that the existing position makes clear the responsibility and accountability for the safeguarding and protection of prisoners, and that further guidance to prisons and approved premises will bring about the improvement and joint working that we all want to see. The proposed amendments to Clause 72 are therefore not necessary and I would respectfully ask him to withdraw this amendment.
Lord Patel of Bradford
My Lords, I thank the Minister for that informative response and I take on board completely the fact that prisons and the MoJ have developed some good safeguarding measures. I am pleased that further guidance is to be issued to encourage governors and directors to attend local authority safeguarding adults board meetings. I am fairly happy about prisons, prisoner safeguarding and liaison with local authorities. However, for clarification, if someone is living in approved premises, my understanding is that that has nothing to do with the prison governor or the prison because they are in the community living in, say, a bail hostel. Who has responsibility for any serious issue of neglect? I do not think that the probation service undertakes safeguarding inquiries. It would be the local authority, but this clause seems to suggest that it would not be; rather, that it would be the prison governor. That does not make sense to me, although perhaps I do not understand it completely. Of course, one assumes that the local authority would have responsibility for someone in the community, but this provision clearly states that it does not.
Lord Patel of Bradford
For the record, because no one on the outside seems to have been able to give me an answer, someone would have to report to the probation trust that a person is being neglected or abused and it would carry out a safeguarding inquiry. It would not be the local authority or the prison.
Lord Patel of Bradford
If that is the case and it is correct, I beg leave to withdraw the amendment.
“( ) The Secretary of State must have regard to the general duty of local authorities under section 1(1) (promotion of individual well-being)—
(a) in issuing guidance for the purposes of subsection (1);(b) in making regulations under this Part.”
The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con)
My Lords, are Amendments 138A and 138B consequential and therefore to be moved formally?
Earl Howe
My Lords, I do not think that the noble Lord, Lord Low, wished to move these amendments. He did of course move his earlier amendment which the House decided upon, but I think that he indicated he was satisfied with my reply on these amendments. I do not want to mislead the House at all, but I believe that that is right.
Baroness Wheeler (Lab)
My Lords, we are very sympathetic to what the noble Baronesses, Lady Barker and Lady Tyler, and my noble friend Lady Bakewell want to achieve through the amendment in promoting the well-being, dignity, rights and welfare of older people. My noble friend Lady Bakewell, in particular, has campaigned long and hard for an older person’s commissioner and, as the Voice of Older People under the Labour Government, speaks first-hand about the job that needs to be done in government to join up policies on health, social care, housing, transport, welfare, work and pensions to address the economic and social challenges presented by an ageing society.
The importance of a cross-government overview and strategy on older people is why Labour has a shadow Cabinet Minister for Care and Older People. Liz Kendall has a vital role in ensuring joined-up policies across the range of services that must be changed and adapted to meet older people’s growing and changing needs. The importance of developing a coherent strategy and vision for our old age was recently underlined by the excellent report of the Select Committee on Public Services and Demographic Change, referred to by the noble Baronesses, Lady Barker and Lady Tyler. The noble Baroness, Lady Barker, is entirely right to say that in Ready for Ageing? the committee described the UK and its society as being “woefully underprepared”. It pointed out that the implications of an ageing society had not been assessed holistically and that it had been left to government departments,
“who have looked, in varying degrees, at the implications for their own policies and costs”.
The committee called on the Government to look at ageing from the point of view of the public and to consider how,
“policies may need to change to equip people better to address longer lives”.
When we consider that important report tomorrow, the role of an older person’s commissioner in helping to face the future and meet the challenges so graphically set out by the committee and today will be a key part of that debate
A considerable amount of work and thought has gone into the drafting of Amendment 139, but the main emphasis seems to be on rights and redress, rather than the all encompassing and unique role envisaged by my noble friend Lady Bakewell in her Second Reading speech and earlier today. That would give the commissioner effective access to planning across different government departments.
We would prefer that broad approach, and, of course, we also need to learn from the experience of the older person’s commissioners in Wales and Northern Ireland. We understand that the advocacy role has worked particularly well in Wales in promoting the rights and interests of older people and challenging discrimination.
Inevitably, costs are an important consideration. The older person’s commissioner’s salary, operational support and accountability costs would be significant. I would be interested to learn from the noble Earl whether the Government have undertaken any costing and impact work on that, as promised to my noble friend when she first raised this issue, as she said, under the Health and Social Care Bill.
Earl Howe
My Lords, I am grateful for the opportunity to discuss this extremely well crafted amendment, which proposes the establishment of an older persons’ commissioner. Our ambition is to make this country one of the best places to grow old in and I begin by saying that I have some sympathy with the intention behind the amendment; to ensure that older people receive the high-quality care they need and also to support them to use the complaints system effectively when things go wrong. However, disappointingly for the noble Baronesses, I cannot subscribe to the solution that is proposed in the amendment. The main reason for this is that the provisions contained in the amendment are, by and large, covered by work already being undertaken elsewhere. The interests of service users are already protected through a number of routes.
I begin by citing the role of the CQC. The Care Quality Commission’s role is to ensure providers of regulated activities in England provide people with safe, effective, compassionate and high-quality care. The new chief inspectors for hospitals, adult social care and general practice will champion the views of patients and service users and judge the quality of care. Then, separate from the CQC, the new chief social worker will ensure that social work practice is directly inputting into policy development and we now have Healthwatch, whose function it is to represent service users’ views. If noble Lords look at what we are doing in the Bill, new statutory obligations are being introduced, such as the duties to establish safeguarding adults boards and to undertake safeguarding inquiries and/or reviews. We also have the government amendment to require independent advocacy in certain cases.
Looking beyond the Bill, the vulnerable older people’s plan is working towards having an accountable clinician to ensure proactive care planning for older people and those with the most complex needs. Furthermore, we want older people to have a major voice in issues that affect them. The Minister for Care and Support and the Pensions Minister take part in the UK Advisory Forum on Ageing. This group gives Ministers the opportunity to engage with and hear directly from older people on the key issues affecting them. I suggest that all these steps, taken together, go a considerable way towards addressing the concerns at which the amendment is aimed, but I need to be clear that, to minimise the impact on the public purse, we would not envisage setting up a new public authority alongside those functions.
My noble friend Lady Barker asked why we should not have an older persons’ commissioner since there is a children’s commissioner? If an older persons’ commissioner were established, the supporting structure would potentially be very large and would cost significantly more than the children’s commissioner. This is not only because of the comparatively larger number of older people who receive services compared to children, but also because the amendment confers a wider range of functions on the older persons’ commissioner than the children’s commissioner.
Michelle Mitchell, former director-general of Age UK said last year:
“For us it’s not just about having a commissioner; it’s about ensuring that older people’s issues are central to the mainstream – not only the government agenda, but business and the public sector as a whole”.
I support that view. What matters, surely, is what is actually happening and whether the system is pulling together to make it happen. We want to ensure, quite simply, that issues affecting older people are at the heart of government business. I am happy to explore ways to further enhance the voice of older people, although without creating additional costly bureaucracies. On that basis, I hope that the noble Baronesses will feel somewhat comforted that there is a lot going on to protect the interests of older people and that my noble friend will therefore feel able to withdraw the amendment.
Baroness Barker
My Lords, I thank the Minister for his characteristically comprehensive response and I am in complete agreement with him: there is a great deal going on, much of which is valuable and effective. I return to the central issue: I am not convinced that there is coherence, either within government, across government or in government interactions with the private and voluntary sectors and with local government. That is the issue to which I will return, and it is a point that the noble Baroness, Lady Bakewell, has made so eloquently.
I accept that this amendment is not perfect; it was crafted in order to bring the older persons’ commissioner within the scope of the Bill but it is not ideal. I thank the Minister for his response. We will continue to work away at this issue, I have no doubt. I beg leave to withdraw the amendment.
“Duty of candour
In section 20 of the Health and Social Care Act 2008 (regulation of regulated activities), after subsection (5) insert—“(5A) Regulations under this section must make provision as to the provision of information in a case where an incident of a specified description affecting a person’s safety occurs in the course of the person being provided with a service.””
Earl Howe
My Lords, this amendment concerns the new statutory duty of candour. This will place a requirement on registered providers of health and adult social care to be open with patients and service users about failings in care. The Francis report made a clear recommendation that there should be a statutory obligation to observe a duty of candour on providers of healthcare who believe that treatment or care provided by them to a patient has caused death or serious injury. This would require the provider to inform the patient of that fact. This amendment is a major step towards implementing that key recommendation of the Francis report.
The Government’s approach is to introduce this duty as a requirement for registration with the CQC. In Committee, noble Lords tabled amendments that sought to place the duty of candour in the Bill. The amendment that I am presenting today seeks to strike a balance; I make no apology for that, since it allows us to have the best of both worlds. The amendment tabled in my name makes it clear that the Government must introduce such a regulation. It does not present the Government with a choice; rather, it imposes a crystal clear obligation on the Government to put such a regulation in place. I hope that it will be welcome to noble Lords for those reasons. I beg to move.
Baroness Masham of Ilton (CB)
My Lords, the duty of candour means honesty and straightforwardness. We desperately need an open, honest, transparent and compassionate health service, and I hope that Amendments 140 and 152 will help to achieve that.
Something has gone desperately wrong with the care in some hospitals and care homes. We now live in a litigious society, and I feel that that has been increased by cover-ups when something has gone wrong and gagging people who try to speak out. People will go to any lengths to find out what happened to their loved ones if they are not told and given an apology. Good medical personnel will explain and apologise if something adverse happens. So often, that is all that is needed.
Patients know that there are risks, if they are explained when they sign a consent form. When they go wrong, lessons should be learnt so that they do not happen again. That is one of the reasons why openness is so important. Have lessons been learnt after the horrific situation of the Mid Staffordshire hospital? Recently I heard of a former police superintendent who had had a brain injury due to an accident, and was a patient in a well known central London hospital. When his wife and young son went to visit him, they smelt him before they saw him. They found him facing the wall in bed, unable to move and lying in soiled sheets and wearing a filthy gown. His wife was so upset that she told a nurse, who just said that they were overworked. The next time the wife visited she found him sitting alone, facing a curtain, looking miserable and wearing a pad that had not been changed. She said to her children, “We are taking Daddy home”, and smuggled him out of the hospital.
Baroness Barker
I have a quick follow-up to the question of the noble Lord, Lord Hunt of Kings Heath. Sir Robert Francis’s recommendations were clear that the duty of candour should apply where death or serious harm “may have been caused” or were believed or suspected to have been caused. That is an important distinction; it is not merely playing with words. When the Minister comes to respond, perhaps in writing, will he say whether that point will be covered in regulations?
Earl Howe
My Lords, I am sure that we are all aiming for the same effect and that there is little difference in the approach that we are taking. The amendment of the noble Lord, Lord Hunt, is drafted as a stand-alone duty: it would place a duty of candour on providers, but it would operate outside of the CQC registration system. As such, it is not clear who would enforce the duty of candour or what would be the consequences for a provider who did not observe the duty.
Introducing the duty as a requirement for registration with the CQC comes with a ready-made enforcement vehicle, including the power to prosecute providers who do not meet the duty. In Committee, we explained why this is our preferred approach. It would give the flexibility to develop the duty in consultation with service users and carers. I can indeed confirm that patient groups will be included. The duty itself will have the same legal power in secondary legislation as it would in primary legislation.
We are making real progress in taking this forward. In the summer, the CQC consulted on plans to introduce a duty of candour set through its registration requirements. The CQC is due to publish the findings from the consultation shortly. The department plans to consult on a draft regulation later in the autumn. I assure noble Lords that both I and my officials would be pleased to discuss the content of the draft duty of candour regulation with them in detail as we develop the final regulation. I confirm to the noble Lord, Lord Hunt, that these will be affirmative regulations.
On the threshold, both the Francis and the Berwick reports recommended that the statutory duty of candour for CQC-registered providers should apply in instances of death or serious injury/incident. There is a balance to be struck. We accept the Berwick report finding that an automatic duty of candour covering every single error could lead to defensive documentation and large bureaucratic overheads that would distract from care.
I hope that my amendment reassures noble Lords of our strong commitment to introducing a duty of candour and that they will feel able—
Lord Hunt of Kings Heath
Can I take it that, if that is the Government’s position, which will be set out in regulations, guidance to the providers of services regulated by the CQC would none the less make it clear that the principle of candour would apply to all such cases? I can see the distinction with regard to the seriousness of the incident in relation to the action that can be taken. The risk would be that a statutory duty of candour within the regulations might be taken the wrong way for cases which were not classified at such a serious level.
Earl Howe
I certainly take the noble Lord’s point. There is an issue of interpretation which we will want to clarify through guidance. That is what we intend to do. I look forward to discussing this with him and other interested noble Lords in due course. I hope that that will be sufficient to persuade the noble Lord, Lord Hunt, not to press his amendment when we get to it.
Tobacco Products Directive
Earl Howe Excerpts(12 years, 5 months ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer noble Lords to my health interests in the register.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, we are very pleased to see the move towards tougher action on tobacco, with Europe-wide controls banning flavoured cigarettes and the introduction of stricter rules on front-of-pack health warnings. However, we are disappointed that the Commission’s proposal to regulate nicotine-containing products, including e-cigarettes, as medicines was not supported by the European Parliament. We believe that these products need to be regulated as medicines and we will continue to argue for this during further negotiations.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl, but is he particularly disappointed that it was Conservative MEPs who voted to weaken tobacco packaging warnings and blocked a ban on slim cigarettes, which are targeted at young women? Will the Government make amends by agreeing to amendments to the Children and Families Bill which would mandate the introduction of standardised packaging in this country?
