Health and Care Bill

Lord Low of Dalston Excerpts

Committee stage
Thursday 20th January 2022 Lords Chamber

Moved by

[Lord Low of Dalston]

56A: Schedule 3, page 151, line 16, at end insert—
“116C Primary ophthalmic services for people with learning disabilitiesNHS England must make arrangements for the assessment of the need for primary ophthalmic services by people with learning disabilities, including access to sight tests, and ensure primary ophthalmic services are commissioned to meet those needs.”Member’s explanatory statement
Under Schedule 3 of the Bill, NHS England retains its powers to make arrangements for the provision of primary ophthalmic services itself or direct Integrated Care Boards for such provision. This seeks to improve eye care for people with learning disabilities.

[Lord Low of Dalston (CB)]

Right on cue, my Lords, I am rising to move Amendment 56A, which seeks to improve eye care for people with learning difficulties, as they are much more likely to have a sight problem but much less likely to access primary ophthalmic services, including access to NHS sight tests. The Bill offers an opportunity to seek improvements to an often-overlooked area of primary care: namely, primary eye care or ophthalmic care. Schedule 3 to the Bill contains amendments to the National Health Service Act 2006, regarding primary ophthalmic services: that is to say, commissioning of NHS sight tests and more.

Primary eye care is vital for the health of the nation. We know that half of sight loss could be prevented but is not because people do not go for sight tests as frequently and regularly as they need to. Many people are living with sights problems that could be picked up and treated quickly if people were going for regular sight tests. We also know that our hospital eye clinics are overwhelmed and are one of the busiest outpatient specialities. There were delays to treatment prior to the pandemic, but now these have been greatly exacerbated as a result of the pandemic. Work is under way to look at how primary eye care can add capacity to the system through an NHS England eye care transformation programme. Just like their colleagues in general practice, dentistry and pharmacy, there are optometrists and dispensing opticians working in primary care who have the clinical training to provide early and ongoing support to patients but do not have the chance.

Supporting primary eyecare makes sense in very many ways. However, we know that, as with other areas of healthcare, there are inequalities in primary eyecare. Some parts of the population are not accessing regular sight tests, even if they might be eligible to have them free under the NHS. In 2018, the All Party Parliamentary Group on Eye Health and Visual Impairment explored this issue, particularly for people with learning disabilities and people who are homeless. This work was supported by the APPG on learning disabilities. I know that the noble Baroness, Lady Hollins, supports this amendment, but she has not been able to stay to join in the debate.

The APPGs on eye health and visual impairment and on learning disabilities took evidence from the charity SeeAbility. People with learning disabilities are much more likely to have a sight problem but much less likely to access NHS sight tests. Vision problems in people with severe learning disabilities are so high that researchers have said that this population should be considered visually impaired unless proven otherwise. SeeAbility’s work in special schools found that more than four in 10 children had never had a sight test. In other studies, it was found that half of adults with learning disabilities had not had a sight test in all the recommended period. SeeAbility found that many children were attending hospital eye clinics for routine eye tests.

A recommendation that the APPGs made in 2018 that there should be a sight-testing and glasses-dispensing service in all special schools is now being taken forward by NHS England, which is excellent news. It will reach around 130,000 children and help address and prevent avoidable sight loss, as well as reducing the need to use hospital eye clinics. Once the proof of concept phase is completed in 2023, it is understood that a new special schools scheme will need to be legislated for to provide for an additional service to be added to the National Health Service ophthalmic services contract through an amendment to regulations. It is hoped that at the appropriate time the Secretary of State for Health and Social Care will ensure that the special schools eyecare service has the legislative authority that it needs. The commitment by NHS England to this service is commendable, and it must continue with that commitment as these children deserve an equal right to sight. This is something we will all want to follow closely.

However, the APPGs went further in 2018 and also recommended that there is a continuing need to improve eyecare outside special schools for people with learning disabilities. There are an estimated 1 million people with learning disabilities in England. The APPGs noted that the tariff for primary eyecare acts as a disincentive to carry out sight tests within optical practices when seeing adults or children with more severe or profound learning disabilities, despite this group being at most risk of having a sight problem. This compares poorly with other areas of primary care, such as the GP annual health check for people with learning disabilities, or special needs dentistry. The local optical committee support unit’s learning disability eyecare pathway, which is endorsed by SeeAbility and Mencap, can be commissioned by clinical commissioning groups to provide more targeted, longer and adjusted optical appointments for people with moderate to severe learning disabilities. However, it has been commissioned in only a few areas in England and it really needs to be countrywide.

