NHS Property Services Ltd

Lord Warner Excerpts

Thursday 30th January 2014 Lords Chamber

Asked by

[Lord Warner]

To ask Her Majesty’s Government what assessment they have made of the performance of NHS Property Services Ltd in disposing of surplus properties and operating within their working capital.

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, NHS Property Services is on target to dispose of 97 properties by 31 March 2014 and a further 100 properties by 31 March 2015. The department has provided the company with a £350 million flexible working capital loan facility, of which £271 million had been drawn down as at 27 January 2014. This working capital support is in line with the department’s expectations for a start-up company of this size and complexity.

[Lord Warner (Lab)]

I thank the Minister for his Answer, but what action has been taken to improve the performance of this company in controlling its costs? What action has been taken to reduce its running costs, given the large number of staff that it inherited, and what action has been taken to improve the professional competence of those staff and to collect bad debts, which have been a rising problem for this organisation?

[Earl Howe]

My Lords, on administration costs, the company is already reviewing the way in which its strategic asset management and facilities management functions are structured. It is probably inevitable that the consolidation of 161 PCT and strategic health authority estates into one will throw up duplication, overlap and operational policies that conflict. These all need to be rationalised and a commercial ethos introduced. It is vital that the skills are imported into the organisation to match that challenge.

G8 Summit on Dementia

Lord Warner Excerpts

Tuesday 17th December 2013 Lords Chamber

[Earl Howe]

The noble Lord asked a number of questions. The Government have stated an ambition to double research funding in dementia. That will depend on the quality of the proposals that come forward and on the rate of scientific progress. We very much hope that arising out of the summit, momentum will be gained, not only in this country but internationally. As regards the noble Lord’s second question, we recognise how important this is for future dementia research and I can tell him that the Government, through the Ministry of Justice, are negotiating with member states in Europe and are aware of the impact that the proposal would have on research. It is likely to be some months before there is an agreed approach between member states and the Commission, and the Parliament is unlikely to vote on the proposal before 2015.

[Lord Warner (Lab)]

The Minister will no doubt be aware that there is growing interest in this country in assessing whether drugs used for conditions other than dementia might be useful in tackling dementia. Will the Minister say what efforts the Government are going to put into this area as a result of the G8 summit?

[Earl Howe]

My Lords, we certainly hope that the private and charitable sectors will respond to the call, but at the same time the Government are not dictating to the research funding bodies which projects they should support. The Haldane principle is very important. The noble Lord makes an extremely powerful point, and we would hope that the pharmaceutical companies will wish to step up to the plate.

NHS: Urgent and Emergency Care Review

Lord Warner Excerpts

Tuesday 12th November 2013 Lords Chamber

[Earl Howe]

My Lords, I do not have that evidence in front of me but, where there is a case for change, the local NHS has to agree a number of measures to be effective before any changes to services take place. That will include ensuring additional capacity at neighbouring hospitals, where that is appropriate, or in the community, where that is appropriate. If CCGs can properly satisfy themselves that a case for change can provide safe, effective and sustainable services, that is a legitimate justification for moving forward with local proposals.

[Lord Warner (Lab)]

My Lords, what light can the Minister throw on the recent report in the Financial Times that the Prime Minister has put the private hospital sector on standby for capacity over this winter? Is that true and is that part of the Government’s preparation for winter pressures? What impact do the Government assess has been made on the capacity of A&E departments by the 12% cut in the tariff paid by NHS England?

[Earl Howe]

I am aware that the tariff has been the subject of active discussion on the part of NHS England and Monitor; in particular, the 70% of the emergency care tariff that has been withheld under the arrangements put in place a number of years ago, and how that money should be used.

As regards the independent sector, the noble Lord is correct: discussions have been taking place with representatives of the independent sector to see whether and to what extent there is capacity to absorb elective care patients over the winter when needed. I see everything to be gained by that. It was something that the previous Government did and we think it is right that the independent sector, where appropriate, should play its part in relieving the burden from the NHS.

NHS: Clinical Commissioning Groups’ Funding of Treatment

Lord Warner Excerpts

Tuesday 12th November 2013 Lords Chamber

[Earl Howe]

My Lords, the list of conditions for which treatment is directly commissioned by NHS England is reviewed regularly. On the particular question my noble friend asked about transparency, as part of Innovation Health and Wealth the innovation scorecard is now showing up the variations in prescribing rates between different clinical commissioning groups. We expect this information to be extremely informative as regards the decisions taken by commissioners.

[Lord Warner (Lab)]

My Lords, has the Minister seen the recent evidence given by the Nuffield Trust to the Health Select Committee showing that a growing, and increasingly large, number of NHS hospitals are financially unsustainable? In the light of his earlier answer to my noble friend, what arrangements do the Government have for ensuring that CCGs or local health economies are not in breach of the NHS constitution by failing to deliver the mandate that the Secretary of State has given NHS England?

[Earl Howe]

My Lords, it is for NHS England to oversee the commissioning practices and policies of CCGs. If any deficiencies are brought to the attention of NHS England, they will be followed up. On the specific point made by the noble Lord about the financial sustainability of provider trusts, we would expect commissioners and trusts to engage in regular discussions about how to ameliorate that position, not only for the sake of the NHS but also to ensure that patients are treated in the right setting. As we all know, that imperative needs to be pursued very vigorously over the coming months.

Care Bill [HL]

Lord Warner Excerpts

Monday 21st October 2013 Lords Chamber

[Lord Warner (Lab)]

My Lords, although I am Lord Warner of Brockley in the London Borough of Lewisham, I do not intend to speak about the Lewisham case.

I am conscious that this is a topic which can rapidly cause eyes to glaze over as we go into some of the processes involved here. At the heart of this there is a fundamental problem which is much deeper and more serious than when the 2006 Act was passed. That was seven years ago. This procedure of trust special administrators was set up to deal with a relatively small number of cases that might come along. It was not a system set up to deal with major overhauls of acute hospitals up and down the country.

We are now in a very different financial situation from when this earlier legislation was going through Parliament. You pays your money and you takes your choice as to who you believe about the black hole that there will be in the NHS finances at the end of this decade. If you want to believe Sir David Nicholson, the outgoing chief executive of NHS England, it will be £30 billion. A number of noble Lords may be shaking their heads because they do not wish to believe him, but he says £30 billion. If you want to believe the Nuffield Trust, it will be somewhere north of £40 billion. If you want to consider the more measured estimate last week from the chief executive of Monitor, it will be £12 billion, but that assumes a level of efficiency savings which seem somewhat like fantasy football in terms of their deliverability. It is likely to be a lot more than £12 billion.

These are numbers which no one was even thinking about when the trust special administrator system was set up. I have some sympathy with the Government’s position because there is no doubt that we have a large and growing number of clinically and financially unsustainable acute trusts. The Government have a real problem that they are trying to tackle. However, I suggest that this particular way of tackling it is not the best way, because it is trying to adapt a system which was produced for a relatively small number of cases into a whole system set of arrangements. It has some curious quirks. It seems to treat clinical commissioning groups which are commissioning from foundation trusts differently from those commissioning from non-foundation trusts. I am not going to risk eyes glazing over by talking about this, but this set of proposals does not seem to treat different clinical commissioning groups in exactly the same way.

We must also start to engage the public in the scale of changes that will have to be made to the NHS in order to make it sustainable. It is not just that black hole issue; it is the clinical sustainability of some of its services. We are already finding difficulty in staffing A&E departments. There is a set of issues around whether the manpower would be sufficient to enable us to keep 24/7 acute specialist services on the same number of sites. I would suggest to the Minister as humbly as I can that you are not going to deal with the scale of the problem with this set of arrangements. For the sorts of reasons that the noble Baroness, Lady Warnock, set out, even if you have this set of arrangements on the statute book, you are going to end up with many cases of Lewisham hospital writ large, dotted around the country. There is nothing in these provisions which really ensures that the wider public debate about the reshaping of these services takes place. They are a recipe for a very large number of one-off local rows on a major scale. The lawyers in this House must be rubbing their hands at the prospect of judicial review because a very likely outcome of all this is a large number of contested claims about the way the exercise has been done. There simply will not be the political cover for TSAs to be bold in their thinking.

The noble Earl said we want them to be able to give very effective consideration to the solutions that are needed. I suggest that if you are a trust special administrator and you think you will be kicked from Land’s End to the north-east because of the controversy around the proposals, that is not likely to produce whole-system changes. We now have to think about reviewing whether the TSA system is fit for purpose and meets the needs of the circumstances we now face. That is why, although I am not normally in favour of wrecking amendments, I agree with my noble friend Lord Hunt’s idea that we should have a pause and think again about the best way to reconfigure hospital services so that politicians and the public can engage with this issue and have the kinds of public debates that we badly need to have if we are to maintain the NHS in anything like the form it is today.

[Baroness Meacher (CB)]

My Lords, in part, I support the Minister because, as the noble Lord, Lord Warner, said, the Government have a problem. We know that for many years there have been attempts to close hospitals that need to be closed and it can take 15 years for that to happen. If the Government can come forward with a sensible, reasonable way of making those decisions, I will back it all the way. However, I find myself agreeing with the idea that a rather quick fix designed to achieve some solution to the Lewisham problem is not the way to do it. This is a national problem of considerable significance. I ask the Minister to take this away, think hard about it and come back with a good set of proposals to help this country close hospitals when they need to be closed. I would certainly be there behind him.

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[Earl Howe]

My Lords, in moving Amendment 142, I shall speak to the other government amendments in this group, Amendments 143, 145, 146, 148, 149 and 150. This group relates to the ability of the Care Quality Commission to operate free from day-to-day intervention by Ministers. The amendments that I have tabled will place the CQC on a new footing of greater operational autonomy. They also clarify some of the arrangements for the new system of ratings to be operated by the CQC. I will outline the principle guiding the Government in tabling these amendments.

Last year we passed legislation that placed a duty on the Secretary of State to promote autonomy in the way that other bodies exercise their functions in relation to the health service. The changes that we are proposing build on this. They remove nine separate powers that the Secretary of State currently has to intervene in the day-to-day operation of the CQC. Additionally, they place the new chief inspector posts on a statutory footing, ensuring their longevity, with a specific duty to operate in a way that ensures the independence of the CQC’s judgments.

We are also introducing a new system of regular assessments of registered providers, which has no requirement for ministerial approval of the methodology. Each of these changes gives the CQC greater scope to get on with the day job without interference from Ministers. Why does this matter? The CQC has the key role in providing assurance of the quality of services provided to patients and service users. It needs to be able to inspect what it wants when it wants and to be free to report its findings as it wants. The proposed amendments and new clauses that I have tabled will see the Government relinquish a range of powers that intervene in the operational decisions of the CQC.

In addition to the amendments relating to the department’s powers to intervene in the work of the CQC and to place the chief inspectors on a statutory footing, I am also tabling a number of amendments relating to the performance assessment system operated by the CQC. The amendments clarify that the CQC will not undertake routine performance assessments of local authority commissioning but, rather, will be able to carry out special reviews of local authority commissioning under Section 48 of the Health and Social Care Act 2008. This will bring the position for commissioning by local authorities in line with that of NHS commissioning as put in place by the Health and Social Care Act 2012.

I will briefly set out two areas where the CQC’s freedom is not being enhanced and explain why. The changes that we are making will give the CQC greater freedom in its day-to-day work, as I have explained. When it comes to the CQC’s strategic role and activities, outside of its routine functions, it is appropriate that the Government maintain oversight of the commission.

The first area to which this applies is investigations of commissioning. The amendments we are making to Section 48 of the Health and Social Care Act 2008 make it clear that the CQC has the power to carry out a special review or investigation of commissioning—both of health commissioning by NHS England and NHS Clinical Commissioning Groups and of local authorities’ commissioning of adult social services. Such reviews will only be possible with the approval of the Secretary of State for Health, in the case of NHS commissioning, and the Secretaries of State for Health and Communities and Local Government in the case of local authority commissioning.

Secondly, I reassure noble Lords that we are maintaining the arrangements through which the commission is accountable to the Department of Health. We will retain a range of the conventional measures that exist to manage an arm’s-length body of the Government. The non-executive members of the CQC’s board will continue to be appointed by the Secretary of State, who will also maintain the power to intervene if the commission fails to properly discharge any of its functions. The department will also continue to hold the CQC to account for its financial and operational performance. I hope that these amendments will find favour with the House, and I beg to move.

[Lord Warner]

My Lords, I express my concern about the provisions of subsection (4) of the Government’s new clause on the independence of the CQC. My instincts are that this will do the absolute reverse of what the Government are seeking to do in terms of the CQC’s independence, which is why my Amendment 143A seeks to remove subsection (4). I do not disagree in any way with the other provisions in this set of government amendments and will explain my thinking. Subsection (4) effectively prevents the CQC investigating, of its own mere motion, the extent to which local authority commissioning practices and decisions on adult social care damage user interests and well-being.