Earl Howe
My Lords, the tobacco products directive, as the noble Lord will know, does not seek to introduce standardised packaging. As he will also know, the Government have decided to wait before making a final decision on that issue but we want member states to have the flexibility to make further progress on domestic tobacco control measures in certain key areas that go beyond the new directive. We have been helping to shape the final text of article 24 to achieve that objective.
Baroness Gardner of Parkes (Con)
Is my noble friend aware that in this country people who have suffered even major amputations are still so addicted to tobacco that they will ask the doctor to hold up the cigarette to their mouth? I have had this report from doctors. Does he not think that what we really have to aim at is stopping smoking among the young? Is he aware that in Australia it is no longer cool to smoke if you are young? Apparently, that is more effective than any of the health warnings.
Earl Howe
My noble friend, as ever, makes some very wise comments. The good news is that the most recent figures on smoking prevalence are going in the right direction. It is undoubtedly true that we can never do enough to raise our game on smoking cessation measures, one of them being nicotine-containing products. That is of course a major focus for Public Health England.
Lord Storey (LD)
Does my noble friend agree that if children are being driven in a car where adults, perhaps their parents, are smoking it is extremely dangerous for those children? Does he not think that the Children and Families Bill is an opportunity to put this right?
Earl Howe
I certainly look forward to the debate on that issue during proceedings on the Children and Families Bill and I agree with my noble friend that we have to do all we can to discourage smokers from lighting up when children are in a vehicle. We believe that that can be done without resorting to legislation at present.
Lord Faulkner of Worcester (Lab)
Is the Minister able to confirm that there is nothing in the tobacco products directive to prevent the Government introducing standard packaging for cigarettes and implementing a ban on smoking in cars when children are present?
Earl Howe
Yes, my Lords. So far there is nothing in the directive to prevent that, which is why article 24 is the most important issue for the Government. We want member states, as I have said, to have the flexibility to make further progress on domestic tobacco control measures in key areas.
Lord Patel (CB)
Despite the EU’s lack of interest in regulating for e-cigarettes, is it the Government’s intention to regulate against them in the United Kingdom?
Earl Howe
My Lords, our position is clear: e-cigarettes should be regulated as medicines. These products need to be regulated for safety and quality, one of the reasons being that, as medicines, we can more effectively control their sale to children and the way that they are advertised and promoted. We need to take an approach that is future proof, being applicable to new technology nicotine products in whatever form might be brought forward in the future.
Baroness Finlay of Llandaff (CB)
Can the Minister tell us what action the Government intend to take over slim cigarettes, which were not affected in the recent EU directive but which are particularly appealing to young girls and are often a route to introducing them to becoming addicted to tobacco?
Earl Howe
The noble Baroness makes a very good point. While some in the public health community are concerned about slim cigarettes, and understandably so, both the European Parliament and the Council decided that slims should not be banned under this directive. However, she is right that slims are known to be more attractive to women than men. It may be something that remains on the agenda for future consideration at a European level.
Viscount Ridley (Con)
My Lords, is the Minister aware of evidence from New Zealand that e-cigarettes are extremely effective in getting people off tobacco cigarettes and that they are more effective than tobacco patches? Is it not important that in regulating e-cigarettes we do not discourage them from taking a considerable market share from tobacco products, given that vaping is clearly much safer than smoking?
Earl Howe
My noble friend is right. E-cigarettes certainly have the potential for being a force for good in helping smokers to quit. At the same time, we do not want them to become a gateway into smoking. The aim is to have licensed products that have demonstrated safety, quality and efficacy, and for such products to be available as widely as possible.
Lord Brooke of Alverthorpe (Lab)
Will the Minister take note of the fact that people have moved from heroin to methadone, which is less dangerous to them than heroin? In fact, we now have hundreds of thousands of people parked on methadone and there is no way in which we can get them off it. That is extraordinarily expensive for the country and bad for their health.
Care Bill [HL]
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I shall speak also to the other amendments in this group, Amendments 33, 36, 37, 39, 40, 42 to 45 inclusive, 62, 90, 91, 100, 101 109, 112, 115, 116 and 117. In Committee, we had a wide-ranging and informed debate on assessment. I have reflected on the issues raised and I have tabled amendments which I hope noble Lords will agree address those concerns and clarify our intentions around the assessment process.
In Committee, we considered a provision which was intended to ensure a focus on the adult’s strengths and how these can contribute towards the outcomes they want to achieve as part of the assessment. This provision was drafted to support our aim to build the care and support system around the person and to consider the adult’s own capabilities: what they can do—as well as their needs—and what they cannot do. While most noble Lords agreed with the principle, a concern in Committee was that the provision set out in the Bill might be wrongly interpreted by local authorities as allowing them to place additional caring responsibilities on family and friends rather than providing care and support. Amendments 32 and 33 look to address the concerns that arose.
Amendment 32 removes the requirement to assess the adult’s capabilities and other matters as part of the needs assessment. Amendment 33 provides for a consideration of such matters to happen separate to, but alongside, the needs assessment. Local authorities should have a discussion with adults or carers in parallel to the assessment, considering how their own capabilities and any other matters can help to achieve the outcomes they want to achieve on a daily basis. These amendments remove the source of concern, while retaining the important point of policy on which we agree.
In Committee, there was also concern as to whether the assessment process was sufficiently supportive of the focus of the Bill on the prevention of need. We have considered this and have also brought forward amendments to strengthen this focus. The second part of Amendment 33 and Amendment 45 require a local authority to consider at the time of the assessment whether any universal services available locally, whether provided by the local authority under Clause 2 or Clause 4 or by another organisation, would be of benefit to the person. This replaces the previous provision in which such a consideration took place only after the eligibility determination. This would support situations where, for example, a local authority might decide to defer the final eligibility determination until the person or carer has taken part in a preventive service, such as a reablement programme. Amendments 36 and 37 make similar provision in relation to carer’s assessments. Amendments 90, 91, 100, 101, 109 and 112 make equivalent changes in relation to the assessment of children, child carers and young carers.
In Committee, the noble Lord, Lord Low, pointed out that while the regulation-making powers would provide for an expert to carry out complex assessments, they did not require it. I assured the noble Lord that this was not our intention and that I would look again at the provisions to ensure they provided for this. Having considered the provisions I have concluded that they needed to be strengthened to provide for when an expert must carry out an assessment for complex needs, such as for a person who is deafblind. Amendment 39 rectifies this, and I would like to thank the noble Lord for raising this in Committee.
Through Amendment 40, we will require assessors who are trained but may not have experience of carrying out an assessment for a specific condition to consult a person with experience in that area. For example, an assessor who normally assesses older people who is asked to assess a person with learning disabilities would have to consult a person with experience in that condition.
I turn now to Amendments 42, 43, 44, 62, 115, 116 and 117. Members of the Committee asked to see clear links between this Bill and the Children and Families Bill, which is also before the House. I share their view that both Bills must work together so that no one falls through a gap in the legislation. Amendment 42 ensures that a local authority can combine an adult’s assessment with any other assessment it is carrying out, whether under this Bill or other legislation, as long as the individual or individuals being assessed agree. For example, it clarifies that the authority can carry out a needs assessment with a young carer’s assessment. Amendment 43 allows the authority to carry out a needs or carer’s assessment jointly with another assessment being carried out by another body, whether of that person or a person relevant to the situation, as long as the individual or individuals being assessed agree. Amendment 62 ensures similarly that local authorities have powers to combine care and support plans and support plans with any other plan of that individual or another. Amendments 115, 116 and 117 make similar provision for a child’s assessment, a child carer’s assessment and a young carer’s assessment when they are transitioning to adult services. These amendments reflect similar government amendments tabled to the Children and Families Bill and reflect the synergy between both Bills and how they work together to ensure that the needs of children and young carers are considered during the adult’s assessment.
I have listened to the strength of the arguments made in Committee. I hope your Lordships will agree that the amendments I have tabled address the concerns that were raised and that they strengthen and clarify the assessment provisions. I beg to move.
Baroness Pitkeathley (Lab)
My Lords, the changes that the Government have made concerning assessments are very welcome. I particularly thank the Minister for the careful and considered way in which he listened to the issues around young carers, and particularly the way in which these now mesh with the Children and Families Bill, which was a concern to many of us. That is very welcome.
Amendment 32, which removes the reference to support available from families and friends, is particularly welcome. Disability and carers’ organisations have very serious concerns that the original wording would lead to local authorities making assumptions about what families could provide without conducting a thorough assessment of a person’s needs and then carefully considering how those needs could best be met, particularly taking into consideration the family’s willingness to provide that care.
Amendment 33 also includes a requirement that when an assessment is carried out it is also considered whether the person would benefit from prevention services or from information and advice. That greater emphasis is also very welcome. However, I would like the Minister’s comments on one concern about Amendment 33. It refers to,
“which might be available in the community”.
If this wording is included in the Bill, it is vital that strong guidance is given to local authorities not to run the risk of negative, unintended consequences. There will be guidance, regulations and assessments, as we know. What assurances can the Minister give that community services will not be seen as an automatic alternative to statutory services and will not therefore create a further barrier for those in need of statutory support?
Can the Minister assure me that guidance will make it clear that local authorities cannot make assumptions about the availability and appropriateness of other support from community services and whether it is wanted by the disabled or older person? The Government have made it clear that they do not intend local authorities to look to families and friends to provide care and support, potentially taking on a greater caring role. Can the Minister give assurances that local authorities should also not be looking to families and carers to provide more care as a get-out clause, if you like, from providing statutory services? This is particularly important given the great variability in so-called community services from area to area and, of course, the huge stress on local authority budgets, which is a fact of life for all local authorities at present.
Earl Howe
My Lords, I am grateful for the support that noble Lords have given to the government amendments. Perhaps I may start by covering the questions that were put to me. The noble Baroness, Lady Pitkeathley, and my noble and learned friend Lord Mackay of Clashfern asked for assurances that the guidance will make clear that local authorities cannot assume that support will be forthcoming from community services or carers as a get-out. I assure the noble Baroness and my noble and learned friend that the intention in Amendment 33 is not to place extra responsibilities on carers and families, nor to delay local authorities in providing statutory services. I will commit to making this absolutely clear in the statutory guidance that will be co-produced with stakeholders. I hope that that is a valuable reassurance.
The noble Lord, Lord Low, asked for reassurance about preventive services remaining universal and free of charge, as well as intermediate care. I can reassure him that certain services will be provided free of charge, and regulations will set out which types of prevention services must be provided free of charge. Regulations will also set out which types of prevention services local authorities can charge for. It will then be for local authorities to decide whether they charge for such services. This will maintain the current position, where charging for preventive services is determined locally, in accordance with local requirements. Additionally, we would expect intermediate care, including reablement and community equipment such as aids and minor adaptations, to remain free of charge. That is a minimum. The regulations will allow for flexibility to keep the list up-to-date as services change over time.
The noble Lord, Lord Low, also asked whether the commitments in Clause 13(2)(b) will apply also to Clause 9. Will an assessment be deemed necessary where preventive services may be of benefit, even if someone is unlikely to be eligible? The duty to assess in Clause 9 is independent of the provisions on prevention. Amendments 33 and 45 make it clear that preventive services should be considered during the assessment rather than having to wait for the eligibility determination. This will mean that people can be advised during the assessment on their preventive needs, whether or not they have eligible needs. I hope that that is helpful.
Perhaps it will be helpful if I move on to the amendments tabled by the noble Baroness, Lady Meacher. Amendment 41 seeks to ensure that an appropriately qualified social worker will carry out complex assessments. I absolutely sympathise with the noble Baroness’s amendment and believe that my Amendments 39 and 40, to which she referred, will go some way towards addressing her concerns. I also reassure her that, through the powers in Clause 12, we will require local authorities to ensure that assessors have the appropriate training to carry out the assessment. We have listened to the concerns of adults who use care and support, and to their carers. They are right to say that assessors should receive appropriate training.
Amendment 39 will enable us to specify circumstances in which a specified person, such as a social worker, must or may carry out an assessment. We believe that an expert must carry out an assessment for a deafblind person. We will consult stakeholders during the development of these regulations to identify any other conditions where a specified person should carry out the assessment.
I am grateful to the noble Lord, Lord Dubs, for raising in his Amendment 60 the issue of fluctuating and emergency needs, and, in his Amendment 61, anticipated review dates in the care and support planning process. Clause 25 sets out the minimum framework for the planning process, and balances the need to set out standards for care and support planning while not constraining the ability of local authorities to fit the planning process around the person. I reassure the noble Lord that providing advice and information on what can be done to meet or reduce a person’s needs will include providing advice and information where an adult may be experiencing fluctuating or emergency needs.
In addition, where it is clear that an adult experiences fluctuating needs, the care plan should reflect this by specifying how the needs will be met. I undertake to the noble Lord to ensure that statutory guidance clarifies this, and that fluctuating and emergency needs are included in what advice is to be provided.
