NHS: Keogh Review
Earl Howe Excerpts(13 years, 3 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, with the leave of the House I shall now repeat a Statement made in another place earlier today by my right honourable friend the Secretary of State for Health on the Sir Bruce Keogh review. The Statement is as follows.
“Mr Speaker, I would like to make a Statement about Professor Sir Bruce Keogh’s review of hospitals with high mortality rates, which is being published today.
Let me start by saying that in the health service’s 65th year, this Government are deeply proud of our NHS. We salute the doctors, nurses and other professionals who have never worked harder to look after each and every one of us at our most vulnerable. We recognise that the problems identified today are not typical of the whole NHS, nor of the care given by many wonderful NHS staff; but those staff are the ones who are most betrayed when we ignore or pass over poor care. The last Government left the NHS with a system that covered up weak hospital leadership and failed to prioritise compassionate care. The system’s reputation mattered more than individual patients; targets mattered more than people.
We owe it to the 3 million people who use the NHS every week to tackle and confront abuse, incompetence and weak leadership head-on. Following the Francis report into the tragedy at Mid Staffs, the Prime Minister asked Professor Sir Bruce Keogh, the NHS medical director, to conduct a series of ‘deep-dive’ reviews into other hospitals with worrying mortality rates. No statistics are perfect, but mortality rates suggest that since 2005 thousands more people may have died than would normally be expected at the 14 trusts reviewed by Sir Bruce.
Worryingly, in half of those trusts, the CQC—the regulator specifically responsible for patient safety and care—failed to spot any real cause for concern, rating them as ‘compliant’ with basic standards. Each of the trusts has seen substantial changes to its management since 2010, including a new chief executive or chair at nine of the 14. However, while some have improved, failure or mediocrity is so deeply entrenched at others that they have continued to decline, making the additional measures I announce today necessary.
This time, the process was thorough, expert-led and consisted of planned, unannounced and out-of-hours visits, placing particular weight on the views of staff and patients. Where failures were found that presented an immediate risk to patients, they were confronted straight away rather than waiting until the report was finished. We will be publishing all those reports today, alongside unedited video footage of the review panel’s conclusions, all of which I am placing in the Library. I shall also today set out the actions the Government are taking to deal with the issues raised. I would also like to record my sincere thanks to Sir Bruce and his team for doing an extremely difficult job very thoroughly and rapidly.
Sir Bruce judged that none of the 14 hospitals is providing consistently high-quality care to patients, with some very concerning examples of poor practice. He identified patterns across many of them, including professional and geographic isolation; failure to act on data or information that showed cause for concern; the absence of a culture of openness; a lack of willingness to learn from mistakes; a lack of ambition; and ineffectual governance and assurance processes. In some cases, trust boards were shockingly unaware of problems discovered by the review teams. So today I can announce that 11 of the 14 hospitals will be placed into special measures for fundamental breaches of care. In addition, the NHS Trust Development Authority and Monitor have today placed all 14 trusts on notice to fulfil all the recommendations made by the review. All will be inspected again within the next 12 months by the new Chief Inspector of Hospitals, Professor Sir Mike Richards, who starts work today.
The hospitals in special measures are as follows: Tameside Hospital NHS Foundation Trust, where patients spoke of being left on unmonitored trolleys for excessive periods and where the panel found a general culture of ‘accepting sub-optimal care’; North Cumbria University Hospitals NHS Trust, where the panel found evidence of poor maintenance in two operating theatres, which were immediately closed; Burton Hospitals NHS Foundation Trust, where the panel found evidence of staff working for 12 days in a row without a break; North Lincolnshire and Goole NHS Foundation Trust, where the panel identified serious concerns in relation to out-of-hours stroke services at Diana, Princess of Wales hospital. The panel also witnessed a patient who was inappropriately exposed where there were both male and female patients present.
The list continues: United Lincolnshire Hospitals NHS Trust, where there were a staggering 12 ‘never events’ in just three years, and the panel had serious concerns about the way ‘Do not attempt resuscitation’ forms were being completed; Sherwood Forest Hospitals NHS Foundation Trust, where patients told of being unaware of who was caring for them, of buzzers going unanswered and poor attention being paid to oral hygiene; East Lancashire NHS Trust, where the panel highlighted issues of poor governance, inadequate staffing levels and high mortality rates at weekends. Patients and their families complained of a lack of compassion and being talked down to by medical staff whenever they expressed concerns.
The list continues: Basildon and Thurrock University Hospitals NHS Foundation Trust, where there were seven ‘never events’ in three years and concerns over infection control and overnight staffing levels; George Eliot Hospital NHS Trust, where the panel identified low levels of clinical cover, especially out of hours, a growing incidence of bed sores and too many unnecessary shifting of patients between wards; Medway NHS Foundation Trust, where a public consultation heard stories of poor communication with patients, poor management of deteriorating patients, inappropriate referrals and medical interventions, delayed discharges and long A&E waiting times; and Buckinghamshire Healthcare NHS Trust, where the panel found significant shortcomings in the quality of nursing care relating to patient medication, nutrition and observations, and heard complaints from families about the way patients with dementia were treated.
For these 11 trusts, special measures will mean that each hospital will be required to implement the recommendations of the Keogh review, with external teams sent in to help them do this. Their progress will be tracked and made public. The TDA or Monitor will assess the quality of leadership at each hospital, requiring the removal of any senior managers unable to lead the improvements required. Each hospital will be partnered with high-performing NHS organisations to provide mentorship and guidance in improving the quality and safety of care.
Three of the 14 hospitals are not going into special measures. They are Colchester Hospital University NHS Foundation Trust, the Dudley Group NHS Foundation Trust and Blackpool Teaching Hospitals NHS Foundation Trust. While there were still concerns about the quality of care provided, Monitor has confidence that the leadership teams in place can deliver the recommendations of the Keogh review and will hold them to account for doing so.
This is a proportionate response in line with the findings of the review. Inevitably, there will be widespread public concern not just about these hospitals but about any NHS hospital, and some have chosen to criticise me for pointing out where there are failures in care, but the best way to restore trust in our NHS is transparency and honesty about problems, followed by decisiveness in sorting them out. The public need to know that we will stop at nothing to give patients the high-quality care they deserve for themselves and their loved ones. Today’s review and the rigorous actions that we are taking demonstrate the progress that this Government are making in response to the Francis report. I shall update the House in the autumn on all of the wide-ranging measures that we are implementing, when the House will be given a chance to debate this in government time.
The NHS exists to provide patients with safe, compassionate and effective care. In the vast majority of places it does just this—and we should remember that there continues to be much good care, even in the hospitals reviewed today. Just as we cannot tolerate mediocre or weak leadership, we must not tolerate any attempts to cover up such failings. It is never acceptable for government Ministers to put pressure on the NHS to suppress bad news, because in doing so, they make it less likely that poor care will be tackled.
We have today begun a journey to change this culture. These 14 failing hospital trusts are not the end of the story. Where there are other examples of unacceptable care, we will find them and we will root them out. Under the new rigorous inspection regime led by the Chief Inspector of Hospitals, if a hospital is not performing as it should, the public will be told. If a hospital is failing, it will be put into special measures with a limited time period to sort out its problems. There will be accountability, too: failure in the NHS should never be a consequence-free zone, so we will stop unjustified pay-offs and ensure it will no longer be possible for failed managers to get new positions elsewhere in the system.
Hand in hand with greater accountability will be greater support. Drawing inspiration from education, where super-heads have helped to turn around failing schools, I have asked the NHS Leadership Academy to develop a programme that will identify, support and train outstanding leaders. We have many extraordinary managers such as David Dalton in Salford Royal and Dame Julie Moore of University Hospital Birmingham, but we need many more to provide the leadership required in our weaker hospitals.
At all times the Government will stand up for hard-working NHS staff and patients, who know poor care and weak leadership have no place in our NHS. It was set up 65 years ago with a pledge to provide us all with the best available care, and I am determined that the NHS will stand by that pledge. We owe its patients nothing less. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Earl Howe
My Lords, I am disappointed that the noble Lord should have chosen to turn this occasion into a rather poorly directed political tirade. I can assure him that I am perfectly capable of trading party political debating points with him; I have a great deal of material in my brief which I will not hesitate to use if he pushes me. However, I choose not to because I think this is an occasion for reflecting in a mature and considered way, as befits this House, on a very important report. Therefore I begin with a welcome—I am glad that the noble Lord and his party accept the veracity of the report. It is a fine piece of work. It was done very thoroughly and very rapidly and we are grateful to Sir Bruce.
The noble Lord said a lot about mortality data with which I agree. At a national level, mortality has improved; however, the 14 trusts selected for these deep-dives had long-standing performance issues on mortality rates, some going back to 2005 or even earlier. Therefore, it is only partially true to say that this is a problem that happened on our watch. We want to make sure that we are lifting the lid on any failures of care that need to be tackled and we are not afraid of doing that. Again, the noble Lord was right to say that while higher mortality rates do not always point to deaths that could have been avoided, they indicate that there could be issues with the quality of care. That is why we decided to ask Sir Bruce Keogh to carry out these inspections and to give us his findings.
The rationale for the review was that the 14 trusts were outliers for at least two consecutive years on one or other measure of mortality. I agree with the noble Lord that it is pointless to bandy figures around, and I am not going to do that. He rightly quoted Bruce Keogh saying that it is clinically meaningless and academically reckless to use mortality formulae to quantify actual numbers of avoidable deaths. That reflects Robert Francis’s view, but we now have clear evidence that those mortality data were indicative of more deep-seated problems. That has been the value of this exercise, I suggest. I cannot comment on the letter written by the noble Baroness, Lady Young; I have not seen it. However I am sure the House will agree that the report by Sir Bruce has challenged us all to look again at why poor care persists in some hospitals.
As regards staffing levels, the number of front-line staff has gone up since May 2010. There are 6,000 more doctors and 1,000 more midwives, for example. On staffing, one can be too simplistic. It is not simply about the crude numbers. It is not simply about nurses. The number of staff on the wards will vary according to skill mix, clinical practice and local factors. It is right that nurse leaders have the freedom to agree their own staff profiles. That gives flexibility to respond dynamically to changes in patient demand and workforce supply. I do not in the least dismiss the potential concern that staff may in some instances have been stretched, but I do not think we can make generalisations of the kind that the noble Lord was suggesting that we did.
On A&E, as the noble Lord knows, urgent care boards have been working flat out since May with local A&E departments to develop individual plans in order to improve A&E performance in all areas where targets have not been met, and that includes the 14 trusts considered by the Keogh review. However, this is not only about A&E; it is about how the NHS works as a whole, how it works with other areas, such as social care, and how it deals with an ageing population and more people with long-term conditions. Dealing with these pressures means looking at the underlying causes. That is why, together with NHS England, we are putting together a strategy that focuses on the people who are the heaviest users of the NHS: vulnerable older people and those with multiple long-term conditions.
There is no doubt that people are right to focus on the funding of social care. That is exactly why we in the Department of Health have allocated significant additional funding to local authorities, including a transfer from the NHS that is worth £1.1 billion a year by 2014-15. We have also announced as part of the spending round that has just concluded a local integration fund of £3.8 billion across health and social care in 2015-16. Pooling budgets in that way will help drive down the costs to the acute sector by tackling the acute and expensive pressure points in the system, such as A&E, by improving prevention, reducing unplanned hospital admissions and allowing people to stay in their own homes and live independently.
I agree with the noble Lord that many of the messages in Sir Bruce’s report—in fact, all of them—are urgent. As he knows, in the Care Bill, we are looking at the whole question of openness and candour in a number of respects. Although the duty of candour is not one that we plan to build into the Care Bill, it is very relevant to it. It will be introduced by secondary legislation. The key challenge is a change in behaviour rather than the law. That is why the legislative changes arising out of Francis are targeted and carefully designed to support a culture of openness.
I hope that I have answered most of the noble Lord’s questions; those that I have not answered, I will write to him about.
Lord Warner
My Lords, I want to ask the Minister about the Government’s future intent. Are he and his colleagues now satisfied that Sir Bruce has found an indicator or indicators which require constant attention, year on year? Can we expect to see, either by Sir Bruce or by the new Chief Inspector of Hospitals, an annual look at the outliers on mortality rates and a regular report to Parliament about the findings of the exercise? Is this going to be institutionalised as part of the performance management of the NHS?
Earl Howe
We will see the Chief Inspector of Hospitals picking up the baton, as it were, from Sir Bruce Keogh, whose way of working in this exercise has been very instructive. His judgments were based on talking, not just to a few people in the trust, but to patients, a wide range of staff and, in some instances, people outside the trust. I am sure that Sir Mike Richards, the new chief inspector, will want to learn from that. It will be up to the CQC to decide whether this will be institutionalised. Its methodology is evolving. The hospital aggregate rating system will have a role to play in systematising the evaluation of performance and in any future instances of very poor care we will no doubt see a level of transparency from the CQC which we have, perhaps, not had before. However, I would not want to commit the CQC to reporting annually to Parliament in a particular way. It will report annually to Parliament but it is largely up to it how it does it.
Baroness Jolly
My Lords, we welcome the drive to improve quality in these trusts and across the NHS, based on the eight ambitions for improvement held in the report. In the Statement read by the Minister, the Secretary of State said:
“In some cases, trust boards were shockingly unaware of problems discovered by the review teams”.
Surely the boards were in receipt of data on quality. If not, why not? If so, why was action not taken? What attention is being paid to issues of trust board governance and its support and development?
Earl Howe
We will now see follow-up action by the CQC, not least in the area of trust governance where the quality of that governance has been called into question by Sir Bruce. That will be done rapidly. It is by no means the case that governance is defective in every trust, but question marks have been placed on some and it is important that assessments are made, not just by the CQC, but by the Trust Development Authority and Monitor as the two bodies responsible for overseeing the provider section. It may be that the CQC will be asked to carry out further work, but we are looking, for the time being, to the TDA and Monitor to do that.
Baroness Emerton
My Lords, how did Bruce Keogh’s team determine whether staffing levels were short, inadequate or low, as was mentioned in the Statement, when we have not actually got a base against which to measure staffing levels? We raised this all the way through the passage of the Health and Social Care Bill and we have been raising it during the passage of the Care Bill. What was the evidence for low staffing?
Earl Howe
I know that this is a concern of the noble Baroness and I understand that. She will know that work is going on to try to frame better rules of thumb and guidance on staffing numbers. When Sir Bruce looked at this area he had very closely in mind the precept that Robert Francis gave in his report when he said:
“To lay down in a regulation, ‘Thou shalt have N number of nurses per patient’ is not the answer. The answer is, ‘How many patients do I need today in this ward to treat these patients?’ You need to start, frankly, from the patient, as you do with everything”.
That was the basis of Sir Bruce’s assessment on that issue.
Baroness Armstrong of Hill Top
My Lords, will the Minister acknowledge that Sir Bruce Keogh made it absolutely clear that over the past decade there has been significant improvement in mortality rates across the National Health Service? He said that, because of the increasing complexity of the patient, that improvement is probably greater than the 30% that is measurable. Will he therefore congratulate those hospitals—the vast majority—that have led the improvement? At the same time, of course, we must tackle poor performance and make it clear that that is unacceptable. However, in doing so we have also to acknowledge the significant improvement that has happened over the past decade.
Earl Howe
I applaud that and we should all celebrate the success of outstanding hospitals—there are many in the health service—which have led the way in improving mortality rates over the past few years. The noble Baroness is quite right. Indeed, Sir Bruce suggests that those hospitals should now be asked to partner with some of the hospitals that are struggling in certain respects to show the way, whether that is on governance, on systems in A&E, on quality of surgical outcomes or whatever it happens to be. That is an appropriate idea, and we should undoubtedly ensure that it is taken forward. However, as the Statement itself reflects, the 14 hospitals that are under the microscope at the moment are not representative of the quality of care that the NHS delivers day in and day out, which is of a very high standard by any benchmark.
Lord Cormack
My Lords, I accept what my noble friend has just said, but he will understand that there will be concern throughout the country at this very disturbing indictment—because that is what the report is. Will he talk to the new chief inspector to consider whether we can have a form of assessment of hospitals—the noble Lord, Lord Warner, effectively referred to this—so that patients throughout the country know whether their local hospital is graded as being excellent or not? Will he also ensure that there is a debate on the Floor of this House, as there will be on the Floor of the other House?
Earl Howe
I can certainly use my best endeavours through the usual channels with regard to my noble friend’s latter question. On his first point, he is absolutely right. That is what led us to believe that aggregate hospital ratings, provided that they are produced in a sophisticated and careful way, will be very informative to the general public and to patients in a local area, and to professional staff within the health service. The Healthcare Commission, of old, used to produce aggregate ratings. They fell into disuse and, I have to say, into some disrepute, because they were so broad brush as to be meaningless. When we asked the Nuffield Trust to look at this area, it told us very clearly that, as long as we adopted a nuanced and sophisticated approach so that what was assessed was not just a hospital trust or an individual hospital within that trust but rather the performance of individual medical teams and units within a hospital, we would provide useful information to the public. However, that information needs to be accessible.
Baroness Masham of Ilton
If the chief inspector, when visiting failing hospitals, finds a lack of senior sisters on the wards and a shortage of doctors working in emergency medicine, what is he going to do about it? Does the Minister realise that there is a serious shortage of emergency medicine doctors?
Earl Howe
The noble Baroness is right. There is a serious shortage in certain specialties, and emergency medicine is one of them. Work is currently going on in Health Education England to ensure that we boost the numbers in that specialty. As for what the CQC can do, there are a range of actions available to the chief inspector. In most such instances he would draw the attention of the chief executive and the hospital board to whatever problem he had found, and it would then be incumbent on the trust to put its own house in order within a reasonable space of time. That would be the norm. We should not forget that commissioners of care, too, will be encouraged to join in that conversation, to ensure that providers are properly held to account through the NHS contract. There are a range of actions that could be appropriate, and only in the most extreme cases will warning letters have to be issued or more drastic action taken.
Baroness Smith of Basildon
Despite the rather alarmist —and, as it turns out, inaccurate—briefing over the weekend, this is, as we have heard, not a historical report; it is about what is happening here and now in 14 hospitals in the NHS. I was sorry that the Minister skirted round the problems of staffing in the NHS. My local hospital, in Basildon and Thurrock University Hospitals NHS Foundation Trust, is named in the report as one of the 14 hospitals. Yet since the general election it has lost 345 nursing staff. The report found,
“inadequate numbers of nursing staff … compounded by an over-reliance on unregistered support staff and temporary staff”.
