Care Bill [HL]
Lord Warner Excerpts(10 years, 9 months ago)
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Lord Warner
“Initial funding assessment
Before enactment of Part 1, the Secretary of State must ask the Office for Budget Responsibility to complete by the end of 2014 a review of the funding of adult social care that assesses—(a) the adequacy of current public funding of these services;(b) the proposals for funding the provisions in this Act; and(c) the implications of the Act and its funding for the NHS over the next five years.”
Lord Warner
My Lords, the purpose of this amendment is to give us a chance to discuss the funding of social care and the Bill’s provisions before we complete Committee, particularly given the continuing concerns that social care is seriously underfunded and is not in a good position to take on the changes—good changes, I should emphasise—in the Bill. Those concerns have been around for a long time and formed a major part of the evidence presented to the Dilnot committee and the Joint Select Committee on the draft Bill. I declare an interest in that I was a member of both those bodies.
On the whole, most people support the basic architecture of the Dilnot report and the Law Commission’s proposals enshrined in the Bill. They simply do not believe that the funding is in place to implement effectively the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding. This is hardly surprising, because the Government’s social care funding strategy seems almost designed to confuse. Eric Pickles curries favour with the Chancellor by signing up to swingeing cuts to local authority grants, which inevitably reduces social care funding substantially. Health Secretaries—quite sensibly in my view—then start slipping cheques from the NHS to local government to mitigate, to some extent, the Pickles butchery. Welcome as these cheques may be—but probably not to NHS England—they usually have strings attached and do not make good the shrinking base budget of adult social care, which, I have to mention to my noble friends, has been taking place since before the coalition Government.
First, a little history: the problems of funding adult social care predate the coalition, as the Dilnot commission made clear on pages 14 and 15 of its report. It stated:
“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%”.
Before the coalition, pay and prices in social care rose more quickly than general inflation. There was—and continues to be—rising demand as the number of older people and younger adults with care needs increases. Social care budgets rose by about 1% a year in real terms in the three years to 2010, compared with 5% to 6% for the NHS. We in the Dilnot commission showed 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 would need to change. However—and this is bad news for the Benches opposite—it has not.
The funding shortfall that the coalition inherited, of approaching £1 billion, has got worse. The LGA has estimated that just to keep up with demographic demand adult social care needs real-terms annual increases of about £0.5 billion a year. To put right the deficit and stop it getting worse, adult social care should start the next financial year, 2014-15, with a base budget at least £2.5 billion higher in real terms than in 2010. The reality is somewhat different.
The latest survey that I have seen from the directors of adult social services states that by next April local councils will have stripped £2.7 billion out of their adult social care budgets since 2010. I have heard Health Ministers say that this is being done by efficiency savings—so that is all right then. In practice, it has been done by denying people services, imposing tougher eligibility criteria and cutting pay and payments to service providers, with their impact on quality. These cuts have been mitigated by transfers the Government are making from the NHS by the start of 2014-15. On the basis of parliamentary Answers given to me, these look to amount to £1.5 billion in total over three years.
To sum up: the Government have not made good from the NHS what they have taken out, and have not protected the base budget against rising demand and inflation—something that the Dilnot commission said was essential if its proposals were to be implemented. My estimate is that adult social care starts 2014-15 with an underfunded base budget of at least £3 billion—some 20% of its budget.
I now turn to whether things get better between April 2014 and 2016, when the main implementation of the Bill’s proposals starts. Before the 2013 spending review, a parliamentary Answer to me suggested that approaching £0.9 billion would be transferred from the NHS to social care in 2014-15. Page 34 of the Government’s Spending Round 2013, suggests that another £200 million would be provided to progress the new pool budget scheme. However local councils still have to make another lot of savings in 2014-15, so it is difficult to see these not wiping out at least half of the transferred NHS largesse.