The issue of timescales of reviews is something we have considered carefully. The review is an important part of the process as it can identify where a person’s needs have changed and if their care and support plan should be revised to reflect this. Clause 27 on the review of care plans creates a general duty for the local authority to keep plans under review as well as a specific duty to review the plan when the authority believes the person’s needs or circumstances have changed. In addition, the clause contains a right to request a review. I reassure the noble Lord that nothing in the Bill prevents the local authority and the adult agreeing a time for the next review if they wish to do so. We believe this to be a more pragmatic way of fitting reviews around the lives of people, and one which supports our policy of personalised care. I reassure the House that we intend to detail these issues in statutory guidance on care planning.
I hope that I have reassured the noble Baroness and the noble Lord and that they will feel able not to move their amendments.
“( ) When carrying out a needs assessment, a local authority must also consider—
(a) whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcomes that the adult wishes to achieve in day-to-day life, and(b) whether the adult would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.”
“(5) A local authority may combine a needs or carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the adult to whom the needs or carer’s assessment relates agrees and—
(a) where the combination would include an assessment relating to another adult, that other adult agrees;(b) where the combination would include an assessment relating to a child (including a young carer), the consent condition is met in relation to the child.(5A) The consent condition is met in relation to a child if—
(a) the child has capacity or is competent to agree to the assessments being combined and does so agree, or(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that combining the assessments would be in the child’s best interests.”
(a) different amounts for different descriptions of care and support;(b) different amounts for different descriptions of support.”
Earl Howe
In moving Amendment 49, I wish to speak also to the other government amendments in this group, Amendments 50, 51, 52, 53, 54, 59 and 169. We are currently consulting on the detail of our reforms to care and support funding, including charging. This consultation and the accompanying engagement are looking at key issues around future charging for adult care and support. We need to ensure that the Bill has sufficient flexibility to take account of the views expressed through this consultation and the on-going engagement. This work has highlighted areas where the Bill as drafted may not be sufficiently flexible. I turn to my Amendments 49, 51 and 52 concerning local flexibility in charging policies.
Currently, local authorities are free to set their own charging policies for non-residential care. The intention was to create a more consistent framework for charging across local authorities. However, there was uncertainty whether the regulation-making powers as drafted would have allowed local authorities to contribute towards the care and support costs of people who have resources above the financial limits. A rule which prohibits local authorities from making any contribution towards the care costs of such people would restrict the ability of local authorities to use different arrangements when these would best meet local needs. For example, local authorities sometimes subsidise services such as telecare. We wish to allow this to continue and do not want to require local authorities to charge people the full cost of these services.
My other amendments, Amendments 50, 53 and 54, concern circumstances in which a financial assessment has not taken place or a local authority considers that a full assessment is unnecessary. We wish to encourage people to undertake financial assessments because this will enable local authorities to charge them a fair contribution towards their care costs. However, we recognise that some people are likely to refuse to undergo a financial assessment; for example, someone may be unwilling to allow the local authority to access their financial information. In order best to promote these people’s well-being, it may be appropriate for local authorities to arrange care on their behalf. The local authority would be able to charge individuals the full cost of this care and any arrangement fee.
These amendments will therefore allow regulations to enable local authorities to broker care on behalf of people who do not wish to undergo a financial assessment. The regulations will also make provision for light-touch financial assessments where a full financial assessment would not be proportionate, such as for low-cost care packages, in particular for carers. Regulations and guidance will be designed to ensure that such assessments are used appropriately.
The remaining government amendments in this group ensure that all those who should get an independent personal budget receive one and that the regulation-making powers retain their intended flexibility. I hope noble Lords agree that the additional flexibilities provided for by these amendments will equip local authorities with the tools they need better to promote individual well-being and that noble Lords can therefore support my amendments. I beg to move.
Baroness Greengross (CB)
My Lords, first, I add my voice in support of Amendment 55, in the name of the noble Lord, Lord Lipsey. We have not fully taken into account the impact that the Bill will have, when it becomes an Act and is brought into being, on the many people who are now in care homes and where the funding of those homes will suddenly become much more public. Everybody will report to the local authority to get on the meter and the extent of people’s self-funding will become better known. There will be a sort of explosion if we do not get this right and do not allow people to make top-ups. What are we going to do: assume that some of these people will be moved from the care home that they are in and where they are, we hope, happy to another care home because there is inflexibility with the top-up system? That would be really cruel and I hope that we can get as much flexibility and remove as many restrictions on people as we can.
Several cases have been brought to my attention of people who are already in a care home running out of money. They, or their relatives, cannot afford the whole amount but want to be able to top up the local authority amount, which, at the moment, nobody is fully aware of. As this is all going to become much more public knowledge, it is important to have as much flexibility as possible. I hope the Minister will have another look at this.
Earl Howe
My Lords, first, I turn to Amendment 55, in the name of the noble Lord, Lord Lipsey, which concerns the circumstances in which people wish to top up their own fees to pay for more expensive accommodation. To begin with, and for the avoidance of any doubt, I will emphasise that I agree that people should be able to choose to spend their own money on more expensive care, provided it is affordable. Like the noble Lord, Lord Lipsey, I want people to be able to choose to live in more expensive accommodation and gain from a cap on care costs, so that they pay part of the cost of care from their own savings and still receive local authority support.
Through the consultation and stakeholder engagement, we are seeking to better understand the impact of relaxing the rules on self-top-ups and to determine what protections may be needed for vulnerable people.
The answer to the question posed by the noble Lord, Lord Hunt, is that consultation will close on 25 October. The Minister of State for Care and Support and departmental officials have, over the past quarter, attended a variety of events covering the care and support sector, local authorities and financial services providers. These have been broadly supportive of the principle that people should be able to contribute towards their care costs from their own assets. Stakeholders have also recognised that people need to make decisions which are financially sustainable for the long term, and that financial information and advice need to play an important role in achieving this. We will be able to provide a more comprehensive overview of the views expressed in our response to the consultation in the new year. I repeat that we are on the noble Lord’s side. Our only concern is to ensure that when we relax the rules, there are sufficient protections, both for the individual and for the local authority.
Amendment 56 concerns review of the operation of the capped-cost system. I am sure we can all agree unhesitatingly that these reforms need to be implemented effectively to deliver the outcomes we are striving for. The capped-cost system will provide peace of mind and protection against catastrophic costs and will target most help at those with the greatest need. I am confident that we can further agree that to deliver these benefits, we need good oversight. Therefore, I am with the noble Lords opposite in spirit. To that end, we will be reviewing and assuring both implementation and funding, and have committed to reviewing the core elements of the capped-costs system within each five-year period. We will also conduct post-legislative scrutiny, as the Government have committed to do across the board for all new Acts. The agreement we have with the Liaison Committee in the other place is that this should be done between three and five years after Royal Assent.
Furthermore, we have established the Joint Implementation and Programme Board with the Local Government Association and the Association of Directors of Adult Social Services. We will use this to work with local government on continuing assurance and improvement of the arrangements. We are confident that, in their totality, these arrangements provide generous opportunity for assurance and review to ensure that the reforms remain true to our vision.
For that reason, I do not believe it would be necessary or desirable to supplement these arrangements with a further review by additional oversight bodies, such as an independent ministerial advisory committee. Such additional oversight would cut across the scrutiny conducted by the Health Select Committee and cross-government planning on spending through spending rounds. I am sure that noble Lords opposite will not be totally satisfied with that, but I hope that they will be sufficiently reassured by the confirmation I have given that we will conduct a proper review of the operation and funding of these reforms through several channels. I hope that they will agree that this amendment is, therefore, unnecessary.
Lord Mackay of Clashfern
Before the Minister sits down, is he satisfied that, without the amendment of the noble Lord, Lord Lipsey, there is sufficient flexibility under the system as it is presently provided to allow for the sort of difficulties that are envisaged as possibly coming out after the consultation?
Earl Howe
I can reassure my noble and learned friend that, if we look at the arrangements we are proposing in combination, there will be sufficient mechanisms in place to take account of any unexpected wrinkles that emerge of the kind that the noble Lord, Lord Lipsey, perfectly reasonably anticipates; and to react and respond to those difficulties as appropriate. The answer, in a nutshell, is yes.
“( ) Regulations under subsection (7) may make provision as to cases or circumstances in which an adult is to be treated as having income that would, or as having income that would not, fall below the amount specified in the regulations if a charge were to be made.”
“( ) A local authority may meet an adult’s needs under subsection (3) where, for example, the adult is terminally ill (within the meaning given in section 82(4) of the Welfare Reform Act 2012).”
Earl Howe
My Lords, I assure the House that the Government are in agreement with the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. We are working hard to deliver our shared objective of improving care for people approaching the end of their lives. It is in that context that I shall move government Amendment 57.
On the issue of treating the assessment of terminally ill people as urgent, I fully recognise noble Lords’ concerns. With that in view, I have tabled an amendment to make it explicit that the end of life is an example of when local authorities may treat cases as urgent. We do not believe that it would be right to require local authorities to treat all cases in this way—circumstances have to dictate the approach taken—but we agree that clarity around end-of-life cases as examples of urgent situations for the purposes of Clause 19 may provide a useful indication to improve practice. I shall not anticipate noble Lords’ remarks in support of their amendments, so at this stage I beg to move.
Lord Warner
My Lords, while I welcome Amendment 57, I want to set out the case for the Minister going a good deal further. Amendment 137 follows the discussion in Committee of amendments proposed by the noble Lord, Lord Patel, and myself. We have come back with an alternative amendment, which has also been signed by the noble Baroness, Lady Greengross. We have done this in consultation with voluntary organisations over the summer, and the wording of Amendment 137 reflects those discussions. To summarise, the amendment would enable the Secretary of State, after discussion, to make regulations that did three things: first, allow people to have their preference for place of death recorded by local health and social care services and for that preference to be implemented wherever practicable; secondly, have their care and support needs and those of carers treated as urgent in assessing needs—and we think, reasonably, that Amendment 57 deals with that; and, thirdly, exempt terminally ill patients from adult social care charges.
Since Committee the Government have brought forward Amendment 57 and, as I have said, I think that it meets many of our concerns about urgent assessment at the end of life. It has certainly had the effect of diluting enthusiasm in some parts of the voluntary sector for a more wide-ranging amendment on end-of-life choice, and I slightly backhandedly congratulate the Minister and his civil servants on achieving that. However, I would still like to have another go at trying to convince the Government, and possibly some members of my own Front Bench, that we should be a bit more ambitious.
Around half a million people die each year in England, about two-thirds of them over the age of 75. A century ago most of us would have died in our own homes. Today, most will die in hospital. The latest figures show that in April 2012, about 42% of people died at home or in a care home. This is an improvement from 38% four years previously, but on present trends it will be at least the end of this decade before half of deaths occur in the place of usual residence. These figures of improvement at the national level, however, conceal considerable regional and local variations.
If you live in the south-west, with 48% of deaths occurring in the place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. Of course, as a Londoner I think there are many benefits of living in London, but choosing where I die is not likely to be one of them. There is an even wider variation between local authority areas. The great majority of us want to die at home or the place we normally live rather than, I suggest, the hectic and somewhat impersonal environment of an acute hospital ward. Perversely, we end up not only dying not only in the place where we least want to be but also in the most expensive place.
Marie Curie research has shown that a week of palliative care in the community costs about £1,000 a week, whereas a week of hospital in-patient specialist palliative care costs virtually £3,000 a week. The National End of Life Care Programme shows an estimated potential net saving of £958 per person if you die in the community rather than in hospital. Polling for Macmillan has shown that eight out of 10 health and social care professionals agree that community-based end-of-life care would save money. On top of this, nine out of 10 MPs think their constituents should have the choice to die at home. What is not to like about the first prong of Amendment 137?
I am not trying to dragoon people into dying outside hospital to save money. I want people to have as good and dignified a death as possible, with their friends and families around them. That is more likely to be achieved if they have a right to register their preference for dying at home or their place of normal residence. This would mean fewer people dying in hospital and it would also reduce pressure on A&E departments and acute hospital beds. I suggest that this is a not inconsiderable benefit—as Sir Humphrey would have said—in terms of the cost savings that could arise from allowing people to express their preferences on their right to die at home.
I accept that at this point it may be rushing our fences a bit to pay for exempting terminally-ill patients from local authority care charges. We need some detailed costings and possibly—I suspect the Minister will say this—we need to wait to hear what comes out of the pilot schemes in this area. However, we would also welcome having more information from the Minister on the progress being made in those pilots.
Accepting the first part of Amendment 137 would lay down a clear marker that Parliament wants government to move in the direction that most people want: which is the right to choose to die at home or their place of normal residence wherever practicable. This amendment gives the Government plenty of time to consult on all the detailed arrangements. It does not require those regulations to be made by any particular time and it gives the Government a lot of freedom about what the nature of those regulations might be. We should not miss the chance of this Bill being before Parliament to move in this area and put this change on the statute book. I hope the Minister will respond favourably and be prepared to entertain at Third Reading an amendment of the kind set out in the first prong of Amendment 137. I would certainly be happy—as I am sure my colleagues would—to discuss this further with him.
Earl Howe
My Lords, I am grateful to noble Lords for expressing their views on this important subject so eloquently. As I said in Committee, I support the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. In looking at the amendment, the first essential question is whether we need to take legal powers in this Bill to fulfil those objectives.
I want to assure noble Lords that we already have the necessary legal powers to implement both choice in end-of-life care and a new palliative care funding system. In relation to choice, there is already a power in Section 6E of the National Health Service Act 2006 to make regulations, or standing rules, to require NHS England and clinical commissioning groups to make arrangements for patient choice in respect of specified treatments or services. We would use these powers to implement a choice offer in end-of-life care.