The noble Earl himself referred to this when repeating Jeremy Hunt’s Statement. May I tell him that that hospital is now recruiting 200 staff this week? That is welcome, but it can be no coincidence that, after the report, it is recruiting the staff that it needs. Does he now really believe that the £3 billion spent on reorganising the NHS was the best value for money, when staffing levels are so low?
Earl Howe
It was not £3 billion that was spent on reorganising the health service. As the noble Baroness knows, it was probably less than half that figure. The important point is that the saving in this Parliament will be at least £5.5 billion, with a £1.5 billion saving every year thereafter. I therefore suggest to her that it is meaningless to bandy that figure around. I am very glad that Basildon hospital is taking the action that it is. It has recently undergone significant leadership changes. A transformation programme is under way, and that is part of it.
Lord Elystan-Morgan
The Statement repeated by the noble Earl makes the point that the story does not end with the 14 failed trusts. Does he agree that there is clear evidence of the acceptance of standards that are not worthy of our community or of the National Health Service, and that, very probably, such a situation is not unassociated with the lack of a hierarchy of discipline in nursing? Will the Government therefore give an undertaking that, by way of an agonising reappraisal of the situation, they will concentrate on establishing whether the institution of the hospital matron could be considered again, as a post that was effective and seemed to operate well? Many people the length and breadth of this land believe that to some extent we should revert to that system, rather than worshipping at the altars of accountancy and management.
Earl Howe
The noble Lord makes an extremely important point. Those hospitals that I have visited where the standard of care is manifestly excellent have all had nurse leaders at board level whose responsibility it is to make the quality of nursing care absolutely centre stage at every board meeting and to transmit to every nurse in that hospital what good quality care looks like. Whether we call that person a matron or not is perhaps a matter that we can discuss at leisure—but the point that the noble Lord makes is extremely valid.
Lord Black of Brentwood
My Lords, I agree with my noble friend very strongly that failure should never be a consequence-free zone. But would he agree that, for far too long, the bitter truth is that it was a consequence-free zone? My late mother was treated in the Basildon and Thurrock University Hospitals NHS Foundation Trust in 2008 and 2009, on two occasions. On the first occasion, she sustained an injury after being left on the toilet for 40 minutes, from which she never recovered. On the second occasion, having been admitted suffering from a heart attack, she was shifted between wards three times in 24 hours. I wrote to the chief executive and he wrote back to me with 11 separate apologies. I wrote back to him saying that apologies were no good unless something happened.
I agree with the noble Baroness, Lady Jolly, that boards must have responsibility. Would my noble friend agree that they must have responsibility for scrutinising data and, above all, looking at complaints, otherwise nothing will ever change?
Earl Howe
My Lords, the historical culture of that particular trust has been focused on financial targets, and the tone from the top now needs to focus on improving quality and long-term sustainability. There is a string of issues identified in Sir Bruce’s review, all of them urgent. The good news is that I know that the current management is addressing those issues. I am naturally sorry to hear of the personal experiences of my noble friend’s family.
Baroness Jay of Paddington
My Lords, I wonder whether I can assist the noble Earl, and indeed the House, by quoting directly from the letter from the noble Baroness, Lady Young of Old Scone. The noble Earl referred to it earlier and said that he was not aware of the details. This is a letter to the Prime Minister from the noble Baroness, dated yesterday, in which she says that he has been “misled” in the response that he gave in Prime Minister’s Questions. She says that the CQC, of which she is a former chair,
“was not pressurised by the previous Government to tone down its regulatory judgments or to hide quality failures”.
She goes on to say:
“So I am afraid neither my evidence to the Francis Inquiry nor my current recollection … can be interpreted to support the view that, in the words of your answer at PMQs ‘there was a culture under the previous Government of not revealing problems in the NHS’”.
She finishes the letter by asking:
“How can this misapprehension best be corrected for the record?”.
Perhaps the noble Earl can suggest that.
Earl Howe
I am rather sorry that the noble Baroness should have raised that, as I was rather keen to protect the noble Baroness, Lady Young, from any embarrassment, because I think that the whole House respects her. All I can say is that the substance of the letter to which the noble Baroness refers is diametrically opposite in content to the evidence that the noble Baroness, Lady Young, gave to the Mid Staffs public inquiry.
Lord Cotter
In the report there are, quite rightly, robust words about poor management. However, I refer the Minister to a point that I and others have raised in the past. There is a great concern in the health service about untrained, or poorly trained, healthcare assistants. Nurses have said to me that they are held responsible for the work done, often by untrained or inadequately trained people. I have raised this before. Can I ask the Minister to look at it again as a very serious issue?
Lord Sutherland of Houndwood
My Lords, one thing that is very positive in the Minister’s Statement, and in the way in which he responds to questions, is that he clearly understands that this is a multifaceted problem and that there is no single way in which to deal with the whole set of issues. That being said, there is, of course, a “but”. The “but” is that one element of the government response—already referred to at least twice—is the role of the future Chief Inspector of Hospitals. The view taken, and reiterated again today, is that the inspector should be within the umbrella of the CQC. For some of us, at the moment, the CQC is part of the problem. It has not solved all our problems. I share the hopes of the Government that the CQC will remove itself from its current difficulties. However, in the mean time at least—or, in my view, in the longer term—a chief inspector should have both the responsibility and the authority of reporting directly to Parliament, as does the Chief Inspector of Schools. That would be a helpful element of transparency.
Earl Howe
I would have agreed with the noble Lord had he made those comments 18 months or two years ago. However, the CQC has turned a very important corner. It has new leadership and has articulated new ways of working. The leadership of the CQC commands high levels of confidence in every quarter of Parliament. I am encouraged by that. However, the point that the noble Lord makes about transparency is vital. The CQC is very clear that it is not its function to gloss over poor care when it is found, nor indeed to fail to celebrate good care when that is found.
Care Bill [HL]
Earl Howe Excerpts(13 years, 3 months ago)
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Baroness Wheeler
My Lords, I do not have a great deal further to add on this issue, given that we fully supported this approach in the earlier debate on our amendment. The noble Lord, Lord Low, and my noble friend Lord Touhig have made their case powerfully for the need for specialist expertise in assessing people with complex care and support needs—for example, deafblind people, people with autism and those with profound and multiple learning difficulties.
As the noble Lord, Lord Low, pointed out, the draft Bill originally provided for the regulations to specify the circumstances in which a person with expertise in a specialised matter must carry out the assessment on behalf of the authority. However, this was altered in the published Bill, with the only requirement being consultation with a specialist. Noble Lords are right to consider this to be a retrograde step and I look forward to the explanation from the Minister on this and an undertaking to reinstate in Clauses 12 and 27 the current approach, as the amendments propose.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I thank the noble Lords, Lord Low and Lord Touhig, for bringing forward these amendments. I say straight away that I fully support the intention of Amendment 88M, which is to ensure that local authorities engage a suitable expert when carrying out complex assessments. The assessment will remain an integral part of the process of determining a person’s care and support needs and whether these meet the national eligibility criteria. To ensure that this is done correctly, it is essential that the person carrying out the assessment has the right knowledge, skills and competence. We heard from users of care and support during the engagement on the draft Bill about the importance of the assessor having knowledge of the condition that the person may have, whether they are, for example, a frail older person, a person with mental health problems or a person with autism.
Care managers and social workers are trained to carry out assessments. Their skills and experience will allow them to assess people with various conditions such as physical disability. There are, however, certain complex conditions where these skills are not sufficient to allow assessments to be carried out effectively. I am particularly thinking about a person who is deafblind—the example, given by the noble Lord, Lord Low. In those circumstances, most care managers would find it very difficult, if not impossible, to communicate with the person. It takes someone with expertise to carry out an assessment properly and identify the person’s needs and the outcomes they wish to achieve.
I agree with the noble Lords that, in such circumstances, the local authority must engage a person with the relevant expertise to carry out the assessment. That continues to be our policy. I also accept that if the adult’s condition is so complex at the assessment stage as to require the services of an expert in the field to provide advice, then it makes perfect sense for this to be repeated when the plan is to be reviewed. I should like to reassure the Committee that the Bill already has provisions in place to allow this joined-up approach to occur if an adult’s circumstances have changed in a way that affects the care plan. Clause 27(4) states that the local authority must, to the extent it considers appropriate, carry out a fresh needs assessment. In doing so, it would have to follow the requirements of regulations to consult a person with expertise. I hope I have reassured noble Lords of our agreement to the principles that they raise. In the light of what they have said in support of the amendment, I will look again at Clause 12 to ensure that we are giving ourselves the relevant powers to achieve our aims. I hope that the noble Lord, Lord Low, will find that undertaking welcome.
Baroness Barker
In Clause 27 it appears that it is only the local authority that has the power to ask for there to be a reassessment, not the individual. Is there a provision somewhere in the Bill that enables an individual to trigger a reassessment, or does that power lie with the local authority alone? If the Minister does not have an answer to hand, perhaps he might write to me.
Earl Howe
I shall do my best to answer my noble friend in a moment or two, but I am aware that I did not answer a specific question raised by the noble Lord, Lord Low, as to why we changed the wording in Clause 12(1)(c) of the draft Bill. We widened the scope of the powers following consultation—for example, to add a power to specify when an expert must be consulted —and in widening the powers the wording was slightly amended. We are happy to look at this again in order to make sure that it continues to meet the policy intention. In answer to my noble friend Lady Barker, I would refer her to Clause 27(1)(b), which refers to the right of an individual to request a review.
Lord Low of Dalston
My Lords, I am grateful to all those who have spoken in support of these amendments. I am also grateful to the noble Earl for his response. I thought we were going to be in the position where we had to say that we welcomed his support for our principle but we were disappointed that he was not willing to review the legislation to make sure that it put the principle into effect on the same basis as our amendment seeks to achieve. However, lo and behold, the noble Earl, not uncharacteristically, has come more than half way to meet us by saying that he is willing to look at the Bill again just to make sure that the policy intent, which he shares with us, is carried into effect. I welcome that very much. If it would assist the achievement of a consensus on this for us to meet, I would welcome that. I am very conscious of the calls on the Minister’s time as a Bill such as this goes through the House, so it may be that a meeting with officials would suffice. If further dialogue with the department would help to establish that we were fully on the same page on all this, I would welcome that very much. However, for now, with the very full assurances that the Minister has given us, I beg leave to withdraw the amendment.
Earl Howe
My Lords, this has been an excellent and very important debate and I thank all noble Lords who have contributed. I will, if I may, begin by picking up the remarks of the noble Lord, Lord Warner. He put his finger on a number of very important points. The system of locally determined eligibility for care and support has been confusing to people for too long. It has been seen as an unfair system under which different levels of needs are met on the basis of where somebody lives. The changes we are bringing forward will mean that people’s entitlements to care and support will be much clearer and fairer and will reduce variation in access between local authorities.
That is our starting point and, once this legislation comes into effect, local authorities will not be able to reduce eligibility below the level set out in regulations. They will be able to meet other needs which do not meet the national eligibility criteria through the power in Clause 19, but they will be required to follow a consistent approach to determining eligible needs. That is a big step forward. We must not view these national criteria in isolation. The Bill does a great deal for people with lower levels of need, including through provisions on prevention, information and advice. One of the key aims in relation to assessment is to ensure that this is effective in identifying needs and support options for all people, in particular to help those who do not have eligible needs and to prevent deterioration.
Clause 13 provides for regulations which will set out the eligibility criteria according to which local authorities must meet an adult’s needs for care and support or a carer’s needs for support. Amendment 88Q seeks to add this detail to the Bill. I understand why the noble Baroness would like to see the eligibility criteria set out in this way. Some noble Lords have questioned the number of important provisions being introduced through secondary legislation. However, in this case I believe that it is necessary. It is important that we get the eligibility criteria right, otherwise there is a danger that we will put in place a system that is more confusing than the one that we are replacing.
There is advantage in having the flexibility of setting the criteria in regulations; once again the noble Lord, Lord Warner, gave a helpful pointer to this in his remarks. We are not proposing to amend the national eligibility criteria on a regular basis. However, we need the ability to amend the regulations if it is shown that the criteria need to change at some point in the future. Of course, we would consult fully before making any such change.
To help inform debate on this area, and as noble Lords have mentioned, on 28 June we published draft regulations for discussion which set out the proposed national eligibility criteria. I emphasise that these are intended to set a national minimum equivalent to the level operated by the vast majority of local authorities in the current system. As part of the spending round announced recently we have committed to provide funding that will maintain the same level of services when authorities move to the new system in April 2015. This is the beginning of engagement with stakeholders before we formally consult on draft regulations next spring.
Amendment 88T is concerned with parliamentary scrutiny of the eligibility regulations. The power to set the eligibility criteria in regulations is one of the most important in the Bill and is central to the new care and support system. For this reason the Bill requires the regulations to be made under the affirmative procedure. That will ensure that Parliament will consider the regulations before they are introduced and that it will also consider any future changes. As a matter of course the regulations will also be considered by the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments. Therefore we do not believe that the regulations need further scrutiny by a Joint Committee of both Houses.
Amendments 88R and 88S in the name of the noble Lord, Lord Hunt, refer to matters that the Secretary of State should have regard to when making the regulations. Amendment 88R clarifies that the regulations may describe a person’s care and support needs by reference to the effect of needs arising from a physical or mental condition. The well-being principle at Clause 1(2)(a) includes physical and mental health, and this is reflected in the draft regulations. Regulation 2, which sets out the eligibility criteria, explains that needs are eligible needs if they have a significant impact on a person’s well-being and are as a result of a physical or mental impairment or illness. Amendment 88S proposes that a person should be eligible for care and support if they are in receipt of health services. As we debated earlier, a person can expect to receive an integrated service, but the determination of eligibility for care and support must be based on care needs only, rather than what health services a person is receiving.
A number of noble Lords suggested that the eligibility criteria should be set at moderate. As I have already said, this threshold is about establishing a minimum standard, not about taking away councils’ discretion to go further. Local authorities will remain able to meet lower needs locally if they choose to do so. Once again I was grateful to the noble Lord, Lord Warner, for his realistic assessment, and to the noble Lord, Lord Lipsey, for his comments. The eligibility criteria are intended to be equivalent to the level operated by the vast majority of local authorities in the current system. Independent research suggests that it would cost an additional £1.2 billion to set the threshold at moderate for younger disabled people and those with mental health needs, and a further £1.5 billion for older people. The combined total is £2.7 billion, which is a large amount to find in the current financial climate.
The pooled funding that we are proposing is important to factor in here. The noble Baroness, Lady Grey-Thompson, suggested that setting the criteria at moderate would save money. It is important to understand what the pooled funding is designed to do. Once again, the eligibility criteria should be seen as part of the overall system that we are putting in place. The pooled funding that we have announced will support better integration between local authorities in the NHS to improve outcomes for the local population. Part of this funding will be used to support local authorities and the NHS if they need to intervene earlier to prevent people’s health or care needs worsening. That will include many of the people with low or moderate needs.
The noble Lord, Lord Low, suggested that universal services do not have the capacity or resources to meet the aspirations that the Government have set out. As we have debated, the Bill sets out new duties on local authorities to provide universal services such as preventive services. These will also be supported by statutory guidance to make clear the expectations that we are placing on local authorities. Moreover, as I have mentioned, the pooled funding is relevant here. Among other things, that will enable preventive and integrated services, which also benefit the NHS.
The noble Baroness, Lady Grey-Thompson, said that it was not fair that the cap applies only to eligible needs. We will debate the Government’s proposals for the capped cost system in due course. However, access to the cap needs to be consistent in order for the system to be fair. Using national eligibility criteria will ensure that the cap applies on an equivalent basis in every area. The noble Lord, Lord Lipsey, commented that the eligibility criteria will not solve the huge variation within local authority areas due to variable assessments. First, the eligibility assessments will set a minimum threshold, which is important. Some differentiation in local implementation will remain, but as referred to previously, we will require that local authorities appropriately train assessors to ensure that assessments are carried out properly, and we will publish guidance that will help to reduce variation.
My noble friend Lady Jolly asked whether we can ensure that the regulations become more asset-based and that that work involves experts. I can reassure her that the Bill already allows for the individual’s strengths to be taken into account in the assessment. In relation to the draft eligibility regulations I can assure her that we will engage widely with stakeholders to make sure that they deliver our policy.
Baroness Browning
As far as the eligibility criteria are concerned there is another indicator, which I have not heard mentioned in this debate, and that is the number of people who challenge their local authority through the courts. Currently—from my own experience of case work, particularly with those on the autistic spectrum and with learning disabilities—many local authorities, when challenged legally on this, will settle before it goes to court. It is difficult to quantify what that number is, and I do not know whether what I am asking my noble friend is practical. However, in monitoring whether the eligibility threshold is correct, particularly for those with low to medium needs, would the Government be prepared to use the number of applications for legal challenge and, if possible, of those who settle out of court before it goes to court? That is a very clear indication of where local authorities refuse because the current eligibility criteria have not been properly constructed. When challenged, they usually pay up pretty quickly.
Earl Howe
My noble friend raises an important point, and I will take her suggestion away with me. As I mentioned earlier, however, a great deal of what this Bill will deliver is, so to speak, invisible to the naked eye, because it will ensure that those with lower needs will also be catered for in some way or another. I would like to hope that, for that reason, there will be less scope for challenge. I will write to my noble friend if I can supply her with our further thinking on that important topic.
I hope that what I have said will have reassured the Committee on these important matters. This has been a well informed debate. Our continued approach to engagement and consultation on the draft regulations will obviously allow us to consider many of these issues further, and on that basis I hope that noble Lords will not press their amendments.
Lord Touhig
Have the Government looked at the Deloitte economic modelling, which shows that support for moderate needs actually gives a greater return on the money invested? If not, will the Minister undertake to look at it before Report stage, so that we can discuss the savings that could be achieved?
Earl Howe
I know that my officials have looked closely at that modelling. I have not yet had an opportunity to look at it but undertake to do so. However, in all such matters a judgment is needed as to how money is best spent. No doubt there are good arguments for the Deloitte point of view, but, as I have already outlined, we think that if one has to spend money of that order, it is better spent in the way that we propose. Nevertheless, this is a debate that we can usefully continue, and I shall be happy to do that between now and Report, and also at Report stage itself.