However, to be fairly generous to the Government, the £3 billion base budget deficit could drop to £2.5 billion by the beginning of 2016, assuming that the Government make the transfers that they promised. It therefore seems to me that, however you cut the figures, there is a pretty big hole in the base budget for adult social care in the year in which the first tranche of the Bill’s reforms begin. I am of course happy for the Government to provide me with chapter and verse in writing on why my figures are wrong.
Let me finish by turning briefly to the cavalry that the Government think is coming over the horizon—their proposal for a £3.8 billion pooled budget for 2015-16 to join up local health and social care services. Everyone in this House will welcome that pooled budget. I particularly welcome it as someone who was involved with the joint finance initiative of Barbara Castle, back in the mid-1970s. In some ways, we have not moved on very far. There is a considerable lack of clarity about this impressive-sounding figure. I therefore have some questions for the Minister.
First, can he say whether the total figure is dependent on the Department of Health making all the efficiency savings cited on page 34 of Spending Round 2013 and is safeguarded from any raiding to meet emergency demands by the NHS? Secondly, does the £2 billion that seems to be being promised to local councils for adult social care include the £335 million promised for the cap in 2015-16, as set out in paragraph 9 of the Government’s very recent document, Caring for Our Future: Consultation on Reforming What and How People Pay for Their Care and Support? Thirdly, will councils be paid the £2 billion at the beginning of the financial year, and how much of that will in practice be offset by the 2.3% reduction in local government spending in 2015-16, as set out in page 37 of the spending review document? This is typical of what we are seeing from the Government. Page 34 gives you some money and page 37 takes another lot away through another government department. It is a bit like the guys who practise conjuring with peas under egg cups. Finally, can the Minister confirm that £1 billion of the £3.8 billion will be paid only if local authorities can demonstrate outcomes? Therefore, in practice, the money may never reach the local level in 2015-16.
In conclusion, as a battle-hardened Whitehall warrior, I have to say that I suspect that the social care chunk of the £3.8 billion will look a lot smaller when we get to 2015-16. In principle, it is a bold and sensible initiative on which the Government are to be congratulated. However, it will not plug the gap in the base budget to which the Dilnot commission drew attention, and which has worsened since we reported. It is possible that the gap could be partially filled by the pooled budget proposal but a lot of question marks remain over how much of that budget will in practice help social care in 2015-16. I have to say to the Government that because of the funding inadequacies there is a real risk that people will be set up to fail with this new legislation. That is why the Government and, I hope, my own Front Bench should support an impartial review of the funding issues, as proposed in my amendment. I beg to move.
Baroness Pitkeathley
My Lords, I rise briefly to make two points, the first as a result of my membership of the Joint Committee. Every witness who came before us to give evidence said two things. The first was that this is an excellent Bill for which we have been waiting years. The second was that implementation will be impossible if no more money is put into the system. All our witnesses said that the current proposals for funding are totally inadequate. That is exactly what I feel in my role as a campaigner and spokesperson for carers—and this is my second point. The Bill is all that I could have dreamed of in terms of rights and recognition for carers but will come to nothing if all that results are fewer services that are harder to access, with more pressure being put on carers to do the caring. I am seeing that now in carers’ groups and organisations. They were elated when the Bill was published: now morale is plummeting for fear of what the reality may be.
I join the noble Lord, Lord Warner, in asking the Minister for chapter and verse in his call for a review. We all want the Bill to succeed but we cannot, as responsible legislators, ignore this important issue.
Earl Howe
I will come back to the noble Baroness on that question.
I take the point of the noble Lord, Lord Hunt. It could clearly be a source of resentment on the part of a self-funder if they find out through the transparency of the arrangements that we are putting in place that they are paying more than the cost of somebody else’s care. I can tell the noble Lord that we have given thought to that. It has been discussed with the LGA. I would be happy to flesh out the substance of our discussions, but we want to avoid a situation that gives rise to that kind of resentment.