As noble Lords know, making the changes to the system required to offer real choice, which includes enhancements in community palliative care services, will not be straightforward. Not least of the issues is the cost of making these changes. I agree with noble Lords that there is the potential for savings to be made in moving these services out of hospitals and into the community. However, one of the most comprehensive studies in this area, the Cochrane review, found that while there were small but significant improvements from community-based palliative care, the evidence for its cost-effectiveness was inconclusive.
We must also guard against the danger of making changes too quickly, and I am thinking of a particular danger. It would be in no one’s interests if the upfront investment required to enhance community services came at the expense of existing services. That is why the Department of Health and NHS England will be working together, and with organisations from across the end-of-life and palliative care sector, on a review of the timescale for introducing this choice offer at a time that will be right for patients and for those in the NHS working in this vital area. We have to ensure that when a choice offer is introduced, it will be a real choice backed by a system that is able to deliver it.
On palliative care funding, as I stated earlier, the Government’s position remains that there is much merit in providing free health and social care in a fully integrated service at the end of life. One of the key conclusions of the Palliative Care Funding Review was:
“There is a stunning lack of good data surrounding costs for palliative care in England”.
We responded to that by establishing eight palliative care funding pilots, involving more than 80 organisations. The noble Lord, Lord Patel, asked me whether those pilots were essentially big enough to produce meaningful results. The palliative care pilots cover 80 organisations in those eight areas and we are confident that they will give us sufficient evidence to design a new palliative care funding system. We need to be absolutely sure that the evidence being gathered by the pilots, which are running for two years, until 2014, is thoroughly analysed and a complete picture is available to both the department and NHS England before the details of the new funding system are finalised. To answer the noble Lord, Lord Patel, yes, we are acutely aware of the benefits of introducing a new system in this important area.
The noble Baroness, Lady Wheeler, asked about the pilots. The Public Health England review that is taking place welcomed the work that is going on. NHS England is also looking at this, in conjunction with its review of the end-of-life strategy. As regards the timetable for that, NHS England is working to publish early in the new year. Supported by the data from the pilots, we aim to have a new funding system in place by 2015, a year sooner than the review proposed. Similar to any new policies on choice in end-of-life care, this can also be introduced through secondary legislation. In this case, Clause 14(6) of the Bill provides powers to make regulations that prohibit local authorities from making charges in specific cases.
I hope I have convinced noble Lords that I am very much behind their laudable aims in tabling this amendment and I completely understand their desire for us to do the right thing. I am grateful for the opportunity to set out on the Floor of the House the Government’s commitment to delivering solutions in relation to end-of-life care. But I hope I have also persuaded noble Lords that decisions on end-of-life care funding and on choice of place of death cannot be taken lightly or inadvisedly, and that we must first take account of the evidence and implications.
I am doubtful that I will be able to say anything further on these subjects at Third Reading beyond what I have said today, but I would of course be more than happy to meet with the noble Lords, Lord Warner and Lord Patel, and other noble Lords, after Report to explore the practicalities around all these issues, and indeed some of the very pertinent issues raised by the noble Baroness, Lady Finlay. I hope that for now noble Lords are assured that our plans for quality and choice in end-of-life care will deliver improvements, and that they feel sufficiently assured to withdraw their amendment.
“(3) Where a local authority is not going to meet an adult’s needs for care and support, it must nonetheless prepare an independent personal budget for the adult (see section 28) if—
(a) the needs meet the eligibility criteria, (b) at least some of the needs are not being met by a carer, and(c) the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence.”
“(11) A local authority may combine a care and support plan or a support plan with a plan (whether or not prepared by it and whether or not under this Part) relating to another person only if the adult for whom the care and support plan or the support plan is being prepared agrees and—
(a) where the combination would include a plan prepared for another adult, that other adult agrees;(b) where the combination would include a plan prepared for a child (including a young carer), the consent condition is met in relation to the child.(11A) The consent condition is met in relation to a child if—
(a) the child has capacity or is competent to agree to the plans being combined and does so agree, or(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that the combining the plans would be in the child’s best interests.”
Lord Warner
My Lords, perhaps it would help the House if the character from Hogwarts actually explained what was going on in our minds when we made the recommendation. I shall quote a sentence from the report:
“In making this change, we believe it would be sensible for local authorities to be allowed to charge interest to recover their costs, to make the scheme cost neutral”.
We were not trying to second-guess how many applicants there would be, but it would be sensible to set up a scheme that worked in a way which did not actually cause a charge to be made on the Exchequer for the running of the scheme.
Earl Howe
My Lords, perhaps I may deal first with the initial point raised by the noble Lord, Lord Lipsey, about the figure that I quoted in Committee. He asked whether I had in fact meant to say that up to 40,000 people might have to sell their homes every year. The answer is that I should have said “up to 40,000”. I am afraid that there is a conscious element of vagueness in the figure because there is no one comprehensive source to provide information about what the precise figure actually is. We have arrived at a figure of up to 40,000 as the best estimate. I hope and believe that over the summer my officials provided the noble Lord with a breakdown on how we reached that figure and that he has found the information useful. The point of quoting the figure is that we believe that it is around the number of people who could benefit from the arrangements we are discussing. I apologise if I misled the Committee and the House in stating a figure that sounded precise when I should have been a little more circumspect.
The second issue raised by the noble Lord was about the deferred payment scheme and his perception that the Government have effectively emasculated it. I do not share that perception. There will be some circumstances in which local authorities must offer a deferred payment, and that is when the Bill specifies that the local authority would be under a duty to offer a deferred payment. We are consulting on the eligibility criteria for when people must be offered a deferred payment, which is where the figure of £23,250 is used. The Bill has an additional power for local authorities to offer deferred payments more widely, and we are seeking views on this through the consultation. My noble and learned friend Lord Mackay asked why we need limits at all. It is our policy intent that deferred payments will be available more widely and consistently than they currently are, which I think is what the Dilnot commission intended us to do. We need to ensure, however—
Lord Warner
Perhaps I may correct the noble Earl. We actually referred to a universal and standard scheme. We assumed that such a scheme would be wider, but we were looking for a standard scheme that would make this widely available. That is the part which is missing from the Government’s reassurances.
Earl Howe
I shall come on to the standard scheme proposal in a moment. We need to ensure that this arrangement is rolled out in a way that is financially sustainable for the local authority in each case. We will be supporting the implementation of the capped costs system and an extension of deferred payments with £335 million, which should enable this to happen.
I shall move on to the amendments themselves. I hope that the House will forgive me if I do not rehearse at length the same points that I made about financial advice last week, but I should like to take a moment to reassure the noble Lord, Lord Lipsey, on the specifics of his proposal. It is imperative that everyone has access to sound, reliable information and advice while making decisions about their care to ensure that any option they choose makes good financial sense for them and is sustainable in the long term. It is clear that local authorities have a central role to play in ensuring that their local populations are aware of the range of information and advice, both regulated and non-regulated, that is available to them and that they know how to access it. Last Wednesday, your Lordships accepted my Amendments 16 and 17 which clarify this. The noble Lord’s amendment would underscore the need to make sure that everyone who decides to take out a deferred payment agreement reaches that decision in a considered and informed manner. I agree that that should be the case. All too often, people do not plan ahead for the possibility of needing care and so can find themselves having to make important and lasting financial decisions in a moment of crisis.
Deferred payment agreements can be used to reduce some of this urgency and ought to be accessible to ensure that they provide the peace of mind that they are intended to. For this reason I would hesitate to make the process through which a person can access a deferred payment too onerous. We are currently consulting on the information and advice a person should receive before taking out a deferred payment agreement. We will listen carefully to what is said and we will use this to inform the approach that should be taken. I have already given the noble Lord my undertaking to discuss further what remaining differences we have about financial advice, if any, and I hope that those discussions will allow us to explain in more detail our policy intentions and what our own government amendments in this area aim to achieve. I hope that the noble Lord will agree that we are essentially of the same view about this and that he will be content to discuss the matter with me further outside the Chamber. That being so, I hope that he is sufficiently reassured today to withdraw his amendment.
I turn to Amendment 63, tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Wheeler. We are in concordance with them that a model deferred payment agreement would help local authorities and that is why we already have one in place for the schemes that are currently operating. What we intend to do now is build on and improve the current model. In doing that, we will work in partnership with local authorities to learn from the well established schemes, some of which have a decade of experience. While the case for a model scheme is clear, I think it would be wrong to mandate national systems and structures for deferred payment agreements. It is important that we strike the right balance between local flexibility and national consistency. Systems and structures must be developed in partnership with local government and allow for and, indeed, encourage local efficiencies to flourish. As noble Lords may know, we have established with the Local Government Association and the Association of Directors of Adult Social Services the joint implementation and programme board to support the implementation of these reforms more generally and, through this, we will support local authorities to deliver the universal scheme from April 2015. This work will include our commitment to providing a model deferred payment scheme, based on the current model, as well as statutory guidance to support local authorities in exercising these functions.
The statutory guidance on deferred payments, in particular, will have a clear legal status. Local authorities must act under this guidance. This means that they must consider and should follow it, unless they have a justifiable reason not to do so. This would seem to be the same status as is envisaged by noble Lords in their amendment. I hope therefore the noble Lord feels able to withdraw his amendment in light of the reassurance I have given on supporting local authorities to deliver the universal deferred payment scheme and the model agreement in particular.
My noble friend Lady Barker asked whether the scheme was a model for how local authorities manage the burden on themselves. This is not designed to be a scheme that makes a profit for local authorities. The interest rate is likely to be set at a rate which recognises local authority borrowing rates, and so ensures that the scheme is cost-neutral.
Lord Lipsey
My Lords, I thank the Minister for that reply. On the first two of the three legs of his argument, I am happy to support what he said. Through helpful discussions over the summer, I understood that he had meant to say “up to 40,000.” I make no criticism of him for misleading the House. Any misleading he did is on a tiny scale compared with the misleading that has taken place with the whole country through these repeated cuttings file references. History will now have on record in this debate the truth about these numbers. That is a form of progress, if not legislative progress.
Secondly, I should like to thank the noble Earl for what he said about advice. We are near to having another meeting before Third Reading on advice. We are all after the same things on advice with the same constraints. We have not quite cracked it yet, but I hope when the House comes back on Third Reading to the matter of advice, we shall do so, either in the form of an amendment, or of a shared understanding on where we are going which might take the form of regulation or guidance. On those two things, I agree with the Minister.
However the Minister did not confront my most important point. Let us be absolutely clear. This Bill does not provide a universal deferred payments scheme. It provides a deferred payments scheme only for people who have less than £23,250 in assets. There is no universal deferred payments scheme. Further, this has been done in a back-door manner which disgraces the Government. It was not in Dilnot. We have heard decisive testimony on that from my noble friend Lord Warner. It was not in the Government’s announcement of their response to Dilnot. It was not in the Second Reading speeches. It came out between stages of the Bill in this consultation document. The noble Earl suggested that there would be people with more than £23,250 who could benefit from deferred payments so we did not have to worry. The relevant bit from paragraph 154 of the consultation document says:
“More generally, we also intend that authorities should have the discretion to provide deferred payments to people in residential care who do not necessarily meet all of the mandated criteria.”
Those criteria include the £23,250, so that sounds quite good. The next sentence says:
“For example, if someone has slightly more savings”—
I stress the phrase “slightly more savings”—
“than the £23,250 threshold but would qualify for a deferred payment soon, an authority might prefer to offer the option upfront.”
That is a tiny loophole. This is essentially a £23,250 threshold that the Government have smuggled in, telling nobody until they had to produce this document and hoping no doubt that by 25 October, nobody would have noticed. I shall tell you who will notice. The Daily Mail will notice. The Daily Mail and other newspapers which campaigned so that people would not have their houses seized—I applaud them and have applauded them before for doing so—are now going to learn that the Government have welched on the deal. The tsunami that will hit the Government in consequence will hurt not only this proposal but the Government as a whole.
Earl Howe
My Lords, the Care Bill will for the first time introduce a duty on local authorities to ensure that where a person is receiving care and support they can move home to another local authority area, confident that they will have services in place on the day of the move. The noble Baroness, Lady Campbell, has been a leading advocate in this area for some time, and I acknowledge that her Private Member’s Bill was a template for the provisions in this Bill.
The noble Baroness’s Amendment 63ZA looks to ensure that when the second authority is carrying out the assessment of the adult moving and, where appropriate, their carer, it meets the outcomes that they want to achieve. I reassure her that the provisions on assessment for the person needing care and their carer apply to when a person is being assessed for continuity of care. Assessments must look at achieving the outcomes that the person or carer want to achieve, and Clause 37(8) confirms that. I also give an assurance that we will emphasise this in the statutory guidance.
Amendment 63B proposes that the first authority is responsible for arranging services on the day of the move. I say immediately that I sympathise with the sentiment of the noble Baroness’s argument; neither of us wants a gap during which a person is left without services. However, our view is that the second authority is best placed to maintain continuity of care. Our reasoning is that the person will now be living in the area of the second authority and, as for anyone who has eligible care and support needs, the second authority has a duty to meet those needs. The second authority will also know its local market and will be far better placed to put in place arrangements that support the person and maintain their level of independence from day one.
My concern is that it would be difficult for the first authority to make such arrangements, particularly where the person moves a long distance away. In practice, if the first authority is responsible for making arrangements it would have to contact the second authority to discuss the local market, which raises the question of why the second authority is not responsible for putting in place services in the first instance.