Baroness Grey-Thompson
My Lords, I thank all noble Lords who have taken part in the debate, and also the Minister for his response. My amendment, which is about who is eligible and who is not, addresses the main crux of the Bill. I shall respond to a few points that noble Lords have raised.
I agree with the noble Lord, Lord Warner, when he says that we need to be realistic. However, my view still is that a small amount of support for working-age disabled people or older people—to keep them active, to keep them in their own homes and to support them in the best way—will actually save us money in the long term. Moreover, expectations have been raised about what older people can expect.
There is still a lot of work to do on the draft regulations to encompass the needs of working-age disabled people and older people, and to ensure that we keep the consistency. As things stand, giving someone the ability to have an assessment of the care that they can expect, but no actual support, does not help them; it just raises their expectations in a slightly misleading way. Again, disabled people and older people are paying the price of the economic downturn. Although this is not the right time for it, I would welcome a really honest debate on what the Bill is about. Is it about saving money, or is it about the well-being of certain groups of people? As ever, disabled people and older people seem to be at the bottom of the priority list.
I welcome the fact that the Minister has said that he will go away and look at Deloitte’s economic modelling. I think that we would probably agree to disagree about where that is at the moment, but it would be beneficial to try to find the best way forward in that context.
The noble Baroness, Lady Jolly, raised two very important points, the first of which was about the seamless transition. That is incredibly important. This is about not just who makes it to the support level, but what we do with people who are just outside that category. It is crucial that we get the advice and the signposting and all the support absolutely right, to make sure that people are not falling through the cracks. Her second point was that the regulations are still in draft. The Minister in the other place has offered me the opportunity to continue this discussion on the eligibility criteria, and I very much welcome that, because it is a recognition that the draft regulations can be improved.
It is also important that we have a constructive continued discussion on what the draft regulations mean in reality. There is lots of expertise both inside and outside your Lordships’ Chamber, and we must use those people to get to the best place, and use the time we will have in the summer leading up to the formal consultation. I do not see all this as just a negative discussion. There is much work to be done, but I see that as a huge opportunity to improve the regulations and get them into a much better form for everybody. At this stage, however, I beg leave to withdraw the amendment.
Earl Howe
My Lords, not for the first time, I find myself in sympathy with the noble Baroness, Lady Pitkeathley, and the concerns she has raised about the Bill’s practical implementation. I am sure it is a shared view across the Committee that people should be supported to remain independent within their own homes for as long as possible. As the Bill recognises, supporting carers and preventing or delaying the need for care and support are both vital to achieving this goal.
On the specific amendments tabled by the noble Baroness, our previous debate shows the value and importance which noble Lords place on carers and the need to support them. I thank the noble Baroness for her recognition of the significant improvement that this Bill will make. I reassure her that the Bill makes it clear that local authorities cannot charge carers for services provided to the person being cared for. Our clear view is that Clause 14(3) puts this matter beyond doubt, and this would include services of an intimate nature provided to the person being cared for.
Local authorities need to retain the flexibility to meet the needs of carers in the most appropriate way. This might include providing services to the adult needing care such as feeding them or taking them to the toilet. Providing these services is necessary to allow carers of people with the greatest needs to take a well earned break from their responsibilities. However, Amendment 89A would create a legal barrier which may hinder the provision of support to carers. For that reason, I do not warm to it.
Amendment 89B would ensure that services provided to carers were provided free of charge by the NHS. Local authorities currently do not usually charge carers, as they recognise the vital work that they do. In some cases, however, local authorities may charge a fee for services provided directly to carers, such as when the local authority arranges a trip for them. We want to continue to give local authorities this flexibility.
The noble Baroness expressed a worry about the scope for different interpretation about who is the beneficiary of a particular service. In most cases, I suggest that it will be clear what is being provided to the adult needing care and support as opposed to the carer. However, statutory guidance will be provided to help to promote national consistency on that point. I hope that that reassurance will provide the noble Baroness with the wherewithal to withdraw the amendment for the time being although I will, of course, reflect further on what she has said.
On Amendments 89BA and 92ZZM, I reassure the noble Lord, Lord Low, that we intend to maintain the existing entitlements to aids, minor adaptations and intermediate care in regulations. Aids and minor adaptations costing up to £1,000 will continue to be provided free and without the need for a financial assessment. We will shortly be consulting on the implementation of our reforms to care and support funding, which will inform the future regulations. In designing the new regulations, we will consider whether we should update the list of services which must be provided free of charge. However, we must bear in mind that further limitations on the ability of local authorities to charge would reduce the resources available to support people with the greatest needs. The draft regulations will be subject to a further public consultation to ensure the final regulations are based on the best available evidence.
As I indicated earlier, we are introducing a fairer system, including a cap on care costs. It is right that people who can afford to do so should continue to contribute a fair amount towards their care costs, and when they do not, Clause 64 allows local authorities to recover these costs as a debt. I understand the desire to protect people who make mistakes or accidentally fail to disclose relevant information. However, I fear that Amendment 104ZB, which would require local authorities to prove intent, would result in complex and expensive legal cases. Intent is not always easy to prove. Local authorities will not be able to charge people more than their due debt and the costs incurred in recovering that debt, and we think it is right that they should be able to do so even if someone has made a genuine mistake. This is not about instituting recriminations but about correcting mistakes. We should surely allow local authorities to take action in such a case if we believe in protecting public money.
Lord Lipsey
I am a bit bemused. I cannot see where my amendment states that local authorities have to prove intent, nor do I see in the noble Earl’s argument any reason why the person who makes a mistake should have to pay not only the extra money they have received but the cost to the local authority of retrieving that money. That seems to me a punishment too far.
Earl Howe
I had rather assumed, perhaps wrongly, that if, for whatever reason, there has been a discrepancy in the declaration made by a person, it either has to be a genuine error, or something more deliberate, in which case there is intent involved. I am not sure what other explanation there could be. That was why I read into the noble Lord’s amendment what I did.
I think that the ability of a local authority to recover costs ought to act as a disincentive to people to be careless about what they are doing. They should make sure that what they declare is accurate and should be made aware that if they make a mistake, it might prove a little more costly to them than just rectifying the error. This is not about imposing recriminations on people. It is right for local authorities not to be out of pocket when other people out there could be benefiting from the public money that is available.
Lord Lipsey
The noble Lord has interpreted my amendment one way; I have interpreted it in another way. It may be that the Bill, either as it is or as amended, is not quite right. Can the noble Lord agree that we have further discussions to see if we can find a way forward that satisfies us both?
Earl Howe
I am more than happy to discuss this with the noble Lord and I apologise if I have misunderstood his amendment. I certainly would not wish to do that.
The noble Lord, Lord Low, asked me how equipment and adaptations will be addressed in a personal budget. Those costs that are intended to meet eligible needs will be included in the personal budget, or the independent personal budget, and will count towards the cap. We intend that aids and minor adaptations will be provided free of charge however they are funded, including by way of direct payments.
The noble Baroness, Lady Wheeler, asked me when the regulations under Clause 14 will be published. We intend to publish the draft regulations after the forthcoming consultation on funding reform. This consultation will enable the regulations to be based on the best available evidence. She asked where are the provisions about complaints and redress in relation to charging and, indeed, all of Part 1. Existing complaints provision for adult social care is through regulations. The provisions of the regulations mean that anyone who is dissatisfied with the decision made by the local authority about their assessment or eligibility would be able to complain to the local authority and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 regulations.
The Government recognise that the existing framework allows local authorities flexibility in the development of the process for dealing with appeals and challenges. There are options for local authorities to introduce independent elements to the complaints process through a range of formal and informal measures. Each local authority will therefore have a different process and we appreciate that local variation will result in varying user experiences. If a complainant is not satisfied with the response from the local authority, they can refer the case to the independent Local Government Ombudsman.
I hope that those remarks will be helpful and that the noble Baroness, Lady Pitkeathley, will for now be able to withdraw her amendments.
Lord Warner
Can the Minister clarify his response to my noble friend’s amendment that there would be statutory guidance? I know that I have been away for a few weeks, but before I left, the Government had turned their back on a statutory code of guidance, as I understood it. Has there been a change of heart in my absence?
Earl Howe
My advice is that the guidance that we will issue on this topic will be binding on local authorities. It will not be the type of guidance which merely points to best practice, which local authorities are free to ignore. The last thing I wish to do is to mislead the noble Lord and if I have done so, I apologise in advance and I will clarify that point to him and to the entire Committee.
Baroness Pitkeathley
My Lords, I thank all noble Lords who have spoken in what my noble friend Lord Lipsey called this “bits and pieces” group, although charging and access was the theme that linked the amendments. I am naturally disappointed that the Minister cannot accept my amendments, but reassured by his restating his intention so far as carers and charges are concerned, and by the statement that he has now given twice about the guidance being binding on local authorities with regard to charging. I am also grateful for his offer to reflect on my concerns, because I am not entirely certain that we have totally removed what my noble friend Lord Warner called “the scintilla of doubt” which might allow local authorities at some point in the future to charge carers. For the time being, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
My Lords, I hesitate to come between my noble friends Lord Warner, Lord Lipsey and Lord Campbell-Savours, and indeed knowing what is good for me I am not intending to do so. I say to my noble friend Lord Campbell-Savours that I understand the point that he is making and I agree that Dilnot is not the answer to many of the really pressing problems that we are talking about.
I want to tempt the noble Earl to say a little bit more on two areas which have been referred to by noble Lords. The first is the complexity for local authorities of what they have to administer. The noble Earl has not really responded in detail on this matter so far. Indeed, it is noticeable that local authorities have not responded. We have received a huge amount of evidence, but not very much from local authorities and the local authority associations. This worries me. I understand why local authorities would be keen to play a prime part in the administration of this new system, but these are genuine concerns about whether there is capacity to make changes of this complexity happen. Nothing would be worse than the new system coming into being and collapsing almost on day one. At the moment, that is my view on what is going to happen. I do not know what the Government intend in terms of testing out the robustness of the system for when it is due to come in. I hope that at some point during our debate the noble Earl will be able to tell us.
Secondly, the next group of amendments deals with the public understanding the complexity of the system being considered, but it seems to me that this issue relates to the point about insurance raised by my noble friend Lord Lipsey. My understanding is that one benefit of full implementation of Dilnot—although I am not sure that the Government have gone down that path—would be that, if the public knew that their liabilities would be capped, there would be likely to be a ready insurance market. A number of us have looked with interest at the comments of the Association of British Insurers and other parts of the insurance industry. I have to say there does not at the moment seem to be much optimism about whether there is going to be a market and whether packages are going to be developed. This may come up in later amendments, but at some point I hope that the noble Earl will give a little more information about the Government’s view of the potential of the insurance market to develop products which the public can understand and will be willing to invest in.
Earl Howe
My Lords, as the noble Lord, Lord Lipsey, explained very clearly, these amendments would mean that the capped system counted time rather than costs. I agree that there are advantages to this approach. The Dilnot commission, in considering this option, said that using years instead of costs would be easier to administer and simpler to understand, and I appreciate those arguments. However, the commission also made the case that to adopt this approach would disadvantage those with more intensive care needs, who over a given period of time could spend significantly more on care than those with less intensive needs, so that what we might gain in simplicity we should lose in fairness. I am sure that we all want to see a fair care and support system giving the most support to those in the greatest need. Using time instead of costs would undermine that goal.
We are committed to using notional spend—in other words, the equivalent of what the local authority would pay to meet an adult’s eligible care needs. As with using time, it is in fact relatively simple to administer because it fits in with the current system of needs assessment. It also ensures that people with more intensive needs are not disadvantaged. That is why the Government agree with the Dilnot Commission, which said,
“the only suitable way of deciding when a person has reached the cap is to meter notional spend.”
The noble Lord, Lord Lipsey, pointed to the understandable fear that Dilnot will mean spending money on administration rather than on meeting people’s needs. I accept that times are challenging for councils, but we are committed to funding these reforms. Critically, we are also committed to co-producing the implementation of the reforms to minimise the bureaucracy that accompanies them and maximise the benefits that they bring. The noble Lord suggested that local authorities might not be ready to implement Dilnot in 2016, and the noble Lord, Lord Hunt, also asked about this, and whether we were intending to test the robustness of the system. We shall be coming to the issue of readiness in the next group, but I agree with the noble Lord, Lord Warner, that there is sufficient time to develop what he referred to as a taxi-meter system.
The noble Lord, Lord Campbell-Savours, took us to a point that he has made in this Chamber before about Dilnot, and his view that it is fundamentally unfair. I simply say to him that the vast majority of state support, under the Dilnot system, will be provided to the roughly 40% of older people with the lowest income and the lowest wealth. The cap, and the extended means test, provide the most reassurance to that particular group. Our view is that we need a system that protects people with the greatest lifetime care needs. It is not about protecting people with the greatest wealth.
To clarify the question that the noble Lord, Lord Warner, raised in the previous group of amendments about the guidance under Clause 71, this will indeed be statutory guidance, and it will look and feel like a code of practice. Importantly, it will have the same legal status. However, we do not think that guidance should be subject to parliamentary scrutiny every time it is updated, as with a code of practice Statutory guidance under this Bill will have the same status as the current guidance issued under Section 7 of the Local Authority Social Services Act 1970. I hope that this is helpful.
In a later group of amendments we will come to what local authorities think about the new system and indeed the whole area of financial services. However, I was reassured that the Local Government Association said that it fully supports and welcomes the inclusion of a cap on what an individual will pay. The Association of British Insurers has welcomed the announcement that we have made as a positive step forward in tackling the challenges of an ageing society. Arising out of that is a sector-led review that is working constructively with government to understand how the market will develop and create the right environments for products to succeed. That review will be completed over the summer.
I hope that with those comments the noble Lord, Lord Lipsey, will for now be content to withdraw his amendment. I hope that he found my comments, if not ones that he can agree with immediately, at least ones that he will put into the context of the Bill in, I hope, a manner that he will understand.
Lord Lipsey
My Lords, I thank the Minister for his reply, which was a miracle of putting very well the point that has come out of the debate. I thank all those who have participated. We have here a trade-off between simplicity and fairness—it is as simple as that. The Government—unusually, my party might think—have opted for fairness, and my party might not be surprised that in this case I have opted for simplicity. However, the matter will rest. Of course, if this system goes absolutely swimmingly, I shall forget that I asked the Minister to put it in his bottom drawer, but if it all goes wrong I shall tell the world that “I told you so”. With that, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
My Lords, my Amendment 90ZA requires the Secretary of State to report to Parliament,
“in advance of this section coming into force with the Government’s assessment of the likely impact of the cap on care costs; and … annually once the section is in effect, with the Government’s assessment of the impact of the cap, in particular its distributional impact across the income spectrum”.
I echo some of the points already made. The operation of the cap ought to be, and continue to be, subject to ministerial oversight. The opportunity to report to Parliament and for us to have an annual debate should not be missed. This links into the amendment of my noble friend Lord Lipsey, Amendment 92ZZB, because it would enable a ministerial advisory group to feed into an annual report on how the scheme is being implemented and whether changes need to be made.
It is important to bear in mind the concern of my noble friend Lord Campbell-Savours that simply operating Dilnot will favour the better off at the expense of the worse off. We must keep an eye on how it impacts on the distributional spectrum in this regard. That is why I have the second part of my amendment.
Like other noble Lords, I agree with Amendment 89E in the name of the noble Lord, Lord Sharkey, and Amendment 90 in the name of the noble Baroness, Lady Greengross. I have learnt over the past few months how complex this issue is, and if noble Lords do not understand the full complexity of the scheme—and I gladly hold my hand up that I have yet to believe that I have full mastery of how it will operate—how can members of the public be expected to understand its full consequences?
In our debate on Clause 2, we discussed the responsibilities of local authorities in providing advice and we debated the need for independent financial advice to be made available. The consequences for a person making the wrong decision on funding could be catastrophic. It is therefore important that advice is readily available, and I agree with those noble Lords who think that it ought to be a national responsibility. Whether I would give it to the current Secretary of State, I am not quite so sure.
I remember how the Government spun this Bill in the Queen’s Speech and the Prime Minister giving the impression that no one would for ever more have to sell their home and that the £72,000 cap was the limit. However, as we have gone through the Bill has become quite clear that neither is the case. I agree with my noble friend Lord Campbell-Savours that the Government have not thought through the implications of what the noble Earl said last week about the issue of transparency.
The point is that most people have to spend more than £72,000 because self-funders do not pay local authority rates. In his sophisticated response last week, the noble Earl suggested that local authorities took advantage of procurement at scale, which is why they were able to get a rate lower than self-funders. That was a remarkable argument. Most people see this as a case where local authorities underpay and that if homes only existed under local authority rates many of them would not be viable. It is therefore not surprising that many homes are on a cliff edge of viability on the one hand and at risk of being put out of business because of CQC inspections on the other. There is no doubt that it is generally thought that self-funders subsidise the people in those homes who are paid for by the local authority.
However, most people do not know that. Only an inside circle is aware of the issue. However, come the new implementation, everyone will know—as the noble Earl said last week, it will be transparent—and people will not put up with it. That is why, first, it is essential that more thought is given to implementation. I am not sure whether my noble friend Lord Lipsey is right to want to delay it by a year, but I am sure that he is right to say to the Government that they need to look carefully at the practicalities of implementation.
Secondly, it is important that self-funders are in future fully aware of the consequences of any decisions they take. At the moment, I and many other noble Lords are not convinced that the public are aware. That is why it is so important that a duty is laid on Ministers to fund, and continue to fund, a national campaign of information and that we come back to our debates on Clause 2 in relation to independent advice being made available.
Thirdly, I hope that the noble Earl will readily accept the amendment of my noble friend Lord Lipsey about the need for a ministerial advisory committee, which could then enable the Secretary of State to report to Parliament annually in relation to the implementation of the Dilnot proposals.
The noble Earl will be aware that, in general—my noble friend Lord Campbell-Savours aside—the Care Bill enjoys support. However, there is a risk of our disagreeing on implementation. If he can reassure us on the readiness of local authorities, on the willingness to provide independent advice and on the willingness to establish some kind of independent mechanism to report on a regular basis, it would provide a great deal of comfort.
Earl Howe
My Lords, the clauses on the capped-costs system represent a significant step forward, ending decades of uncertainty, with the introduction of a clear system that fairly shares costs. For the first time, people will be protected from spiralling costs and will no longer have to fear that their home will be sold while they are in a care home. In response to Amendment 90ZA, I can confirm that we published an impact assessment of the reforms which includes the distributional impact by income.