The noble Baroness, Lady Wilkins, asked what plans the Government have to make sure that service users and carers are able to contribute fully to the consultation on funding reform. We intend to arrange a series of consultation events around the country to engage with those who use services, their carers and their families. We will also work with stakeholders to make the best use of their networks and local groups to make sure that we consult as widely as possible.
The noble Baroness, Lady Bakewell, asked a particular question around what she termed the “postcode lottery”, and, of course, I understand the force of that phrase. She asked whether the funding of the Bill adequately addresses the disparity of care and support across the country. The short answer is that the Care Bill provides for national eligibility criteria. That, of itself, will provide greater transparency and consistency for people across the country. I do not think that we will ever completely get away from variation in what local authorities are prepared to consider adequately meets the needs of individuals and we will see some independence of decision-making, whatever we do. However, I firmly believe that the Bill brings us much closer to greater consistency and fairness.
On top of the spending-round announcements, I believe that the Bill will have a positive effect on the NHS by strengthening joint working between health and care and support. For example, Clause 3 requires local authorities to exercise their functions with a view to ensuring integration between health and care. In addition, Clause 2 creates a clear legal duty on local authorities to ensure the provision of preventive services. We want a service that reduces dependency, as well as supporting those who already need care and support, rather than just waiting for people to reach a crisis point. By slowing and preventing the development of care needs, the onset of health conditions or the loss of independence, we believe that preventive care can increase quality of life for individuals, while having the potential to provide longer-term financial savings to the public purse. It is only with this greater focus on prevention and integration that both the NHS and care and support can respond to the financial pressures of an ageing population.
The noble Lord, Lord Lipsey, took us forward to 2025 and beyond and referred to the shortage of workers in the social care workforce predicted by the King’s Fund. Of course, we agree that reforming care and support to make it sustainable for the future will require more capacity and greater skills in the workforce. That is why we stated our ambition in the Caring for Our Future White Paper to double the number of apprenticeships in social care to 100,000 over five years. We are now working with stakeholders to make that ambition a reality.
The noble Baroness, Lady Campbell, speaking powerfully about the areas that she knows best, said that disabled people feel that they are losing their independence as a result of funding cuts, and, indeed, there is a fear that the country unwittingly may be breaching Article 13 of the UN Convention on the Rights of Disabled People. A local authority’s overriding duty under the Bill is to promote well-being. This includes control by individuals over their day-to-day lives, including the way in which care and support is provided. We are confident that the well-being principle captures the outcomes that affect an individual’s independence. We should always keep going back to that principle, not least in the context of the rights that people feel they have—and do have—under the UN convention.
In so far as I have not answered questions from noble Lords, I will, of course, follow up this debate in writing. For the time being, I hope that, for the reasons I have outlined, the noble Lord, Lord Warner, will agree to withdraw his amendment.
Lord Warner
My Lords, this has been a helpful debate and I am grateful to all noble Lords who have spoken in it—overwhelmingly, I should add, in support of my amendment. I take great confidence from that.
The noble Earl has made not a bad job of answering my four questions about the £3.8 billion. I am feeling generous and so will give him a B minus for his attempts. At least he has come clean that only half the money is new money, which is a helpful clarification, and that only half of the £1 billion of the rest will be paid up front, while the rest is dependent. Therefore, to some extent my point has been made that that £3.8 billion looks a little less glossy than when it was announced in terms of what new money people will get in 2015-16. I notice that the noble Earl did not answer my question about the base budget, which took up much of my speech. The bottom line in all this is that the base budget is very deficient. The local authorities which will take on these new roles are starting, essentially, from a deficit position.
The noble Earl is always one of the most plausible Ministers and has done a good job of explaining efficiencies and productivity. However, the people who gave evidence to the Joint Select Committee just do not believe that this has all been achieved through efficiencies. They are seeing cuts in services and tougher eligibility criteria. The interesting mini-debate we had about the difference in payments for publicly funded people in care homes and self-funders illustrates that local authorities have been cutting the rate for the job for those who they pay for. We will see more of that. Until we face up to this base budget issue, we will have a problem.