For the reasons that I have explained, I believe that the second authority must be the one responsible for delivering services on the day of the move. However, in light of the concerns raised by the noble Baroness during Committee, I have looked again at the provisions in the Bill. My Amendment 63A will require the first authority to contact the second authority and maintain this relationship so that it is aware of where the second authority is with putting services in place. It will also require the first authority to keep the person involved with discussions about their services and informed of progress for putting these in place. In other words, the amendment will put the person at the centre of the process. Both ADASS and the Local Government Association have indicated that this amendment will strengthen the process.
The noble Baroness questions whether placing the responsibility on the second authority is the right approach. I believe that it is. However, I fully understand her concerns, and I commit now to my department reviewing how the continuity of care arrangements are operating three years following implementation. This will provide us with more information, which will help us to understand if the process can be improved.
We are already considering how we might implement the provisions in the Bill. The first step will be to develop the regulations and statutory guidance. Given the noble Baroness’s knowledge in this area, I hope that we can draw on her experience and that she will be able to advise us on the preparation of the regulations and guidance. I sincerely hope that in strengthening these provisions and in the commitments that I have given, I have been able to convince her not to press her amendments.
The amendments relating to ordinary residence will provide clarity in respect of three areas: the overall principle of ordinary residence; the principle of ordinary residence so that it applies to after-care under the auspices of the Mental Health Act; and finally, the cross-border placement of individuals so that service users can move between the four countries of the UK where this is deemed to be in their best interests.
The noble Baroness, Lady Wheeler, asked whether reciprocal agreements are now in place or whether there would be more changes in this area. The answer is that the basic structure is in place in terms of reciprocal arrangements on cross-border care. However, some small details remain to be finalised through regulations and statutory guidance. We will work closely with the devolved Administrations on this.
First, government Amendments 66 and 67 address a potential lacuna in respect of people who may live in England—and therefore be ordinarily resident in an English local authority—but who are treated entirely within the NHS of a devolved Administration. The amendments ensure that they would remain ordinarily resident in England. Secondly, Amendments 64, 65, 126 to128 and 132 to 136 apply consistent ordinary residence rules in England and Wales in respect of after-care under the Mental Health Act 1983, and reflect our agreement with Wales that Welsh Ministers or the Secretary of State will determine cross-border disputes according to agreed arrangements.
Thirdly, Amendments 68 to 75 relate to cross-border placements. The cross-border provisions in the Bill reflect the outcome of solid collaborative work with Scottish, Welsh and Northern Irish colleagues to remove legal barriers restricting the placement of an individual from one territory of the United Kingdom to another. These amendments make technical adjustments to those provisions, following further discussion with the devolved Administrations about the detail of the arrangements.
The purpose of the amendments on cross-border placements is threefold. First, they ensure that the established principle that the placing authority retains responsibility for the care of those individuals placed cross-border is not interrupted should the individual receiving care require a period in hospital or other healthcare accommodation. Secondly, they enable regulations to provide for the cross-border placements provisions to apply to individuals who receive direct payments. Thirdly, they provide a regulation-making power that would allow our cross-border provisions to apply to individuals placed in a setting other than a traditional care home—for example, supported living arrangements.
The noble Baroness, Lady Wheeler, also asked about the impact of cross-border placement provisions on cost pressures. It is our understanding that the number of placements between countries of the UK is likely to be minimal, certainly in terms of the overall budget. However, we will work closely with colleagues in the devolved Administrations to further understand and bottom out the financial implications.
This group of amendments provides further necessary clarity to enable people to receive care and support in locations that suit their needs and I commend them to the House.
Baroness Campbell of Surbiton
My Lords, I thank noble Lords and the noble Baronesses, Lady Wheeler and Lady O’Loan, for speaking in support of my amendment. I warmly thank the Minister for his thoughtful reflections on my amendments and for tabling his amendments to meet some of my concerns—followed up at the last minute by a very good, timely review. Although I had hoped to see both my amendments on the statute book tonight, I am happy to acknowledge that the Government’s proposal is a ginormous step in the right direction to full portability. If it reduces the prospect of a cliff-edge scenario, it will achieve its purpose. I know that disabled people will feel encouraged to move instead of staying put.
Finally, I am grateful to the Minister and especially his officials for their positive approach to this issue, which I have raised in Committee and, quite frankly, over the past three years. We have burned a lot of midnight oil together and I have been very impressed by their efforts to find practical solutions. It bodes well for our continued collaboration on this landmark reform—and it is a landmark. Do not forget, we were tied to our local authorities since time began and this is the first time that disabled people will have the right to freedom of movement if they require support. I will be pleased to be involved in the regulations and of course I will be there. Frankly, you could not stop me. I beg leave to withdraw my Amendment 63ZA.
“(8A) Pending the adult’s move, the first authority must keep in contact with the second authority in order to ascertain the progress that the second authority is making in preparing to meet—
(a) any needs for care and support under section 18 or 19 in the adult’s case, and(b) where the adult is proposing to have a carer immediately after the move, any needs for support under section 20 in the carer’s case.(8B) The first authority must keep the adult (and, where applicable, the carer) informed about its contact under subsection (8A) with the second authority and must involve the adult (and, where applicable, the carer) in the contact.”
Lord Hunt of Kings Heath
My Lords, I have added my name to Amendment 76 of the noble Baroness, Lady Greengross. I also support Amendments 123 and 124. Leonard Cheshire Disability put it so well when it said that it was concerned that the Bill, in placing a number of important and complex duties on local authorities, will have a substantial impact on the lives of older and disabled people without providing appropriate routes for appeal against unjust or factually inaccurate decisions. It says that there is a compelling case for the Government to set up a system to resolve cases where there are disagreements between the local authority and the individual.
When we think of the various ways in which local authorities can impact on individuals who have come within the care system—support eligibility criteria, financial assessment, operation of the cap, charges, personal budgets and the boundary between NHS continuing care and means-tested social care—surely there have to be opportunities for a person to appeal against decisions of the local authority. In Committee, the noble Earl relied first on the current complaints system of local authorities and, secondly, he went on to point out that if a complainant was not satisfied with the response from the local authority, they were then able to refer the case to the Local Government Ombudsman.
However, a complaints system is not really what noble Lords are calling for. Anyone who has seen responses from local authorities to complaints will know that they tend to find in favour of themselves and rarely reopen a question of substance. Noble Lords want an opportunity for a person concerned to put their case and for that case to be considered by a group of people who may be said to be independent of the local authority. Like the noble and learned Lord, Lord Mackay, and my noble friend Lord Warner, I am keen on the tribunal approach which deals with social security cases; I have witnessed these cases. Although the noble Earl felt in Committee that these would be expensive, I believe that it is a cost-effective way of allowing people to put their case and for that matter to be decided. I am sure that in the long term it will be more expensive if there is no proper decision. I suspect that we will see lots of judicial reviews being initiated against local authorities. They do not and will not have a proper system for dealing with appeals.
The noble Earl said in Committee that the Government were consulting on processes for providing redress. Although he thought that the results of that review would be available before the Bill had concluded its passage through Parliament, I suspect that that will be too late for your Lordships’ consideration. I therefore hope that the noble Earl might be able to give us some comfort that he will in fact give further consideration to this. I hope that we might return to this point at Third Reading.
Earl Howe
My Lords, at the heart of these amendments is an important issue: the voice of older and disabled people. I hope that I can give some reassurance to the House.
Amendments 76, 123 and 124 would include in the Bill provisions for an appeal system that allows individuals to appeal against decisions of, first, the local authority relating to their needs for care and support and, secondly, the relevant NHS body relating to their eligibility for NHS continuing healthcare. Of course, those are quite separate matters.
On the amendments relating to local authority decisions on care and support, I will briefly run through the current, essentially complaints-based, arrangements. These arrangements were reformed via the 2009 regulations, which require local authorities to publish arrangements for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedures, which may of course result in varying user experiences. If, having raised a complaint with a local authority, a person is not satisfied with the response, they can refer the complaint to the Local Government Ombudsman. The ombudsman is independent of the local authority. It can investigate whether the decision-making process has been conducted appropriately and make a recommendation to the local authority.
As has been said, the Bill will result in many more people being brought into contact with their local authority, so it is appropriate that we are reviewing the current arrangements regarding appeals via a public consultation. If that is consistent with what the noble Lord, Lord Hunt, regards as the Government having a second look, I believe that we are doing so. Through the consultation we have heard from user representatives a concern voiced this evening by the noble Lord, Lord Warner: that current arrangements are not sufficient to withstand the additional pressures of the Bill reforms.
While our initial view is that it is likely that some changes are needed, we really need to wait for the consultation to close before making any judgments. I will be in a position to update noble Lords about that in December. Although I acknowledge that this is a work in progress, the Government are on the case. I hope, with that assurance, that the noble Baronesses and the noble Lords will therefore be content to withdraw Amendment 76 and not to move Amendment 123.
In response to the noble Baroness, Lady Meacher, who asked whether we would consider a formal tribunal, our current assumption is that a tribunal process would be likely to slow down the process of resolving complaints and would add significant costs which would, in turn, produce a further burden on the system. There is a range of approaches to resolving complaints and providing redress. It is advantageous to have a flexible system that works well and efficiently at a local level, in a manner that is proportionate to the type of complaint.
The noble Baroness also asked whether we might consider an independent panel rather than a tribunal, although I was not sure whether those two were the same thing in her mind. The funding reform consultation that covers this issue will close late in October. Following this review, should we decide to make a change we expect we could do so through secondary legislation. Of course, we are not ruling anything out in the consultation. If it transpires that we wish to make changes that require primary legislation we would ensure that proposals were brought forward at the earliest opportunity. However, if changes were desired—for example, to introduce a requirement whereby a decision was reviewed by an independent panel—in this case we would do that by amending existing regulations.
The noble Baroness asked whether I could assert that decisions in this area will not vary across the country and that there will not be errors. Of course, there is scope for errors to take place and for variation. I can say that we would want the following principles to underpin the mechanisms for redress and resolving complaints: clarity, local accountability, fairness and timeliness. Lastly, there should be an independent element. I hope that that is helpful as a guide at this stage.
Lord Warner
Before the Minister sits down, I will ask on a point of clarification. He made a lot of reassuring noises about the ability at the end of the consultation process to deal with some of the outcomes of that process under secondary legislation. Can the Minister clarify whether that also included—if the Government have had a damascene conversion to a tribunal-type arrangement—that secondary legislation could introduce a tribunal-type of arrangement for adult social care?
Lord Mackay of Clashfern
Again, before my noble friend finally sits down: he mentioned the principles that would seem applicable to local authority decision-making and appeals from that. I wonder whether one of the principles that should be given effect might be consistency across the country—in other words, fairness between people who live in X and people who live in Y. I suspect that there is a possibility that different local authorities will take different decisions in very similar cases, and consistency across the country would be an important element in the fairness of this new system.
Earl Howe
I take the point made by my noble and learned friend. We cannot iron out every kind of disparity, but we should aim for the kind of fairness that he talks about.
I have misled the House: we would not be able to establish a tribunal by secondary legislation—it would require primary legislation. However, as I said earlier, in the consultation that we are carrying out we do not rule out any solution. Clearly, if it transpires that we want to make changes for which primary legislation is needed, we would need to ensure that proposals were brought forward for consideration at the earliest opportunity. In general, we hope that the consultation will flush out any concerns in this area, not least in the area of fairness, as referred to by my noble and learned friend.
Lord Warner
Just to finish off this discussion, I have another point for the Minister to consider, which was made by the noble and learned Lord, Lord Mackay. The whole point about a tribunal system is that you build up case law, so you spread consistency across the country through the case law that individual tribunals have made. Without that structure of a tribunal system I suggest that it is very difficult to achieve the objective that the noble and learned Lord is seeking. Might the Minister ponder on that before we discuss this again?
Baroness Greengross
My Lords, I thank all the noble Lords and noble Baronesses who have supported these amendments. I am encouraged that the issue is being taken so seriously by the noble Earl. In a way it is a shame that the timing of the consultation is as it is, and that we will not get it through until December. I have always been worried about certain aspects of NHS complaints procedures, when the body that looks at those procedures is the NHS itself. I have felt for many years that that is unfortunate. I am very pleased that the Minister has agreed to look again seriously at all this. We need to protect these extremely vulnerable people from not getting the best level of service that they can because of a decision that could be to the detriment of their care, which could leave them feeling that their situation is hopeless and that there is nothing they can do.
I therefore thank the noble Earl. I am pleased that he is prepared to look at all this again and I hope that we can have some discussions on the outcome. This was a probing set of amendments—I did not intend to do anything other than probe—but I thank him and hope for better news about this or for more detailed decision-making in the near future. In the mean time, I beg leave to withdraw the amendment.
Baroness Wheeler
My Lords, in addressing these amendments I once again emphasise that we very much welcome the placing of safeguarding on a statutory footing in the Bill, and the establishing of statutory safeguarding adults boards. This builds on the legislation, regulations and advice on principles and frameworks for safeguarding for both adults and children that we established up to 2009, which are now being taken forward in the Bill.
The noble Baroness, Lady Greengross, and other noble Lords, again made a comprehensive case for granting the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. The noble Lord, Lord Rix, spoke of “mate” relationships among people with learning difficulties. It was a powerful example of what we need to address.