The current system exposes those with little savings or modest housing wealth to the greatest risk of losing everything to pay for their care and support. We will enable people to keep more of their capital and still receive a contribution from the local authority towards their residential care costs. Under new regulations, those with capital assets of less than £118,000 will see the local authority pay a proportion of their residential care costs rather than only those with assets of under £23,250.
As I mentioned earlier, the vast majority of state support will be provided to the 40% of older people with the lowest income and wealth. The cap and extension to means-tested support provides the most reassurance to this group. This is about protecting people with the greatest lifetime care needs and not people with the greatest wealth. The reforms must be sustainable and affordable for the long term, which is why we have accepted the Dilnot commission’s recommendation that the level of the cap should be adjusted annually in line with inflation. It is an approach used in taxes, pensions and benefits, ensuring they remain equally fair year after year.
I turn to amendments 92ZZB, 92ZZC and 104ZC. The noble Lord, Lord Lipsey, shares our aim in drawing up the Care Bill of ensuring the system can respond to changing circumstances. However, that dynamism must be balanced with some certainty about the basis for changes. That is why Clause 16 requires annual adjustments to be made to the cap and to an adult’s accrued costs, so that they keep pace with inflation. Clause 66 provides some certainty that changes are likely to occur only as a result of the annual adjustment or five-yearly review. In reviewing the level of the cap and the means-test threshold, the Government will want to involve a range of experts in assessing how external factors such as demographic change and healthy life expectancy are affecting affordability and the benefits of the capped costs system. A standing independent committee is therefore unnecessary and could suggest that the system is subject to constant change—which may, perversely, result in fewer people planning and preparing on the basis of these reforms.
Amendments 90A, 90B and 90C would require the annual adjustment to be made in line with average care costs. The first point to make is that there is no nationally recognised measure for care costs inflation. Linking the annual adjustment to a care costs inflation measure that has no national benchmark would not give people, or the financial services industry, certainty or confidence in the system. It would of course be possible to develop such a measure, but we feel it is unnecessary, as a robust proxy already exists. Average earnings is one element of the measures used to determine the state pension and therefore represent changes in people’s ability to pay. Earnings is a national statistic certified as compliant with the code of practice for official statistics. In addition, care costs and average earnings are related since labour is a substantial proportion of the cost of care. The latest Laing & Buisson market survey states that,
“in the longer term, fees are inevitably driven by costs … the major cost item is payroll”.
Turning to Amendments 89E, 90 and 104ZD, which is where my noble friend Lord Sharkey began this debate, I fully agree that it is critical that people are made aware of the reforms and what they will mean. The Dilnot commission rightly recommended that there should be an exercise in raising awareness alongside implementation of the reforms. Many people do not realise that they may have to pay for their care and support, which acts as a significant barrier to effective planning and prevention. The Committee will be aware from the debate on Clause 4 that we know that easier access to good quality, trusted information and advice is a critical enabler. The Bill places a duty on local authorities to provide information and advice, including on the capped cost system.
I assure the noble Lord, Lord Campbell-Savours, that we have absolutely no intention to or interest in allowing spin to replace clear and balanced information for the public. In improving awareness and advice, national and local must work together. It will be in the interests of local authorities, the public, government and the financial services industry to make sure that people are aware of the reforms and have access to the right information and advice at the right time so that they can plan and prepare to meet their care and support needs. We will seek views in the forthcoming consultation on the design and technical implementation of the funding reforms, which will include addressing the best way to raise awareness of these reforms nationally and locally.
My noble friend Lord Sharkey made the good point that awareness and understanding of the Dilnot reforms has to be evaluated and measured over time. As with any other policy, we will seek to evaluate the effectiveness of this particular policy, but we believe that to require an annual report in the Bill would incur a potentially high and unnecessary cost. There are other ways of delivering the same aim.
Lord Campbell-Savours
If someone is below the £70,000 figure and funding their own care, why would they bring in the local authority? What business is it of the local authority?
Earl Howe
My Lords, potentially, everyone in need of care and support may benefit from these reforms. We want to make it as widely known and as apparent as possible that planning is an important matter, whatever a person’s means. If I have misunderstood the noble Lord’s question, I will review that answer and write to him, but that is the main point.
I come back to the point I made earlier: this is just the beginning and it is why we will shortly be consulting on all these implementation issues. With those comments, I hope that my noble friend will feel able to withdraw his amendment and that other noble Lords will not press theirs.
Lord Sharkey
My Lords, I thank all noble Lords who have spoken in favour of a comprehensive, national and centrally funded information and advice campaign under the direct control of the Secretary of State. I am sorry that my noble friend the Minister did not seem entirely convinced by that. I was very puzzled by one thing that the Minister said about the cost of an annual report on how well we were making progress in generating awareness of the terms and implications of Dilnot. I cannot see that the cost could be anything but essentially trivial. I may be wrong about that, but I should be very grateful if the Minister would clarify, perhaps in writing later, why he thinks that the cost would be substantial at all.
I continue to feel that the whole issue of providing information and understanding is much too important to be left to local authorities and for the Secretary of State not to have direct responsibility for it. The task facing any information campaign in this area is enormous. The last survey that I saw showed, for example, that only 17% of UK adults understand what a percentage is—even that may be an overstatement—and Dilnot’s implications are much more complicated than that. We need the best communication with the most money and we need obvious accountability. That means central government and the Secretary of State having responsibility.
Given the opinions expressed around the Chamber today, we may well want to return to this issue on Report. I beg leave to withdraw the amendment.
Care Bill [HL]
Earl Howe Excerpts(13 years, 3 months ago)
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Lord Hunt of Kings Heath
My Lords, I, too, have a great deal of sympathy for the core of my noble friend’s proposal to change the means test to increase personal allowances to support people so that they have enough money for what he described as “small treats”. Like my noble friend Lord Warner, I should be interested in the noble Earl’s response to that point.
I also sympathise with my noble friend’s second proposal to help those with modest assets by making the means test less severe. It is clear to most of us that the benefits of Dilnot will go to the better off. I think that one must be sympathetic to my noble friend’s aim of trying to spread the benefits more widely. Of course, that comes with a cost, and my noble friend’s answer to that is the proposal to abolish the nursing care allowance or to phase it out. Perhaps the term is grandparenting; I am not sure of the phrase but the Lords reform proposals come to mind—the transition.
Whether that is the right approach must of course be subject to some debate, and I would certainly need some convincing about the phasing out of the nursing care allowance. However, I think that my noble friend has done us a service and I hope that we will have further discussions on it between now and Report.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, on one level I sympathise with the intention of the noble Lord, Lord Lipsey, to redistribute funding between health and care and support so as to increase the personal expenses allowance and local authority support for those in residential care. However, we need to face the reality of the current economic climate. One important aspect of our reforms is that the greatest support will go to those with the greatest need, and that is surely the policy aim that we need to keep most closely in mind in this context.
Currently, the NHS funds nursing homes to support the provision of registered nursing care. This reduces the burden on the NHS of having to provide NHS nurses in residential care homes. Removing this funding would risk increasing costs elsewhere in the NHS, but it would also breach a serious point of principle. If we were to stop people in residential care homes from being eligible for NHS-funded nursing care, it would undermine one of the founding principles of the NHS, which is that it should be a service free at the point of delivery. I am sure that noble Lords would agree that we would not like to see that.
I understand why the noble Lord seeks to increase the personal expenses allowance. If someone is contributing to the costs of their residential care from their net income, for example from their pension, the personal expenses allowance is the amount people can retain to spend as they wish. This is currently set, as he rightly said, at £23.90. The amendment would increase it to £32.75. When living at home, people pay for their food and heating from their income. It is right that people should continue to contribute towards these costs in residential care. The personal expenses allowance reflects the fact that for most people these costs represent a large proportion of their income, but it allows people to retain some of their income for other uses. The reality is that spending additional resources on the personal expenses allowance would reduce the resources available to provide support to those with the greatest needs.
I heard what the noble Lord, Lord Lipsey, said about the loss of the attendance allowance meaning that people would be worse off. Local authorities should support people to maximise their income. If a given individual would be better off receiving the attendance allowance, the local authority should support them to achieve this. We will bear this in mind as we draw up the regulations.
I turn now to Amendment 91, which relates to financial assessments. One of the problems the Dilnot recommendations attempt to tackle is the cliff edge between being a self-funder and being supported by the local authority. By extending the means test for people in residential care, we aim to avoid a situation where a small change in a person’s capital results in a large change in what they pay for care.
From 2016, the maximum tariff income for someone with £118,000 in assets will be £404 per week. If we reduced the rate at which people contribute toward their care costs from their assets to £1 per week for every £500 of assets, the contribution for someone with £118,000 in assets would become £202 per week. This means that an individual facing a typical care home fee would be over £200 per week better off if they had assets of £117,000 than if they had assets of £119,000. This would reintroduce the cliff edge that surely none of us wants to see.
I believe that our plans represent a fair balance between the individual and the state. People with care needs will receive additional support with care and support costs through the extended means test, safe in the knowledge that health services will remain free at the point of use and that they are protected by the cap from unlimited care costs. I hope the noble Lord will see that there is method in the Government’s proposals. While I totally understand much of his rationale, I think our proposals have a better balance. I hope that he will feel able to withdraw his amendment.
Lord Lipsey
My Lords, I am usually extremely complimentary about the noble Earl’s replies to debates, but I do not think that he lived up to his normal standards in that one. He seems to be under a number of illusions. He seems to think that this Bill increases the amount of public spending that goes to the worse off, rather than the better off. It does not. The Bill incorporates what is a most extraordinary priority in terms of distribution, for reasons that I believe to be compelling. Concentrating money on those most in need may indeed be the Government’s general philosophy, I do not know, but this certainly is not implicit in this Bill.
The noble Earl seems to say that if you do as I suggested on the nursing care allowance, you would increase spending by the NHS. The exact reverse is the case. The nursing cost allowance is paid for by the NHS. I am subject to correction, but I believe it to be paid for by the NHS, so you would have an immediate reduction in NHS spending of some £500 million-plus a year.
Earl Howe
My Lords, having disappointed the noble Lord, Lord Lipsey, on the previous group of amendments, for which I shall try to make amends over the summer holidays, I hope to do a little better with this one but I predict that he will not be completely satisfied with my answer.
People should be supported to receive the care they want and should be able to use their own assets to achieve this when they can afford to do so, but this should never be an excuse for local authorities to underfund the cost of meeting people’s needs. I agree with the noble Lord that people should be able to spend their money on purchasing more expensive care and support for themselves if they wish to do so, provided this is affordable. We are seeking better to understand the impact of such a relaxation and the protections that are appropriate for vulnerable people. It would clearly be undesirable for a person to spend their life savings on residential care and late in life be faced with the prospect of having to move to alternative accommodation purely on affordability grounds. I take that point absolutely. In addition, we want to consider the implications for the ability of local authorities to arrange services for other people. If individuals were to use their resources to purchase more expensive care, this could ultimately reduce local authorities’ income from charges. This in turn would reduce the amount of care the local authorities could arrange for other vulnerable people. There are a number of factors at play here, which we need to think through a bit more.
In principle, people should be able to use their savings to purchase more expensive care if they want to. We are determined to clarify and modernise the care and support arrangements in a way that is fair and reasonable to people who need care, their families and the taxpayer. The revised arrangements for people to use their savings to pay for their own care will be set out in regulations made under Clause 30(2) of the Bill. Through the public consultation on funding reform, we are seeking better to understand how relaxing the existing restrictions on making additional payments, which the noble Lord, Lord Lipsey, outlined, might impact on the wider care and support system. The evidence we hope to gather from the consultation will inform the regulations that will set out the revised arrangements. Those regulations will also be subject to further public consultation. In view of that, which is really a long-winded way of saying that this is work in progress but we are on the noble Lord’s side, I hope he will feel able to withdraw his amendment.
I can clarify one point in relation to when local authorities take over responsibility for funding care. It may be appropriate for the local authority to meet any additional cost, for example, where moving the person receiving care and support would adversely affect their health. However, where paying the higher cost might limit the local authority’s ability to support other individuals with care and support needs, the person may have to move to less expensive accommodation. In making any decisions, the local authority has to consider the exercise of its duty to promote that individual’s well-being.
I hope that those are helpful remarks. I would be happy to discuss this issue with noble Lords between now and Report.
Lord Lipsey
My Lords, I thank the Minister for that reply. Having berated him for his previous speech, I can more than fulfil his expectations on this. He has done all that I could have hoped for and more. It will be extremely well received in the world outside that the Government are finally getting to grips with this long-outstanding anomaly. I do not blame this Government. Various Governments have been exactly the same. We are going to get a solution that is essential if the Dilnot scheme is to work as we meant it to work. It is very good news to hear the Minister state so strongly in principle that if people want to use their own money to top up their fees, they should be able to do so, although I understand his reservations about the impact that might have on the local authority market. I look forward to his further work on the subject and to discussing it with him and his officials, as will, no doubt, other noble Lords who have an interest in this. I beg leave to withdraw the amendment.
Baroness Wheeler
My Lords, this has been a valuable debate and important issues designed to probe and improve aspects of these crunch stages in the care and support journey have been raised. The amendments relate to the duty of the local authority in respect of the care and support plan for the adult, the support plan for the carer, the personal or independent budget resulting from the assessment of the adult’s and carer’s needs, and care accounts and direct payments. This is a large grouping and we have nine amendments. I will speak to them as they relate to other amendments in the group as briefly as I can.
Amendment 92ZZG seeks to specify in the Bill that the adult or carer needs in the care and support plan or support plan include both social care, to be met by the local authority, and health needs, to be met by NHS bodies in the area. This requirement would reinforce the need for local authorities and primary, secondary and community health services to work closely together for the benefit of the adult and the carer. It would also provide a clear, joined-up picture of the adult and/or carer’s interlinking care and support and health needs and how they are to be met. Amendments 92ZZP and 92ZZQ also provide for this important joining-up mechanism to apply to the care and support plan and support plan reviews by underlining that in the review process, local authorities must have regard to any changes in the health needs of the adult or carer, including any health provision that they are entitled to receive.
Amendment 92ZZK, in the name of the noble Baroness, Lady Browning, extends the intent of our amendment by specifying that in a young person’s care and support plan, both health and education, in addition to care and support, should be included, integrating with any existing plan in these areas. The importance of this amendment to young people with autism—or indeed to their carers, as the amendment is not specific—has been underlined by the noble Baroness.
The noble Baroness, Lady Greengross, has tabled a number of amendments. In the time available I will refer to four of them. Amendments 92ZZCA and 92ZZR address the need for the Bill to be explicit and thorough in relation to the assessment and eligibility entitlements where the adult lacks mental capacity to arrange for the provision of care and support. The amendments are designed to ensure that the local authority provides free care and support in the circumstances where the person authorised to represent the adult under the Mental Capacity Act 2005 asks for the care and support on the adult’s behalf.
Amendment 92ZZR addresses concerns raised by the Alzheimer’s Society and other groups that Clause 28(7) does not offer adequate protection to people who lack capacity and puts people with deteriorating conditions such as dementia at risk of falling through the gaps. Government Amendment 92ZZQC is designed to address this and the Minister’s recognition that the clause is open to misinterpretation is welcome. These are complex issues but we all recognise the importance of ensuring that the Bill is watertight in respect of adults lacking capacity to arrange care and support, and of having clarity in respect of the local authority’s duty to carry out a needs assessment and to continue to maintain their care account. Can the Minister reassure the House that the Government’s amendment addresses the concerns raised by noble Lords in this debate?
The noble Baroness also raises a key issue in her Amendments 92ZZRA and 92ZZRB, which go to the heart of the choice agenda to ensure that the current right for individuals to choose a preferred care home, and the ability of their representatives to choose a home on their behalf when, for example, the individual has dementia, is upheld in the Bill. Currently the Bill does not make this mandatory on local authorities and it is important that it does. I ask the Minister how the Government’s policy on patient choice can be met when the Bill does not reinforce the current right for people to choose their preferred care home.
Our Amendments 92ZZRAA and 92ZZRAB probe this issue further and are intended to explore the Government’s appetite for including the right to express a preference for the nature and location of accommodation. We support the intention of the Government, the Law Commission and the Labour Party that the Care Bill should increase the choice and control of adults using social care and their carers. I am, however, intrigued to determine whether the Minister thinks that this right in Clause 30 might be made more meaningful if it were extended to include the nature and location of this accommodation. It is important to seek to give adults needing care and support both choice and voice, including them in decisions about them. I look forward to the Minister’s response.
I support the intention of my noble friend Lord Dubs in his Amendment 92ZZH to ensure that care and support plans or support plans specify contingency planning for an emergency, ensuring that plans reflect the flexibility needed for fluctuating conditions, such as MS and other conditions referred to by my noble friend, where there can be severe changes and rises and falls in care needs. Having discussions and planning in advance for this, so that the care is there when it is needed, would be a significant step forward.
It is also important to look at contingency plans in case the carer suddenly becomes ill or is unable to provide care. The self-direct assessment model includes discussion on contingency and risk, but the extent to which clear provision is covered in the care and support plan is patchy. Indeed, it is not always easy to be specific about what would happen because often the reality is that instant emergency care cover is hard to organise when relatives live a considerable distance away or the cared-for person is not able to summon emergency help themselves.
My noble friend also underlines the importance of including a review date in the plan. It would be valuable to require social services departments and providers to be clearer about not just the review date for the plan but what the monitoring and review process is, and what kind of client feedback, or complaints process, there will be, as well as client/carer involvement in assessing quality of care and standards of service. I suspect that very few care plans currently address these issues. Our Amendments 92ZZMA and 92ZZQB probe how a reasonable request for a review of a care and support plan is to be interpreted and, most importantly, to be interpreted fairly across the country. We support a national care service and a national entitlement to care.
We also in our Amendment 92ZZEC draw attention to the important issue of the need for the completion of the care and support plan and support plan to be conducted within a reasonable timeframe. The assessment is a worrying and often traumatic time for the cared for and carer, so knowing what the timeframe is from interview to completion, and then for the personal budget decision, is pretty important. Getting an early assessment and getting the clock ticking towards the cap will also be crucial, so there must be targets and timeframes for the local authority to adhere to and meet. Assessments under the self-directed support process in my local experience as a carer involved four meetings with social services, including with the domiciliary care agency provider and with the daycare provider, and a lot of supported work to be undertaken by the adult or the carer on the client’s behalf. Is the Minister confident that local authorities will really have the capacity and resources to cope with the demands of the new system, including the estimated quarter of a million additional assessments for self-funders that will need to be carried out?