Eligibility for NHS sight tests under secondary legislation has also missed out people with learning disabilities from the exclusive list of eligible groups—that is, children, older adults, people in receipt of certain means-tested benefits and high-risk groups such as those with a family history of glaucoma or diabetes. This places the burden on the person with a learning disability to work out whether they are eligible in other ways. For that reason, no data is collected on how many people with learning disabilities access NHS sight tests in the community. For the purposes of this debate, this is a straightforward amendment that bolsters NHS England’s existing commitment to the special school eye care service across England’s special schools. It reminds us that all people with learning disabilities are in need of particular attention when it comes to eye care.

Schedule 3 to the Bill amends the section on primary ophthalmic services in the National Health Service Act 2006 by introducing general powers to make arrangements, in Section 116A, and to publish general information, in Section 116B. The amendment would supplement that with a new Section 116C, which would simply oblige NHS England to make an assessment of the needs of those with learning disabilities for primary ophthalmic services, including access to NHS sight tests, and ensure that services were commissioned to meet those needs.

The amendment’s national focus is needed because the local discretionary approach to introducing the aforementioned LOCSU learning disability eye care pathway by clinical commissioning groups has not worked. It exists in only six areas of the country when it really needs to be available across the country as a whole. The amendment would allow for the possibility of extending eligibility for NHS sight tests to all people with learning disabilities once the evidence was reviewed.

The Bill clearly envisages that the Secretary of State and NHS England can work together and both can exercise powers to improve primary ophthalmic services, with NHS England having a clear national oversight role. The amendment is supported by three existing NHS England objectives into the bargain: first, the programme of work to address the health inequalities of people with learning disabilities; secondly, the programme of work to improve community eye care and reduce the unnecessary use of hospital eye clinics; and, thirdly, the commendable work in primary optometry of the special school eye care service.

There may be those who would say that no population needs to be explicitly prescribed for in primary legislation and that matters can be left to the discretion of secondary legislation and directives. However, the health inequalities experienced by people with learning disabilities justify putting them in the Bill. People are dying of avoidable health issues at least two decades before their peers. We cannot have a situation where people are living without good sight and even going avoidably blind because NHS services overlook their needs. I beg to move.

--- Later in debate ---

[Lord Kamall (Con)]

I thank my noble friend; I was not aware of that. But at the end of the day, the result has to be the care that the patient receives. There will always be debates on how you can configure who should be involved at what level, but at the end of the day, it has to be the quality of the care the patient receives. To a wider point, we must also focus on prevention. We are seeing a lot of innovation in the primary sector; we are seeing GP services sometimes merge into primary care centres, taking on medical procedures that were previously considered the domain of hospitals. We have seen more blurring of the lines, and patients welcome that innovation in many cases.

What matters at the end of the day is the experience of the patient and making sure they have a decent service all the way through their life. It is one of the reasons we are talking about integration. In this country, care is literally from the cradle all the way to the grave, as we integrate social care more. That is why some of these discussions we have been having on social care and palliative care have been important. We are aware of that.

There are a couple more points I would like to make before I allow people to get in before the 5.30 pm deadline for getting a teacake. We support the idea that all areas should have an adequate number of GPs. That is why we launched the targeted enhanced recruitment scheme to attract doctors to train in locations that either have a history of under-recruitment or are currently finding it difficult recruiting. The scheme reflects the fact that trainees who are attracted to these areas usually stay on after training. Hundreds of doctors have trained in hard-to-recruit places since the scheme’s introduction, with 500 places available in 2021 and, we hope, 800 in 2022.

We also recognise that each community has different health needs, which emphasises the point noble Lords have made—that it is so important to hear the voice of primary care more loudly. We are taking steps to diversify the general practice workforce, such as by recruiting 26,000 more primary care staff. Making sure we have the correct mix of skills available in general practice is critical to delivering appropriate patient care across England.

One of the issues that we have to appreciate, though, is that as most GP practices are private partnerships and GPs are free to choose where they practise, a general medical practitioners equitable distribution board would have limited influence over the distribution of GPs across England, which is why we have to look at other ways to target those areas that are underserved. That is why it remains critical to continue encouraging trainees to train in hard-to-recruit areas and diversify the primary care workforce to support general practice in meeting the needs of its local community across England.

I have heard, once again, the mood of the Committee. That has become a familiar theme. I hope noble Lords will accept that I am open to further conversations in this area, particularly on how we hear the voices of all those in primary care, not just those of GPs but all of them, including those in ophthalmology, dental care and others. I hope that, in that spirit, noble Lords will feel it appropriate to withdraw or not move their amendments at this stage.