In effect, if the CQC considers, after looking at the results of its work on providers of services, that there is a major stumbling block to good, sound provision of services that promote the well-being of users—the provision in Clause 1 of the Bill—it has to seek the approval of the Secretary of State before it can do any kind of generalised or thematic review of local authority commissioning of services. It has to seek the approval not only of the Health Secretary but of the Secretary of State for Communities and Local Government. That seems a step backwards from the position we have now, where the CQC, as I understand it, could actually undertake these kinds of reviews. I do not see how the new subsection (4) helps the CQC to get to the root of a problem that may be affecting thousands of users of services. We have already seen that the providers were not the instigators of the policy of 15-minute home visits—it was the commissioners of services who instigated that policy. They required the providers to do that; they almost drove them along the path of not paying for the travel costs of the healthcare assistants who were making those visits. The institutional behaviour that has grown up and caused so much concern among the public and in Parliament has been driven by commissioners.

I suspect that we will have other kinds of such issues as we move through a decade of austerity in public services. It ought to be possible for the CQC to take the initiative and try to get to the bottom of those issues by carrying out a thematic review of the commissioning practices. That is why we need to take out subsection (4), which seems to be incompatible with the rest of the provisions in this set of government amendments, which I thoroughly welcome. All credit to the Government for removing these requirements on the CQC, but why are they spoiling the ship for a ha’porth of tar? Why are we pushing back on the ability of the CQC to decide that it wants to carry out a review of commissioning practices, when that is not in the best public interest? The Government should think again about this.

[Baroness Greengross]

My Lords, I will speak against government Amendments 145, 146 and 149, and speak at the same time to Amendment 147 in my name.

The government amendments would remove from the Bill a requirement for the CQC to conduct regular reviews of adult social care, as the noble Lord, Lord Warner, indicated. The Bill gives us an important opportunity to ensure that local government commissioning is effectively regulated. Last year’s EHRC homecare inquiry evidence pointed to serious concerns about some commissioning practices, which were found to put the human rights of older people in particular at risk. Accordingly, the EHRC’s recent review of the inquiry recommendations welcomed the fact that the Government had signalled their intention that the CQC should conduct regular reviews of adult social care commissioning.

Unamended, Clause 83 would reframe Section 46 of the Health and Social Care Act 2008 to empower the CQC to conduct periodic reviews of adult social care providers and English local authorities which provide or commission adult social care. It was very disappointing to see that the Government intend to remove clauses requiring the CQC to conduct these reviews through Amendments 145, 146 and 149, in the name of the noble Earl, Lord Howe. Taken together, these amendments would remove the proposed new requirements for the CQC to conduct regular performance assessments or periodic reviews of local authority social care commissioning, and amend existing provisions relating to special reviews and investigations by the CQC. That would leave it able to review providers and to ask the Secretary of State for permission to run special reviews when there has been a particular issue but unable to run ongoing reviews of how local authorities commission services. It seems counterproductive to be removing this power at the same time as committing to challenging bad commissioning from local authorities.

The proposals announced by Norman Lamb about CQC reviews the other day are very helpful. But, again, they seem to be focused solely on providers and what they are doing, not on the commissioners who have directed these providers. If the CQC is being made independent, should it be seeking approval for such reviews? I believe that the Government have tabled this amendment because they believe that the provisions in the Health and Social Care Act 2008 will be sufficient to keep local authority adult social care commissioning under scrutiny. However, my analysis is that the human rights of people receiving care would be better protected by retaining the requirement under the Care Bill as currently drafted so that the CQC should conduct regular periodic reviews of local authorities’ commissioning of adult social care.

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Moved by

[Lord Warner]

143A: After Clause 82, line 10, leave out subsection (4)

[Lord Warner]

My Lords, I listened carefully to the points made in this debate, particularly those made by the noble Earl, Lord Howe. I find this brave new world that we are moving into—of which he painted such an attractive picture—a bit puzzling. In the previous debate on the trust special administrator, we heard that the trust special administrator comes into play when this wonderful piece of architecture around commissioning has failed to deal with the job. The CCGs, supervised by NHS England, have simply not been able to deliver the changes that are required through the commissioning arrangements. In that area, the fall-back position which the Government insist that we have, is a trust special administrator, often to make good the deficiencies of an unsatisfactory commissioning set-up. The Government do not seem to have quite as much confidence in their new architecture for commissioning as the noble Earl suggested.

I turn to my amendment, which in effect maintains the status quo and the ability of the CQC to decide, in the light of the evidence it has had from its reviews of performance by providers, that there is a systemic problem with commissioning, the making of arrangements for adult social services. It seems odd that we should just leave this, in effect, to all 152 local authorities and put in place another hurdle to be got over, which is the approval of two Secretaries of State, before the CQC can actually act in the area of commissioning. We have to bear in mind that in the good old days, when I was a director of social services in local government, I had to look over my shoulder at the Audit Commission as to how we were behaving and making our arrangements. The Audit Commission, however, has gone the way of all flesh, so that is the end of another watchdog that was there to make sure, without being too obtrusive, that there could be thematic reviews of the way local authorities carried out their commissioning behaviour. I do not think that this architecture is robust enough to safeguard patients, and I wish to test the opinion of the House.

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[Lord Warner]

My Lords, I support both the amendments. They are not alternatives but complementary. I want to start briefly from where we are. The issue of staffing numbers, ratios and skill mixes is just a black box as far as the public are concerned. It is something that goes on within the NHS. This has some relationship to our earlier debate about failure. It is often very difficult for outsiders—and I include regulators as outsiders—to understand what is going on in institutions, particularly acute hospitals. This issue is not peculiar to hospitals; it is even more of an issue for community services, in some ways.

I would like briefly to share my experience as the chairman of the provider agency in London. If your Lordships think that things are bad in some hospital services, try the community services. When we started to poke around in the community services, we found huge variations in the staffing levels for populations with particular conditions. There were massive variations in the face time that clinical staff spent with their patients. We have issues in community services which are often probably more dangerous and less reassuring than we have in some of our hospitals. If we are to have such amendments to the Bill, it is clear that they must relate not just to acute hospital services.

We are not going to get public understanding about when hospitals are failing or unsustainable without a better sense of public education about what a safe level of staffing is to give the reassurance that you are going into a facility which is safe. I added my name to Amendment 159 because it opens up the issue of putting into the public arena some data and reassurance about what a safe level of staffing is for some of these services. It can then be prayed in aid by both commissioners and providers when there are issues about whether a unit is sustainable. We often talk about unsustainability as a financial issue, but it is often about staffing issues—the sheer inability to get a safe group of staff together to run the institution. One acid test of why a place is unsafe is the number of bank or agency staff in a unit, who come and go at ever-increasing frequencies. Public understanding of what is going on in these hospitals seems critical to public reassurance.

Nobody wants to put staff numbers into the Bill, but we need something better than we have now to give the public some idea about the staffing levels and skill mix in what are, at the end of the day, relatively closed institutions. It is difficult for the public to understand what is and is not safe without more data, and that would make it much easier to hold boards to account. Amendment 159 would make it clear that the boards of trusts need to come back continually to what they are providing to the public in the safety of their staffing levels. Amendments 144 and 159 certainly do no damage to the Bill. They strengthen it and it is much more in the interests of the public to have this data available locally, as the noble Baroness, Lady Gardner of Parkes, has said, relating to specific establishments and institutions.

[Lord MacKenzie of Culkein (Lab)]

My Lords, I also support both amendments. It seems to me, as a nurse, to be a self-evident proposition that having safe staffing levels and the correct skill mix, taking into account dependency and acuity, is the right thing do. Anyone who has listened to the debates in this House on various Bills dealing with health and social care over the past few months knows that it is an enormously complicated issue. However, we must bring it back to this level of patient safety and the duty of providers to provide safe staffing levels and the correct skill mix. If that is not done, all the other things we talk about will be in vain and we will end up with more reports, more inquiries and more problems.

As has already been said, it is incumbent on Governments to take account of all these things: the Francis report, the review into Winterbourne View and some of the recommendations in the excellent report produced a few months ago by the noble Lord, Lord Willis. It is vital that we get this right. At a time when financial pressures will force authorities to look at diluting the numbers of trained nursing staff and trained staff in the community and replacing them with healthcare assistants or support workers with hugely varied levels of training and experience, it is absolutely right that we get the correct level. As has already been said, both of these amendments can only add to the Bill and take nothing away from it.

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[Baroness Emerton]

My Lords, on what evidence would the CQC base the answers to those questions?

[Lord Warner]

How easy will it be for members of the public to see this material when they are trying to be sure that they are going to a safe place?

[Earl Howe]

The answer to that question is the rating system, which the chief inspectors are planning to bring in. Proposals for that will be announced very shortly. We attach great importance to that kind of transparency, not only in the NHS but in the care sector. On my noble friend’s question about whether all this would cover the care sector as well as the NHS, as he will know, the CQC issues sector-specific guidance on how to meet staffing registration requirements. Obviously NHS England would only provide guidance that relates to the NHS. As I already said, the Chief Inspector of, say, Adult Social Care would inspect regularly against CQC guidance. The plan is to consult in April 2014 on the CQC guidance on social care.

My noble friend spoke about an emerging consensus on a minimum level of staffing below which care is unsafe. I understand his point, but I am sure he will acknowledge—and did, implicitly, in his remarks—that staffing is not simply about crude numbers; it is not just about nurses. Healthcare assistants and other members of the team all have a key role to play. My noble friend Lady Gardner was absolutely right to point out that the skill mix is relevant in these circumstances. Patient safety experts agree that safe staffing levels should be set locally. It is not for Whitehall to set one-size-fits-all staffing rules. That is exactly why we have asked NICE and other nursing experts to review the evidence, to help organisations to make the right decisions on staff numbers at a local level and then, essentially, to govern themselves. I make it absolutely clear that we fully agree that safe staffing should apply in all settings and that point will be taken into account as we develop our plans.

I hope noble Lords are reassured that action is already being undertaken in a combination of ways, through Compassion in Practice, the CQC registration process, and, shortly, through the role of the Chief Inspector of Hospitals. That will ensure that providers are open and transparent about their staffing numbers and that they assess these staffing levels, not just on the day of an inspection but on a regular basis, using evidence-based tools, and by taking into account local factors that relate to local patient needs and outcomes. I therefore hope that noble Lords will be content to take stock of what I have said and will not press their amendments.

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[Baroness Emerton]

My Lords, I, too, thank the noble Earl the Minister for what he has said. I think I have probably been more of a pain than anybody on this subject. I thank the noble Earl very much for the assurances that he has given.

I have one or two very quick questions. He knows that I have a thing about Skills for Care and Skills for Health. Who is going to decide the membership of those groups? I am concerned that in teaching skills each individual care worker will want to have the background knowledge to support their skill. It is no good just teaching someone a simple skill without having the knowledge behind it. It reminded me that 63 years ago I was a St John Ambulance cadet. I did an elementary first-aid course where a doctor taught elementary anatomy, physiology and treatment of first aid. I then went on to home nursing and was taught by a registered nurse how to look after patients in the home, provide good nutrition and prevent bed sores. I think probably what I knew at the age of 11 is more than what some of our healthcare professionals know today. What will be the professional input into Skills for Health and Skills for Care? Who will do the syllabus, the curriculum and the teaching? Presumably Health Education England and the NMC will give the backing to that. If we could have that assurance, it would keep me quiet for a little longer.

[Lord Warner]

My Lords, I also thank the Minister for his persistence within Whitehall in actually getting progress in this area. I think we all feel that he has put a lot of personal effort into it and deserves a great deal of credit.

If I may, I will ask a couple of slightly nerdy questions. I think that the issue of where this stands in the pecking order is vital. Is it down at NVQ levels 1 and 2? Is it up at level 3? How far away is it from the degree-level professional qualifications? In some ways, the title that has been given to this rather diminishes its standing up the food chain, so to speak. A certificate of fundamental care sounds a bit basic, and I am not quite sure what signals are given about the level that Health Education England should strive for in overseeing this particular work. A lot more work needs to be done on that.

Perhaps I may also pick up the point that my noble friend Lord Hunt hinted at. At the end of the day, if employers are to make this operate, they need some kind of register of who has the certificate. They also need to know what happens when they fire somebody and take disciplinary action against someone who has this certificate. Who do they tell? That seems a quite critical issue, because this is a very large workforce and it would be quite surprising if each year we did not get a steady flow of bad cases where an employer has fired someone for a breach of good practice of one kind or another. This would all be set to nought if there was no record of where these cases of disciplinary action have been taken, and people with a certificate were still floating around the system when they have actually been released by an employer for poor practice.

[Lord Patel]

My Lords, I have put my name to Amendment 158. I also thank the Minister for pulling a rabbit out of the hat, so to speak. However, I am not as gobsmacked as the noble Lord, Lord Willis of Knaresborough, because I have lost count of the number of times and days in this Chamber that we have debated the need for training healthcare support workers. I am at least glad that it has now paid some dividends.

I am also glad that the noble Earl said that Health Education England would take the lead on this, and will involve the NMC in devising the standardised training programmes, because it has the expertise to do it. I agree with the noble Lord, Lord Hunt, and others that this inevitably means there will need to be some sanctions for those who do not fulfil the requirements for training and therefore fail to be regulated. I am not sure whether that is for this Bill or subsequently, but it will inevitably lead to that. However, I thank the noble Earl for his amendment.