Finally, our Amendment 92ZZSB seeks to implement the recommendation of the Joint Committee on lifting the Department of Health’s current ban on direct payments being used to pay for local authority services if the individual chooses to achieve the agreed outcomes. Our amendment would bring this into effect by underlining in the Bill that there should be no restriction in terms of type of provider placed on the services which can be purchased by direct payments. I hope that the Minister agrees, and I look forward to his response.
Earl Howe
My Lords, I thank all those who have contributed to the debate on an issue which is crucial to the Government’s vision for a personalised care and support system—the care planning process.
In relation to Amendment 92ZZCA, I hope I can reassure the noble Baroness, Lady Greengross, that it is already the case in the Bill—the Explanatory Notes make this clear—that where the adult lacks capacity to make a request, it may be made by someone else on their behalf. This is the effect of the Mental Capacity Act 2005. It is not necessary to set this out in legislation each time. We will also make this clear in guidance. Condition 3 in Clause 18(4) imposes a duty on the local authority to meet needs in cases where the adult lacks capacity and has no one to arrange care on their behalf. This is an additional safety net, enacting a provision previously set out in guidance.
On Amendment 92ZZEC from the noble Baroness, Lady Wheeler, it is vital that local authorities retain the ability to be proportionate to the needs to be met. For some people the care planning process may be relatively simple and therefore can occur relatively quickly, but that may not be the case for people with multiple complex needs. As we discussed earlier, there may be a need for experts to be engaged in some cases, and this should not be overlooked in order to meet a centralised target. Introducing a defined timescale may also have the unintended consequence of some plans being rushed in order to meet the deadline, or even introduce gaming into the completion of care plans. I hope that the Committee will agree that this does not fit very well with our vision of a personalised care and support system.
We will work with stakeholders to set out best practice for conducting care and support plans in guidance. This will include indicative but not definitive timescales for care plans. Amendments 92ZZG, 92ZZP and 92ZZQ in the name of the noble Baroness, Lady Wheeler, raise the issue of specifying health needs in the care plan. The Bill creates a clear legal framework to enable such integration to happen in practice. However, it is not for the local authority to specify in the care plan which needs the NHS should meet. Clause 25 requires local authorities to involve the adult and carer, and take all reasonable steps to agree the plan with them, which would include whether to refer to any health needs.
In relation to Amendment 92ZZGA in the name of the noble Baroness, Lady Emerton, we believe that everyone should receive a personal budget as part of their care plan to ensure individuals are made aware of the cost of their care and the contributions both they and the local authority need to make. Giving local authorities discretion on whether to provide a personal budget would undermine our aim of giving people more choice and control over their care and support. Removing this duty will also affect the ability of the local authority and adult to track progress towards the care cap. I realise—at least I hope I realise—that the amendment was a probing one.
Baroness Browning
I think the concern of the noble Baroness, Lady Emerton, was not about the discretion over whether or not to give the budget, but about discretion over how that budget should be spent. I think that she was concerned that the personal budget, if it were put into the plan in a certain format, might start to prescribe how the budget was spent. That, I think, is what she was concerned about and why she suggested the change of wording.
Earl Howe
I am very grateful to my noble friend and I think I had better reflect further in the light of those comments.
I completely agree with the noble Lord, Lord Dubs, in relation to Amendments 92ZZH and 92ZZJ, that a modern, comprehensive care and support system should be able swiftly and effectively to respond to changing patterns of need. But the issue of fluctuating or emergency needs and anticipated review dates should be left to the local authority and the adult to discuss and agree when going through the care and support planning process. Again, we will consider these matters when producing statutory guidance with partners.
I turn to Amendment 92ZZK in the name of my noble friend Lady Browning. As I have indicated previously, the transition of children to adult care and links between this Bill and the Children and Families Bill merit further consideration and will be discussed at a later date. But I share my noble friend’s expectation. Where an adult has an education health and care plan, their care and support needs assessment and plan should be integrated with it. Both the guidance supporting the Care Bill and the SEN code of practice will set out how we expect this to work.
I turn to Amendments 92ZZLA and 92ZZQA in the name of the noble Baroness, Lady Greengross. The Bill is intentionally very clear that the personal budget and independent personal budget must be the cost to the local authority of meeting the adult’s needs, not an arbitrary or hypothetical figure. I can reassure the noble Baroness that the local authority may not set the personal budget to an amount which is less than it would cost the authority to meet the adult’s needs. The personal budget or independent personal budget must reflect the cost to the local authority of meeting the adult’s needs, not the cost to the individual of doing so himself or herself. Otherwise, this would create an unfair advantage for those with more means who are able to pay more for their care and would therefore reach the cap quicker.
I turn now to Amendments 92ZZMA and 92ZZQB, spoken to by the noble Baroness, Lady Wheeler. Enabling adults to request a review of either the care and support plan or the independent personal budget without a determination of reasonableness may leave the process open to abuse and create frivolous reviews costing the local authority time and money. For example, it would not be reasonable to request a review when a review has recently been conducted and needs have not changed. If an adult request is considered unreasonable, then the adult should be informed of the grounds for the local authority’s decision. We will cover this further in guidance.
On Amendment 92ZZR, we wholeheartedly agree with the noble Baroness, Lady Greengross, that if an adult lacks capacity the local authority must carry out the assessment if it believes that this would be in the adult’s best interests. We have addressed this in government Amendment 92ZZQC. This puts beyond doubt that the provisions of Clause 11 should apply to any refusal of a needs assessment by an adult with an independent personal budget. As a result, where an adult lacks capacity or is at risk of abuse or neglect, the local authority must carry out the assessment if it believes it to be in the adult’s best interests.
On Amendment 92ZZRA, I can reassure the noble Baroness that it is the Government’s intention to make regulations on choice of accommodation in residential care.
I turn to Amendments 92ZZRAA and 92ZZRAB, spoken to by the noble Baroness, Lady Wheeler. It is important that people should, as far as reasonably possible, be able to choose the accommodation they live in. People may wish to move into a care home in a new area—for example, to be close to relatives—and they should be able to do this even if this is in another local authority area. I can reassure the Committee that we intend to make regulations that enable people to exercise choice of accommodation both within and outside their current local authority. However, we do not believe that it would be appropriate to require local authorities to find and arrange care in another local authority area. While some might choose to do so, others might lack the local knowledge effectively to undertake this task. The requirement may also potentially have significant costs and could reduce the funds available to support those with the greatest needs.
I turn to Amendment 92ZZRB of the noble Baroness, Lady Greengross. Our approach in the Bill is simple. It allows any “person” nominated by the adult to receive a direct payment on their behalf, provided of course that the conditions specified in the Bill are met. In legal terms, a “person” means anyone with legal personality. Therefore, Clause 31 already allows the local authority to pay the direct payment to a person of a type specified by the adult. This includes user trusts set up as companies and organisations set up as companies.
On Amendment 92ZZS, I understand my noble friend Lord Sharkey’s concerns, and I hope I can reassure him that the local authority cannot fulfil its duties under the Bill unless it tells the adult what he or she needs to know in order to make a decision and reach agreement about whether or not to take a direct payment. Further, the Bill contains a regulation-making power at Clause 33(2)(f) to set out cases or circumstances in which the local authority must review the direct payment to ensure that it is being used and managed appropriately.
I turn now to Amendment 92ZZSA of the noble Baroness, Lady Campbell, to which the noble Baroness, Lady Wilkins, spoke. There may be only a limited set of circumstances in which a direct payment would not be appropriate, such as where needs can be met only through local authority-provided care and support. It is not our intention to for this to be used to limit access to direct payments. However, it is important that this provision remains in order to ensure that the adult’s needs are met via the most appropriate method.
Finally, I turn to Amendment 92ZZSB, spoken to by the noble Baroness, Lady Wheeler. It has always been our policy that, as long as used legally, there should be no restrictions on the type of services purchased with a direct payment, provided it accords with the care and support plan. Indeed, this reflects current guidance. Clause 25 requires the care plan to detail the needs to be met by the direct payment and, under Clause 31, a direct payment must be an appropriate way to meet those needs. There is no need to state in the Bill the type of providers from which people can purchase care and support.
The noble Baroness asked me what kind of client feedback there will be in the planning process. I am sure that she will agree that deciding the way that care needs are to be met is at the heart of a person-centred care and support planning process. These decisions should be agreed between the local authority and the person after considering the range of options and the person’s own wishes and goals.
We have made a number of changes to the draft Bill to address some of the concerns that we heard—that the balance of the care and support planning process was not adequately weighted towards the wishes of the adult. The process must also include involvement with the carer or any other nominated person, so that all people who can contribute have the opportunity to do so. It will in some circumstances not be possible to reach agreement between the local authority and the service user on the care and support plan, much as that is the aim. In those cases, the local authority will have to act to ensure that the person’s needs are met and that any risks to their safety are prevented. I hope that I have reassured the Committee that the care and support planning process is robust, and that the noble Baroness will feel able to withdraw her amendment.
Baroness Greengross
My Lords, I thank all noble Lords who have raised issues and amendments in this discussion, which has been extremely interesting. I also thank the Minister for his response, which was very positive in all but one or two areas, where I am still not absolutely certain that we are clear on the different levels of payments in care homes. However, I shall come back to the House on Report or speak to the noble Earl later. Again, I thank everybody, and particularly the Minister for his very positive responses. I beg leave to withdraw the amendment.
Medical Litigation: Impact on Medical Innovation
Earl Howe Excerpts(13 years, 3 months ago)
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Lord Saatchi
To ask Her Majesty’s Government what assessment they have made of the impact of medical litigation on medical innovation.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, it is the Department of Health’s view that no assessment is required as no changes are needed to the law or medical guidance in this area. The current system allows for doctors to initiate novel treatments provided that they are evidence-based, in the best interests of the patient, and with patient consent. While the law does not seek to block innovation, it does require new forms of treatment to be rigorously tested before being introduced.
Lord Saatchi
I will shorten what I was going to say. Will my noble friend consider the warnings of judges, including that of the noble and learned Baroness, Lady Butler-Sloss, that under current law no innovative work—such as the use of penicillin, or performing heart transplant surgery—would ever be attempted?
Earl Howe
My Lords, naturally I share my noble friend’s concern about the level of litigation in the NHS. Having said that, I have seen no evidence that a particularly large or indeed significant element of that bill relates to medical innovation. We need to reflect that all treatments in routine use in the NHS today began as innovative treatments. We continue to support the introduction of new and innovative treatments in the NHS. I think that, if anything, doctors have more concerns about being reported to the General Medical Council than they do about being sued.
Lord Campbell-Savours
My Lords, is there not a danger that the requirement to publish the patient mortality rates of individual surgeons will act as a disincentive for surgeons to innovate and take risks in circumstances where patients themselves might want those surgeons to take a risk?
Earl Howe
There is indeed a danger that if the information that is published has not been carefully scrutinised to make sure that it is balanced and reflects faithfully the performance of the individual surgeon or the surgical team. I share the noble Lord’s concern that we should not just release information that has not been carefully examined in that sense, but there is a value, I suggest, to patients and clinicians themselves to have benchmarking metrics against which to judge performance.
Lord Walton of Detchant
My Lords, does the Minister agree that there is a longstanding Bolam judgment—which to the best of my knowledge is still active—to the effect that, in the management of a particular patient, a doctor is not negligent if he or she has acted in accordance with the views of a group of informed medical opinion? It does not have to be the majority medical opinion so long as the individual has acted in accordance with the views of a well recognised group of other doctors.
Lord Mawhinney
My Lords, by how much are litigation figures reduced by the intervention of mediators or arbitrators?
Earl Howe
I cannot give my noble friend a figure for that, but I can tell him that mediation and arbitration are increasing features in cases of this kind. We are very keen for that mechanism to grow, because the more that cases get into the hands of lawyers—I say this with great respect to noble Lords who are lawyers—the higher the bill to the NHS and the more distress there is to patients and families.
Baroness Wall of New Barnet
My Lords, I congratulate the noble Lord, Lord Saatchi, on linking these two important issues of innovation and litigation. I worry that the innovation that has become part of the Liverpool care pathway has had the reaction that it has. We understand today that there is going to be a cessation of that care pathway, because people are reporting being tarnished by it, whereas many patients have had great experiences and families’ involvement in that. It concerns me that we will either stop something because there is an issue about it or stop innovating.
Earl Howe
I share the noble Baroness’s concern, but at the same time I recognise that the noble Baroness, Lady Neuberger, and her expert group have done a very thorough job of work. It is now up to the Government and the whole medical community to consider and reflect on the conclusions that the noble Baroness has reached. One thing that she has said is that her decision is not a recommendation to move away from best practice in end-of-life care.
Lord Marks of Henley-on-Thames
My Lords, while of course we need to be cautious about encouraging a compensation culture, does my noble friend agree that medical litigation not only secures compensation for many who deserve it but does a great deal to maintain and improve medical standards in this country?
Earl Howe
My noble friend makes an extremely important point. Our policy is that it is right that NHS patients who are injured as a result of clinical negligence should be able to obtain correct and full compensation. Under the current system, compensation is in general paid only where legal liability can be established. The underlying principles are clear cut and enshrined in common law.
Lord Patel
My Lords, does the Minister agree that the only bar to surgeons introducing new surgical procedures is that they subject them to external audit to make sure that they do not harm patients?
Health: Anorexia and Bulimia Nervosa
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Baroness Howells of St Davids
To ask Her Majesty’s Government whether they are taking steps to ensure that those suffering from mental health disorders such as anorexia and bulimia nervosa are receiving the most appropriate care; and what provisions exist for urgent cases, particularly those of 17 to 18 year-olds.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, early intervention is essential for those with eating disorders. We have been clear that GPs are expected to use guidance produced by the National Institute for Health and Care Excellence—NICE—when choosing the most appropriate treatments, from physical and psychological treatments to medicines. The NICE guidance is due for review in January 2014.
Baroness Howells of St Davids
I thank the Minister for his Answer. Does he recognise that talking therapies are more effective for treating eating disorders, yet to date there is no legal right to receive talking therapies, as there is for drugs? Recent figures outline that more people than previously are waiting longer than the targeted access time of 28 days to receive those therapies, especially those under 18. In fact, the figures show that those under 18 are sometimes referred to mental hospitals rather than being given such therapy at the time. I respect the fact that the Government have committed to make measurable progress by March 2015 to parity of esteem, and that they cannot make any commitments before that. However, I am concerned that there appears to be no monitoring of this situation. The fact that this is urgent does not seem to be taken on board and many young people under 18 are suffering.
Earl Howe
My Lords, the mental health of children and young people is a major priority for the Government. Half of those with lifetime mental illness first experience symptoms by the age of 14 and three-quarters before their mid-20s. That is precisely why we are investing a large sum of money—£54 million—over the four-year period 2011-15 in the Children and Young People’s Improving Access to Psychological Therapies programme. We know, as the noble Baroness rightly emphasises, that those talking therapies can make the most difference, particularly if early intervention is achieved.
Baroness Gardner of Parkes
My Lords, is it not so that very often parents do not realise what is happening to their child? As for cancer or any other condition, early diagnosis is the secret. What can be done to speed that up? When I was chairman of a hospital, we had a whole ward full of people with this problem, but their condition had been recognised too late and therefore treatment was extremely difficult.
Earl Howe
My noble friend is absolutely right. However, it is encouraging to see that in recent years a range of information and support has become available. The Royal College of Psychiatrists has published a fact sheet on eating disorders, which is aimed not just at the profession but particularly at parents, teachers and young people themselves. It is called Mental Health and Growing Up. The fact sheet discusses the causes of eating disorders, how to recognise them and gives advice on how to cope with a child who has an eating disorder.
The Countess of Mar
My Lords, I am sure that the noble Earl accepts that some young girls have an eating disorder that is not anorexia or bulimia—they may have CFS/ME or reactions to HPV vaccines. Very often, they are incarcerated in mental hospitals when they should receive a different form of treatment. I have spoken to the noble Earl about this but perhaps he could say what progress is being made in ensuring that such young people are not mistreated?
Earl Howe
My Lords, I am sure that this is an area that NICE will need to look at when it refreshes its guidance to the clinical community. The noble Countess is absolutely right to raise the issue. CFS/ME can often be misdiagnosed; it can be mistaken for other conditions without proper differential diagnosis having taken place. We know that there is more work to be done in this area. However, the range of programmes now available to GPs, some of which I have referred to, can be helpful in this area.
Lord Hunt of Kings Heath
My Lords, I refer noble Lords to my health interests in the register. Perhaps I can take the noble Earl back to my noble friend’s question. She mentioned “parity of esteem”, which of course the House legislated for in the 2012 health and social care legislation. Could he tell the House how the Government intend to ensure parity of esteem, particularly ensuring that mental health services are given their fair share of resources in the health service? How do the Government intend to take that forward?
Earl Howe
My Lords, I do not wish to duck the fact that this is a very difficult area to define. We all know that we want to achieve parity of esteem. It depends on ensuring not only that mental health services are given their fair share of the budget but that the right treatments are delivered to the right people, and that everyone in the country has access to appropriate treatments. We are currently firming up with NHS England what the right metrics are in order to judge whether they have met that aim. I will write to the noble Lord with the latest news on that front.
Baroness Tyler of Enfield
My Lords, I am sure that the Minister is aware of the growing trend for eating disorder clinics and hospitals to treat much younger children and, indeed, boys with eating disorders. Given this, what additional steps does the Minister think need to be taken to ensure that everyone involved—children’s services, primary schools and others—are spotting these signs, particularly in boys, where stigma is often attached to acknowledging these things, to ensure that effective treatment is quickly available?
Earl Howe
My noble friend is absolutely right. The figures that I have before me show that by far the largest number of cases occurs in the age group 10 to 17. We are working on raising awareness of mental health problems, including eating disorders, and on providing support in schools. Particularly, we have provided £3 million of funding over two years to the BOND Consortium, which is led by YoungMinds. The aim of that is to build capacity in the voluntary sector to support the access that schools have to local services. We are also producing an e-portal tool for children’s and young people’s mental health, which we hope will be delivered next year.