[Lord Low of Dalston (CB)]

My Lords, I thank the Minister very much for his response and all other noble Lords who have participated in the debate. I moved a rather modest little amendment but I am encouraged that it has stimulated such a rich discussion with so many knowledgeable contributions. If nothing else, my amendment has stimulated a discussion that has emphasised the importance of primary care. If we can take that message away, we will not have been wasting our time. I shall leave it there. I thank everyone for their contributions and the Minister for his response. I am sure he will have been enriched by the way the discussion has focused on the importance of primary care. It has been beneficial all round. I beg leave to withdraw the amendment.

Amendment 56A withdrawn.

Dental Care

Lord Low of Dalston Excerpts

Wednesday 20th May 2020 Lords Chamber

[Lord Bethell]

My Lords, the Government are buying billions of items of PPE and putting them into the supply chain. That supply chain includes dentists, and we are working hard to ensure that all dentists, both in the urgent treatment centres and in other dental practices that may reopen in the short term, have exactly what they need.

[Lord Low of Dalston (CB)]

My Lords, when will the NHS be able to look beyond the current crisis and get back to routine eye care by opticians and eye clinics, which plays such a vital part in preventing blindness?

[Lord Bethell]

The arrangements for eye care, similarly, are an extremely delicate matter, because the eye is a potential source of infection, and both workers and patients are at risk through work done by opticians. We are extremely keen to get back to normal, but we put the safety and care of patients and staff first.

Coronavirus Bill

Lord Low of Dalston Excerpts

2nd reading & 2nd reading (Hansard - continued) & 2nd reading (Hansard - continued): House of Lords
Tuesday 24th March 2020 Lords Chamber

[Lord Low of Dalston (CB)]

My Lords, forgive me; I was not expecting the noble Lord, Lord Porter, to finish quite so soon. I support the Bill and certainly agree that it, or something like it, is necessary. However, I want to sound one or two warnings and flag up some points that need the Government’s continuing attention.

We face a national emergency. In these circumstances, we should all be prepared to accept some sacrifice of personal liberty. What worries me more is the threat the Bill poses to structures of social and community support, already seriously eroded by a decade of austerity. I shall be supporting amendments that seek to ensure that these remain intact, as far as possible. After all, the fact that coronavirus is on the scene does not mean that pre-existing needs for support have somehow gone away. I hope that the Government may subject this area of the legislation to particularly searching review, with a view to ensuring that subsequent iterations are able to address some of the concerns that I and others are expressing.

I have received many expressions of concern at the way the Bill undermines social care support for disabled people. It suspends many duties in the Care Act 2014, including the duty to meet the eligible needs of disabled people, under Section 18, and their carers, under Section 20. Local authorities will have to provide care only if they consider it necessary for the purposes of avoiding a breach of the European Convention on Human Rights. That largely frees local authorities from their duties to provide support under the Care Act 2014 and will oblige them to provide support only in cases where the human rights of disabled people, under the convention, are breached. That is a much higher standard to satisfy.

The Bill changes duties to meet disabled children’s educational needs to a “reasonable endeavours” duty. I have received many expressions of concern about this. First and foremost, there are concerns about the impact of relaxing statutory provisions for children with special educational needs and disabilities. How will the provisions in the Bill on education, health and care plans be used in practice? Will they be used to water down provision? I understand that that is not the Government’s intention, but backsliding authorities could easily use them as an excuse. Even if the Government are forced to relax their efforts to promote better provision at this time, they should not provide excuses for a deterioration in provision. Many parents will understand the need for flexibility at this time. However, their children still have the same need for specialist support. The Government need to give a clear account of why it is necessary to relax the statutory underpinning of the support that disabled children need.

If the duties around education, health and care plans are suspended, how will vulnerable children access the support they need? Can the Minister confirm that the Bill does not change the duties of schools and education authorities, under the Equality Act 2010, to provide reasonable adjustments and auxiliary aids for disabled pupils and students? Can he also indicate whether there will be any guidance for schools and local authorities on how they can support those children with special educational needs and disabilities who do not have an education, health and care plan? It is estimated that fewer than 20% of deaf children have a plan, for example. This area needs the Government’s attention.

NHS Mandate

Lord Low of Dalston Excerpts

Thursday 25th April 2019 Lords Chamber

[Baroness Blackwood of North Oxford]

The noble Baroness is absolutely right that there is cross-departmental relevance to both the social care Green Paper and the workforce strategy. She will know that the long-term plan and the forthcoming Green Paper on social care have been developed in tandem. A number of reforms were already set out in the long-term plan, including the enhanced health and care homes model, which will of course involve MHCLG; the comprehensive model for personalised care, which will involve the personalised health budgets; and of course local health and care plans, which will simplify healthcare systems. We are looking forward to the Green Paper being published in full and I am sure that she will want to hold me to account on that in this Chamber. I look forward to that moment with great anticipation.