We know that there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions, and patients and user organisations on this sensitive and complex issue. However, we have to remember that the Government's consultation had a relatively low response, particularly in terms of local council and NHS trust participation. On top of that, many of the consultation responses appeared not to have fully understood the limited nature of the change that was being proposed: namely, that the new power would apply only to situations where it is the third party who is denying access, not the individual.
The noble Baroness’s amendment sets out tough limitations and restrictions that would apply to such a power. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone was in danger of abuse. The power of access would be to enable the local authority to access the person and speak to them alone to assess the situation. It is clear that it is intended as a last-resort power to address third-party denial of access to a vulnerable adult, for use after all other efforts and mechanisms have failed.
Getting the balance right between proactively intervening in the lives of individuals in this way and limiting the extent to which this interferes with their rights to freedom and family life is the challenge that we face. Certainly there is widespread acceptance that the existing powers to intervene under government legislation are not being fully utilised and are not addressing the issues, and that the training of specialist staff needs urgently to address this. Will the Minister explain to the House how the Government intend to deal with this?
As we said in Committee, on balance we support the case for inclusion in the Bill of the power of access by a social worker or the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment of the noble Baroness, Lady Greengross. We recognise that safety should be paramount in this instance. However, we recognise the strong concerns of Mind on this issue, and of the Royal College of General Practitioners, which would prefer to use other powers, such as working with the sector to co-produce best-practice guidelines. Will the Minister explain how the Government propose that denial of access by a third party to a potentially vulnerable adult will be addressed if the issue is not dealt with in the Bill?
I support the intention of Amendment 79A, tabled by the noble Lord, Lord Rix, to include in the Bill a definition of abuse that reflects other types of abuse besides the financial abuse currently included in the Bill. The noble Lord has the very real concern that this would encourage hard-pressed local authorities to narrow their focus to financial abuse alone. The Confidential Inquiry into Premature Deaths of People with Learning Disabilities published its findings in March 2013. It looked at the deaths of 233 adults and 14 children with a learning disability in the south-west and found that 20% of the people concerned had experienced safeguarding concerns. While some of these may have been due to financial abuse, it is more likely that they concerned other forms of abuse: in particular, neglect. The study showed that 37% of deaths would have been potentially avoidable if good-quality healthcare had been provided. Neglect is undoubtedly one of the reasons, and thus the definition in the Bill should be broadened. I ask the Minister to look again at this and come back with a more balanced clause reflecting other types of neglect and abuse. It is important, for example, that hospital safeguarding leads should be clear that the definition is broad, and should take appropriate action.
The noble Lord’s Amendment 81A would also be a welcome alteration to the Bill. It is a small but important matter, because sending SAB annual reports to the Secretary of State will ensure that safeguarding is given the high level of oversight needed, particularly over areas that might be failing.
We also support the amendments to Schedule 2 contained in Amendment 81 from the Government, and Amendments 80 and 82 from the noble Baroness, Lady Greengross. The SABs would benefit from professional social worker representation, as would safeguarding adult review teams from having a qualified social worker supervising the review.
The two final amendments of the noble Baroness, Lady Greengross—Amendments 78 and 79—raise the important issue of establishing a new duty of care on a local authority or its relevant partner to report to the authority if they suspect that there is a failure of care, and to set out the terms of conviction for any person guilty of neglecting or ill treating an adult at risk of abuse. We share some of the concerns of the LGA, for example, on these amendments: namely, that there would need to be clarification of exactly what the care quality, professional practice and safeguarding concerns would be under the new duty, and how the duty would relate to other partners involved in service delivery. We also share concerns that while the criminal conviction provision may present the way forward in cases of neglect, it might unintentionally create a lower order of offence and tariff for older and disabled victims of crime.
Finally, I underline the vital need, when so much care now is contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister tell the House how the Government intend to ensure that this will happen?
Earl Howe
My Lords, for the first time the Government will, through this Bill, place adult safeguarding in primary legislation. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. This sends a clear message that safeguarding is not the sole responsibility of one agency but requires the very best of partnership working and information sharing. Amendment 77, which would introduce a power of access to a person for a confidential interview, runs counter to that message. Having said that, I am well aware of the strength of feeling in relation to this matter, both inside your Lordships’ House and elsewhere. Whether there ought to be a power of access or entry is a sensitive question. That is precisely why the Government launched a three-month consultation in 2012 to gauge the opinions of professionals and the public. The consultation revealed no clear consensus. Of 212 respondents, 50% backed a new power, with 40% opposed. However, among individuals, 77% disapproved. The majority of respondents in favour of a new power of access were health and care professionals, yet it was very noticeable that their responses revealed the painstaking weighing of potential benefits against unforeseen consequences.
The mental health charity Mind said:
“A power of entry risks being seen as a quick solution, in place of greater focus on community engagement, co-operation and a preventative approach that can be truly empowering to the people involved”.
This was a theme found in many responses. I stumble over the consequences of what the noble Baroness seeks to do. Here I respectfully but fundamentally disagree with my noble friend Lady Barker who said that there was no real comparison with the situation in mental health. A power such as this might well ensure access but the central issue will remain—how will the professionals then work with the situation to achieve the best outcomes? Trust will have been compromised and, short of a power of removal, which we certainly would not want to see, the options for action seem pretty limited.
Our consultation revealed no compelling evidence for further legislation. Even those respondents in favour pointed to how rarely a new power might be applied and identified potential unforeseen consequences. Proposed new Subsection 4(c) of the amendment states that an access order should be granted only if doing so,
“will not result in the person being at greater risk of abuse or neglect”.
I have to ask how a court could ever reliably make such a judgment in these circumstances.
The other key point which I would like to believe may sway the House is the following. There exists no legislative vacuum preventing care or other professionals accessing those in urgent need of assistance. Under the Police and Criminal Evidence Act 1984, the police have the power to enter premises if harm has occurred or, indeed, is likely to occur. The Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 and, for those lacking capacity to make decisions, the Mental Capacity Act 2005, provide a wealth of powers for use at the front line, and the inherent jurisdiction of the courts to intervene provides a secure safety net. Therefore, it is not the lack of legislation; rather, as safeguarding lead directors at ADASS have put it, it is a question of a “lack of legal literacy” within the social care and other professions. What is needed is greater knowledge of existing legislative options. If they have that, professionals will be fully equipped to support people to be safe. The core role of an adult social worker is to support people. Further legislation for a new power of access risks undermining this approach, sending the message that legal intervention takes primacy over negotiations and consensus. I stress that legal intervention, on those rare occasions when it is needed, is already possible under the law. For those reasons, I cannot accept this amendment.
Lord Rix
I fully understand the argument that the Government do not want a great list of what constitutes abuse. However, the Minister said earlier that it would be possible to give local authorities a batting order, as it were, of what is in legislation. I realise that abuse is covered in legislation, but would it be possible at least to make sure that local authorities do not suddenly think that only financial abuse is to be considered when they look at this Bill? That is all I am asking for.
Earl Howe
I will gladly look into that point. I am sure that it is possible to do that but, as the noble Baroness, Lady Barker, said, many provisions on the statute book are designed to protect individuals from abuse in one form or another and make criminal offences of those actions. Nothing has changed as regards those criminal provisions. If they need to be underlined, however, and if there is scope for misunderstanding what the Government are doing here, then I take the noble Lord’s point, and will gladly reflect and come back to him on that.
Amendments 80 and 82 emphasise the need for involvement of social work-qualified staff in boards and reviews. In Schedule 2 we make it clear that chairs and members of boards must have the “required skills and experience”. It would be impracticable to put into primary legislation every possible type of expertise and professional knowledge that might be needed. We must allow boards the flexibility to appoint members as they see fit. We will, however, ensure that the importance of social work is recognised in guidance, which will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.
Government Amendment 81 responds to an amendment tabled in Committee by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins. On reflection, I see merit in placing a duty on safeguarding adults boards to publish an annual report. This amendment will increase the transparency and accountability of boards.
Finally, Amendment 81A, tabled by the noble Lord, Lord Rix, requires that safeguarding adults boards provide their annual reports to the Secretary of State. With a duty on boards to publish their annual report, we can be assured that they will be publicly available. We would expect the local Healthwatch and health and well-being boards to monitor the safeguarding adults board’s progress and report to the Secretary of State if there are particular matters of concern. To require the board formally to submit a report to the Secretary of State would, if nothing else, undermine the primacy of local accountability, which is at the heart of our approach to safeguarding. I hope that, on reflection, the noble Lord will agree with me.
I hope that I have convinced your Lordships that we have done all that we properly can to provide the right legislative framework for safeguarding and, in consequence, that noble Lords will feel able not to move their amendments.
Baroness Greengross
My Lords, I have to say that I am extremely disappointed that the noble Earl cannot in some way meet the requirements that I put forward in my amendments. Unfortunately, the number of older people who suffer abuse is growing all the time. The sort of personal plans for care that we now want to introduce for everyone just make such abuse a greater risk than it was before. We know that an awful lot of older people are shoved in a room, the door is closed, they get their meal and no one does anything else. Over a long period, those people’s conditions can get worse and worse. When and if they are eventually discovered, it is too late to do anything to help them.
The sort of care that we want to provide for people might be damaged by a refusal to look at this issue in greater detail. I am really disappointed. I understand the noble Earl’s views but disagree with them. I thank all noble Lords who supported what I have said and I assure my noble friend Lady Meacher that I was not intending to persecute carers. My intention related to people who, I am afraid, inflict real harm and hurt on some of the most vulnerable people in our society. I have worked on this issue for years; that is why we set up Action on Elder Abuse, the only specialist agency to look at this. Its view is strong and has not changed. We must have some sort of protection for these very vulnerable people. I hope that one day we can get this matter looked at again and I hope that the Minister will consider it in the future. In the mean time, I withdraw my amendment.
Earl Howe
Before the noble Baroness makes a final decision, I hope that I have been clear that I have reflected on her amendment. I cannot give her false hope that I will reflect further between now and Third Reading; so if she wishes to test the opinion of the House, she should do so now.
Baroness Greengross
I am hesitating only because of time and I know that a lot of people have gone home. I thank the noble Earl for his advice and, on that basis, I seek to test the opinion of the House.
“( ) what it has done during that year to implement the findings of reviews arranged by it under that section, and( ) where it decides during that year not to implement a finding of a review arranged by it under that section, the reasons for its decision.”
Mental and Physical Health: Parity of Esteem
Earl Howe Excerpts(12 years, 5 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I join other noble Lords in thanking the noble Lord, Lord Layard, for his tireless efforts in ensuring that evidence-based psychological therapy is available for everyone who needs it, and for convening this debate and providing me with an opportunity to assert once again this Government’s commitment to parity of esteem for mental and physical health.
The Royal College of Psychiatrists, in its recent report, Whole Person Care, describes parity as,
“valuing mental health equally with physical health”.
Equality is certainly the principle which underpins parity. As the noble Baroness, Lady O’Neill, said, equality is not just how we think about mental and physical healthcare but how they are valued. Parity of esteem is not just an abstract concept. It is the subject of an active and ongoing programme between the Department of Health and its system partners, dedicated to closing the gap with physical health services and to translating rhetoric into reality. We made our commitment explicit in the Health and Social Care Act 2012, as my noble friend Lord McColl reminded us, where we enshrined in law the equal importance of mental health alongside physical health. My noble friend Lord Alderdice was right to say that this explicit statement in statute does matter.
The noble Baroness, Lady Warwick, asked how we will improve the skills of GPs and the ability of CCGs to commission mental health services. We have made putting mental health on a par with physical health one of NHS England’s key priorities, as well as ensuring that everyone who needs it has timely access to the best available treatment. The mandate to NHS England is strong on mental health. It makes it clear that everyone who needs it should have that timely access to evidence-based services, and I can tell noble Lords that we are determined that mental health should play a similarly pivotal role in the forthcoming refresh of the mandate for 2014-15. Of course this needs investment, a point which again was made by the noble Baroness, Lady Warwick. We must remember the role of government here: as she knows, the Government set the outcomes that they expect the NHS to achieve in the NHS outcomes framework. There are a number of outcomes specifically for people with mental health problems and others about the quality of services, and patients’ experience of them, which apply equally to mental health services.
One crucial measure is that of excess mortality. It is up to commissioners to prioritise their resources to meet these outcomes for the population, based on assessments of health need, while taking into account the mandates requirement to make demonstrable progress in achieving parity of esteem for mental health services. We will hold the NHS to account for the quality of services and outcomes for mental health patients through the outcomes framework but it is worth noting that in 2011-12, the total invested in mental health services for working-age adults was £6.629 billion, or £193.30 per head of weighted working-age population.
The noble Lord, Lord Layard, my noble friend Lady Tyler and the noble Lord, Lord Hunt of Kings Heath, raised waiting times for mental health and the noble Baroness, Lady Meacher, was particularly concerned about waiting times for children. We are clear that mental health treatment should be available for those who need it and we have asked NHS England, through the current mandate to the NHS, to look into waiting times for mental health treatments. We will be expecting progress on this and my honourable friend Norman Lamb will be taking a close interest in the progress that is made.
The noble Baroness, Lady Murphy, reminded us that too many people with mental health problems die prematurely. We know that people living with significant or persistent mental illness have significantly reduced health and quality of life. They live on average 16 to 25 years less than the general population. That is why reducing premature death in people with serious mental illness is defined as an improvement area in the NHS outcomes framework and why the NHS operating framework specifically focuses on the physical healthcare of people affected by mental illness for the coming year.