Health: Prescription Drugs
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The Earl of Sandwich
To ask Her Majesty’s Government what changes have been made in the training of junior doctors and nurses in the long-term effects of prescription drugs and in the availability of services to those suffering from addiction to and withdrawal from such drugs.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, recent changes to key documents governing the training of doctors have strengthened the requirements for their training in the long-term effects of prescribed drugs. The training of student nurses, due to the introduction of new educational standards, has been strengthened. Services to treat dependants, including for addiction to medicines, are commissioned locally. Information on changes to the availability of services locally to those suffering from addiction to and withdrawal from prescribed medicines is not collected centrally.
The Earl of Sandwich
My Lords, prescribed medicines can be every bit as dangerous as hard drugs, and the length of withdrawal can be much longer—up to three or four years, as I know from personal experience. Their victims lead a half-life and are out of the range of the NHS, with only the voluntary services to help them. Despite what the Minister has just said, which is encouraging, does he agree that the training being given to the younger generation of doctors and psychiatrists, and even the older ones, is still inappropriate and inadequate? What can the Government do to strengthen this training and to reinforce what the voluntary sector is already doing?
Earl Howe
My Lords, I am sure that the noble Earl will be encouraged to know that a lot of work is going on in this area. The Centre for Pharmacy Postgraduate Education, the Royal College of General Practitioners, Public Health England and others are developing information and educational materials and training on addiction to medicines for GPs and other healthcare professionals. In fact, the Royal College of General Practitioners published a consensus statement in January in which a wide range of professional organisations signed up to tackling this serious issue. I know that the Board of Science of the British Medical Association has also discussed it. I hope that the noble Earl will be encouraged that there is genuine activity in this area.
Lord Walton of Detchant
My Lords, many years ago when I was chairman of the General Medical Council’s education committee before I became its president, I received in the course of two months 32 letters each demanding that the special interest groups that wrote to me should have their conditions and concerns included in the undergraduate medical curriculum. Does the Minister accept that the range of medical knowledge is now so vast that basic medical education over five or six years does no more than simply enable graduates in medicine to benefit from postgraduate or vocational training having acquired skills and knowledge in principle which will help them to do that? Can he assure us that this extremely important matter raised by my noble friend now figures in postgraduate training of doctors, and not least in the mandatory vocational training programme of three years which must be undertaken by all intending general practitioners?
Earl Howe
I do, of course, agree with the noble Lord. I am sure that we have to be realistic about the extent to which every GP can be fully informed about this area. I can only say that it has risen in prominence in recent years, not least thanks to the efforts of the noble Earl. There is growing concern that this particular cohort of patients has been poorly served in the past and that is why the extent to which these drugs are being prescribed has diminished significantly over recent years.
Baroness Corston
My Lords, will the Minister confirm that the Committee on Safety of Medicines and the Royal College of Psychiatrists said many years ago that benzodiazepines are unsuitable for long-term use and should be prescribed for periods of two to four weeks only? And will he revisit a Written Answer he gave me recently saying that there was no connection between benzodiazepine addiction and suicide, when there is 30 years of eminent research to show that that is indeed the case? I declare an interest as the patron of Battle Against Tranquillisers, the foremost charity campaigning in this area, whose mission statement is:
“To lessen the harm caused by benzodiazepine and z drug tranquilizers and sleeping pills”.
Earl Howe
My Lords, of course I will revisit that Answer, and I will come back to the noble Baroness if I find cause to correct what I have said. However, I agree with her that the risks associated with long-term use of tranquillisers have been well recognised for many years. There are several authoritative sources for guidance for prescribers on this issue. I believe that that guidance is having an effect because, as I said, the prescribing rate has considerably diminished of late. There is no shortage of guidance out there. There is the national formulary, which already describes the importance of gradual withdrawal from benzodiazepines, and there is a wide variety of other impartial and trustworthy information resources to support prescribing.
Baroness Jolly
My Lords, GP training is important but for a user the crucial thing is the availability of the services. Will my noble friend tell the House whether services for those addicted to prescription drugs are readily available within each CCG area and where one might find details of such services?
Earl Howe
My noble friend will be encouraged to know that Public Health England has published a commissioning guide for the NHS and local authorities which sets out its expectation that support should be available in every area for people with a dependency on prescription or over-the-counter medicines. Local authorities are now, as she is aware, responsible for commissioning services to support people to recover from dependence in line with local need. Most of the support available for people who are addicted to prescription drugs is with their GP and not in services treating those addicted to illegal drugs, but there is a range of services available.
Baroness Finlay of Llandaff
To better understand the size of the problem, will the Government consider adding a box to the yellow card, which has been successful in reporting adverse drug reactions, to state that the doctor suspects that this person may have dependence on the drug? That would provide ongoing epidemiological monitoring.
Lord Hunt of Kings Heath
My Lords, the noble Earl will be aware that in the past few years nurses have been given much more authority, once they have been properly trained and authorised, to prescribe medicines. Can he confirm that the measures he has talked about will apply to nurse prescribers as well as to doctors?
National Health Service (Licensing and Pricing) Regulations 2013
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
The Health and Social Care Act 2012 gave Monitor a new role in regulating provision of NHS services and an overarching duty to protect and promote the interests of patients by promoting NHS provision that is economic, efficient and effective. These regulations provide key details that enable Monitor to carry out its new functions of licensing providers of NHS services and regulating the prices payable by commissioners for NHS services, in order to protect and promote patients’ interests.
The licence is a key tool by which Monitor will regulate providers of healthcare services for the NHS. Monitor has now taken on its new licensing powers in relation to foundation trusts and we expect this to extend to other providers of NHS services from April 2014.
A provider’s licence is made up of licence conditions that set out the requirements providers must meet if they wish to provide NHS services. In future, all providers of NHS services must hold a licence unless they are exempt under separate regulations, which were laid before the House on 4 July.
Monitor published its first set of standard licence conditions in February this year, after approval by the Secretary of State for Health. They include standard conditions such as requiring licensees to provide information to Monitor, which will apply to all licence holders, or to particular types of licence holder, such as conditions applying to providers whose services are designated as a commissioner-requested service. There are also special conditions that will apply to an individual provider, such as conditions for NHS foundation trusts. The Act sets out a process that Monitor must follow in order to either modify a standard licence condition or include a new standard licence condition that applies to all licences, or licences of a particular description.
These regulations allow the Secretary of State to determine the extent to which licence holders should be able to influence Monitor on any changes to the standard licence conditions, to ensure a balance between allowing real concerns to be addressed and not imposing unnecessary delays to the licence modification process. Monitor intends to engage potentially affected licence holders on the scope and scale of any changes to the standard licence conditions before reaching the statutory process, much as it did when engaging on the first set of standard licence conditions.
The statutory process then ensures that there will be proper engagement with affected licence holders and other relevant bodies about any change to the standard licence conditions, and includes a statutory check on Monitor’s ability to change the standard licence conditions. This check comes in the form of an ability for licence holders who would be affected to object to the change.
The regulations set the two objection thresholds at 20% of licence holders or 20% of market share of NHS provision. If either threshold is met, Monitor will be unable to make the change. However, Monitor may refer the issue to the Competition Commission. Monitor could make the changes only if the Competition Commission judged that the changes were in the public interest.
I turn to the second aspect of these regulations. Monitor has powers to take action where a person—which may be a licence holder, an exempt provider, NHS England or a clinical commissioning group—has not complied with a request for information documents, records or other documents that it considers necessary for Monitor to carry out its regulatory functions. Monitor also has powers to take action where a provider is in breach of the requirement to hold a licence or a condition of the licence.
The Act sets out Monitor’s powers to impose three different types of discretionary requirements, and I remind the Committee of them as a refresher. The first is a variable monetary penalty of such amount as Monitor may determine, up to 10% of the organisation’s turnover in England. The second is a compliance requirement, or, in other words, action to stop the breach in question or to ensure that it does not happen again—for example, a requirement that a provider ceases plans to dispose of an asset needed for the provision of a specified service. The third is a restoration requirement, an action to revert to the position before the breach occurred. For example, Monitor could require that a provider reopen a service that it had closed in breach of a licence condition.
Monitor’s guidance sets out how it will determine the use of its enforcement powers, including fines, and these regulations set the definition of turnover that Monitor will use when determining the level of fines. Simply put, providers’ turnover is defined as their turnover from NHS income. The turnover of clinical commissioning groups and NHS England is defined in terms of administrative spend; total spend would be vastly disproportionate.
I turn to the final aspect of the regulations. The Government want to ensure that the health system delivers better health, better care and better value for money. Better value for money and more accurate pricing will be a key part in delivering enhanced services to patients and in equipping the NHS to improve standards. The new system will drive improvement through providing mechanisms to ensure that prices better reflect costs of supply, incentivise better data recording and collection and make available better incentives and stronger compliance mechanisms. Monitor will have the specific duty of promoting healthcare services that represent value for money and maintain or improve quality. Monitor will achieve this by working with NHS England to regulate prices and set rules for determining prices for local pricing and flexibilities.
Lord Hunt of Kings Heath
My Lords, I was just going to refer the Minister to his remarks about the Competition Commission, because it is relevant to the regulation. There is great confusion in the health service about the commission’s role. The Minister will know that there have been interventions in Dorset and Bristol on what seem to be entirely sensible proposals. In Dorset it was the merger of two small acute trusts, while in Bristol it was the “divvying up”, I suppose the phrase is, of services between two trusts in order to allow for more patients to be treated and all the benefits that you get from that, with one trust focusing on some services and the other focusing on others. In anyone’s terms, those are both examples of the kind of configuration of services that is entirely sensible and that the Government in other guises are supporting.
It is quite clear that the OFT has been trying to get into the health service for some years. I will not get into Section 75 now but the OFT now feels that it can get into the health service, although it is very difficult to see what the point of that would be. The OFT is independent, I understand that, but Ministers have been silent about this. There is utter confusion in the health service and, I believe, among the regulators about how to run these two issues—on the one hand, the Competition Commission and OFT approach, and on the other the need for us to be aggressive in terms of the reconfiguration, and in many cases the centralisation, of services. This matter needs to be teased out.
The regulations ought to be considered in relation to more general policy on pricing as part of the national tariff. The Minister will know that in October last year, when the House of Commons Health Committee had its annual accountability hearing with Monitor, David Bennett, the leader of Monitor, talked about perverse incentives with regard to the tariff. He said that he was not sure that they were fundamental to the pricing system but he agreed that the way it is working can create perverse incentives. One example he used was that if we want to move activity out of hospitals and into a community setting, one thing we have to think about is that there some real transition costs which will have to be paid one way or another. The question is: is the tariff being adjusted to allow for that?
The Health Select Committee published its subsequent report in March of this year and concluded:
“The setting of the tariff is of great significance to the NHS because of its implications … for short term cash flows in the system, and for longer term incentives for”,
service changes. It recommended that,
“Monitor and the NHS Commissioning Board … attach a high priority to this process … because NHS parties need to know the likely tariff in 2014–15 as soon as possible, but also because the long term framework of the tariff will have an immediate effect on service design and the integration of service provision”.
I would be interested to know whether it is the noble Earl’s view that progress is in fact being made, so that the regulations and the tariff to which they relate are much more sensitive to the need for change and reconfiguration in the health service. We must reorganise our services to get higher quality, and the work that Bruce Keogh is doing is surely driving us towards this. However, it sometimes seems as though some of our regulatory apparatus is now at risk of getting in the way of what, on anyone’s evidence base, would be a sensible move. I would be interested if the noble Earl is able to respond to any of those points.
Earl Howe
My Lords, I am grateful to both noble Lords who have spoken. First, I hope that I can reassure the noble Baroness, Lady Finlay, on the question she posed about the cross-border aspects of patient flows and the tariffs that apply. The tariff will apply only to services commissioned by commissioners in England: that is to say, CCGs and NHS England. Any provider who provides healthcare services for the purposes of the NHS which are covered by the proposed tariff will be able to object to Monitor’s proposed methodology, so I do not see that patients in Wales or on the border need to be anxious about this.
The noble Lord, Lord Hunt, asked a series of questions. First, he questioned the wisdom of allowing Monitor to fine providers. It is worth saying that the discretionary requirements which Monitor can impose, as laid down in these regulations, are based on those used for other regulatory offences. In fact, they are based on Part 3 of the Regulatory Enforcement and Sanctions Act 2008. That menu of options has been picked up and put into the 2012 Act.
As regards fines, we need to be clear—and it is certainly my understanding—that Monitor regards fines as a last resort. It will need to consider each case carefully and has a responsibility to ensure that its regulatory actions are reasonable, while deterring poor conduct in the future. It must also consider whether its other powers would be more appropriate. I understand the point that the noble Lord has raised but it is unlikely that we will see Monitor exercising this power with any frequency. We must bear in mind that 10% of turnover is of course a maximum figure.
The noble Lord asked about the thresholds as laid down in the regulations. The 20% threshold relating to licensing is based on a similar process which was in place for modifying licences in the energy sector. We considered that the situation here in the health service was comparable, and it is a threshold that commanded general acceptance.
Earl Howe
I take the noble Lord’s point about uncertainty and confusion that I know exists in certain parts of the health service as to what all this means. I can tell him that officials in the department have had some very productive discussions with both the OFT and the Competition Commission to ensure that their approach need not set unnecessary hares running as regards apprehensions that a purist competition-based approach will be taken by these bodies. I am satisfied that that will not happen. My advice is that the Competition Commission, in particular, has welcomed the input of departmental officials in terms of the factors that need to be brought into play when making a judgment on what is in the best interests of the health service and patients.
At the same time I am aware that a number of useful events and conversations took place within the health service itself when we clarified with providers the considerations that the OFT and the Competition Commission will look at in proposed mergers. We are ensuring that when proposals are made the benefits of mergers are clearly defined in terms that will resonate with the competition authorities. The noble Lord is right that we are in new territory in many senses, but I am optimistic that the system will work in the way that it should. It is certainly about looking at competition aspects but, more pertinently, looking at the criteria that I mentioned earlier, such as the public interest in the case of licence modifications, the test of appropriateness in pricing methodology, and in the case of mergers, the interests of patients in the health service. The OFT and the Competition Commission must take into account the benefits of a proposed reconfiguration if they consider it under the Enterprise Act 2002. I remind noble Lords that that is the governing Act, so in theory at least, we have been in this situation for more than 10 years. In doing so the competition authorities must consider whether those benefits would outweigh any substantial lessening of competition that they find.
The noble Lord asked about the tariff, and in particular, primary care. We agree that payment mechanisms need to be aligned to drive better outcomes and better value for patients. They also need to be responsive and flexible, for example to enable services to be provided in an integrated way. Monitor and NHS England will work together to move the tariff in this direction. They are best placed to do that given their different roles.
The noble Lord asked me what would happen if the tariff proved to be inadequate. We expect the tariff in future more closely to relate to the costs of providing particular services. If the price payable for a service would make it uneconomic for a provider to provide a service, Sections 124 and 125 of the 2012 Act provide for a process for local modifications of the price payable.
My advice is that NHS England and Monitor are working very well together in this regard. Guiding principles have been defined and six shared principles for pricing have been agreed: that the pricing mechanism should enable and promote improvements in care for patients and taxpayers; that it should enable efficient providers to earn appropriate reimbursement for their services; that it should have regard to sustain the NHS offer in the long run; that it should not preclude the delivery of the Secretary of State’s mandate for NHS England; that it should have regard to the principles of better regulation; and that it should support movement towards a fairer playing field for providers.
I hope that I have answered most if not all the questions, but I undertake to write to noble Lords if I have failed to do that.
Baroness Finlay of Llandaff
I seek a small point of clarification. I take the example of a Welsh provider that is providing services for Welsh patients and that is also licensed to provide for patients coming across from England. In the event of them being deemed not to meet the conditions and therefore a fine potentially being levied at 10%, would that be only 10% of the contract issued on behalf of the English patients? Two very different healthcare systems will be operating.
I realise that this is complex, but the two healthcare systems are becoming more divergent yet the population on the border has to access both sides, I am concerned that these are some of the things that need to be clarified. It is a detail, I know.
Care Bill [HL]
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Baroness Wheeler
My Lords, the Joint Committee on the Bill acknowledged that it had been widely welcomed, but asserted that this did not mean that it could not be improved—there are gaps and risks and unintended consequences. The failure of the Bill adequately to underline the importance of housing not just to well-being but to integrated care, to prevention and to being included in the provision of advice and information on quality of care and assessment is what these amendments seek to address. The interplay between housing and well-being—the standard of someone’s living circumstances and their health condition, the appropriateness of their house or flat and the likelihood of their being able to remain in it and care for themselves—is long established. However, as noble Lords have shown, it is overlooked in key clauses of the Bill.
Our Amendment 87ZC takes forward the vision of specialist houses fully integrated into the health and social care system which was so comprehensively set out by stakeholders from across the housing sector in their evidence to the Select Committee. The quality of that evidence was commented on by the noble Baroness, Lady Jolly. There are numerous examples of inspiring best practice where housing is an integral part of care and support and service delivery. The Bill needs to provide the momentum for good practice to become embedded across all local authorities and health providers.
The evidence to the Select Committee from organisations across the housing sector cites inspiring examples of where housing, health and social care provision and support join up to provide integrated person-centred care. However, alongside this, there is huge frustration that progress across the country has been so slow and patchy. This is especially so when what stakeholders refer to as low-level interventions, which really make a difference, are often the services earliest to be cut back and dispensed with. The Anchor Trust, for example, described the determination to keep its service-level manager on site at one of its sheltered housing schemes because it made all the difference. The noble Lord, Lord Martin, made this point, too. Anchor said that, in its view, once the manager left, the next steps for elderly and frail people were usually into residential care. This was one of the many examples given of the consequences of not having housing-related support regarded as a key social determinant of health. I look forward to the Minister’s explanation as to why the Government have not ensured that this is fully reflected in the Bill.
Earlier, we heard the case from the noble Lord, Lord Best, and my noble friend Lady Wilkins for Amendment 81, supported forcefully by the noble Lord, Lord Rix, on the importance of including the promotion of housing provision in the duties of local authorities under Clause 3 to provide integrated services, and of ensuring that there are similar duties placed on the health service. Our amendment to Clause 6 complements this by reinforcing integrated joined-up working with registered housing providers, including housing associations and registered social landlords, and recognising these as key, relevant partners under the Bill.