Of course, the workforce plan and HEE’s budget are also a matter for cross-departmental debate, as is the spending review, which is another reason why a lot of work is going into this. Again, it is important that this work is done to get it exactly right. The principles on which that work must be done are to consider multi-year funding plans for clinical training places based on the workforce requirements of the NHS going forward.

[Lord Low of Dalston (CB)]

My Lords, I want to raise not the timeliness of the mandate but its content. The noble Baroness will be aware of the problems of undercapacity in eye care services—which were documented by the report entitled See the Light: Improving Capacity in NHS Eye Care in England, produced by the All-Party Parliamentary Group on Eye Health and Visual Impairment, of which I am co-chair—and that undercapacity is putting the sight of patients at risk. The first recommendation of that report, addressed to the Secretary of State for Health and Social Care, was that eye health should be specifically included in the Government’s mandate for the NHS, to ensure that it is accorded a higher priority than it appears to enjoy at the moment. Will the Minister give me an assurance that this recommendation will be fully addressed when the new NHS mandate is finally published?

[Baroness Blackwood of North Oxford]

I thank the noble Lord for his question. I can tell him that, while the accountability framework has not yet been published, it has been decided that it will be a high-level framework that will set two objectives: to ensure the effective delivery of the NHS long-term plan, and to support the Government in managing the effects of EU exit on health and care. Of course, the long-term plan includes improvements to a number of services and this will be followed by the national implementation programme for the long-term plan, which will have milestones for delivery of that plan up to 2023-24. I hope he will be reassured that eye health is included in that. If he would like to follow up specific points with me regarding the concerns his group has raised, I would be very happy to meet him later.

Medical Examiners and Death Certification

Lord Low of Dalston Excerpts

Wednesday 18th October 2017 Lords Chamber

Asked by

[Lord Low of Dalston]

To ask Her Majesty's Government when they expect to report the outcome of the consultation on the introduction of medical examiners and reforms to death certification launched in March 2016; and whether they still intend to introduce those reforms in 2018.

[The Parliamentary Under-Secretary of State, Department of Health (Lord O'Shaughnessy) (Con)]

My Lords, since the election the Secretary of State for Health has reaffirmed his commitment to introduce medical examiners to provide a system of effective medical scrutiny applicable to all deaths that do not require a coroner’s investigation. The Government’s response to the consultation will be published shortly and the system will be introduced no later than April 2019. Pilot sites are already offering the bereaved an opportunity to raise concerns while improving patient safety through mortality data.

[Lord Low of Dalston (CB)]

My Lords, I thank the Minister for that reply. While welcoming the Government’s commitment to introduce the medical examiners scheme by April 2019, the president of the Royal College of Pathologists said in March that,

“it is vital to ensure that implementation is properly planned. There is still much work to be done in adapting the current system and recruiting and training medical examiners and officers”.

Given all the delay to which the introduction of the scheme has been subject already, are the Government satisfied that it will be ready in time?

[Lord O'Shaughnessy]

The noble Lord is quite right to highlight this point. There have been calls for medical examiners since the Shipman inquiry; those were also endorsed following the inquiry into Mid-Staffordshire. Our intention is to ensure that, with planning time, the system can be introduced by April 2019, which is why the consultation and the regulations needed to underpin the planning for the system will be produced in short order.

NHS: Community Pharmacies

Lord Low of Dalston Excerpts

Tuesday 6th December 2016 Lords Chamber

[Lord Prior of Brampton]

Yes, my Lords, I completely agree with that. It is worth saying that the pharmacy access scheme will ensure that pharmacies in rural areas or in the top 20% for deprivation will receive higher levels of income than pharmacies grouped together in urban areas.

[Lord Low of Dalston (CB)]

My Lords, whatever the precise scale of the cut, a cut is still a cut. Would the Minister not agree that, rather than cutting pharmacies’ budgets, the Government should be commissioning more services from pharmacies in order to relieve pressure on the hard-pressed NHS?

[Lord Prior of Brampton]

My Lords, the fact is that across the NHS we are looking to save £22 billion, and sadly, community pharmacy cannot be exempt from those necessary efficiency requirements. But I repeat that, over time, we will see more and more NHS services delivered by community pharmacies, whether it is a sore throat testing service or the treating of minor ailments.