Ageing: Public Services and Demographic Change Committee Report

Lord Warner Excerpts

Thursday 17th October 2013 Lords Chamber

[Lord Warner (Lab)]

My Lords, I, too, compliment the two maiden speakers on excellent, thoughtful and entertaining speeches. I say to the noble Viscount, Lord Ridley, that a Labour Cabinet Minister, Emanuel Shinwell, lived to 109, and I challenge him to find a Conservative better in that area.

I congratulate my noble friend Lord Filkin and his committee on securing this debate and on their excellent report. This document is theoretically a wake-up call, but like so many alarm clocks, it runs the risk that people may turn over and hide themselves under the duvet rather than respond to it, so I propose to talk in more apocalyptic terms today about a national icon: the NHS, the star of Danny Boyle’s Olympic nostalgia-fest last year.

Let us forget the schmaltz for a moment and remember that the NHS is a £100 billion-plus a year business and its budget will account for nearly one-third of public service spending in 2015-16, up from just over one-quarter in 2010. By 2015, the NHS will still be spending every pound that it had in real terms in 2010, but most other public services, such as local government, will have only 70p of their 2010 pound. Those are not my figures; they are from the Institute for Fiscal Studies. The NHS is a 65 year-old pensioner that has adopted a lifestyle that is well beyond its current and future means. It now faces—and I do not think this is too apocalyptic—bankruptcy. If noble Lords do not believe me, they should read the chief executive—of whom the noble Lord, Lord Mawhinney, is so fond—of the NHS in this week’s Health Service Journal. The NHS is in very difficult financial trouble. It faces not only the demographic time bomb well described in the committee’s report, but rising public expectations and the costs of scientific advances, many of which may produce cost savings, but usually involve extra cost at the point of introduction. However, it is doing this not at a time of economic growth but at a time of fiscal constraint, probably low economic growth and serious limits on the tax ability of the electorate or the capacity to transfer resources from other public services.

Forget 2030—a huge back hole in the NHS’s finances is opening up by the end of this decade if it carries on as it is. The outgoing NHS chief executive thinks that it is £30 billion. The respected Nuffield Trust puts it at upwards of £40 billion and possibly more than £50 billion. These are serious financial problems to be tackled. As my noble friend Lord Filkin has indicated, the NHS’s core business has changed to coping with and treating long-term conditions, and often multiple long-term conditions in a single individual. However, we have simply not changed the service delivery model accordingly.

It is increasingly apparent that we are spending our highly valued NHS pounds on the wrong business model. The customer base has changed and needs something radically different. The NHS is seriously on the way to becoming like British Leyland in the 1970s. I do not have time today to describe how we need to reshape these services but—and this is my final point—if we do not change them and increase the efficiency of staff on NHS plant, we face a real problem. Even if we make all those changes, that will remain a problem. If the NHS is to remain largely a tax-funded healthcare system universally available in this country, it has to find new sources of revenue streams and new ways of adding money to that provided by the taxpayer. We need to look at the possibility of changing the boundary of what the NHS covers. We need to look at co-payments. We need to look at the NHS undertaking more commercial activities. There are many more possibilities.

I recognise that I am trespassing on holy ground here, but we have to start facing up to these issues if we are going to make the kind of responses that my noble friend’s committee’s report suggests that we should be making.

Care Bill [HL]

Lord Warner Excerpts

Wednesday 16th October 2013 Lords Chamber

[Lord Warner (Lab)]

I rise as a member of the Joint Select Committee to strongly support the amendment. I shall not go over the previous legal history, or repeat what I said in Committee, other than to emphasise a particular aspect of the case to which I drew attention then. That case related to an elderly woman in her 90s who was resident in a private care home and was totally self-funded. She had been a resident for some time and had the temerity to air her views on assisted dying, which did not please some of the home’s staff. She did not seek anybody’s help to commit suicide; she just expressed her views. The home’s management gave her four weeks’ notice to leave the home as a result. When her son raised the issue of her rights under the Human Rights Act with legal counsel, the opinion he was given was that she lacked protection under that Act because she was not in receipt of a service from a body providing a function of a public nature as her placement was neither publicly provided nor in a publicly funded home.

As a member of the Joint Select Committee I raised this matter when we were looking at the Bill and, after deliberation, the committee was unanimous in recommending that the Bill should be amended to clarify matters. This is what the amendment moved by the noble Lord, Lord Low, does. It covers all users of a regulated social care service. It is clear that there are differences of legal opinion on this matter when particular cases are raised. I consider that as parliamentarians, it is our duty to put the matter beyond doubt and provide self-funders with the legal certainty that other elderly people may have when they are in receipt of either domiciliary or residential care.

One of the most important new points that has been made on this issue since we debated it before was made by the noble and learned Lord, Lord Hope of Craighead, when he said that courts will notice if we do not take this opportunity to amend and clarify this legislation. That means that we cannot—as one of my children would say—faff around any longer on this issue. We have to make a decision; the amendment makes that decision, and we should all support it. Frankly, the Government should stop the legal equivalent of counting how many angels can be put on the head of a pin and accept the legal certainty that the amendment moved by the noble Lord, Lord Low, provides. They should be supporting people who are paying their own way by funding their care, not the reverse. There will be a lot more of them in the future so let us provide that protection now.

[Lord Faulks (Con)]

My Lords, I share, of course, the concern of all noble Lords that we should take all reasonable steps to protect vulnerable people who receive social care in whatever circumstances. I enter this debate for the first time with considerable trepidation, having regard to the great distinction of those, both present and absent, who support this amendment. I have to express some real doubts about it.

As far as I am aware this is the first time an attempt has been made to include, within the scope of the Human Rights Act, what may be a purely private function. Those who receive care may not be overly concerned with whether it is being provided by a public authority, a private provider, or in some hybrid arrangement. Nevertheless, this amendment is in effect extending the scope of the convention beyond the terms of the Human Rights Act.

It is important to consider what protection would be available anyway, in the absence of this amendment. If a poor standard of care is provided to an individual, it is likely that the provider will be in breach of an express term of any contract or in breach of a term implied by the Supply of Goods and Services Act 1982. There will almost certainly be a claim in tort, probably relying on the tort of negligence. There is, of course, a further safeguard in relation to all providers of publicly arranged care, in that all such providers have a duty imposed by Section 6 of the Human Rights Act, at least following what I would submit was the closing of the YL loophole by Section 145 of the Health and Social Care Act. The CQC, as a regulator and a public authority, is subject to the convention.

However, the amendment would, as I understand it, purport to provide some additional remedy; presumably some award of damages. The noble Lord should be aware of the relatively limited scope of damages awards under the Human Rights Act. As Lord Bingham said in the Greenfield case in 2005,

“the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official”.

The House of Lords also emphasised that the Human Rights Act was not to be regarded as a panacea. Indeed, Lord Bingham went on in Greenfield to say that the purpose of the Act,

“was not to give victims better remedies at home than they could recover in Strasbourg”.

However, that would be the position here if this amendment was passed. My conclusion is that the amendment amounts to an illegitimate extension of the Human Rights Act and would not, in reality, provide any significant extra protection for those who, quite understandably, we wish to protect.

The future of the Human Rights Act will have to await the outcome of the next election. However, amending the Act, which is what in effect this will do, would be inappropriate and, I have to say, unnecessary.

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[Lord Faulks]

I am sorry that I did not answer the question adequately for the noble and learned Lord. My response is that actually the Human Rights Act remedies, which I endeavoured to deal with in my remarks, would not of themselves provide the sort of remedy that the noble Lord, Lord Warner, had in mind. As was outlined by Lord Bingham in the Greenfield case, the remedies are in fact very limited, very often amounting to a decision that there has been a violation, rather than the sort of practical remedy that I understand the noble Lord to have in mind. That is my response.

[Lord Warner]

My Lords, just to clarify matters, if this lady had been covered by the Human Rights Act, the son would have been able to take legal action to try to prevent the home removing her. The mischief that was being committed was the forcible removal of a woman in her 90s from the place that she had lived in for a very long time. What the Human Rights Act—as I understand it; I am not a lawyer—would have provided protection for was the ability of a relative to seek protection from the courts that this home, in taking that action, was actually in breach of the Human Rights Act. I do not think that the noble Lord’s suggested remedies would have helped in this case or any other like it.

While I am on my feet, I say to the noble Lord that this Act changes the position anyway, because that lady, or a similar person in the future, might well have come up against the cap on her privately funded care and her care would then be paid for by the state, which would be performing a public function—or a function of a public nature—in paying for her care in that private provision. This Act changes the dimension from the past as well.

[Lord Hope of Craighead]

My Lords, I do not know whether I am permitted to speak again since we are on Report but perhaps I might just say for clarification that in my opinion the analysis by the noble Lord, Lord Warner, of the reach of the Human Rights Act is entirely accurate. We have had a number of cases, in both the House of Lords Appellate Committee and the Supreme Court, dealing with the kind of problem where people say that they are losing their home because of steps being taken to remove them from premises that they occupy. It is that reach and the uncertainty that has been drawn attention to, where some people have the protection and some do not, that causes real problems.

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[Earl Howe]

My Lords, I have just described one of those perverse consequences: that we would purport to be giving rights to people which could not be pursued before the European Court of Human Rights. If I could correct the noble Lord, I was not seeking to suggest that the previous Government had addressed the issue that I have been talking about. They addressed part of the issue in the Health and Social Care Act 2008, but there is another dimension to it, as I have said. The amendment would risk creating an asymmetry, which once again risks creating legal uncertainty and confusion.

What people using services and their families want and need is reassurance that they will be treated with care, compassion, kindness and skill. This amendment would not provide any of those things. People are not, surely, really exercised about which route of redress they have if things go wrong so long as they have one, which they do; what they expect is for things not to go wrong in the first place.

I do not accept the argument that putting this measure into legislation will deter those who abuse or neglect, or galvanise providers into preventing those things. It would not send some kind of message that should not otherwise already be amply clear to all providers of care and support: that poor-quality care is unacceptable.

What I think will make much more of a difference are the stronger measures to improve care that the Government are proposing: the emphasis the CQC is placing on individual experience as opposed to paperwork, the improvements in commissioning and the safe routes for whistleblowers. We are amending the requirements that providers have to meet to enable the CQC to take effective action against providers that do not provide acceptable levels of care. With these things in place, it is my view that when things go wrong we will have a strong and effective mechanism for dealing with the situation. For all these reasons I say to the House that the amendment should be decisively and emphatically rejected.

I now turn to Amendments 138A and 138B, also in the name of the noble Lord, Lord Low. Their effect would be that, where a local authority delegates a function, in addition to the local authority remaining subject to all of its legal obligations in the way the function is discharged, the person authorised under the delegation would also be directly subject to those same obligations. These would include, for example, obligations arising under the Human Rights Act. The amendments are unnecessary because when it delegates its functions, Clause 75(6) is clear that the local authority remains responsible for the way that that function is discharged. The person using care and support will therefore always have a route of redress against the local authority even if the local authority has delegated the discharge of the function to a third party.

Furthermore, these amendments could prove unhelpful because, by making both the local authority and the contractor liable, they could create a lack of clarity about who is ultimately responsible for complying with the local authority’s statutory obligations when a function is delegated. We believe strongly that it must remain absolutely clear that the ultimate responsibility lies with the local authority and that it cannot absolve itself of this in any way. This is an important principle of allowing local authorities to delegate their functions and we do not want to cast any doubt on this.

The underlying intent of these amendments is unexceptionable as they are about protecting the rights of people using health and care services. However, I am absolutely and firmly resolved that these amendments will not achieve what we all want, which is that everyone receives safe, dignified and respectful care and that we must prevent abuse in the first place. With that, I can only express the hope that the noble Lord will think again and decide to withdraw Amendment 83.

[Lord Warner]

Before the noble Earl sits down, can he clarify something from his earlier remarks about the Human Rights Act? I ask with a certain amount of humility but also from the perspective of one of the people who wrote the Labour Party’s policy in 1996 on the incorporation of the European Convention on Human Rights into what became the Human Rights Act in this country. When that Act was framed, the definition of a public function, or the nature of a public function, was one which did not to a great extent anticipate the move over the next 10 to 15 years in which public services would actually be undertaken and provided by private and voluntary bodies. It simply did not do that. However, the terminology was wide enough at the time to embrace an organisation like Channel 4, which had a mix of public and private functions. It was incorporated, as I recall, into that legislation on the basis of its partial role in performing public functions.

The noble Earl seems to accept that, over time, case law can change the definition of the nature of a public function. He seems to be saying that we have to plod through the courts, case by case, to change the definition. I rather lost him when he then tried to argue that you cannot do it by groups of cases, which is effectively what this amendment does. Is the noble Earl saying that the definition of the nature of a public function—in the law as it is—cannot be changed by cases and can only be changed by amending the primary legislation itself?