The need to recognise housing as a preventive service cannot be overestimated or overemphasised. Schemes such as Midland Heart’s reablement service for the elderly or frail combine social care and housing association support to enable people to be discharged from hospital back to their homes quickly and help independence to be regained. They delay or prevent the need for more intensive care, reduce the likelihood of repeated hospital stays and can prevent avoidable accidents. Commissioners need to be encouraged to consider specialist housing, home-from-hospital services, housekeeping-related support and adaptations when designing preventive services. Housing is a crucial preventive service and Amendment 80 is important for ensuring that this is recognised in the Bill.
Amendment 88 is also important for ensuring that needs assessments include an assessment of housing options, as is Amendment 86, which underlines the importance of ensuring that local authorities provide information and advice for adults and carers on available housing options and the choice of providers available in the authority’s area. While in Amendment 87 we fully recognise the need for more specialist housing to be built to meet the needs of care and support, we would be cautious at the present time of putting this extra burden on local government when it does not have the resources or the means to deliver. It is the responsibility of national government to provide the £10 billion extra investment in infrastructure that the International Monetary Fund has called for to get the economy moving and make shovel-ready projects such as housing happen.
I am grateful to the National Housing Federation for its excellent briefing, and I refer to an example of integrated care and support it gives that was provided by one of its members, the housing association Look Ahead, for a psychiatric patient. It shows what can be achieved. Following a six-month stay in hospital, it had initially been intended that he should move to a residential care placement, but instead he was referred to Look Ahead’s rehabilitation service. The support that he received helped him with basic life skills, diet management and managing his condition. After 18 months, he had successfully moved to his own flat, had been able to reduce his psychiatric medication and had started a nursing diploma. This service, taking him from hospital to independence in his own flat in 18 months, was provided by successful joint working between the housing association, the local authority and the NHS trust, with an estimated saving of nearly £250,000 across the three services.
We heard, too, at our latest stakeholder group meeting yesterday about a successful jointly procured and delivered reablement centre in Liverpool that is funded by the local authority and the clinical commissioning group in respect of hospital discharge. The scheme provides two to three weeks of intensive occupational therapy and other key services, which doubled from 40% to 80% the percentage of patients who did not require a continuing care package after this initial support. However, we understand that in some parts of the country CCGs are expressing reluctance to enter into joint funding schemes with local authorities in case the health funding element is leaked into other council services, given their budget situations—literally, I suppose, into filling potholes or such like. Can the Minister tell us what steps are being taken to reassure CCGs about this potential barrier to providing integrated services?
As part of its oral evidence, Jake Eliot from the NHF said:
“Too often, the integration that occurs happens because service users, carers, providers and commissioners are working skilfully in spite of the system rather than because of it”.
This is something that the Bill can change effectively. I hope that the Minister takes these words to heart and accepts the amendment. It would ensure that the Bill recognises the importance of housing. It is important not just for well-being but for prevention, for the provision of advice and information in the assessment process and for ensuring that the overall quality of care is fully recognised.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, in tabling these amendments, the noble Lord, Lord Best, brings to the attention of the Committee the important role that housing plays in both care and support, and as a determinant of well-being. I have listened with care to the powerful contributions in support of them. Having done so, I begin with an observation that I hope is incontrovertible, which is that simply having a roof over your head will have a profound impact on your well-being. Having access to suitable housing for those with care and support needs plays a vital role in promoting not only their well-being, but their independence. The noble Lord, Lord Best, brought this point home very well. Properly taking into account the suitability of someone’s living accommodation could, for example, help to prevent a frail older person from falling and thus suffering the pain and trauma of broken bones and an unnecessary stay in hospital, the need for a greater level of care and support following discharge, and the costs of this to the public purse. It is vital that the system actively works to promote independence rather than waiting for people to reach a crisis point.
To reflect the importance of housing as a determinant of well-being, we have explicitly included the “suitability of living accommodation” in Clause 1(2), which sets out a list of things to which well-being relates and that the local authority is required to promote in performing its care and support functions. Furthermore,
“accommodation in a care home or in premises of some other type”,
is set out in the high-level list of examples of how to meet needs in Clause 8. Together, this means that the Bill ensures that housing is an integral part of care and support, where it is not general housing as excluded by Clause 23.
Baroness Gale
My Lords, I will speak to Amendments 92ZZEA and 92ZZEB. Clause 22 is titled:
“Exception for provision of health services”.
Subsection (1) is crucial, as it sets out the legal test for when NHS continuing care or registered nursing care should be provided and when the means-tested social care system may lawfully provide for nursing care.
Recently, I have been listening to people give evidence to the APPG on Parkinson’s, which I chair and which has been conducting an inquiry into NHS continuing care. Listening to the witnesses, it has become very clear that there are often lots of problems with the health service and social care services arguing over funding. People are having difficulty accessing continuing care under the NHS and have to get over lots of barriers. It is quite heartbreaking to hear the problems that people are having.
The wording of Clause 22 still carries a potential risk for those who self-fund their care. There are various provisions in the clause that allow local authorities to arrange for health services that should be provided by the NHS. Once councils start delivering healthcare, when they traditionally used to deliver means-tested and chargeable social care, there is a risk that someone—somewhere in the system—will mistakenly conclude that the council can charge for those services. There is a need to ensure that self-funders are not exposed if they are found to be eligible for NHS continuing care, or registered nursing care, and the package of delivery is with the local authority. These matters were raised by the Joint Committee scrutinising this Bill but have not yet been addressed.
In legal terms, local authorities are prohibited from providing anything authorised or required to be provided under the NHS Acts. This means that social services cannot provide care home accommodation if a power or a duty to provide the accommodation exists under any of the NHS Acts. Clause 22 has narrowed this down to just “required”, for example by omitting the “power” or authorisation provision. That leaves local authorities able to provide accommodation that the NHS has a power to provide. I believe that disputes and confusion have occurred between councils and the NHS over continuing care, and this seems to be a recipe for more. The Bill should be amended to prohibit local authorities providing a service or facility that is authorised or required to be provided under the NHS Act 2006.
My amendment would mean that local authorities would be prohibited from providing health services that are authorised or required to be provided under NHS Acts. My aim is to make it clear who can deliver what, so as to avoid self-funders being at risk, however small that risk might be, of having to pay for care that they should be getting free.
Clause 22(4)(a) also states that a local authority may, despite the prohibitions, arrange for care home accommodation with nursing care if it has consent to do so from the clinical commissioning group. This may also put self-funders at risk of being charged for services that should be free.
These amendments would introduce an explicit clause that sets out that, where a local authority provides services on behalf of a clinical commissioning group, the authority may not recover the cost from the individual whose needs are being met. I trust I have set out clearly why these amendments are needed and I hope that the Minister will agree with me.
Earl Howe
My Lords, it is vital that care and support, health and other services are joined up, as this offers the potential to make measurable improvements in individuals’ outcomes and experiences of care and support. Clause 3 places a duty on local authorities to carry out their care and support functions with the aim of integrating services with those provided by the NHS or other health-related services such as housing. Amendment 81C, tabled by the noble Baroness, Lady Wheeler, raises the issue of co-operation duties on the NHS; I have no issue with that sentiment. Clause 3 is intended to reflect the similar integration duties placed on NHS England by Section 13N, and on clinical commissioning groups by Section 14Z1 of the National Health Service Act 2006, in the context of this Bill.
Clause 6 imposes a general duty to co-operate between the local authority and other relevant authorities that have functions relevant to care and support. Clause 7 supplements this by creating a specific duty to co-operate in individual cases.
Clause 22 sets out the limits on what a local authority may provide by way of healthcare and so, in effect, sets the boundary between the responsibilities of local authorities for the provision of care and support, and those of the health service for the provision of healthcare. Our intention is to replicate the effect of the current prohibitions on what a local authority may provide by way of healthcare, which are imposed under Sections 21 and 29 of the National Assistance Act 1948 and Section 49 of the Health and Social Care Act 2001. This is a matter eloquently raised by the noble Baroness, Lady Gale, in tabling Amendments 92ZZEA and 92ZZEB.
The word “authorised” in Section 21 of the 1948 Act has resulted in much confusion and case law. The intention behind Clause 22 is therefore to simplify the language and to make the boundary clearer without moving it. Make no mistake: where nursing care is being funded by the health service, it will continue to be unlawful for a local authority to recover the cost of this from the individual. It is the relevant clinical commissioning group that would be responsible for this cost.
On Amendment 82A, I wholeheartedly agree with my noble friend Lady Barker that no one should be given medical treatment or be medically assessed against their wishes where they have capacity to make such a decision. I hope that my noble friend will be reassured that the existing legal position and clinical practice is clear on that point.
Amendments 87ZZA and 81B were, again, spoken to by the noble Baroness, Lady Wheeler. The prominence of health and wellbeing boards will be strengthened through their role in signing off the joint plans that are required as part of the £3.8 billion pooled fund between local authorities and the NHS to support joined-up and integrated working. The need for local commissioners to engage with their health and wellbeing boards is made clear through their composition, which includes the director of adult social services, the director of children’s services, the director of public health and a representative of each relevant clinical commissioning group. The duty to co-operate already applies to these health and wellbeing board members.
Lord Beecham
That is absolutely true. Neither is the provision of information and advice. However, it is not necessarily the role of a professionally qualified social worker or a professionally qualified health visitor or other person. I agree—it is a point that the noble Baroness, Lady Barker, and I both made—that both sides, health and social work, must collaborate on this. It is perhaps the wording of the amendment, rather than the intention, that might be looked at.
There is a question about how best to proceed with the publicity that should follow the enactment of this legislation. The Joint Committee advised that the Government should work with all interested providers to launch a campaign to raise awareness of and support for the change. I hope that the noble Earl will confirm that that is the Government’s intention and bring us up to date on where the Government stands.
In the context of such a radical change, it might be desirable for there to be some pilots on the ground about this issue of information and advice, working in collaboration with the Local Government Association, the NHS Confederation and other major national partners, to look at how these matters can best be explained. There could also be, at a fairly early stage, some examination of good practice. I am not suggesting that the whole scheme be piloted but that in a few areas, after a relatively short period, there might be a process of peer review and an examination of how it is working on the ground. Given that local authorities retain their scrutiny role for health and social care, it would be worth while developing with the Centre for Public Scrutiny, the LGA and relevant health service bodies, a way for the new system to be subjected to useful scrutiny at local level, and for lessons learnt to be disseminated across the country.
There are questions about the advocacy role. There is clearly a case for advocacy being included. One notes that there is a glancing reference in Clause 8, which is the reason for the stand part debate. It looks a little odd situated between Clause 4 and Clauses 18 and 20, as it does not seem to relate specifically to either. It has been mischievously suggested that there might have been references to advocacy in other parts of the Bill at an earlier stage that were removed and this was left behind. Can the noble Earl indicate the Government’s intention in referring to advocacy in that particular clause? We are not intending to move that the clause should not remain in the Bill; this is purely a probe.
We see most of these amendments as contributing to a refinement of the Bill’s proposals and we welcome that. However, it is necessary to reiterate the need for caution about the role of local authorities, particularly in the context of the financial situation that they are facing, which will get worse under a very tight regime. The Government are making provision for this, but we must be careful that the sum is not divvied up across a range of things without seeing the whole picture. If we are to give priority to this issue of information and advice, it would be helpful if the relevant departments, together with the Local Government Association, could look at the real cost of this and ensure that it is identified and included within the total package. It is easy to add desirable things against a budget. We do not know the extent to which these matters have been costed, for example, in the sum that the Government have allocated. We know that the demand is constantly rising, partly as a result of demographic change, and that the costs are also inexorably rising. This will be a cost. It is a justifiable cost, but it needs to be identified, provided for and kept under review.
Having said that, we are very much in sympathy with the thrust of these amendments and we look forward to the Minister’s reply and to working with others of your Lordships’ House in ensuring that the Bill is capable of delivering what it sets out to deliver and that all relevant players are engaged and financed adequately, so that we can afford the best possible level of care to those—of any age and with any condition —who need it.
Earl Howe
My Lords, I am very grateful to noble Lords for tabling these amendments, which highlight the importance of access to good information and advice, including independent financial advice and independent advocacy, for those who have care and support needs or are planning how to meet future care and support needs.
First, I will address Amendment 82B, in the name of the noble Baroness, Lady Meacher, Amendment 86E, in the name of my noble friend Lord Sharkey, and Amendment 86F, in the name of the noble Lord, Lord Lipsey. Clause 4 introduces a general duty to make a universal information and advice service available to everyone in the local community. I say to my noble friend Lord Sharkey in particular that we are clear that the information and advice service must be accessible to all, whether they fund their own care or get some care and support paid for by the local authority, and in order to fulfil its duty the local authority will need to facilitate access. The noble Baroness, Lady Meacher, raised the issue of early information and advice about Alzheimer’s in particular; this will be one of the vital areas that the services should cover.
The clause deals broadly with what the information and advice service must cover. Subsection (2) sets out the essential requirements for the service but— intentionally—this is not a definitive list. With regard to Amendments 86B and 86H, subject to specific qualifications, it will be for local authorities to determine the precise scope and manner of the information and advice that they offer. We expect many authorities to offer access to independent sources of information and advice, working together locally with the voluntary, not-for-profit and private sectors. We set out our expectations and additional funding for local authorities, which rises to £50 million a year by 2017-18, in the Caring for Our Future White Paper.
I would say to my noble friend Lady Browning that some authorities have also used qualified social care staff as the first point of contact and have found that this can be effective, efficient and timely, helping people to the care and support that will help them most. Others have provided a first point of access to information through more general services, which connect information and advice on a wider range of local authority responsibilities as well as local NHS provision.
I emphasise that statutory guidance will cover how information and advice can be provided in an accessible way and be proportionate to the needs of those for whom it is provided. My noble friend Lord Sharkey expressed doubts about the phrase “seek to” and suggested that it was rather too weak. Statutory guidance will set out the clear expectations of what the local authority’s service should cover or what it should seek to do in order to ensure that the information and advice is sufficient.
My noble friend Lady Browning asked about the number of social workers. More than 1.6 million people are employed in the social care sector, including 200,000 social workers. We do not set out any national targets but we recognise the need to improve skills, capacity and retention. We are working with stakeholders, including the National Skills Academy for Social Care and Skills for Care, to produce new national minimum training standards, which will further raise standards and encourage new people to enter the sector. My noble friend referred to my letter of 27 June. I confirm that this referred to Health Education England. Health Education England’s remit does not extend to social care; it covers health and public health.
Amendments 83ZA and 86A, in the name of the noble Baroness, Lady Gale, cover information and advice on health-related areas and information to people with specific medical conditions. As for many services, there will be a need for the local authorities to work with NHS organisations and more widely to provide focused information and advice to those who would benefit from it. There are already good examples of how information and advice services from a range of organisations can work together with the health and well-being of the individual at heart. Many use the national information provided by NHS Choices as a base. A lot of local authorities are providing information and advice directly to those who may have an entitlement to NHS continuing care. In addition, regulations under the Bill will specify the circumstances in which the local authority must refer the adult for an assessment for NHS continuing care. We will of course work with interested organisations to include such examples in statutory guidance.
Turning to the amendments addressing access to regulated financial advice, the noble Baroness, Lady Greengross, and the noble Lord, Lord Lipsey, make some excellent points about the importance of appropriate financial advice for those who have or are planning for care and support needs. This kind of advice may be particularly relevant to people who are funding their own care and may include a financial adviser who is regulated by the Financial Conduct Authority, but there is no need for the Bill to set this out specifically. There are other kinds of advice that may be relevant to such people and, as I have mentioned, we think it is important to maintain the general terms of Clause 4.
I take on board the concern about the use of the term “independent financial advice”—that this may cause some confusion with the term’s general meaning within the financial industry and the Financial Services and Markets Act 2000. We are happy to consider this aspect in more detail to ensure that no confusion exists. However, we do not believe that taking independent regulated advice should be compulsory. Whether a person takes advantage of independent advice is a matter of personal choice. This is particularly important because some financial advice may be subject to a charge.
There will be individual circumstances in which it will be appropriate to recommend independent advice from a regulated financial adviser, such as when people are planning to meet future care needs or when people go into residential care and are weighing up financial options such as selling the home. The fact that an organisation or individual is regulated is in itself no guarantee that the person has knowledge or experience of wider care and support issues; for example, housing or other care-related options. All this makes the adult’s choice of an adviser a vital aspect. The local authority should advise about the importance of independent regulated advice and signpost the adult to offer a choice of where they can obtain the best and most relevant advice. Again, we intend to cover such issues in statutory guidance.
We will also shortly be consulting on the design and technical implementation of the funding reforms, including deferred payments. This will include how the new duties to signpost independent financial advice will work. The noble Lord, Lord Beecham, asked about an awareness campaign about the funding reforms themselves. We are scheduled to discuss amendments on that very issue in a later group and I hope that the noble Lord will be content for me to cover the issue at that point.
Care Bill [HL]
Earl Howe Excerpts(13 years, 3 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, in tabling these amendments, the noble Lords, Lord Hunt of Kings Heath and Lord Beecham, and the noble Baronesses, Lady Greengross and Lady Emerton, bring to the attention of the Committee the important role that local authorities have to play in fostering a market that offers people genuine choice between a range of high-quality care and support services.
To support choice and control for individuals, and to improve quality of care, it is critical that a range of types of care and support is available locally, and that the market in services is able to grow and adapt over time to meet people’s needs.
The Care Bill marks the first time that local authorities’ responsibilities to promote the market in local care and support services has been captured in law. This recognises the importance of ensuring the availability of a variety of high-quality services to meet the needs and preferences of all local people, not just those whose care is arranged by the local authority.
The duty is about ensuring that the market meets the needs of local people with a choice of quality services; it is not simply about promoting a market for its own sake. This focus on quality should be understood in a broad sense. High-quality services will be fit for purpose and appropriate to an individual’s needs. Consequently, the important issue raised by Amendment 86J, of ensuring that local authorities shape markets that offer people a choice between appropriate services, is already covered by the clause: propriety is an important component of quality. I say to the noble Baroness, Lady Greengross, that Clause 5 requires local authorities to shape diverse markets in care and support services. I do so in the light of her concern that low-paying local authority contracts might preclude smaller, voluntary sector organisations from playing a part in the market. The provision will include ensuring that people are able to choose from a range of providers, including small and micro providers.