Care Bill [HL]

Lord Low of Dalston Excerpts

Monday 21st October 2013 Lords Chamber

Continence care should be established as an essential indicator of high-quality services across all care. I have declared my interests in the register—I am chair of the All-Party Parliamentary Group on Dementia and the All-Party Parliamentary Group for Continence Care. A number of recent assessments have demonstrated that continence care remains a low priority across NHS settings, with poor treatment resulting in escalated and more costly care needs and poorer patient outcomes. Indeed, the Francis inquiry included an entire chapter outlining the scale of failures in continence care. Given the expected rise in the prevalence of incontinence and the impact that poor care can have on patients and the NHS, continence care must be seen as a key indicator of high-quality care provision across care settings. An explicit requirement within the Care Bill for the CQC to assess providers for the quality of their continence care would directly respond to the failings in continence care identified by Francis, the stated purpose behind Part 2 of the Bill. This would encourage providers to actively address how they manage incontinence by assessing their local protocols and policies about the condition, taking steps to improve awareness among staff about incontinence and undertaking internal audits to continuously improve care standards.

[Lord Low of Dalston (CB)]

My Lords, I shall speak briefly against Amendments 145, 146 and 149. As the noble Baroness, Lady Greengross, has just pointed out, these will take away the requirement that the CQC conduct periodic reviews of adult social care commissioning. These amendments seem perverse, coming hard on the heels of the latest care home scandal, revealed by the coroner’s finding that neglect contributed to the deaths of five residents at Orchid View care home in West Sussex.

Last week, the Close to Home report on human rights and home care by the Equality and Human Rights Commission concluded that some commissioning practices were likely to put at risk the human rights of older people receiving care. The Leonard Cheshire report, Ending 15-Minute Care, also points to problems with commissioning. It would therefore seem to make sense to leave Clause 83 unamended so that the CQC is empowered to oversee the practices of those commissioning adult social care and not just of those providing it.

[Lord Deben (Con)]

My Lords, in general terms, I support the government amendments. I am sure that my noble friend will want to answer the specific issue which the noble Baroness, Lady Greengross, raised. However, I support the Government with a slight caveat. Similar parts of the localism agenda of the Government have likewise seemed to have devolved in order to encourage people to take responsibility. I agree that there is a problem of prescription—if I may use that word in the context of the health service—because we all want to add in to any freedom the particular issues about which we have a special concern. I have real sympathy with those for whom dementia is one of those issues; it certainly is for me. However, we have to guard against that because, in the end, it may produce an artificial series of priorities. In this case, it is much better for the Care Quality Commission to make its own mind up, because it is going to be responsible. I take a rather different view about the recent scandals, in that the commission has to take responsibility for the claims that have been made. If it has to take responsibility, it must have as much control over its agenda as it possibly can.

My concern is simply that the Localism Act claimed to give localities all kinds of new controls over their futures. Yet, this week, we again find the Secretary of State for DCLG calling in a locally agreed solar decision, one supported by the local authority and by the inspector, but turned down—for reasons which are extremely difficult to see—by the centre. I want an assurance from my noble friend that this is real devolution; that the powers which have been given will not be circumvented by some other mechanism within this Bill or other Bills. The purpose of such devolution is to enhance responsibility. My concern is that, often, people who are given and who claim to have responsibility find that the structures are so prescriptive that they cannot take that responsibility seriously. If the amendments are an attempt to ensure that they can carry through their responsibilities in a way which enables the country to look to them to do the job they ought to be doing, that is fine and dandy. However, I hope that we can have reassurance that this is a real change, and not something that is going to be circumvented for the convenience of some Secretary of State by other bits of this or other Bills.

Care Bill [HL]

Lord Low of Dalston Excerpts

Wednesday 16th October 2013 Lords Chamber

Tabled by

[Lord Low of Dalston]

138A: Clause 75, page 63, line 26, at end insert—
“( ) In exercising any function to which an authorisation under this section relates, the person authorised is subject to the same legal obligations as the local authority.”

Care Bill [HL]

Lord Low of Dalston Excerpts

Wednesday 16th October 2013 Lords Chamber

Moved by

[Lord Low of Dalston]

83: After Clause 47, insert the following new Clause—
“Human Rights Act 1998: provision of “care and support services” to be public function
(1) A person (“P”) who provides regulated “social care” is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature in doing so.
(2) This section applies to persons providing services regulated by the Care Quality Commission.
(3) In this section “social care” has the same meaning as in the Health and Social Care Act 2008.”

--- Later in debate ---

[Lord Low of Dalston (CB)]

My Lords, I shall speak also to Amendments 138A and 138B, which are in my name in this group. I shall get those amendments out of the way first, as the debate is likely to focus principally on Amendment 83. Clause 75(6) says that anything done or not done by a third party authorised to carry out a particular function is treated as done or not done by the local authority. In effect, the local authority is solely responsible for the third party’s acts or omissions, subject to a couple of exceptions in subsection (7).