[Earl Howe]

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

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, as I said on Monday, the principles which underpin this Bill are widely supported, although recent revelations around deferred payments have put a considerable damper on that. We have been concerned in our debates mostly with trying to improve the Bill. A major feature of discussions has been the capacity of local authorities to do what is required, including responsibilities around assessment, providing information, preventing needs for care and support, promotion of integration, provision of information and support, direct payments, promotion of diversity and quality in the provision of services, and dealing with provider failure. Another concern has been about the amount of resources that will be available to make the Bill effective—the more so when one considers the number of self-funders who will in the end receive support as a result of the introduction of the cap.

This is done in the context of a very tight funding situation for health and care generally. The Minister will be aware of reports from both the King’s Fund and the Nuffield Trust, and, more recently, from the NHS Confederation, which talked of the problems in healthcare and of there being basically no growth in real-terms funding in the next few years, together with a big increase in demand.

This is matched, and more so, by the additional costs which it is clear will fall to local authorities to meet the extra care responsibilities that they have been given. The Explanatory Notes to the Bill are rather disarming. They state:

“Most of the costs to the public sector associated with Part 1”—

which is what we are discussing—

“arise from introducing and funding a cap on care costs and from the proposed increase to the capital threshold. These are partly offset by consequential reduction in costs of attendance allowance and disability living allowance”.

The Minister cannot be in ignorance of the widespread concern among local authorities that, in essence, the Bill places many additional financial responsibilities on local authorities for which they have little confidence they will receive proper support from the Government. Let me give one example. We know that the settlement for 2013 provided £335 million so that councils can prepare for reforms in the system of social care funding, including the introduction of a cap, and a universal offer of deferred payment agreements from April 2015—this was in the guidance issued by CLG. That money was intended to cover assessment and reviews, capital investment in systems, capacity-building in individual councils, information and advice, and introduction of deferred payments from April 2015. However, my understanding from the Local Government Association is that that £335 million was not new money; indeed, it was top-sliced from the local government settlement. So the cost associated with funding reform should be seen as a new burden and funded as such. If that is only associated with the introduction—essentially with helping local authorities prepare for the provisions in this Bill—how much more will the additional funding responsibilities be when it is actually up and running?

There is widespread concern and doubt about local authorities’ capacity to set up the infrastructure to do the job, but the funding issue is even more important. That is why my Amendment 121 suggests that the Secretary of State asks the Office for Budget Responsibility to complete a review of the funding of social care that assesses the adequacy of current public funding of these services, the proposals for the funding of provisions in this Act, the implications of the Act and its funding for the NHS over the next five years and in particular the short- and long-term costs of setting the eligibility criteria at the level set out in the regulations.

The Office for Budget Responsibility has been established and we see many uses for it. This would be a very good way of getting an impartial view of the future costs resulting from the Care Bill and of the likely consequences for local authorities and the Bill’s funding. In the spirit of harmony and consensus which has prevailed over much of our discussions, I think it would be very good if the Government agreed to do this. It would provide us with a very good foundation and also help in taking forward the Bill and in terms of local authorities’ actual ability to implement the provisions. I beg to move.

[Lord Warner]

My Lords, I want to speak to Amendment 122 in my name. This requires the Secretary of State to publish a review of the working of Part 1 and its funding before Clause 15 is brought into operation.

I have tabled this amendment because of my continuing concern that the Government are sleepwalking into the introduction of the new arrangements in this Bill without adequate funding provision and they do not really appreciate the parlous state of adult social care funding. I think my noble friend was being rather generous in his remarks. The situation is very bad. I have a cutting about the Equality and Human Rights Commission’s report into home care, published last week, in which the commission made it clear that council cuts could be affecting the human rights of older people. This is a serious situation.

People are very supportive of the basic architecture of the Dilnot and the Law Commission’s proposals enshrined in this Bill, and are very supportive of the Government bringing this Bill forward, but they simply do not believe that the funding is in place effectively to implement the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding and I think this is hardly surprising because the Government’s social care funding strategy seems almost designed to confuse. We have Eric Pickles signing up to quite swingeing cuts to local authority grants which inevitably reduces social care funding substantially. We then see Health Secretaries having to scrabble around to slip NHS cheques to local government to mitigate some of the Pickles cuts. Of course I do not want to be ungenerous to Health Secretaries, and these cheques are better than nothing, but they do not make good the shrinking base budget of adult social care that has been taking place over many years.

People like to claim and use bits of the Dilnot commission’s report that they favour and fancy. I would like to draw attention to pages 14 and 15, where we said:

“We know that the funding of social care for older people has not kept pace with that of the NHS. In the 15 years from 1994-95 to 2009-10, real spending on adult social care increased by around 70% for older people while, over the same period, real spending in the NHS has risen by almost 110%”.

We showed in this report that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding was going to need to change. It has changed, but not quite as we had expected or intended.

Adult social care will start the next financial year with a base budget about £3 billion lower in real terms than in 2010. So the base budget for social care is underfunded. That is where we start from. Most of the discussion that has taken place about the implementation of the Bill takes no account of the base budget deficit from which we are starting. That deficit is due only to get worse because there is another set of proposals under the DCLG settlement in Spending Review 2013 for another 2.3% cut in the budgets of local councils, which can only take even more money out of the local government budget for adult social care.

I have no doubt that the noble Earl will say much the same thing as he did in Committee about the Government’s proposal for a £3.8 billion pooled budget for 2015-16 to join up health and social care services. I welcome that. Most people welcome that. However, as the Minister acknowledged in Committee, only half of that £3.8 billion is new money, and only half of the new money will be paid upfront to local authorities as they start to implement the proposals under the scheme. The assurance that that new money will be in place takes no account of the further reduction of 2.3% that I mentioned in the spending of local councils in 2015-16.

We have a situation where the base budget is highly deficient, further cuts are coming out of local government expenditure by councils, which can only have a further impact on that base budget in 2015-16, when the new legislation is due to be implemented, and we have no guarantee that the lion’s share of that £3.8 billion pooled budget will be in the hands of councils when they start to implement the scheme. That is not a situation to fuel people outside with confidence that they will have successful implementation of the legislation.

The Government can protest as much as they like but, at the end of the day, we need public documentation —preferably, I would say, by someone as independent as the OBR, but I would even settle for the Institute for Fiscal Studies. If I cannot have that, I would settle for legislation requiring the Secretary of State to put some of that information in the public arena and before Parliament before the Bill is put into full operation. People who are to implement it and the public need far more convincing than they have received so far that all will be well financially, to give people a reasonable chance to implement this highly desirable, on the whole, well constructed Bill, successfully when the time comes.

[Earl Howe]

My Lords, I have listened with care to noble Lords as they have introduced their respective amendments and I am confident that we can all agree that the issues that they raise are vital to the successful implementation of government policy and are essential parts of good policy-making. Let me first address the questions about the cost and funding of these reforms. We have taken and will continue to take a robust, evidence-based approach to assessing the cost of the reforms. We are working closely with local authorities to help them to understand the costs at a local level, and we will use this knowledge to refine our national modelling further. Funding of care and support, including the reforms in Part 1, will be reviewed regularly as part of the spending review process, and the core elements of the capped-costs system will be reviewed within each five-year period.

Turning to the specific issue of the short and long-term costs of the national eligibility threshold, I can assure noble Lords that we have published an impact assessment fully setting up the costs and benefits of the policy. We have comprehensively assessed and funded those provisions. We have published impact assessments for all elements of the Bill and, in line with the Government’s approach to all new burdens on local authorities, those costs were fully funded in this year’s spending round. Those estimates are based on the best available evidence in the area. They have been produced in co-operation with academic experts and officials from across government.

--- Later in debate ---

Tabled by

[Lord Warner]

122: Clause 69, page 59, line 10, at end insert—
“( ) In advance of the first five-yearly review, the Secretary of State must prepare and publish a review of the working of Part I and its funding before the date in subsection (4) and after consultation with interested parties.”

[Lord Warner]

I am not going to detain the House. I remain unconvinced about the direction of travel that we are taking and I learnt long ago in Richmond House not to believe everything I was assured of which came to me in my Red Box. I hope that the Minister is right, but I have a terrible feeling that I shall be saying, “I told you so” in a few years’ time.

Amendment 122 not moved.

Care Bill [HL]

Lord Warner Excerpts

Monday 14th October 2013 Lords Chamber

[Lord Warner (Lab)]

My Lords, as the self-appointed keeper to this House of the Dilnot tablets, I support Amendments 55 and 56, spoken to so ably by my two noble friends. Turning to Amendment 55, in framing our recommendations in our report, it was never our intention to impose a new set of rigidities in place of the old set of rigidities. It is important that the new system retains as much flexibility as possible. It is worth thinking about what lies behind much of the argumentation in our report and the new architecture that that report proposes. It is all about people, in as fair, orderly and manageable a way as possible, making contributions from their own resources to the rising costs of adult social care as we cope with, live with and adapt to an ageing population. Given the messiness of the present arrangements for top-ups, it would be perverse not to create the maximum flexibility for people to top up, particularly where these top-ups relate to their ability to stay in a home where they and their family have been very comfortable with the arrangements. Preventing such top-ups would be a truly perverse way of implementing the Dilnot architecture. We need a more flexible way of coping with this. Therefore I support my noble friend Lord Lipsey’s set of amendments.

On Amendment 56, my noble friend has a very strong point. I say this as someone who spent 10 years wrestling with means tests as a senior civil servant coping with social security. In those 10 years, numerous were the times when we had to cope with unforeseen consequences of what we thought were well designed social policy changes, but which turned out not quite to work when subjected to the scrutiny of the real world across a large population. I congratulate the Government on taking our report and turning it into a largely workable—we have a few doubts, but largely workable—set of arrangements that can be brought into operation quickly. However it would be very optimistic to think that there would be no unforeseen consequences—wrinkles, if I may use the word—which needed to be looked at, in particular in the areas of means-testing and the working of the cap. I emphasise that this is not a job application from the Dilnot commission to make, like Frank Sinatra, another return appearance, but we do need some kind of credible, independent body to take a look at this.

I would just gently remind the noble Earl that, at the end of our report, on page 69, we talked about some of these potential wrinkles, including the potential further changes in and around means-testing, which we did not have time to wrestle with but which we just flagged up for the Government. I will go not into the details but just the headlines. Under “Consistent treatment of housing assets”, we noted the way they are treated differently across the social care means test in terms of domiciliary and residential care—they are not treated on the same basis. There is also the issue of whether the means-test taper actually disincentivises savings and the issue of consistency between the way people in residential and nursing care, where it is not continuing care, have to meet general living costs but do not have to meet them where it is continuing care. We know that there are already some potential anomalies in the way that the new architecture will interact with some of those areas. We flagged that up in the report.

My noble friend has argued for some kind of independent advisory committee. He may not altogether thank me for raising some of these potential further changes but they are issues that have to be wrestled with. The new set of arrangements will throw up their own issues, which will also have to be wrestled with. Some kind of independent advisory committee, looking at the way in which the new scheme has worked and has bedded down, particularly in the area of the means test, would be a valuable contribution. I do not think it is a partisan issue. It would be welcomed across the parties and I hope that the Minister can look a bit more favourably on my noble friend’s amendment.

[Baroness Greengross (CB)]

My Lords, first, I add my voice in support of Amendment 55, in the name of the noble Lord, Lord Lipsey. We have not fully taken into account the impact that the Bill will have, when it becomes an Act and is brought into being, on the many people who are now in care homes and where the funding of those homes will suddenly become much more public. Everybody will report to the local authority to get on the meter and the extent of people’s self-funding will become better known. There will be a sort of explosion if we do not get this right and do not allow people to make top-ups. What are we going to do: assume that some of these people will be moved from the care home that they are in and where they are, we hope, happy to another care home because there is inflexibility with the top-up system? That would be really cruel and I hope that we can get as much flexibility and remove as many restrictions on people as we can.

Several cases have been brought to my attention of people who are already in a care home running out of money. They, or their relatives, cannot afford the whole amount but want to be able to top up the local authority amount, which, at the moment, nobody is fully aware of. As this is all going to become much more public knowledge, it is important to have as much flexibility as possible. I hope the Minister will have another look at this.

--- Later in debate ---

[Earl Howe]

My Lords, I assure the House that the Government are in agreement with the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. We are working hard to deliver our shared objective of improving care for people approaching the end of their lives. It is in that context that I shall move government Amendment 57.

On the issue of treating the assessment of terminally ill people as urgent, I fully recognise noble Lords’ concerns. With that in view, I have tabled an amendment to make it explicit that the end of life is an example of when local authorities may treat cases as urgent. We do not believe that it would be right to require local authorities to treat all cases in this way—circumstances have to dictate the approach taken—but we agree that clarity around end-of-life cases as examples of urgent situations for the purposes of Clause 19 may provide a useful indication to improve practice. I shall not anticipate noble Lords’ remarks in support of their amendments, so at this stage I beg to move.