In fulfilling the duty, it is vital that local authorities engage with adults using services, their carers and providers, as Amendment 86K emphasises. The Bill therefore requires local authorities to consider how providers can meet current and future demand for services, and the importance of fostering innovation and improvement in their local area. Consequently, I reassure noble Lords that it would not be possible to fulfil the duty as it stands without engaging providers, adults who are using care and support services, and carers.
A number of the amendments relate to one of the most important ways in which local authorities can shape local markets: their commissioning decisions. Local authorities are required by Clause 5 to consider the importance of ensuring sustainability. This requires a strategic perspective on the strengths and demands placed on care and support providers now and in the future. It means that local authorities must consider how their actions may impact on the stability of their local market. They should not act in a way which might risk the sustainability of the market. Looking especially at Amendment 86L, local authorities that set unreasonable or undeliverable prices which undercut the financial sustainability of the provider market would therefore not be fulfilling this duty. However, it is important to emphasise that the normal and effective operation of any market includes some providers entering and exiting the market. The Government do not wish to prevent exit, or require local authorities to prevent exit. It would not, therefore, be appropriate for local authorities to promote the sustainability of individual providers rather than the market in general. For that reason, I cannot support the amendments proposed by the noble Baroness, Lady Emerton, although, of course, I sympathise with her concerns.
The noble Baroness, Lady Greengross, expressed the worry that low-paying local authority contracts might lead to the subsidy of providers by self-funders. The introduction of the cap on care costs will mean that a person who chooses to meet their own needs will be able to compare what they might pay to meet their needs with what the local authority pays. If a person wants to, they will be able to ask the local authority to arrange to meet their eligible care needs so that what they pay to the local authority to meet their needs would be the same as the figure that counts towards the cap. I hope that is helpful.
Lord Campbell-Savours
Does that mean that a self-funder in a home would therefore know what the local authority rate was going to be? That is what I understand the noble Lord to have just said. The information would flow through, would it not?
Lord Campbell-Savours
I am sorry to press the noble Earl. As I understand it, in many homes, self-funders are completely unaware of what the local authorities pay.
Lord Hunt of Kings Heath
We are almost anticipating a later debate when it comes to the Dilnot cap. This is an important issue. It is well-known, is it not, that self-funders essentially subsidise those people funded by local authorities. We know that some homes simply would not be viable if they existed only on local authority rates. In a transparent era, will self-funders put up with that? The cap relates only to local authority rates, so self-funders, in many cases, will have to pay much more than £72,000 before they can look to the local authority for support. If they now know that in addition to having to pay well above the £72,000 they have actually been subsidising people who have been supported by local authorities, I think it is going to lead to some severe problems.
I do not expect the noble Earl to be able to respond in detail, and perhaps this is in anticipation of the debate that we will have in our next session, but I am not sure whether the issue of fairness has been factored in to an understanding of how this is going to work in practice.
Earl Howe
Local authorities and individuals can pay different prices for care. That can be because individuals have consciously chosen premium facilities or because the local authority has negotiated a lower price in exchange for buying care for a larger number of people, which can often happen as well. As is the case now, local authorities and providers will continue to negotiate arrangements and fees for providing care and support. This process should ensure that contracts reflect the market price for providing care. Local authorities that fail to negotiate properly with providers and do not have regard to the actual cost risk legal challenges to the care fees that they set. However, in response to the noble Lord, Lord Campbell-Savours, I would say that in future the independent personal budget will set out the cost to the local authority. That is the transparency point that I was trying to get at earlier.
Lord Campbell-Savours
I am very sorry but the point is being missed and I think that my noble friend on the Front Bench tried to qualify it. Up to £75,000, the self-funder is paying the full whack. As I understand it, what is being said is that in the same home the local authority rate either will be or will not be available to the self-funder who is paying that full rate. All I want to know is: if they are paying under the £75,000 cap, will they know what the local authority rate is? That is what I am trying to find out.
Baroness Greengross
My Lords, I have mentioned to the noble Earl another aspect of this which I think needs to be taken into account. Not only will this funding by some people of other people—or the “secret tax”, as I call it—become better known but there will be a strong incentive for self-funders to dispose of their assets so that the local authority pays the local authority rate for them, even if they pay in more on top of that. Therefore, I think that the Government need to take into account the huge extra cost on local authorities which we have not thought about so far. If self-funders were to go to a financial adviser and ask for advice, I imagine that many financial advisers would say, “Dispose of some of your assets and at least the local authority will pay that rate for you”.
Earl Howe
But for somebody with assets who is looking to be taken care of in a residential home the incentive to dispose of their personal assets is surely going to be a great deal less than it is at the moment. I would have thought that that incentive was much greater now than it will be in the future, when we hope that there will be financial products on the market to enable people to insure up to the level of the cap. Therefore, I am not sure that I completely understand the force of the point that the noble Baroness is making. Obviously there will be some incentive for people to dispose of their assets but I suggest that it will be less than she has stated.
To move on to the noble Baroness’s Amendment 86M, there will be a dispute between a local authority and a provider as to the prices proposed or other matters. Occasionally, disputes may become intractable. Therefore, I completely understand why the noble Baroness proposes through her amendment to, in effect, require a new independent adjudicator to arbitrate in any unresolvable disputes. However, it is our view that any disputes arising as part of a contractual negotiation must be resolved through that process. Appointing or establishing a new independent adjudicator would be likely to add unnecessary cost and bureaucracy to the process of commissioning. We also believe that it will be likely to increase disputes by providing a means of challenge which would soon become a standard process.
Earl Howe
My Lords, I thank all those who have contributed to an informed and very interesting debate. The amendments mostly focus on the assessment process, but some also refer to Clause 13 on the eligibility criteria which we will consider later.
The noble Baroness, Lady Wheeler, is quite right that assessments will remain an integral part of the reformed care and support system. However, rather than acting primarily as a gateway to the adult receiving care and support, the future system will place more emphasis on supporting people to identify their needs; understand the options available to them; plan for meeting care and support needs, and reduce or delay needs where that is possible.
The amendments tabled by the noble Lord, Lord Low, Amendments 87H and 88PB, rightly point out that intermediate care services, such as reablement, can play a vital role in helping people regain their independence and in preventing avoidable re-admissions. Under this Bill, local authorities would be expected to consider how the provision of reablement and other types of care and support could contribute to the achievement of an individual’s desired outcomes as part of the assessment process. Clause 13(2)(b) makes it clear that, in determining eligibility, local authorities must consider if the person would benefit from preventive services—whether or not they have eligible needs. This would include reablement services.
Amendments 88PA and 88PC, tabled by the noble Lord, Lord Low, look to build on the measures in Clause 13(2) about prevention. Amendment 88PC raises the issue of individual entitlements to preventive services, facilities and resources. I hope he would agree that Clause 2 is an important step forward in itself, capturing prevention in primary legislation for the first time. It will require local authorities to provide or arrange prevention services and actively to consider the steps that they should take. The Bill makes clear that prevention is a core part of care and support provision, not an optional extra. This duty is only one part of a broader approach throughout the Bill to preventing, delaying and reducing needs.
One of the aims of the pooled budget, to which the noble Lord, Lord Low, referred, is that local authorities and CCGs should spend it on preventive services. However, individual entitlements should be built around people with ongoing needs for care and support—as they are now. We do not think it is necessary, or would make sense, for there also to be individually enforceable rights to preventive services which would be too broad, and therefore carry a very significant cost burden for local authorities. I took note of the comments of the noble Lord, Lord Low, on that point but, despite these, our view is that any enforceable right in this area would almost unavoidably lead to very high budgetary pressures.
I turn now to Amendments 87J, 88D, 92ZZF and 92ZZL tabled by the noble Baroness, Lady Wheeler. We heard during consultation that assessment processes should look at what an individual wants to achieve and what they can do, not just at their “deficits” or what they cannot do. Assessments should help the person to identify their needs, strengths, goals and aspirations, and consider what type of proportionate intervention might support them. The purpose of Clause 9(4)(d) is not to suggest that such matters should replace more formal types of care and support. The clear purpose of the duty is to assess an adult’s need for care and support. However, it recognises that in order to make the connections to the variety of support available in the community, the local authority should consider how these matters, along with more formal care and support provision, could be of benefit in achieving the adult’s outcomes.
Amendment 88A, to which the noble Baroness, Lady Wilkins, spoke so powerfully, raises the question of employment, education and training, and in doing so repeats Clause 10(6). This re-enacts specific existing provision for carers in relation to such issues, which the Law Commission recommended should remain. We recognise that these areas are of equal importance to adults receiving care and support. However, it is not necessary to recreate this provision as local authorities must already consider during the assessment process the adult’s aspirations in relation to work, education, training or recreation when considering the outcomes they wish to achieve.
On Amendment 88B, I agree with the principle of joining up assessments when it is sensible to do so. The provisions in the Care Bill are compatible with those in the Children and Families Bill, and both Bills allow for joint assessment. I am satisfied that the Care Bill includes the legal framework to enable a co-ordinated approach. My noble friend Lady Browning asked how the Children and Families Bill will fit with this Bill in relation to care planning, and particularly in relation to those with autism. The Children and Families Bill will improve co-operation between all the services that support children with special educational needs and their families. This will require local authorities to involve children, young people and parents in reviewing and developing care for those with special educational needs. Local authorities will also need to publish information about what relevant support can be offered locally. The Care Bill and the special educational needs provisions in the Children and Families Bill require that there is co-operation within and between local authorities to ensure that the necessary people co-operate, that the right information and advice are available, and that assessments can be carried out jointly. We are in discussion with the Department for Education about the links between both Bills.
The noble Baroness, Lady Emerton, proposes in her two amendments that assessments must involve health professionals. In our view, this would not be proportionate because not everyone would have health needs or need to involve a health practitioner. The Bill already allows the individual to decide if they wish to involve a health professional, and Clause 12 includes a power to allow authorities to carry out a joint assessment with other bodies such as the NHS.
My noble friend Lady Browning and the noble Baroness, Lady Wheeler, made important points about the appropriate training and skills of assessors. Stakeholders have told us of the importance of having appropriately trained assessors. We have therefore extended the powers in Clause 12 and I can reassure both noble Lords that we will make regulations to require local authorities to ensure that assessors are properly trained.
My noble friend Lady Browning asked why we have not specified that a qualified social worker should carry out assessments on people with complex needs. The social care workforce, as she well knows, is a mixture of qualified social workers and care managers who have been trained to carry out tasks such as assessments. It is, we believe, for local authorities to determine the mix of their workforces. Local authorities should also make a professional judgment on who has the appropriate skills and training to carry out assessments, and I really do not think it would be appropriate to do this from the centre.
The noble Baroness, Lady Meacher, raises an important point through Amendments 88SA and 88SB about the eligibility criteria for adults with care and support needs helping to prevent young carers from taking on inappropriate or excessive caring responsibilities that can impact adversely on their lives. The draft regulations make clear that an adult’s needs for care and support will be eligible if, because of mental or physical impairment or illness, they are unable to carry out fully any caring responsibilities for a child, or need support to maintain family relationships. Our policy intention is to encourage local authorities to take a whole-family approach, both in assessing and supporting an adult needing care and support, meaning that an individual adult is not seen in isolation from their family circumstances. That would include having to identify the child.
The noble Baroness made the point that better support for young carers will save money for the taxpayer. We agree that better supporting young carers will improve both their well-being and that of the person they care for and that it is also likely to benefit the public purse. That is why we are working with the Department for Education to ensure that a whole-family approach is taken.
Amendment 92ZZCZA follows the same principle, but seeks to add to the duty to meet eligible needs. As I have set out, we see the appropriate way of dealing with the issue of avoiding inappropriate young caring roles to be through the eligibility criteria. We would not wish to create a new stand-alone duty in this regard, which may have a distorting effect on the duty in Clause 18, but rather to ensure that such matters are reflected in the determination of eligible needs. However, as I indicated in debate last week, we need to ensure that the developmental and educational needs of young people are appropriately considered in the context of children’s legislation and services. We will work with stakeholders, including the National Young Carers Coalition, to ensure that, for their part, adult care and support services make appropriate provision in supporting an adult’s needs for care and support to prevent inappropriate or excessive caring by a child. However, we also need to keep in view what should be provided through children’s services and that is what the Minister for Children and Families has committed to do.
The noble Baroness, Lady Wheeler, raised an important point about the impact of the funding reforms. We recognise that people will want to have their care costs counting towards the cap as soon as possible. If this Bill is enacted, people cannot begin accruing costs towards the cap until 1 April 2016. That does not mean that preparation cannot be made locally before that time. We believe that it is appropriate for local authorities to begin assessing people ahead of 1 April 2016. To ensure that local authorities can take advantage of this opportunity, we have provided £335 million to fund the implementation of our reforms. This should enable local authorities to begin assessing people’s needs for care and support around six months before April 2016, if they choose to do so.
I hope that I have reassured the Committee that we are putting in place the support to allow local authorities to manage the implementation of our reforms. We have had a very good debate on assessment and eligibility. I hope that I have reassured all noble Lords who have spoken that the Bill already addresses the concerns that have been raised and that the noble Baroness, Lady Meacher, will feel able to withdraw the amendment. I am sorry—it was the noble Lord, Lord Low.
Lord Low of Dalston
Yes, I was going to say that I think it probably falls to me to consider whether I withdraw the amendment. Before I do so I just want to thank the noble Earl for his full and careful response, and also all those who have spoken in a debate that has ranged quite widely. I have found the noble Earl’s response to the points that I raised very helpful and will consider whether I continue to feel that the Bill needs strengthening in the area of assessment and eligibility in the light of his comments. I listened carefully to what he had to say and feel it will be very helpful in considering how to deal with these issues during later stages of the Bill.
Public Health England Advisory Board Membership
Earl Howe Excerpts(13 years, 4 months ago)
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Baroness Hayter of Kentish Town
To ask Her Majesty’s Government what steps they are taking to ensure that women are represented on the Advisory Board of Public Health England.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
In April 2013, we appointed four non-executive members to Public Health England’s advisory board. They each bring to this role a great range of experience. We will shortly advertise for further candidates to enhance the expertise available to Public Health England. We aim to ensure that, as far as possible, the advisory board provides an appropriate gender balance and representation from ethnic minority and disability backgrounds.
Baroness Hayter of Kentish Town
My Lords, I hope the House knows that in addition to the other two who sit on this board, this an all-white, all-male board. I am delighted that the Minister has admitted this in the sense that they are going to re-advertise. However, can he explain why No. 10 vetoed the highly respected and experienced woman who was recommended by the independent appointments panel? Could it possibly be because she sits on the Labour Benches in your Lordships’ House?
Earl Howe
My Lords, absolutely not. The noble Baroness to whom the noble Baroness refers is, in everybody’s eyes, a highly qualified person. It would be inappropriate in any case for me to comment on individual candidates, successful or unsuccessful. However, I can confirm, and I emphasise this strongly, that the recruitment campaign was managed in a way that completely complied with the principles of the Commissioner for Public Appointments’ code of practice. It was open and transparent, and appointments were made on merit against published criteria for the role.
Baroness Jolly
My Lords, will my noble friend explain what action is being taken to grow tomorrow’s female and minority leaders in health?
Earl Howe
My Lords, across the field of health it is difficult for me to give a generic answer, but the NHS Leadership Academy, which is now starting its work, will ensure that women with promise for leadership will be encouraged to come forward in a variety of roles, not just clinical but managerial. I hope that we will see the fruits of that work over the coming months.
Baroness Masham of Ilton
My Lords, does the Minister agree that Public Health England is responsible for campaigns for vaccinations, and that as vaccinations deal mostly with children and young people, mothers are involved, so it is essential to have women on the advisory board?
Baroness Gould of Potternewton
My Lords, may I follow up on the question asked by my noble friend on the Front Bench? I have two specific points. First, if the Government have a diversity policy, why was such an appointment not made in the first place? Secondly, when are the adverts that we understand will extend the board going to go out? Are they going to look specifically for more women and more ethnic minority members?
Earl Howe
The advertisements will go out, I understand, in September, with a view to making the appointments by the end of the year. As regards the gender balance, the noble Baroness may like to know that within Public Health England itself there are almost twice as many women and men across the workforce, and in senior roles there are more women than men. I hope noble Lords will understand that Public Health England itself has no gender bias. The key thing is that appointments are made in accordance with the published criteria on merit. It is our aspiration to have gender balance, but the criteria must be related to those issues.
Baroness Scotland of Asthal
My Lords, the Minister is dedicated to equality and understands very well the issues relating to female health, particularly as a result of the World Health Organisation report last month, which indicated that the greatest cause of morbidity in women and girls, in one case in three, is domestic violence. Can he therefore explain why the Government chose to have a board that has no women on it? That board cannot then reflect the reality of the health needs of our nation.
Earl Howe
We are very mindful of that, but I come back to the point that these appointments were made on merit in accordance with the published criteria. That is not to say that the unsuccessful candidates lacked merit, but we did not operate a policy of positive discrimination and I do not think that anyone would wish us to do that. Having said that, we are mindful in the department of the need to have gender balance whenever we can in public appointments. Our record is not bad; we are in the region of 44% of appointment rates for women appointed to public positions, which is quite high up in the departmental league table.
Baroness Gardner of Parkes
My Lords, does the Minister recall a famous speech of Baroness Thatcher’s, when she was Mrs Thatcher, when she said that the experience that women gain in life generally is not to be underestimated? It is all very well to have everyone with all the experience and qualifications in the world, but does he not think it is also important to have some women who could bring basic common sense to the board?
Baroness McIntosh of Hudnall
In view of the answer that the Minister gave to my noble friend a few moments ago about not operating a positive discrimination policy, is it possible or even likely that the next round of advertisements will also result in the appointment only of men?
Earl Howe
I simply cannot tell because we do not know which candidates have come forward. It may be that no women come forward. I hope that that is not the case. We make a point of advertising our appointments on the website of Women on Boards UK Ltd—the noble Baroness may be aware of it—which is an open UK-wide organisation for women seeking to leverage their professional skills, if I can put it that way, on to leadership roles. We will see what happens, but I assure the noble Baroness that while there will not be positive discrimination, there certainly will not be negative discrimination either.
Baroness Deech
Does the noble Earl agree that very well qualified women are held back from getting appointments by the lack of affordable childcare and that this is especially crucial in medicine? Does he agree that report after report has recommended that medically qualified women be given more flexible working arrangements, and more time and help, to serve on boards such as this, and that those reports have by and large not been implemented?