The Joint Committee on the draft Care and Support Bill recommended an amendment to make clear that a person with delegated authority is subject to the same legal obligations as the local authority itself. This reflected concerns that there should be a clear chain of accountability by which the individual could hold the third party, not just the local authority, responsible if their rights were infringed. The Government have contended that the clause already provides for continued accountability. They said that the local authority,

“will remain liable for the proper discharge of that function”.

This misconstrues what the Joint Committee was recommending. The Government are viewing accountability solely in terms of the relationship between the third party and the local authority. Subsection (6) precludes the possibility of the individual seeking redress from the third party, so it does not accord with the Joint Committee’s recommendation. The Minister in Committee said that care providers with delegated functions must carry them out in a way that complies with the Human Rights Act 1998 and that any failure to do so will be a failure by the local authority. That is not the same as the third party being subject to the Human Rights Act; the third party would be failing in its obligations to the local authority, but to no one else. The Minister effectively conceded as much when she said:

“By that device, the Human Rights Act would end up having an effect on what those third parties could do, even if they were not themselves directly responsible”.—[Official Report, 29/7/13; col. 1587.]

The noble Earl, in his letter to Peers following Committee stage, confirmed that individuals will have recourse only to third-party dispute resolution procedures or the local authority’s complaints process.

Without these amendments the individual will have no remedy against, for example, a private care home delivering poor service, or a private company failing to carry out proper assessments. We therefore need these amendments to give effect to the Joint Committee’s recommendation that a person with delegated authority should be subject to the same legal obligations as the local authority.

On Amendment 83, I set out the arguments in detail in Committee and shall not repeat them at length here. The matter is really quite simple and straightforward and can be stated briefly. The Human Rights Act 1998 applies to all public authorities and to other bodies when they are performing functions of a public nature. That means that it should apply to all providers of care, given that the provision of care is a public function. However, the matter was thrown into doubt in 2007 by the case of YL v Birmingham City Council, which held that care home services provided by private and third-sector organisations under a contract with the local authority did not come under the definition of “public function” for the purposes of the Human Rights Act. This meant that thousands of service users had no direct remedy against their care provider for abuse, neglect or undignified treatment. Though the public body commissioning the care remained bound by the Human Rights Act, that was of little practical value to the individual on the receiving end of poor or abusive treatment, or the person given four weeks’ notice to leave because they had antagonised their provider, about whom the noble Lord, Lord Warner, told us in Committee.

Accordingly, Section 145 was introduced into the Health and Social Care Act 2008 to clarify that residential care services provided or arranged by local authorities are covered by the Human Rights Act. There has been concern that this Bill would undo Section 145 by repealing Sections 21A and 26 of the National Assistance Act 1948, under which persons were placed in residential care and through which Section 145 has operated. However, the noble Baroness, Lady Northover, responding to the debate in Committee, set minds at rest on that when she provided the assurance that,

“there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation”.—[Official Report, 22/7/13; col. 1118.]

However, there remains concern that Section 145 does not cover all care service users, or even all residential care service users. It only protects those placed in residential care under the National Assistance Act. That being so, it is anomalous not to treat residential care provided under other legislation and domiciliary care in the same way.

The noble Baroness, Lady Northover, reflecting the position put to the Joint Committee on the draft Care and Support Bill, further stated that the Government’s position is that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors,

“should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998 and not act in a way that is incompatible with a Convention right”.

However, there are two things wrong with this. First,

“should consider themselves to be bound”,

is not the same as “covered in law”. Secondly, the Joint Committee was not convinced. It concluded that, as a result of the decision in the YL case, statutory provision is required to ensure this. As I said in Committee, I have seen a letter in which it is stated that the Government’s position is that care providers are covered, and should not just “consider themselves to be bound”. However, the House of Lords in YL said that they were not and the Joint Committee was not convinced either. Given such uncertainty, it is surely essential that the matter is put beyond doubt in legislation and Amendment 83 would achieve this by deeming that all those providing social care services regulated by the CQC are exercising a public function for the purposes of Section 6 of the Human Rights Act.

The amendment would also include those who are eligible for care but who, due to means testing, have to arrange and/or pay for their own care—so-called “self funders”—and therefore currently lack the full protection of the Human Rights Act. To date, it has been the case, at least for those who were found to be eligible for care in their own home, that the obligation for the local authority to arrange care regardless of the person’s resources provided them with a degree of protection under the Human Rights Act. However, the changes to the system of arranging care to be introduced by the Bill weaken this protection. My amendment follows the approach of the Joint Committee and, if accepted, would provide equal protection to all users of regulated social care regardless of where that care is provided and who is paying for it.