[Lord Warner]

My Lords, while I welcome Amendment 57, I want to set out the case for the Minister going a good deal further. Amendment 137 follows the discussion in Committee of amendments proposed by the noble Lord, Lord Patel, and myself. We have come back with an alternative amendment, which has also been signed by the noble Baroness, Lady Greengross. We have done this in consultation with voluntary organisations over the summer, and the wording of Amendment 137 reflects those discussions. To summarise, the amendment would enable the Secretary of State, after discussion, to make regulations that did three things: first, allow people to have their preference for place of death recorded by local health and social care services and for that preference to be implemented wherever practicable; secondly, have their care and support needs and those of carers treated as urgent in assessing needs—and we think, reasonably, that Amendment 57 deals with that; and, thirdly, exempt terminally ill patients from adult social care charges.

Since Committee the Government have brought forward Amendment 57 and, as I have said, I think that it meets many of our concerns about urgent assessment at the end of life. It has certainly had the effect of diluting enthusiasm in some parts of the voluntary sector for a more wide-ranging amendment on end-of-life choice, and I slightly backhandedly congratulate the Minister and his civil servants on achieving that. However, I would still like to have another go at trying to convince the Government, and possibly some members of my own Front Bench, that we should be a bit more ambitious.

Around half a million people die each year in England, about two-thirds of them over the age of 75. A century ago most of us would have died in our own homes. Today, most will die in hospital. The latest figures show that in April 2012, about 42% of people died at home or in a care home. This is an improvement from 38% four years previously, but on present trends it will be at least the end of this decade before half of deaths occur in the place of usual residence. These figures of improvement at the national level, however, conceal considerable regional and local variations.

If you live in the south-west, with 48% of deaths occurring in the place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. Of course, as a Londoner I think there are many benefits of living in London, but choosing where I die is not likely to be one of them. There is an even wider variation between local authority areas. The great majority of us want to die at home or the place we normally live rather than, I suggest, the hectic and somewhat impersonal environment of an acute hospital ward. Perversely, we end up not only dying not only in the place where we least want to be but also in the most expensive place.

Marie Curie research has shown that a week of palliative care in the community costs about £1,000 a week, whereas a week of hospital in-patient specialist palliative care costs virtually £3,000 a week. The National End of Life Care Programme shows an estimated potential net saving of £958 per person if you die in the community rather than in hospital. Polling for Macmillan has shown that eight out of 10 health and social care professionals agree that community-based end-of-life care would save money. On top of this, nine out of 10 MPs think their constituents should have the choice to die at home. What is not to like about the first prong of Amendment 137?

I am not trying to dragoon people into dying outside hospital to save money. I want people to have as good and dignified a death as possible, with their friends and families around them. That is more likely to be achieved if they have a right to register their preference for dying at home or their place of normal residence. This would mean fewer people dying in hospital and it would also reduce pressure on A&E departments and acute hospital beds. I suggest that this is a not inconsiderable benefit—as Sir Humphrey would have said—in terms of the cost savings that could arise from allowing people to express their preferences on their right to die at home.

I accept that at this point it may be rushing our fences a bit to pay for exempting terminally-ill patients from local authority care charges. We need some detailed costings and possibly—I suspect the Minister will say this—we need to wait to hear what comes out of the pilot schemes in this area. However, we would also welcome having more information from the Minister on the progress being made in those pilots.

Accepting the first part of Amendment 137 would lay down a clear marker that Parliament wants government to move in the direction that most people want: which is the right to choose to die at home or their place of normal residence wherever practicable. This amendment gives the Government plenty of time to consult on all the detailed arrangements. It does not require those regulations to be made by any particular time and it gives the Government a lot of freedom about what the nature of those regulations might be. We should not miss the chance of this Bill being before Parliament to move in this area and put this change on the statute book. I hope the Minister will respond favourably and be prepared to entertain at Third Reading an amendment of the kind set out in the first prong of Amendment 137. I would certainly be happy—as I am sure my colleagues would—to discuss this further with him.

[Baroness Greengross (CB)]

I support the comments made by the noble Lord, Lord Warner, about this amendment. We know that the things people say they dread as their final days approach are loss of dignity and loss of respect, and we hear far too much about poor care at the end of life. Very often, it is poor care because people are not in the place they would like to be. We also know that the number of carers identified and signposted by the NHS to the enhanced support is not widely known. We know that much more needs to be done to draw together all the various approaches—I am involved in one of those approaches at the moment, looking with a group of experts at how to improve end-of-life care with doctors, professionals in end-of-life care and lawyers who deal with patients’ wishes. There is still a lot be looked at and brought together, and this Bill gives us a good chance of getting this right, or at least much nearer to being right than it is at the moment.

As the noble Lord, Lord Warner, mentioned, the coalition of charities has also suggested that end-of-life care should be free at the point of delivery. I know that this requires much more consideration—the noble Lord talked about that. I want to concentrate on hoping that this will be considered and that services to dying people and possible loss of dignity and respect will get a far higher profile as things that need urgent attention. Terminally ill people should have their preferred place of death recorded by local health and social care services. That preference needs to be implemented wherever it is practical. People must have their care and support needs and those of their carers treated as urgent by the local authority responsible for assessing those needs.

For people who are dying, every day is precious. They cannot wait while the bureaucratic wheels grind slowly along, and not always in their favour. I support the amendment tabled by the noble Lord, Lord Warner.

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Amendment 57 agreed.

[Lord Warner]

I thought I had a right to respond to the noble Earl on Amendment 137.

[The Deputy Chairman of Committees (Lord Colwyn) (Con)]

It was the noble Earl’s amendment. Can we go back to it? We cannot.

Clause 20: Duty and power to meet a carer’s needs for support

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[Lord Hunt of Kings Heath]

My Lords, this is an important subject. Clause 34 provides for deferred payment agreements and loans. In such an agreement,

“the charges or loan advanced is repaid by the adult or from their estate at a later specified date, or on the happening of a specified event, such as the sale of property. The debt is normally secured against the person’s property to ensure repayment”.

I say at once that we welcome the support to be given to such a scheme. However, I hope that the noble Earl will be able to respond to my noble friend on the point that he raised. His essential argument is that the scheme as originally recommended has been severely restricted, as indicated in paragraph 150 of the consultation, whereby a person is eligible only if other assets are less than the £23,250 limit. Can the noble Earl confirm that figure? If so, can he estimate for the House how many people he thinks are likely to want to use the scheme? The 40,000 figure seems even more mythical if people’s other assets have to be reduced to such a level. We need to clear up that important point either today or, if the Minister is unable to do so, perhaps on Third Reading.

I wish to speak now to my Amendment 63. One worry which we discussed in Committee concerns how local authorities are to run these schemes, and that worry remains. My noble friend Lord Lipsey spoke in Committee of his concerns about the creation of administrative difficulties for local authorities because each local authority would have to design and implement its own scheme. There would be a risk not only that the amount of energy which each authority had to expend would be extremely wasteful but that some very poor quality schemes could be developed. My noble friend Lord Warner, when discussing the balance of arguments between a national scheme or local schemes, said:

“The worst of all worlds would be not to take hold of this issue and leave it to a marketplace of 152 different bodies”—

in other words, local authorities—

“without much guidance or assistance with compatibility of IT and issues of that kind”.—[Official Report, 22/7/13; col. 1065.]

In Committee the noble Earl seemed a bit reluctant to accept the need for national direction in this area. The fact is that only a minority of local authorities currently operate deferred payment schemes. The local authorities’ responsibilities that we have discussed in relation to the Bill are many and extensive, and I shall not go through the list again. There is no doubt whatever that there are worries about whether local authorities really have the capacity to implement the legislation as noble Lords require. Instead of these 152 local authorities having all to develop their own deferred payment schemes, surely there is a persuasive case for a model scheme to be drawn up based on the experience of local authorities which are already operating a scheme but which are in a minority at the moment.

I have little doubt that a model scheme would save money by reducing the work that an individual local authority would have to do. The scheme would be informed by best practice and individual decisions would still be left to individual local authorities because they would be given a model scheme to which they could make adjustments. I should have thought that that would help ensure that the use of deferred payments would be developed and expanded as effectively as possible. I very much hope that the noble Earl will be able to agree to this amendment.

[Lord Warner]

My Lords, I rise again as the keeper of the Dilnot tablets on the subject of deferred payments. If we had intended that access to a deferred payment scheme was to be limited to people with assets of less than £23,000, we would have said so in our report. That was not what we intended. I commend the report to the noble Lord, and I hope the House will forgive me if I just cite a few bits of it.

I refer the noble Lord to page 41 of our report. We said:

“Evidence submitted to the Commission suggests that the availability and use of deferred payment schemes is patchy”,

and we went on to explain that. The government consultation document suggests that it will continue to be pretty patchy as well because very few people are likely to come forward for this. We said—and this was a recommendation:

“At a minimum, the Commission recommends an extension to the current deferred payment scheme so that it is a full, universal offer across the country.”

That is what we said.

The Government have given the impression in various interviews—I have gone head to head with government spokesmen about this on a number of programmes—that they were going to support an extended deferred payment scheme and that it would be pretty much similar across the country. If you had a deferred payment scheme in Cumberland, it would look remarkably like a deferred payment scheme in Cornwall. It seems that we are getting into a position where none of this will be the case. It is pretty rough on the public if the Government and their spokesmen are giving the impression that they are implementing the Dilnot recommendations on deferred payment schemes when they are palpably not doing so under the present set of proposals as I understand them.

It is not too late for the sinner to repent—the consultation period is open until later this month. However, it is necessary to revisit this in terms of what government policy is on this particular issue, both in terms of access to a deferred payment scheme and on the issue of a model scheme. The two go hand in hand. It is no good having a model scheme if it is a model scheme for a handful of cases in different parts of the country. We need a model scheme that is actually available so that people who want to cope with the issue of how they fund their care can access a deferred payment scheme. It is always a risk when you are on a committee such as the Dilnot committee that, quietly and unobtrusively, the bureaucracies will nibble away at well intentioned recommendations. Some of us have had this experience ourselves, and some of us have done a bit of nibbling as well from time to time as civil servants, so we recognise nibbling when it is going on. We are in that position here.

It is down to the Minister to start some discussions about this issue, not to leave things to the marketplace, and not to give the public impression that there is going to be a widely available deferred payments scheme when, in fact, it is going to be available only to a fairly limited number of people.

[Lord Mackay of Clashfern]

I do not understand why it is necessary to have any kind of limit in relation to this matter so long as there is sufficient security to allow the deferred payment to be feasible from the point of view of the Government. The proposition that the deferred payment scheme should be limited by the amount of assets a person has strikes me as rather unnecessary. So far as a model scheme is concerned, I would have thought that there is a lot to be said for having a form of document which is universal. There would of course be the possibility of different particular provisions relating to particular cases, but the central core of a deferred payment agreement could be put in a form of universal application.

--- Later in debate ---

[Lord Warner]

My Lords, perhaps it would help the House if the character from Hogwarts actually explained what was going on in our minds when we made the recommendation. I shall quote a sentence from the report:

“In making this change, we believe it would be sensible for local authorities to be allowed to charge interest to recover their costs, to make the scheme cost neutral”.

We were not trying to second-guess how many applicants there would be, but it would be sensible to set up a scheme that worked in a way which did not actually cause a charge to be made on the Exchequer for the running of the scheme.

[Earl Howe]

My Lords, perhaps I may deal first with the initial point raised by the noble Lord, Lord Lipsey, about the figure that I quoted in Committee. He asked whether I had in fact meant to say that up to 40,000 people might have to sell their homes every year. The answer is that I should have said “up to 40,000”. I am afraid that there is a conscious element of vagueness in the figure because there is no one comprehensive source to provide information about what the precise figure actually is. We have arrived at a figure of up to 40,000 as the best estimate. I hope and believe that over the summer my officials provided the noble Lord with a breakdown on how we reached that figure and that he has found the information useful. The point of quoting the figure is that we believe that it is around the number of people who could benefit from the arrangements we are discussing. I apologise if I misled the Committee and the House in stating a figure that sounded precise when I should have been a little more circumspect.

The second issue raised by the noble Lord was about the deferred payment scheme and his perception that the Government have effectively emasculated it. I do not share that perception. There will be some circumstances in which local authorities must offer a deferred payment, and that is when the Bill specifies that the local authority would be under a duty to offer a deferred payment. We are consulting on the eligibility criteria for when people must be offered a deferred payment, which is where the figure of £23,250 is used. The Bill has an additional power for local authorities to offer deferred payments more widely, and we are seeking views on this through the consultation. My noble and learned friend Lord Mackay asked why we need limits at all. It is our policy intent that deferred payments will be available more widely and consistently than they currently are, which I think is what the Dilnot commission intended us to do. We need to ensure, however—

[Lord Warner]

Perhaps I may correct the noble Earl. We actually referred to a universal and standard scheme. We assumed that such a scheme would be wider, but we were looking for a standard scheme that would make this widely available. That is the part which is missing from the Government’s reassurances.

[Earl Howe]

I shall come on to the standard scheme proposal in a moment. We need to ensure that this arrangement is rolled out in a way that is financially sustainable for the local authority in each case. We will be supporting the implementation of the capped costs system and an extension of deferred payments with £335 million, which should enable this to happen.