The noble Lord, Lord Adebowale, reminded us of the disproportionate burden of mental illness experienced by people from BME communities. We know that black and African-Caribbean men are more likely to be detained under the Mental Health Act. The reasons for this are complex. I can present him with no simple answers; we recognise that more work needs to be done to establish the causes of higher rates of mental illness in some communities and how communities access early intervention services. We are in discussion with a number of BME leaders and influencers on this. I recognise the concerns about incidents in recent years where someone with a mental health condition has either died or been seriously injured after police contact. I welcome the report of the independent review led by the noble Lord, Lord Adebowale, and I echo his view that it is important to get to the truth of matters with clarity of focus and to remove any excuses for not taking the chance to improve practice.
I listened with care to the noble Baroness, Lady Murphy, who called for more psychiatrists. We are supporting local organisations in taking effective action to improve mental health. Our mental health strategy and implementation framework and our suicide prevention strategy focus on specific actions which specific local organisations can take to improve mental health across the life course in their areas. We are investing more than £400 million to give thousands of people, in all areas of the country, access to NICE-approved psychological therapies. The mandate to NHS England makes it clear, as I have said, that everyone who needs it should have timely access to evidence-based services. This will involve extending and ensuring more open access to the Improving Access to Psychological Therapies programmes, in particular for children and young people and for those out of work. My honourable friend the Minister of State for Care Services will be meeting system partners monthly to ensure that IAPT is being delivered.
My noble friends Lady Tyler and Lord Carlile and the noble Baroness, Lady Meacher, spoke about the importance of parity for children and adolescents. Children’s mental health is a priority for the Government. We are investing £54 million over four years in the Children and Young People’s Improving Access to Psychological Therapies programme, giving children and young people improved and timely access to the best mental health care. It will of course be up to NHS England, working with local commissioners, to decide how to spend this money in the most effective way.
Parity is also core business for the reformed health and care system. Key bodies within the system are addressing this. NHS England is working with national clinical directors and others to develop a programme of work with the dual objectives of delivering parity of esteem across the health and care system and supporting NHS England, as an employer, to promote parity of esteem. The priorities here include: support for people with mental health problems following early diagnosis, particularly through appropriate use of primary care and supporting the roll-out of health checks; ensuring people have access to the right treatment at the right time; and measuring and publicising outcome data for all major services by 2015. In other words, they are making every contact with patients count. There will be a statement very soon from NHS England on this. I obviously cannot pre-empt that here but it will set out the detail of this programme of work.
In that context, I pick up a point made by the noble Lord, Lord Stone, about NICE. NICE clinical guidelines are, I put it to him, in no way inferior products to technology appraisals; they often perform a valuable role in putting NICE’s technology appraisal recommendations into the context of the overall care pathway for patients.
My noble friend Lord Carlile rightly emphasised the importance of attending to the mental health of the elderly, but here again it is right for me to point out that the mental health strategy No Health Without Mental Health is an all-age strategy: that is the approach that it adopts and it means that its focus is equally on all members of the population from the young to the old—all are equally important.
My noble friend Lady Tyler spoke about those with complex needs, particularly those who indulge in alcohol and drug misuse. Improving co-ordination between mental health, drugs and alcohol services is vital for improving outcomes for the most vulnerable and excluded. Practitioners may also be involved in the design, planning and delivery of high quality services and are well placed to help GPs and local partners in commissioning high quality services.
My noble friend Lord Carlile spoke of the need for therapists in the community and I listened with care to what he said. Secondary mental health services have been reorganised to improve care in the community and in hospital and timely care and treatment is increasingly offered in the most suitable and least restrictive environment. Even though there are more people being treated in secondary mental health services, the proportion who needed to be admitted to in-patient psychiatric care fell by 2.9% in 2010-11. Acute beds have got to be there for those who need them, but providers have a responsibility to listen to patients and offer care in the community as well as in hospital.
Public Health England is embedding mental health across its work, including developing a national programme for public health mental health. This will support No Health Without Mental Health, prioritising the promotion of mental well-being, the prevention of mental health problems, the prevention of suicide and the promotion of well-being for people living with and recovering from mental illness. I refer to an issue raised by the noble Lord, Lord Hunt, about a focus on reducing smoking. Public Health England’s work plan in relation to mental health and well-being will include a specific part on smoking cessation.
The noble Baroness, Lady Murphy, and my noble friend Lord Alderdice spoke about suicides. Suicide rates in England are low compared to those in other European countries but we are not complacent about these figures, which is why we launched the new suicide prevention strategy in September of last year. The strategy can help sustain and reduce further the relatively low rates. As well as targeting high-risk groups, improving the mental health of the whole population can, of course, prevent suicide and the mental health strategy has that all-population approach, as I mentioned earlier.
Supporting parity is also a key objective of Health Education England. The Government’s mandate to Health Education England recognises the importance of professional culture to achieving parity. It tasks them with ensuring that the mental health workforce has the skills and values to improve services and to promote a culture of recovery and aspiration for their patients. It also notes the importance of mental health awareness in the wider health workforce. My noble friend Lady Tyler argued that maternity services need to look for early signs of mental ill health; I do, of course, agree with that. Mental health is a matter for all health professionals including midwives and health visitors. The Government’s mandate to Health Education England includes the commitment to ensure that all healthcare staff are equipped to treat mental and physical conditions with equal priority.
The noble Lord, Lord Layard, referred to the need for research. As a prerequisite for parity of esteem, ensuring that we have the right data, the right measures, is absolutely essential. One of the most important roles the centre can play is gathering and distributing information about mental health in order to inform evidence-based commissioning and service delivery and that is why NHS England and Public Health England are jointly working to establish a national mental health intelligence network which will be a key driver of continuous improvement in mental health intelligence and information. The noble Lord, Lord Hunt, asked whether the Government are discontinuing the adult psychiatric morbidity survey. The department and the Health & Social Care Information Centre are currently discussing plans for the next survey which should take place in 2014.
My noble friend Lord Carlile spoke about stigma. True parity also requires a shift in attitudes, not just in service providers but across society as a whole. That is why we are investing up to £16 million in the Time to Change programme, supplemented by a further £4 million from Comic Relief. This ground-breaking programme works to empower people to talk about mental health problems and to tackle the discrimination that they face. We aim to make Time to Change reach 29 million people and increase the confidence of 100,000 people with mental health problems to challenge stigma and discrimination.
I say to the noble Lord, Lord Bragg, that the mental health needs of people in the workplace have not been overlooked. Helping people with mental illness find and sustain work is a priority across the health and care system. A measure of employment for people with mental health problems features in all three outcomes frameworks. We are also challenging the stigma and discrimination experienced by people with mental health problems, as I mentioned, in the Time to Change programme and I regard that programme as very much aimed at employers and those whom they employ.
The noble Lord, Lord Layard, suggested that there should be a Cabinet Minister for mental health. While there is not a Cabinet Minister whose sole responsibility is mental health, this does form an important part of the portfolio of the Minister for Care and Support, my colleague Norman Lamb, and I know that this is also one of his personal priorities. We are actively encouraging every government department to pledge its support for the Time to Change campaign and ensure that mental health issues are taken into consideration in policy-making and planning across government.
I hope that the noble Lord, Lord Layard, will think I am right to celebrate some of the achievements to date, but the scale of the challenge ahead should not be underestimated. It will require significant changes to the way mental health services are delivered locally, based on a clear understanding of local needs and with the accent firmly on delivering better outcomes for users. There are exceptional services that others can learn from, but as we move forward a focal point must be more effective collaboration between public services, to enable early identification of mental health problems and to provide more co-ordinated care.
In that context, I pick up a point raised by the noble Lord, Lord Stone, about the police and their interactions with those with mental health issues. I referred to this briefly earlier. We know that we have to have an effective emergency mental health response system in place and we have asked all the relevant organisations, including the Home Office and the Association of Chief Police Officers, to draw up an agreed plan to tackle this problem. Street triage teams, currently being piloted around the country, partner mental health clinicians with police officers to attend emergency responses involving those with suspected mental health problems.
Of course, more needs to be done for acute and crisis care, a point made by the noble Lord, Lord Adebowale. Improving acute mental health services is a key priority for the Government, as identified in the first mandate to NHS England and underpinned by the outcomes framework. As I have said, we are clear that where someone needs an acute bed, it has to be there for them and there has been significant capital investment in the mental health in-patient environment in the past decade.
All of this matters, because achieving parity is a challenge which extends far beyond health and social care. It requires a genuinely cross-government approach, involving all aspects of public service delivery as well as many partners across the voluntary sector. Momentum is gathering and over the months to come I am confident that we will progress further and faster towards our end goal.
Care Bill [HL]
Earl Howe Excerpts(12 years, 5 months ago)
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Lord Low of Dalston (CB)
My Lords, perhaps I might be permitted a word before the end of the debate. I supported these amendments in Committee and am happy to do so again this evening, though I take the points that have been made about being too prescriptive about time limits in Amendment 25. I think the essential point is that the Bill introduces a number of important new duties and responsibilities designed to enshrine the right values at the heart of our care system—for example, the primacy of the well-being of the individual. However, these values are only as good as the services that are put in place to give effect to them. It is not enough simply to put empty principles into legislation. The Bill needs to contain concrete requirements that will help to guarantee quality in the services that are delivered.
The Government’s amendment requiring local authorities to have regard to the well-being principle when commissioning services is welcome, but I do not feel that it is clear or specific enough to underwrite even the very modest guarantee of quality sought by the amendments of the noble Baroness, Lady Meacher. It provides no assurance that the practice of commissioning very short personal care visits will stop. It also fails to commit the Government to producing regulations that set out in greater detail what should count as quality commissioning. From those points of view, I still feel that the amendments of the noble Baroness are in every way to be preferred.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I begin by thanking noble Lords for the excellent debates that we have had on these topics in Committee and again this evening. As the report by Leonard Cheshire Disability highlighted earlier this week, we need to move away from overly prescriptive commissioning, which focuses on price and time slots, to consider how local authorities can deliver better outcomes and quality care. I therefore fully agree with the principles behind the amendments that noble Lords have tabled with regard to poor local authority commissioning practices. Of course, noble Lords will be aware that Clause 5 requires local authorities to promote a market in high-quality services and specifically requires authorities to consider this duty when arranging services to meet people’s needs. This would make it very difficult for local authorities to commission services in 15-minute slots where doing so undermines the quality of those services.
Clause 5 also requires local authorities, in fulfilling this duty, to have regard to the need to ensure there are sufficient services available to meet people’s needs. With regard to Amendment 26, it is important to recognise that local authorities can achieve this only through working with providers in their area. We therefore do not believe that it would be appropriate to require local authorities to ensure sufficiency of services independently. This could lead to local authorities finding themselves forced into providing services where a market had not developed otherwise. Therefore, I cannot support the amendment tabled by the noble Baroness. She asked me to clarify what “having regard to something” means. Where that duty is present, it is not something that local authorities are able to ignore. In other words, if they have to have regard to a particular thing, that is not something they can disregard. Rather, the clause as drafted is intended to recognise, as I have said, that sufficiency of services can be achieved by local authorities only when working with providers and not by local authorities alone.
It was clear in Committee that, in the view of many in this House, the Bill as it stands does not go far enough in relation to poor local authority commissioning practices. We have reconsidered our position and developed our own amendment, Amendment 27, in the light of the concerns raised. This amendment would require local authorities, when commissioning services, to consider the effect of their commissioning decisions on the well-being of the people using those services. Our approach has some significant differences from and, I would argue, three clear advantages over, the approach suggested in Amendments 22 and 25, which seek to prohibit specific commissioning practices and in particular to require homecare visits to last at least 30 minutes. The first advantage is that our approach sends a clear message on the face of the Bill that commissioning services without properly considering the impact on individuals’ well-being is unacceptable. We believe, in the light of the arguments expressed in Committee, that it is important that we are able to send this message on the face of the Bill.
Secondly, our approach also explicitly prevents local authorities making decisions about how they commission services without giving due regard to the impact on individuals’ well-being. This goes a long way towards achieving the objective we all share of tackling poor commissioning practices while maintaining local authorities’ ability to decide the most appropriate approach to commissioning services for the people in their area, and acknowledging that the underlying issues here are cultural and cannot be tackled by legislation alone.
Thirdly, our approach has a singular focus on the outcome that we all want to achieve of promoting individuals’ well-being. Consequently, our approach is holistic of all poor commissioning practices and future-proofed against new practices that could emerge without risking the creation of perverse incentives through taking an overly prescriptive approach. Moreover, our approach is also holistic of commissioning for all types of care and support, not merely focused on one area: that is, not just on personal care.
In contrast, there are three reasons why I cannot support the approach set out in the amendments of the noble Baroness, Lady Meacher. First, it is important to recognise that local authority commissioners do not act in ways that undermine well-being because they want to, but rather because they do not recognise the effects of their decisions or feel unable to commission in other ways. As the president of the Association of Directors of Adult Social Services has argued, we should be careful of assuming that,
“simply by abolishing 15-minute slots a magic wand will have been waved, and improvements automatically achieved”.
It is important to recognise the limitations of legislation in tackling this issue. We have heard during this debate some appalling examples of people having to choose between being fed and being cleaned as a result of homecare visits being commissioned for too short a time. Local authorities that commission such services are palpably failing in their duty to meet people’s needs. That they still commission such services demonstrates the fact that the underlying problems here are cultural and cannot simply be legislated away. Banning specific poor practices will only lead to other poor practices emerging. Instead, I strongly believe that we need to work with authorities to enhance commissioners’ understanding of the effects of their commissioning decisions on individuals’ well-being and of how they can commission more effectively.