The Government believe, as the Explanatory Notes to the draft Bill make clear, that protection under the Human Rights Act extends to care arranged by a local authority, even if it is self-funded, but the Joint Committee does not accept that this does not require explicit statutory provision. However, regardless of this view, it makes the point that it does not address the situation of self-funders, who arrange their own care and support. The Government, they say, will need to consider whether it is right that, of all adults in need of care, only this group should lack the protection of the Human Rights Act.

Given the manifold ambiguities and uncertainties surrounding this question, surely it is right to take this opportunity of putting the matter beyond doubt, as my amendment would do. What reason can the Government possibly have for resisting it, when all it does is to spell out in words of one syllable in the Bill that to which the Government have no objection—indeed, already believe to be the case—but which is subject to so much doubt in everybody else’s mind? I beg to move.

[Lord Willis of Knaresborough (LD)]

My Lords, I support Amendments 138A and 138B, but will not add to the excellent comments of the noble Lord, Lord Low. I speak in particular to Amendment 83.

I apologise to your Lordships for not having made any comments in Committee but, as I have pointed out, I was away from the House on the orders of my wife. In supporting Amendment 83, I acknowledge the excellent supporting brief from the Equality and Human Rights Commission. In particular, I thank my noble friend Lord Lester of Herne Hill, who sadly cannot be here today, for his considerable guidance.

The amendment stems from a failure by successive Governments to heed the recommendations of the Joint Committee on Human Rights and the Joint Committee on the draft Care and Support Bill to legislate to tackle the problem created by the majority decision of the Law Lords in 2007 in the case of YL v Birmingham City Council.

In YL, the issue was whether a care home, such as that run by Southern Cross Healthcare Ltd, was performing functions of a public nature for the purposes of the Human Rights Act when providing accommodation and care to a resident such as Mrs YL under arrangements made by Southern Cross with Birmingham City Council under Sections 21 and 26 of the National Assistance Act 1948.

The Law Lords decided by three votes to two—the noble and learned Lord, Lord Bingham, and the noble and learned Baroness, Lady Hale, dissenting—that they were not performing a function of a public nature. However, anyone reading the dissenting judgments of the noble and learned Lord and the noble and learned Baroness would understand why the majority ruling appeared contrary to the objective and purpose of the Human Rights Act. The previous Government thought that YL was wrongly decided and I assume that the present Government share that view. It would be useful if the Minister could confirm that that is the Government’s position.

The previous Government then sought to resolve the problem by intervening in test litigation to clarify or overturn YL, but that did not prove possible. The JCHR twice recommended remedial action, but the previous Government refused to take such action or to support the efforts of Andrew Dismore MP, as the chair of the JCHR, to do so by means of a Private Member’s Bill.

--- Later in debate ---

[Earl Howe]

I think that I covered that point when I said that the courts have ruled that there is no single test to determine whether a function is of a public or a private nature. They have also pointed out that there are serious dangers in trying to formulate such a test, which is what the amendment is trying to do, in its own way. If we go back to the noble Lord’s example of the 90 year-old lady in the care home and even if the Human Rights Act were to apply, it is impossible to predict the outcome of an application to a court for—let us say—an injunction to prevent her removal, because each case is fact-specific. It may be found that the lady’s human rights were not violated, but it is not possible to predict that in advance. I hope that clarifies the position and answers the noble Lord’s question.

[Lord Low of Dalston]

My Lords, I thank the Minister for his response, although it obviously leaves me a little disappointed. I do not propose to respond on Amendments 138A and 138B, because I do not propose to press them to a Division when we finally reach them. However, I should like to say something in response to what has been said about Amendment 83.

First, I thank all noble Lords who have spoken, especially those who have spoken in support from all quarters of the House. It has been a high-calibre debate which does credit to a House noted for characteristically engaging in debate of a high calibre. This one was, I think, particularly authoritative. Without wishing to be invidious in any way, I particularly give thanks for the exceptionally thoughtful, careful and authoritative analysis to which we were treated by the noble and learned Lord, Lord Hope of Craighead.

I also observe that we were deprived of the analysis of two of my other supporters who attached their names to the amendment, the noble Lords, Lord Pannick and Lord Lester, who were unable to be here. In those who added their names to the amendment, those who have spoken and those who would have spoken had they been here, we could not have had a more authoritative and heavyweight line-up in support of the amendment in this House.

There has been general agreement that the matter should be put beyond doubt. Indeed, as the noble and learned Lord, Lord Hope, pointed out, it would actually be dangerous if we were not to do so. If I understood the noble Earl correctly, he said that we should stick with the position that was arrived at as a result of Section 145 of the Health and Social Care Act. As the noble Lord, Lord Wills, made clear, when he said that noble Lords should not pray in aid the position arrived at by the previous Government, this is unfinished business. No one can pretend that we have reached a final resolution of these matters with Section 145 of the Health and Social Care Act. That is why it is so important that we should take the opportunity presented by the Bill to take the further steps necessary to put the matter beyond doubt.