I shall move on to the amendments themselves. I hope that the House will forgive me if I do not rehearse at length the same points that I made about financial advice last week, but I should like to take a moment to reassure the noble Lord, Lord Lipsey, on the specifics of his proposal. It is imperative that everyone has access to sound, reliable information and advice while making decisions about their care to ensure that any option they choose makes good financial sense for them and is sustainable in the long term. It is clear that local authorities have a central role to play in ensuring that their local populations are aware of the range of information and advice, both regulated and non-regulated, that is available to them and that they know how to access it. Last Wednesday, your Lordships accepted my Amendments 16 and 17 which clarify this. The noble Lord’s amendment would underscore the need to make sure that everyone who decides to take out a deferred payment agreement reaches that decision in a considered and informed manner. I agree that that should be the case. All too often, people do not plan ahead for the possibility of needing care and so can find themselves having to make important and lasting financial decisions in a moment of crisis.

Deferred payment agreements can be used to reduce some of this urgency and ought to be accessible to ensure that they provide the peace of mind that they are intended to. For this reason I would hesitate to make the process through which a person can access a deferred payment too onerous. We are currently consulting on the information and advice a person should receive before taking out a deferred payment agreement. We will listen carefully to what is said and we will use this to inform the approach that should be taken. I have already given the noble Lord my undertaking to discuss further what remaining differences we have about financial advice, if any, and I hope that those discussions will allow us to explain in more detail our policy intentions and what our own government amendments in this area aim to achieve. I hope that the noble Lord will agree that we are essentially of the same view about this and that he will be content to discuss the matter with me further outside the Chamber. That being so, I hope that he is sufficiently reassured today to withdraw his amendment.

I turn to Amendment 63, tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Wheeler. We are in concordance with them that a model deferred payment agreement would help local authorities and that is why we already have one in place for the schemes that are currently operating. What we intend to do now is build on and improve the current model. In doing that, we will work in partnership with local authorities to learn from the well established schemes, some of which have a decade of experience. While the case for a model scheme is clear, I think it would be wrong to mandate national systems and structures for deferred payment agreements. It is important that we strike the right balance between local flexibility and national consistency. Systems and structures must be developed in partnership with local government and allow for and, indeed, encourage local efficiencies to flourish. As noble Lords may know, we have established with the Local Government Association and the Association of Directors of Adult Social Services the joint implementation and programme board to support the implementation of these reforms more generally and, through this, we will support local authorities to deliver the universal scheme from April 2015. This work will include our commitment to providing a model deferred payment scheme, based on the current model, as well as statutory guidance to support local authorities in exercising these functions.

The statutory guidance on deferred payments, in particular, will have a clear legal status. Local authorities must act under this guidance. This means that they must consider and should follow it, unless they have a justifiable reason not to do so. This would seem to be the same status as is envisaged by noble Lords in their amendment. I hope therefore the noble Lord feels able to withdraw his amendment in light of the reassurance I have given on supporting local authorities to deliver the universal deferred payment scheme and the model agreement in particular.

My noble friend Lady Barker asked whether the scheme was a model for how local authorities manage the burden on themselves. This is not designed to be a scheme that makes a profit for local authorities. The interest rate is likely to be set at a rate which recognises local authority borrowing rates, and so ensures that the scheme is cost-neutral.

--- Later in debate ---

[Baroness Meacher (CB)]

My Lords, I rise to speak to Amendment 123. In doing so, I add my support to Amendments 76 and 124, which were tabled by my noble friend Lady Greengross. Indeed, a few of my comments slightly overlap hers.

As the Bill stands, local authorities will be given many complex duties and will be required to make many decisions which will have a substantial—you could say devastating—impact on the lives of elderly and disabled people, but there is no statutory provision for any appeal or independent review process, even if decisions are made on the basis of factual or legal errors. That is the point of the comments I want to make.

I understand that the Government have committed themselves to consider a process of redress or appeal and that they recognised in their response to the Joint Committee that it is,

“vital that people have an effective way to complain and seek redress”,

but there is no assurance in the Bill that such a system will be put in place and, if one is, what its characteristics will be. As my noble friend Lady Greengross said, regulations under other legislation do not appear to do the job. I hope the Minister will comment on that situation.

For example, local authorities decide whether an elderly or disabled person should continue to receive care support. Many will lose that support as a result of cuts to local authority budgets. The impact of losing care support—an entire care package in some cases—can be catastrophic, according to Leonard Cheshire Disability and others directly in touch with disabled or elderly people. Many years ago, I worked with these people, and I find the very idea that a care package could simply be removed very frightening, even as an onlooker, let alone as somebody experiencing such a thing. People become trapped in their homes, unable to work and unable to get out. They become depressed and, in some cases, suicidal—and not surprisingly in my view. There can also be risks to people’s health. As they try to undertake tasks for which they are not well suited or which they are unable to perform on their own, they fall. Has anyone estimated the likely cost to the health service of increased falls, accidents and problems of this kind? What is the Government’s view of the economic costs to the country if family carers have to give up work in order to step into the breach when the state withdraws? The problem is that the local authority may save money but the DWP and the Treasury are likely to pick up the tab. I am not quite sure what the Minister in the other place would think about that.

It is easy for the state machinery to underestimate the incredible vulnerability of many elderly and disabled people. Applicants for care support will inevitably feel nervous and fearful of the consequences of upsetting the very people on whom they depend so heavily. It is terribly important that an appeal or review process is not only user-friendly and accessible but really is independent of the people making decisions about the person’s care. Can the Minister honestly say that care decisions will in future not vary across the country? Can he say that decisions will be made without error and always be based on the law? I do not think so. In preparing this amendment we have been mindful of the cost constraints and the need to allow Ministers flexibility to create a system that will be proportionate and sustainable. I hope the Minister will recognise this in his closing comments.

Having said that, I draw your Lordships’ attention to the fact that Leonard Cheshire Disability has specifically asked me to ensure that a full tribunal service be considered, although we did have a discussion about the financial implications of that. It argues that if such a system exists to deal with conflicts about school places, a decision to deny social care is equally as devastating. The Law Commission recognised the importance of a fair, independent and accessible system of redress.

I know that the noble Earl has discussed this issue with key stakeholders and perfectly well understands the points I am making. I hope he can give the House an assurance today that, if he is unable to accept the precise wording of the amendment, the Government will table an amendment at Third Reading that will guarantee that a suitable appeal or review process will be in place when the Care Bill comes into effect.

[Lord Warner]

My Lords, I support these amendments—not necessarily the specific wording but the principles behind them. I remind the House of a real difference between many of the appeals under the new framework for adult care and support and what has gone before. We are now talking about a set of arrangements with considerable financial implications for people and their families. In the social security system we set up a tribunal system to arbitrate, which has worked pretty well for a long time. Many of these issues are more akin to the social security system than to complaints about process. There will be complaints about process but many of the things covered in these amendments are about a failure to get a resource from the public purse to which people think they are entitled and have evidence that they are. This is much more akin to the arrangements in the social security system for people who have their claims rejected. It is much nearer to that than complaints about poor processes of work by a public body. The Government should think long and hard about this issue because they are in grave danger of ending up with the whole system being overwhelmed by the number of complaints. Without a convincing system for resolving appeals in the framework of the Care Bill we are heading down a path where judicial review will start to feature quite strongly.

I remind the noble Earl of some of the other issues where there could be appeals. The Joint Committee looked at some of the friction points where there was scope for dispute. There is a raft of areas for dispute over assessment of carers and service users and a whole range of areas for dispute about ability and whether you are going to be charged or not. After the previous debate on deferred payment I can think of another fruitful area for complaints—an inability to get on to some kind of deferred payment scheme. Another area, important to patients and service users, is setting the price for contracts to providers. Clearly, the price-setting mechanism may be disputed between the providers of services who may claim that the price offered by the commissioning agent will be bad for service users and patients. I am not suggesting that these could all come together under one process, but we want more convincing architecture in this Bill to give confidence that there is a sensible way of resolving and arbitrating areas for dispute and for the service user and their carers to secure redress without going through an excessively complicated process.

--- Later in debate ---

[Lord Warner]

Before the Minister sits down, I will ask on a point of clarification. He made a lot of reassuring noises about the ability at the end of the consultation process to deal with some of the outcomes of that process under secondary legislation. Can the Minister clarify whether that also included—if the Government have had a damascene conversion to a tribunal-type arrangement—that secondary legislation could introduce a tribunal-type of arrangement for adult social care?

[Earl Howe]

I may need to answer that question later. However, my understanding is that, yes, we can do it through secondary legislation. If I am wrong on that, I will correct myself before the end of today’s proceedings.

[Earl Howe]

I take the point made by my noble and learned friend. We cannot iron out every kind of disparity, but we should aim for the kind of fairness that he talks about.

I have misled the House: we would not be able to establish a tribunal by secondary legislation—it would require primary legislation. However, as I said earlier, in the consultation that we are carrying out we do not rule out any solution. Clearly, if it transpires that we want to make changes for which primary legislation is needed, we would need to ensure that proposals were brought forward for consideration at the earliest opportunity. In general, we hope that the consultation will flush out any concerns in this area, not least in the area of fairness, as referred to by my noble and learned friend.

[Lord Warner]

Just to finish off this discussion, I have another point for the Minister to consider, which was made by the noble and learned Lord, Lord Mackay. The whole point about a tribunal system is that you build up case law, so you spread consistency across the country through the case law that individual tribunals have made. Without that structure of a tribunal system I suggest that it is very difficult to achieve the objective that the noble and learned Lord is seeking. Might the Minister ponder on that before we discuss this again?

[Earl Howe]

I shall certainly do so.

--- Later in debate ---

[Baroness Hollins]

My Lords, I support the amendment in the name of my noble friend Lady Greengross on the duty to report adults at risk, which replicates a duty within the Welsh Bill. I spoke to a similar amendment in Committee.

Providers, together with other partners, will often be best placed to identify abuse and neglect, and it makes sense for them to report to the local authority. At Winterbourne View there were 40 safeguarding alerts, 29 incidents where the police were involved and 78 attendances at A&E but agencies did not take any action. They believed it was someone else’s duty to report and take action. Putting this duty in the Bill would emphasise its importance and would be a vital step in ensuring that the local authority is notified so that it can then take the appropriate action. Leaving this to guidance and local protocols is not a satisfactory solution.

I also support my noble friend Lord Rix’s Amendments 79A and 81A on safeguarding. My noble friend has highlighted how abuse comes in many different forms. The breakdown of the nature of referrals is set out clearly in the Abuse of Vulnerable Adults in England 2012-13 report. The most common was physical abuse at 38,500. There were 24,500 referrals for financial abuse, the third highest. It seems an eminently sensible amendment to add some balance to this clause.

My noble friend’s amendment on safeguarding adults boards sending copies of their annual report to the Secretary of State also seems eminently sensible. Looking at safeguarding annual reports across the country would allow the Secretary of State to see the national picture as well as to monitor what works and what does not. Guidance can be issued where worrying trends are observed and good practice shared. This is about leadership at a national and strategic level, which could help to tackle the abuse and neglect of the most vulnerable members of our society. I do not think it is about extra bureaucracy.

[Lord Warner]

My Lords, I rise briefly to support Amendment 77 and to ask the noble Earl whether his department has actually looked at the legislation that protects children to see whether this is in line with that legislation.

My child protection legislation knowledge and expertise are a bit rusty but the basic rule of child protection is that you see the child in their home environment. That is rule number one. If you look at many of the cases that have hit the headlines after going wrong, it is due to a failure to secure entry early on in the proceedings to see the child in their home environment. The noble Baroness, Lady Greengross, has highlighted a very important issue. I am still struggling to understand why the Scots and the Welsh think it is important to retain this kind of approach but we in England do not. There does not seem to be a consistency of purpose across the borders.

Lastly, with regard to neglect, if you look at the data on child protection, I think the fastest growing area in which courts are authorising care orders and approving care proceedings for children is neglect. We should not shy away from the fact that when times are hard this may be a growth area. I am very pleased that the noble Baroness, Lady Greengross, has included abuse and neglect in her amendment.

[Baroness Barker (LD)]

My Lords, I support the noble Baroness, Lady Greengross, particularly on Amendment 77 about powers of access and entry. She and I were both there at the birth of Action on Elder Abuse, which grew for a reason: people had identified and begun to codify the many different forms of elder abuse.

I absolutely sympathise with what the noble Lord, Lord Rix, is trying to do. Indeed, I had the same thought myself but I will defend the Bill by saying that other forms of abuse—physical, sexual, whatever—are set out in different pieces of legislation. What this Bill does is define financial abuse for the first time. That is really important because we know that very many older people are financially abused by relatives and until now the financial services industry has been pretty hopeless about dealing with it. That is why that is there.

A power of access is important precisely for the reasons identified by the noble Lord, Lord Warner. What we are talking about here is the right of a social worker with a police escort, having got permission via a legal document, to go into somebody’s house, where there is a suspicion that criminal activity may be taking place. That is the magnitude of what we are talking about.