Lord Hunt of Kings Heath
My Lords, I agree with the noble Earl that the commissioning policies of some local authorities are called into question. However, are there some issues here regarding the resources they have available? Is the overall reduction in local authority expenditure not also responsible for some of these policies?
Earl Howe
My Lords, we certainly know that the reduction in resources has had some effect. However, it is interesting that the feedback from local authority chief executives and directors of adult social services suggests clearly that the detrimental effect on the provision of adult social care is not as dramatic as one might suppose from the drop in local authority budgets. This is partly because of the funding provided by my department to local authorities to make up some of the gap. I would not wish to say that there has been zero effect. We think, from the feedback, that the volume of services has diminished by about 5%. This is 5% too much, in most people’s eyes, but may not be as significant as some have feared.
My second point is that central prescription risks prohibiting practices that may, in some circumstances, be consistent with high-quality care. For example, 15-minute homecare visits could well be appropriate in some situations, for instance for helping people to take medication, which is not a process that takes very long at all. Further, using legislation to ban specific processes may result in perverse incentives arising, without addressing the actual problem. A number of noble Lords made that point.
Thirdly, legislating for a specific period of time for which homecare visits must last risks reinforcing one of the key problems here: inappropriate use of time and task commissioning. Instead, we need to move away from overly prescriptive commissioning practices which focus on—
Baroness Meacher
My Lords, I apologise for intervening, but I want to make clear that there is absolutely no prescription: there is flexibility. It is simply saying that you cannot do a personal care visit of less than 30 minutes.
Earl Howe
I do understand that and apologise if I implied anything different. I was seeking to make the point that once you specify a period of time in a Bill it starts to look prescriptive, even if that is not the intent or the effect.
As I was saying, we need to move away from overly prescriptive commissioning practices that focus on price and time-slots, to consider how local authorities can deliver better outcomes and quality care. None the less, there is more that we can and will do to tackle poor commissioning practices. There is a role for regulation. We are therefore proposing an amendment that will make it clear that the CQC may, with approval from both Secretaries of State of DH and DCLG, undertake a special review of local authority commissioning of adult social services in cases of systematic failure. Subsequent to any such review, CQC could issue an improvement notice in the event of a non-substantial failing and recommend special measures to the Secretary of State in the event of substantial failings.
We also intend to issue statutory guidance specifically on local authority commissioning. This will be a valuable opportunity to influence local practice. In particular, we will include in this guidance clear examples of high-quality and poor-quality commissioning practices to support local authorities to develop and improve their own approach.
As well as tabling Amendment 27, we have also, in response to points raised in Committee, tabled Amendment 24, which will require local authorities to consider through their commissioning decisions the importance of fostering a workforce able to deliver high-quality services when shaping local markets. This amendment is, of course, not just about local authority commissioning practices but more widely about how the local authority can work with the market in its area, including with providers from which it does not commission services, to foster a high-quality workforce. This reflects our strong belief that the characteristics of the workforce, including opportunities for learning and skills development, have a direct relationship with the quality of the care that individuals receive. Improving the capability of the workforce through continued skills development and appropriate working conditions is therefore a key component of market shaping.
I therefore fully agree with the intention behind Amendment 151, but I note that the CQC already has powers to take into account standards of employment as part of its inspection of providers. A separate duty on the CQC to undertake periodic assessments of employment standards would duplicate what the commission is already able to do and compel it to undertake assessments of a very specific nature. For that reason, I cannot support Amendment 151, tabled by the noble Lord, Lord Hunt. It is vital that we give the commission the time and freedom to develop its own performance-assessment methodology. In the fullness of time, this may mean that ratings consider employment standards, but this should be a matter for CQC to determine after considering the views of key stakeholders.
Lord Hunt of Kings Heath
I am grateful to the noble Earl for giving way and I imagine that we can debate this more fully when we come to his amendments around CQC independence. However, there is surely a distinction to be drawn between the way that the commission does its work and the overall strategic framework in which it does it. I should have thought that it would be appropriate for Parliament to lay down that it would be right for the CQC to focus on standards in the care sector. Does the noble Earl agree that you can draw a distinction between the framework that is set out in legislation and the way in which the CQC does its work—and I very much support the idea of its independence?
Lord Warner
Can I be clear about something arising from what the noble Earl said? I am struggling with whether the CQC can look at these employment practices only as it plods its way around the country, one authority at a time, or whether, if it starts to pick up something—either from looking at one or two authorities or from public reactions—it can commission a generic review or study of commissioning practices across the country. I am not clear what the noble Earl is saying about this—whether the commission has to work its way through authority after authority, or whether it can make a generic review of particular practices.
Earl Howe
My Lords, I was distinguishing between providers and commissioners. The CQC can do thematic reviews under, I believe, Section 48 of the Act, but we are talking there about providers. As regards commissioners, we are proposing in a later amendment to give the CQC powers to conduct special reviews where concerns have been raised about a particular local authority or NHS commissioner; there would not be periodic, regular reviews. However, the CQC will be looking at every provider over a period of time. The amendment from the noble Lord, Lord Hunt, specifically addresses the ability of the CQC to examine providers. I was saying earlier that it already has the necessary powers to do detailed work in whatever area it chooses.
I return to the issue of local authority commissioning practices. As I argued, the underlying causes of poor commissioning are cultural, and we need to work with local authorities to tackle these issues. We are therefore undertaking a number of non-legislative activities, including the development in co-operation with ADASS of a set of commissioning standards. These standards will enable individual authorities to gauge their own effectiveness, and will support the LGA and ADASS to drive sector-led improvement.
In addition, we are working with the Towards Excellence in Adult Social Care initiative to support local authorities to seek continuous improvement in their adult social care functions, and in the outcomes achieved. This programme brings together local, regional and national stakeholders, and is focused on providing peer support and interventions by local government to share learning, find new ways of engaging local people, and use knowledge of what works, data and innovation to drive improvement in the quality of services.
I hope that these arguments, and the amendments we have tabled, are sufficient to demonstrate to the House that we understand and agree with the strength of feeling around these issues. For the reasons I have set out, I cannot support the amendments tabled by noble Lords, but I hope that the arguments I have made today will be sufficient for those noble Lords to feel able not to press their amendments. I do not yet know what the noble Baroness, Lady Meacher, intends to do with her amendment, but it may be helpful for noble Lords to know that the Government do not consider that a decision on Amendment 25 is consequential on Amendment 22.
Baroness Meacher
My Lords, I thank the noble Earl for his thoughtful response and also all noble Lords who contributed to this debate. It has been very considered, and the points raised have been very important. These visits can require three hours of work, or one and a half hours—all sorts of different lengths of time. Whatever is decided ultimately must enable those visits needing that length of time to be undertaken in that way. I welcome the amendment of the noble Lord, Lord Hunt, and I am sure that the CQC has an enormously important role to play in this. I wonder whether the Minister would think it appropriate to require a thematic review of this issue to be undertaken by the CQC, bearing in mind the level of concern across the country about what is happening at the moment, which clearly is not acceptable in terms of these very short visits for personal care.
The noble Earl mentioned the 5% reduction in the budget for adult social care. It sounds small, but we all know that the adult social care budget has always been incredibly low—way below what it should be. Priority has never been given to this area of work, so a 5% reduction is pretty serious. There is a lot to be done. The noble Earl referred to guidance, regulations, and so on. I personally would welcome an opportunity to have a discussion with him about how, in the guidance and regulations, it might be possible to ensure that adequate priority is given to this area of work. This is really what we are talking about here.
My amendments are aimed at stimulating the debate. They are also an effort to draw out some commitments from the noble Earl, and to some degree I think we have achieved that objective. I do not know whether the Minister would be willing to have a conversation about what might be included in the guidance and regulations.
Baroness Meacher
With that assurance, I am happy to withdraw the amendment.
“( ) the importance of fostering a workforce whose members are able to ensure the delivery of high quality services (because, for example, they have relevant skills and appropriate working conditions).”
“( ) In arranging for the provision by persons other than it of services for meeting care and support needs, a local authority must have regard to the importance of promoting the well-being of adults in its area with needs for care and support and the well-being of carers in its area.”
“( ) The following are examples of persons with whom a local authority may consider it appropriate to co-operate for the purposes of subsection (2)—
(a) a person who provides services to meet adults’ needs for care and support, services to meet carers’ needs for support or services, facilities or resources of the kind referred to in section 2(1);(b) a person who provides primary medical services, primary dental services, primary ophthalmic services, pharmaceutical services or local pharmaceutical services under the National Health Service Act 2006;(c) a person in whom a hospital in England is vested which is not a health service hospital as defined by that Act;(d) a private registered provider of social housing.”
Baroness Finlay of Llandaff
My Lords, I shall be brief since the hour is getting late. This amendment makes a very important point, though it may be better in guidance. One of the problems is that the pinch point is always A&E, and getting patients out is really difficult. At the moment, there is tokenism in planning discharge. It needs to be much more embedded in trying to predict people’s needs and having things in place. Until discharge planning really is part of looking ahead at the aims for the patient we are still going to have backlogs, because we are still going to be waiting for somebody to come in and do something.
Earl Howe
My Lords, I should like to thank the noble Baroness, Lady Greengross, for tabling Amendments 29 and 125, on what is undoubtedly an extremely important issue, not just for the system but, most importantly, for the patients themselves. When someone is discharged from an acute care setting, care and support must be joined up to prevent unnecessary delays and readmissions that can be distressing to patients and their families and carers. The noble Lord, Lord Hunt, was absolutely right on increasing pressure on acute trusts, not least in A&E.
There is a mixture of reasons why this is occurring: the weight of patient demand; the acuity of patients who present at A&E, more of whom have to be admitted; workforce issues in some A&E departments; hospital discharge practices that may not be as efficient as they should be; an absence of follow-on care in certain locations or, indeed, adult social care services; and delays in installing home adaptations. One cannot generalise about this problem. One can say only that in many areas it is very real.
I will just correct the noble Lord on one issue: the £250 million that we have allocated to ease the pressures on A&E. Those moneys went to 53 NHS trusts before the end of September. They went to trusts that were most at risk of breaching the A&E standards. They were not chosen by Ministers or the Government. The process was led by NHS England and Monitor, so it was done on a structured and objective basis.
Lord Hunt of Kings Heath
The point is that the chief executive of each of those trusts had to sign, if you like, for the money, but they did not get all the money. Most of the money went to clinical commissioning groups. Some of them are still meeting to discuss how to spend it, which is the worry.
Earl Howe
At least we have given them more notice this year than they have had in previous years. Quite often, winter pressure money has been released into the system only around Christmas. We have consciously tried to do it several months earlier. While I acknowledge the truth of what the noble Lord said in certain areas of the country, I hope and believe that by the time the pressure becomes significant, those crucial decisions will have been made.
Baroness Masham of Ilton
As the Minister has brought this matter up, I shall ask about the hospitals that got the money. York and Leeds got extra money, but Hull did not. Hull is one of the most deprived and difficult areas in the country. Will he look into it and let me know?
Earl Howe
I will happily look into it, because I do not have with me the complete list of trusts and the factors that lay behind the decision that was taken by NHS England. I will certainly write to the noble Baroness about that.
Delivering joined-up, person-centred and co-ordinated care in a way that stops patients falling through the gaps in the system is of key importance to improving their outcomes and experiences. I believe it is incontrovertible that local authorities and relevant partners must co-operate in order to ensure safe and timely transfers of care. Indeed, the Bill already requires that. Clause 6 requires that local authorities and relevant partners co-operate with one another where this is relevant to care and support. Subsection (5) of the clause sets out some key examples of when this duty should be used. There can be no question that this duty would apply also to ensuring safe and timely discharges, and we do not see the need to add further detail to such broadly worded provisions. New guidance on discharge planning and on how local authorities should perform co-operation duties under Clauses 6 and 7 will be issued following the passage of the Bill.
Further, Schedule 3 to the Bill sets out a process around ensuring the safe and timely discharge of acute hospital patients. This not only requires the local authority, following notification from the responsible NHS body, to assess a patient who it appears may have a need for care and support before they are discharged but requires the authority to have the necessary care and support package in place before discharge takes place. The duties to co-operate apply to that process as well. In fact, to come back to the point that the noble Lord, Lord Warner, raised about guidance, the current discharge guidance, Ready to Go, makes it clear that discharge planning should start before or on a patient’s admission to hospital. We know that that does not always happen, but it is best practice, and has been best practice for some considerable time.
Amendment 125 would allow the Government to specify what the authority and its partners must have regard to when performing that assessment. Surely this is right. I reassure the noble Baroness that, as the assessment required to be carried out by this schedule is the same as the one in Clause 9, we already have this power in Clause 12(1)(b) of the Bill, which allows for regulations to,
“specify other matters to which the local authority must have regard in carrying out the assessment”,
and in Clause 12(6) which allows for an assessment to be carried out jointly.
I hope that I have reassured the noble Baroness that the Bill already requires local authorities and “relevant partners” to co-operate in the safe and timely discharge of patients and contains sufficient provisions to make such regulations and to issue guidance on this matter. With those reassurances, I hope the noble Baroness will be able to withdraw her amendment.
“( ) the Minister of the Crown exercising functions in relation to social security, employment and training, so far as those functions are exercisable in relation to England;”