We have heard what the noble Earl had to say in response to the debate, but I confess that I am baffled. Between Committee and Report, the Government seem to have executed a complete volte face and completely changed their position. The position explained to us in Committee was that the Government did not believe that the amendment was necessary because the matters that it sought to put beyond doubt were already provided for. Today, the noble Earl tells us that he must urge the House to reject the amendment because the matters should not be provided for. The Government need to make up their mind what their position is.

The Minister also made the point that we should not take this step because it would deliver to service users rights over and above those available under the ECHR. I am sorry, but I simply do not understand that point. The amendment simply delivers to service users rights which are available under the Human Rights Act, which is predicated upon the ECHR. Even the noble Lord, Lord Faulks, agrees, I think, that we should put the matter beyond doubt; he just does not think that we should put it beyond doubt in this way or that the Human Rights Act should be extended this far. Having listened to all the debate, I submit that the noble Lord, Lord Faulks, and of course the Minister in adopting his remarks, are on their own in this matter in the House. There is general agreement not only that we should put the matter beyond doubt, but that we should put it beyond doubt in the manner which this amendment secures. Indeed, until today this agreement used to include the Government.

I think we should put the matter to rest, as the Minister has said, decisively and emphatically in the terms this amendment provides for and which the Government, until very recently, supported in substance, so I wish to test the opinion of the House.

Care Bill [HL]

Lord Low of Dalston Excerpts

Monday 14th October 2013 Lords Chamber

[Baroness Pitkeathley (Lab)]

My Lords, the changes that the Government have made concerning assessments are very welcome. I particularly thank the Minister for the careful and considered way in which he listened to the issues around young carers, and particularly the way in which these now mesh with the Children and Families Bill, which was a concern to many of us. That is very welcome.

Amendment 32, which removes the reference to support available from families and friends, is particularly welcome. Disability and carers’ organisations have very serious concerns that the original wording would lead to local authorities making assumptions about what families could provide without conducting a thorough assessment of a person’s needs and then carefully considering how those needs could best be met, particularly taking into consideration the family’s willingness to provide that care.

Amendment 33 also includes a requirement that when an assessment is carried out it is also considered whether the person would benefit from prevention services or from information and advice. That greater emphasis is also very welcome. However, I would like the Minister’s comments on one concern about Amendment 33. It refers to,

“which might be available in the community”.

If this wording is included in the Bill, it is vital that strong guidance is given to local authorities not to run the risk of negative, unintended consequences. There will be guidance, regulations and assessments, as we know. What assurances can the Minister give that community services will not be seen as an automatic alternative to statutory services and will not therefore create a further barrier for those in need of statutory support?

Can the Minister assure me that guidance will make it clear that local authorities cannot make assumptions about the availability and appropriateness of other support from community services and whether it is wanted by the disabled or older person? The Government have made it clear that they do not intend local authorities to look to families and friends to provide care and support, potentially taking on a greater caring role. Can the Minister give assurances that local authorities should also not be looking to families and carers to provide more care as a get-out clause, if you like, from providing statutory services? This is particularly important given the great variability in so-called community services from area to area and, of course, the huge stress on local authority budgets, which is a fact of life for all local authorities at present.

[Lord Low of Dalston (CB)]

My Lords, I very much welcome the Government’s Amendments 33, 39 and 40. So far as Amendments 39 and 40 are concerned, in Committee, as the Minister has remarked, I sought a strengthening of Clause 12(1)(f) to ensure that regulations would specify the circumstances in which a specially trained person must carry out an assessment or a reassessment of persons who need one. The Minister was kind enough to thank me for raising the point, and I thank him very much for bringing forward these amendments. I am delighted that the Government have come forward with amendments that effectively meet my wishes, recognising that the Bill, as initially presented to the House, did not precisely reflect the Government’s intention.

Talking of specialist provision, I kick myself that I forgot to refer to this in connection with Amendment 26 from the noble Baroness, Lady Meacher, about the need for local authorities to commission a full range of services to meet the diversity of their residents’ needs. I meant to illustrate this by reference to the situation of deafblind people who are all too often offered mainstream services or services designed for those with a single sensory loss instead of the specialist provision appropriate to their particular needs. Perhaps, in welcoming the Government’s amendment on specialist assessments, I can slip in the thought that if local authorities are required to ensure that sufficient services are available for meeting the needs for care and support of adults in their area, they would rightly be under some pressure to identify the full range of deafblind people’s needs, and those with other specialised needs as well, and plan accordingly.