Care Bill [HL]

Lord Warner Excerpts

Wednesday 9th October 2013 Lords Chamber

[Baroness Barker (LD)]

My Lords, I apologise for not being in my place for the start of this debate. As noble Lords will know, on these occasions such amendments are often tabled by myself and the noble Lord, Lord Hunt of Kings Heath. We do so because we support the right of Christian Scientists to have their beliefs respected, in particular their right to refuse treatment. That said, when we discussed this matter in Committee, while at that point the Minister was as sympathetic as always, he failed to draw a distinction that is important to people of faith, which is that between the use of the words “emotional” and “spiritual”. People of faith believe that matters which are spiritual are of a different order from those matters which are emotional. I have a degree of sympathy with their view. However, I also have a degree of sympathy with the Minister, who does not wish to put things into legislation that are unnecessary. I hope that he will, in this case, perhaps be a bit more sympathetic to the arguments that are being put forward.

The noble and right reverend Lord, Lord Harries of Pentregarth, is right that as a society not only are we becoming much more diverse, but in our everyday life we understand the importance of faith and spiritual matters to other people. For example, we would not for a moment think it acceptable to present somebody with a diet that was not reflective of their cultural and religious beliefs. In our modern day health and social care services we are increasingly adept at recognising people’s differences and accommodating them. All told, this is a small amendment which costs nothing but means an awful lot. I hope that the Government will be able to take it on.

[Lord Warner (Lab)]

My Lords, as the chairman of the All-Party Group on Humanism, I am not sure that I should actually be following the previous speakers. However, Amendment 5 in this group is in my name and I want to be nice to the Minister instead of telling him off. The Minister has listened to the concerns that we expressed in Committee about applying the requirement to pursue the obligation on local authorities in Clause 1 to the Secretary of State in his actions, particularly regulations and guidance, to promote well-being.

I congratulate the Minister on listening to those concerns and tabling government Amendment 138, which effectively meets the concerns that we have. I suspect that my co-signatories, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Greengross, would say that the Minister’s amendment may not be quite as elegant as ours, but we are not going to have a competition about aesthetics; he has met the point and I thank him very much for what he has done.

[Lord Mackay of Clashfern (Con)]

I warmly support that. I am happy with the parliamentary counsel’s draft, which is what the Government are going to move, and we have to understand that some lawyers are better than others at making drafts.

So far as the amendment of the noble Baroness, Lady Barker, is concerned, I hope that the Government will pay considerable attention to what has been said about it.

--- Later in debate ---

[Lord Cormack]

If this is explicit for the National Health Service, why can local authorities not be treated in precisely the same way?

[Lord Warner]

I am trying to help the Minister. If he does agree to provide the assurances sought by noble Lords to look again, could he see whether if he moved in the direction they suggest, he would be discriminating against humanists?

[Earl Howe]

I can do no other than to look at this again, but I want to reassure my noble friends that their concerns are groundless because of the way that this clause has deliberately been framed. It is framed in terms of high-level principles. It is not designed to exclude any form of well-being whatever. It is designed to look at the person holistically and to ensure that no aspect of well-being is overlooked. I shall of course have a fresh look at this question, but I ask my noble friends, and the noble and right reverend Lord, Lord Harries of Pentregarth, to understand that this clause has been framed in a particular way quite deliberately, not to exclude any form of well-being but to encapsulate all forms of well-being.

In other words, the provisions allow consideration of this and indeed many other matters where relevant. I hope that with these assurances the noble Lord will feel able to withdraw his amendment, and indeed to support the amendments which I have tabled.

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[Lord Hunt of Kings Heath]

My Lords, I support the noble Lord, Lord Best, in relation to Amendments 15 and 23. Obviously, we welcome the government amendments to which the noble Earl, Lord Howe, will speak shortly, but it seems that the amendments tabled by the noble Lord, Lord Best, point to areas where the government amendments do not really meet the needs. Amendment 15, on making available information about housing adaptations and on specialist and accessible housing as a key requirement of a local authority’s information service, was a clear recommendation of the Joint Committee. The noble Baroness has just illustrated why making such information available is so important. It could be very helpful in terms of avoiding the need for people to receive long-term care. We should not underestimate the challenge people face when simply trying to find their way through the system. We find it complex, so how much more difficult must it be for those with little experience of the care sector and the housing system? I believe that Amendment 23 is critical to the success of the Government’s own housing amendment. It would ensure a three-way integration that would be an explicit part of a local authority’s duty to promote efficient and effective local markets for meeting care and support. It would particularly ensure that it has regard to the importance of adults’ access to suitable living accommodation.

We know that many local authorities are doing this without any prompting from the noble Lord, Lord Shipley, or my noble friend Lord Beecham. I recently came across the housing for an age-friendly city programme. It seemed to be a really good illustration of how, if a recognition of the changing needs and support of older people is at your core, and you supply a range of care and support housing options as an alternative to residential care, it makes the essential connection between, for example, managing a long-term illness and living in the right accommodation, and the importance of extra care housing schemes that enable people to live independently for longer.

I also just came across a One Housing Group initiative in Islington. It is a scheme designed for 14 people who spend a maximum of 14 days in the centre as an alternative to acute NHS admissions. It has a drop-in centre and an emergency helpline, and this crisis recovery house helps 550 people a year. It keeps 87% out of hospital admissions. It was commissioned by the health service but it shows the interconnection between housing and health.

In responding to the noble Lord, Lord Best’s amendments, I hope that the Government might be prepared to reconsider this and come back at Third Reading with further amendments.

[Lord Warner]

My Lords, I am sorry that I missed the beginning of this debate but I was with the noble Baroness, Lady Masham, listening to Sir Bruce Keogh explaining how the mess around paediatric surgery was going to be sorted out.

I lend my support to Amendments 11 and 15. I remind the House that many years ago, in the good old days, housing and health were together in the same ministry; there was a united ministry covering both health and housing. We have lost something by that separation. I think that the NHS needs to be given a push on integration, so I very much like the amendment of my noble friend. Too often the NHS forgets that it could help itself by working more closely with other interests, and it would be a timely reminder in this piece of legislation to get that message across. As the noble Lord, Lord Best, has said, we have missed many opportunities over a long period of time, to bring housing into the party as the population has aged. All it has done is increase the burden on adult social care and the NHS. It would be a missed opportunity if we did not rectify some of that now.

[Earl Howe]

My Lords, I very much agree with noble Lords that housing, along with health, and care and support, should be considered as the three legs of the stool. In relation to housing we are clear about two things: first, many types of housing can be provided as a means of meeting or preventing care and support needs—for example, extra care housing. That is why accommodation is listed as a way of meeting needs in Clause 8.

Secondly, housing is a wider determinant of health; simply having a roof over your head can have an enormous impact on your health and well-being. To reflect this, the “suitability of living accommodation” is listed as part of well-being in Clause 1(2). I hope that those two points in particular will serve to reassure the noble Baroness, Lady Masham.

Amendment 12 clarifies that housing is a “health-related” service, and that both local authorities and the NHS are required to promote integration between care and support, health and housing. This makes the importance of housing explicit not only in the integration duty in this Bill but in the comparable duties on the NHS in the 2006 Act. I hope noble Lords will welcome that.

In Committee, noble Lords also expressed the view that we needed to clarify that local authorities are required to co-operate with providers of services, including providers of housing services. Amendment 28, again in my name, does just this. The non-exhaustive list of the types of “other persons” we expect local authorities to co-operate with would now include certain providers of health, care and support, and housing services. However, we cannot add these bodies as “relevant partners”, as public law is limited in the extent to which it can place duties on such private bodies.

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[Lord Warner]

My Lords, I will make a few remarks about three separate subjects that are covered in this group of amendments. First, I congratulate the noble Baroness, Lady Barker, on her tenacity on the subject of advocacy. I very much support what the Government are doing to try to respond to that, because it is a view that many of us across the House have had for some time. The Bill was deficient in terms of advocacy for those who need that kind of help and support.

I will make one remark in relation to my noble friend Lord Lipsey’s remarks, which we will go into a bit more under the next amendment. I remind the Government of the mis-selling of pensions and insurance in the financial services sector. They would do well to dwell on that before they eliminate the idea of some regulation. I see the argument that not all types of financial advice need a regulated financial adviser. However, some types of that advice need a regulated financial adviser. My peace offering to the Government is the following. If they thought a bit more about this, given what happened in the financial services sector, it may be possible to separate out the types of financial advice and deal with it in regulation, where we need both regulated and unregulated people. At the moment, the Government are being too broad-brush in ignoring some of the complexities, particularly around equity release and deferred payments, which may be equally as complex as any of the pensions and insurance issues that were being rather gaily sold by untrained people in the financial services sector.

I take issue with the noble Baroness, Lady Meacher, on Amendment 21, drawing on my six years as a director of social services. In the 1980s, we set up a care management system where care managers did not have to be qualified social workers. These people were putting together packages of care after an in-service training course, which enabled them to deal with some very vulnerable people with quite complex needs. It is not necessary to have a social worker. Many local authority departments over the years have developed benefits advice services that run alongside their social work colleagues, which give financial benefits advice to vulnerable people who need to be helped to find their way around the social security system. I caution the Government against not going down that path. With all due respect to the professional advice that the noble Baroness, Lady Barker, has had, qualified social workers are not necessarily very good at giving some of the advice that we are talking about.

Even more to the point, we should not divert a scarce resource such as qualified social workers into this area of activity when we do not need to. I remind the noble Earl that we are seeing, in the children’s services, a 50% increase in the number of children coming into care in a four-year period. The real need for social work skills and resources is in some of those other areas of work that local authorities have to deal with. However modest the numbers may be—and this amendment does not limit them that much—we do not need to divert scarce social work resources into this area. They need to go into some of their higher priority work, particularly in the area of children.

[Lord Hunt of Kings Heath]

My Lords, we shall come to Amendment 20, in the name of my noble friend Lord Lipsey and that of other noble Lords, including me, in a moment. However, I want to ask the noble Earl about the point raised by the noble Baroness, Lady Barker, in relation to independent advocacy. The noble Baroness raised a pertinent point about what responsibility there is on a local authority to engage with the advocate. I hope that the noble Earl will provide the House with more information. Clearly, this is a step forward, which is to be welcomed, but one needs some assurance that the advocacy system will work effectively. It would be helpful to know what the noble Earl’s department thinks might be the appropriate response of a local authority where an advocate has come to the fore.

I have a great deal of sympathy with the amendment of the noble Baroness, Lady Greengross. It is one thing to provide information support grudgingly; another to be proactive in doing so. Perhaps the noble Earl would comment in particular on Clause 4, because there is a world of difference between Clause 4(1), in which a local authority must,

“establish and maintain a service for providing people in its area with information and advice”,

and Clause 4(2), which goes on to describe what type of advice. This does not assure us that a local authority will be effective in doing so. I should be grateful if the noble Earl would explain how this will be monitored. Will the Government have a role in reviewing the effectiveness of local authorities in providing that?

If one is resident in an area where the local authority does not seem to provide an effective information and advice service, what recourse does one have? I assume that there would be judicial review and the ombudsman, but those are heavy-handed approaches and it would be helpful to know whether the Government have thought through ways in which members of the public can draw attention to failures to provide effective information and advice in some local authority areas.

That might pick up on the amendment relating to the use of professionally qualified social workers. My noble friend Lord Warner, with a great deal of experience, has suggested that even in areas where there are complex needs, a qualified social worker need not necessarily provide this support. None the less, one wants some assurance that sufficient provision for support will be given. Again, it comes back to the issue of how we will monitor the performance of local authorities.

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[Lord Warner]

My Lords, I rise to support this amendment and, particularly, to talk about the first two prongs of it. I do this partly from my experience as a member of the Dilnot commission. I remind the House what that commission said on the subject of an awareness campaign. We made only 10 recommendations, one of which was a very strong one because we had been incredibly depressed by the evidence given about people’s understanding of the present system, let alone the new one. When you have 60% of the population thinking that social care is provided by the NHS, you have a bit of a problem explaining to people how the system operates. Since they have not even mastered the existing system, you have to make a really big effort to get across some of the messages about the changes to it.

You could argue that it is a bit like Africa: if you have never had a landline and go straight to mobile phones it might be easier to make the change. Many people will not carry a lot of baggage about the existing system, but we do need to work really hard on this issue. That is why we said:

“To encourage people to plan ahead for their later life we recommend that the Government invest in an awareness campaign”—

we used the word “invest” very deliberately—

“This should inform people of the new system and the importance of planning ahead. This campaign could be linked into the wider work to encourage pension savings”.

Those three sentences were worked over very carefully and we said exactly what we meant on those issues. We said them as strongly as that because we thought that, to some extent, the success or failure of the changes encompassed in the Bill depend on that awareness campaign. I have not seen the Minister’s reply, but I have a suspicion—because I know how health Ministers get briefed—that there will be something about how this is not appropriate stuff to put in the Bill. I can see that there is some strength in that argument but if we are not to put it in the Bill then the Minister has got to start to tell us, in detail, what the Government are going to do.

The Government have had more than two years to think about this. We were made to produce a report very quickly indeed: within 12 months. It is now more than two years since it was produced and I should have thought we could expect a reasonably detailed plan from the Department of Health about how it is actually going to make the public aware. It would be nice if the Minister accepted the amendment, but if he is not going to, we need to know: where is the budgetary provision for the awareness campaign; what work has been done on the selection of people to help run the campaign; when it will start and how long it will go on for. How much are you going to pay for this? Do you accept the idea that all good awareness campaigns have some kind of follow-up arrangements? The noble Lord, Lord Sharkey, has suggested an annual survey and I would not disagree with that. As he rightly said, these surveys are, from my experience, relatively cheap to do. Given the sums of money we are talking about in the Bill, this would be a very modest thing to do and there is certainly no point in having an awareness campaign if you are not going to check up whether there has been any increase in awareness.

There is a raft of issues where we need to have some detail from the Government on what they have been doing on this recommendation for a couple of years. If we have not got a very convincing story, we have to consider putting this in the Bill, to generate some energy and action in this area.

I turn to the second prong, which we have already talked a little bit about under the previous group of amendments. I strongly support what my noble friend Lord Lipsey said, and I want to return to the issue of mis-selling. We have had some serious problems in this country about the way the public has been sold financial products and we ought to be able to learn from history over that. It is not any old Tom, Dick and Harry who can give sensible advice to people about complex financial issues. The noble Lord, Lord Deben, is right: many of these issues are complex and you need a simple system to get to the advice, but the advice is not always going to be simple.

Let me illustrate that with the sort of circumstances that families and older people may be faced with. It is fairly common that an older person is going to give up their house; their spouse has died and they will have to give up the house. The family might well want to have a conference about what they do with that house. There are several options: they could keep the house and rent it for income; they could go for equity release; they could go for deferred payments; or they could go for a point of care plan, as my noble friend said. Choosing the best thing to do from some of those options is not straightforward; it will require someone who knows their way around some of these issues and can give advice to people and their families on how to make a sensible, good decision that fits their particular circumstances. The Government have to give more consideration to this.

I accept that not every issue will be complicated and there could be some circumstances in which the financial advice does not need to be given by a regulated financial adviser. However, the Government now have to do the legwork on separating the sort of situations where regulated financial advice is needed from those where one can be more relaxed about it. If we do not give guidance of some standing and credibility to local authorities, we put them in an invidious position because they will be damned if they do and damned if they do not. They need some advice on the sorts of circumstances in which they, to discharge their obligations under the terms of this piece of legislation, can point people clearly in the direction of advice that is likely to be appropriate to that person’s circumstances.

Lastly, I wish to make a point to the noble Earl about the Secretary of State’s new obligation under government Amendment 138 to have regard to the local authority’s requirement in Clause 1 to promote well-being. The Secretary of State is now pretty much in the same position as that of the local authority when he is producing guidance and regulations. It is at least an arguable case that he would not be fulfilling that requirement unless he put in place some credible arrangements for sound financial advice being given to people and he helped the public to understand the details of the arrangements of the new scheme that the Government were implementing. I am not a lawyer, but it would be worth a punt by going to lawyers to argue that the Secretary of State would be in breach of his new obligations if he took a cavalier approach to financial advice and awareness of the new scheme.

[Lord Hunt of Kings Heath]

My Lords, I, too, support the amendment. I thank the noble Earl, Lord Howe, for giving us an assurance that this matter can be brought back at Third Reading, which is very helpful to our debate.

As several noble Lords have said, many people find dealing with financial products very complex indeed. They also find the system of social care funding to be complex. How much more complex will it be when the Dilnot provisions in the Bill are introduced? My noble friend made the point that many people misunderstand the current system. Many people think that social care is free at the point of use until they suddenly reach a situation where either they or their relatives are faced with catastrophic issues around long-term care. Even in relation to Dilnot, my noble friend Lord Lipsey pointed out in Committee that many people think there is this cap of £72,000 but, as we know, it is much more complex than that. The £72,000 cap is based on the fee that the local authority will pay for people who are not self-funded, but we know that self-funders, in essence, subsidise those who go into care that is in one way or another funded by the local authority because they meet the means-test requirements. Of course it is not free because there then have to be hotel costs, which Dilnot estimated to be about £12,000 a year. This matter is therefore very complex and many people find dealing with financial issues very difficult.

Care Bill [HL]

Lord Warner Excerpts

Wednesday 9th October 2013 Lords Chamber

That would go very well with the noble Earl’s own amendments in relation to local authorities when we ask local authorities to have regard to this issue. It would give an edge or a guarantee that an independent organisation, or an organisation about to become independent, would monitor, report and, as a backstop, be able to use the regulatory powers at its disposal to intervene with regard to employment conditions or a very limited time allowed for visits to people who require care and support. I hope that the amendment might commend itself to noble Lords.

[Lord Warner (Lab)]

My Lords, I want to speak to all the amendments in this group—and, in doing so, I have tried to take myself back in time and then, like the Doctor in “Doctor Who”, come forward again quickly. How would I deal with this set of circumstances if I was a director of social services today, as distinct from the late 1980s and early 1990s? I do not envy them because I think that they have a very difficult job to do in balancing the resources available with the expectations of the public, which this Bill will increase. I am not sure that we crack the problem with any of these amendments, on their own. I remind the Minister that in Committee I tabled an amendment, so that we could debate this, which gave the Secretary of State powers to make regulations when there were unsatisfactory employment practices. I deliberately drew that amendment widely, because I do not think that we should just concentrate on the 15-minute visits. That is today’s problem—but we have a series of problems, and there could be another lot of problems with employment practices coming along a few months or years down the track.

At the moment, we have four areas in which there are concerns about employment practices. We have zero-hour contracts with exclusivity and no guarantees of working, 15-minute visits and unpaid travelling time, which I would suggest are all incompatible for the most part with the ambitions of this Bill. I am not saying that my previous amendment was perfect or right—and I am pleased that the Minister has come back with some attempts to grapple with these problems. I do not dismiss his attempts, because these are intrinsically difficult problems, but we need to future-proof this Bill against new practices that may creep up.

What I like about Amendment 151, in the name of my noble friend, is that it puts things very clearly in the court of the regulator, and enables the regulator to look at both providers and commissioners. On some of this, providers are doing only what they are asked to do; they are responding to what the commissioners are expecting of them. So we cannot just blame the providers, although I would like to blame some of them, when local authorities are engaging and encouraging them, in some parts of the country, to engage in practices that are totally incompatible with the aspirations of this Bill.

Where do we go from here? I still think that the Minister might be wise to consider the idea of taking a regulation-making power for the Secretary of State, but I equally accept that that may not produce change fast enough. I found Amendment 27 noble in spirit but a little unclear about what its effect would be. Therefore I come back to Amendment 151. Of all the amendments, I think that is the one that gives me more confidence that there is a capacity to respond to concerns about commissioning practices and provider practices. I do not like the idea of a time limit for visits being set in this Bill because I would not want to be running a social services department with that kind of limitation on my ability to deploy my staff in a sensible way and in the best interests of the service users.

I do not think that we have cracked this problem fully. I think my noble friend has come forward with a better way of getting a grip on these issues, where the regulator picks up noise in the system about these unsuitable employment practices and can take some action both on the commissioning side and on the provider side. My only concern is that there is a later amendment that slightly moves the CQC away from intervening in local authority commissioning, which I think would be incompatible with what we need to do to tackle some of the problems covered by this group of amendments. I hope the Minister can tell me that I have got that bit wrong, but my reading of a later amendment is that it removes the CQC from actually monitoring the commissioning of adult social care.

[Lord Low of Dalston (CB)]

My Lords, perhaps I might be permitted a word before the end of the debate. I supported these amendments in Committee and am happy to do so again this evening, though I take the points that have been made about being too prescriptive about time limits in Amendment 25. I think the essential point is that the Bill introduces a number of important new duties and responsibilities designed to enshrine the right values at the heart of our care system—for example, the primacy of the well-being of the individual. However, these values are only as good as the services that are put in place to give effect to them. It is not enough simply to put empty principles into legislation. The Bill needs to contain concrete requirements that will help to guarantee quality in the services that are delivered.

The Government’s amendment requiring local authorities to have regard to the well-being principle when commissioning services is welcome, but I do not feel that it is clear or specific enough to underwrite even the very modest guarantee of quality sought by the amendments of the noble Baroness, Lady Meacher. It provides no assurance that the practice of commissioning very short personal care visits will stop. It also fails to commit the Government to producing regulations that set out in greater detail what should count as quality commissioning. From those points of view, I still feel that the amendments of the noble Baroness are in every way to be preferred.

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Earl Howe: Yes, I accept that distinction, but Parliament has already vested in the CQC considerable scope to focus on any aspect of a provider it wishes to, which could well include its employment practices. It is not as if, when the CQC moves in on a provider and conducts an inspection, it cannot decide for itself that the employment practices are the mischief that it needs to investigate most closely.

[Lord Warner]

Can I be clear about something arising from what the noble Earl said? I am struggling with whether the CQC can look at these employment practices only as it plods its way around the country, one authority at a time, or whether, if it starts to pick up something—either from looking at one or two authorities or from public reactions—it can commission a generic review or study of commissioning practices across the country. I am not clear what the noble Earl is saying about this—whether the commission has to work its way through authority after authority, or whether it can make a generic review of particular practices.

[Earl Howe]

My Lords, I was distinguishing between providers and commissioners. The CQC can do thematic reviews under, I believe, Section 48 of the Act, but we are talking there about providers. As regards commissioners, we are proposing in a later amendment to give the CQC powers to conduct special reviews where concerns have been raised about a particular local authority or NHS commissioner; there would not be periodic, regular reviews. However, the CQC will be looking at every provider over a period of time. The amendment from the noble Lord, Lord Hunt, specifically addresses the ability of the CQC to examine providers. I was saying earlier that it already has the necessary powers to do detailed work in whatever area it chooses.

I return to the issue of local authority commissioning practices. As I argued, the underlying causes of poor commissioning are cultural, and we need to work with local authorities to tackle these issues. We are therefore undertaking a number of non-legislative activities, including the development in co-operation with ADASS of a set of commissioning standards. These standards will enable individual authorities to gauge their own effectiveness, and will support the LGA and ADASS to drive sector-led improvement.

In addition, we are working with the Towards Excellence in Adult Social Care initiative to support local authorities to seek continuous improvement in their adult social care functions, and in the outcomes achieved. This programme brings together local, regional and national stakeholders, and is focused on providing peer support and interventions by local government to share learning, find new ways of engaging local people, and use knowledge of what works, data and innovation to drive improvement in the quality of services.

I hope that these arguments, and the amendments we have tabled, are sufficient to demonstrate to the House that we understand and agree with the strength of feeling around these issues. For the reasons I have set out, I cannot support the amendments tabled by noble Lords, but I hope that the arguments I have made today will be sufficient for those noble Lords to feel able not to press their amendments. I do not yet know what the noble Baroness, Lady Meacher, intends to do with her amendment, but it may be helpful for noble Lords to know that the Government do not consider that a decision on Amendment 25 is consequential on Amendment 22.

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[Baroness Barker]

I did not know it was the noble Lord’s hospital. I met the housing association a couple of months ago. Good examples of integrated systems that work include Torbay. The key is getting that information into CCGs. The sooner we do that, and the sooner they see that they have to be part of an integrated health and social care system, the more likely we are to be able to stop older people being, as the noble Baroness, Lady Greengross, very accurately put it, dumped.

[Lord Warner]

I support the important amendment of the noble Baroness, Lady Greengross. I want to do so by telling a story and then putting a suggestion to the Minister. Like my noble friend Lord Hunt and me, he will have done his time touring hospitals as a Minister. We are usually shown the high points of the hospital’s achievements. Life changes a bit when you cease to be a Minister and you visit your friends and relatives in hospital. On visits to hospitals to see friends and relatives, because I am a nosy sort of person I have always looked to see whether there is a date for discharge on the charts. Some of these discharge dates are great works of fiction. When I have asked nurses about these discharge dates, quite commonly they say that managers have told them they have to have a discharge date—so it is something they have done for internal compliance purposes.

Although the suggestion of the noble Baroness, Lady Greengross, may not be right for the Bill, it is at the very least important for guidance. Planning on admission for discharge is needed. Present arrangements fail to communicate that to the social care world. It is now an internal mechanism for the NHS, not a mechanism designed to get people out of hospital into an appropriate placement as soon as they are ready to go. It would be a good idea to put this in the Bill, but at the very least this issue needs to be covered in some detail in guidance so that the NHS and the social care world are clear beyond peradventure what they are supposed to do when a person comes into hospital. If we went along that path, the world would be a better place and we would deliver some of the objectives of this legislation.

[Baroness Finlay of Llandaff]

My Lords, I shall be brief since the hour is getting late. This amendment makes a very important point, though it may be better in guidance. One of the problems is that the pinch point is always A&E, and getting patients out is really difficult. At the moment, there is tokenism in planning discharge. It needs to be much more embedded in trying to predict people’s needs and having things in place. Until discharge planning really is part of looking ahead at the aims for the patient we are still going to have backlogs, because we are still going to be waiting for somebody to come in and do something.