I do not doubt that the Government have done a pretty reasonable job of costing the new provisions in the Bill. However, it will be introduced on the basis that the underlying base budget is too low. No one has yet answered my question with very much confidence about the fact that we are talking about a base budget deficit, which is in the Dilnot report, and which in broad terms has risen two and a half times since this Government came to office. That is the nub of this issue.
The noble Earl also glided over with his usual elegance the issue of why the Government are so preoccupied with this rather strange way of giving money to local government. First you see the Department for Communities and Local Government take money away and then local authorities have to cut other services if they want to prop up social care. Then Health Ministers, almost in desperation and worried about the implications for the NHS of what is happening to social care, long before they were betting the farm on integrated care, are—perfectly understandably—starting to slide money across to prop up social care. That is what is going on. If I were a director of social services these days, I would find it rather difficult to plan my service response to a kind of resource allocation system based on that kind of approach. That is a real problem for central government, which is expecting local authorities to plan well for these new changes. It is a pretty messy way of giving money to people at the local level.
I will read very carefully what the noble Earl has said in this debate. I am not convinced that we do not need an impartial review. If it is not the OBR I will think of somebody else. I might try a few on the noble Earl during the Recess—the Institute for Fiscal Studies comes to mind. We need a hard look by somebody who is not party pris. If my own party wins the 2015 election, it will need that hard look as well. I will think about it further, but in the mean time, I beg leave to withdraw my amendment.
Lord Beecham
My Lords, I have a lot of sympathy with the case that my noble friend has put in establishing the structure that would permit appeals. However, there is one potential problem. I endorse what he says about the undesirability of requiring people ultimately to have recourse to judicial review, which is a lengthy and very expensive process. However, it is likely that people wishing to make an appeal to such a tribunal would need at least legal advice and, possibly, legal aid. I would imagine, as matters stand, that such a procedure would be out of scope of the legal aid system as it has been “reformed”—I put that word between inverted commas. Perhaps the Minister and my noble friend could indicate whether they think that it would be a sensible addition to the terms of the amendment, which would command a good deal of support across your Lordships’ House.
Lord Warner
My Lords, I briefly intervene from the perspective of a member of the Joint Select Committee, which proposed that there should be some kind of body. Much of our thinking was focused on the early days of these new arrangements. We thought it highly unlikely that there would not be a lot of disputes in the first few years of what would be a pretty major change to the arrangements. There are two sources of potential dispute—those by people who do not like the results of an assessment made about them, in some form or another, and some of the stuff that comes out of making markets. There is the issue of the rate for the job between local authorities and providers. We could see some of those areas also leading to disputes.
We had it in mind that some mechanism should at least be ready to go into action should this happen. It may be that, in the longer term, things will settle down and there will not be a great problem. However, even if the Minister is not prepared to accept my noble friend’s amendment and make statutory provision, the world would be reassured if the Government at least had a plan B so that we do not end up with judicial review if things do not go well. Rather, we end up with some kind of arbitration system which is low cost, speedy and can deal with some of the inevitable teething problems of a fairly major change to these systems.
Lord Warner
“End of life care
After consultation, the Secretary of State may make regulations providing for—(a) the right for an NHS patient to die at the place they regard as home or normal residence;(b) a terminally ill patient who, in the opinion of a registered practitioner, is likely to die within six months to be exempt from local authority charges for adult social care.”
Lord Warner
My Lords, I move Amendment 105P in the name of myself, the noble Lord, Lord Patel, and the noble Baroness, Lady Greengross. I shall also be moving Amendment 105PA, in the name of the noble Lord, Lord Patel, as he cannot be here today and he has asked me to speak on his behalf.
The proposed clause, and its amendment, on end-of-life care would enable the Secretary of State, after consultation, to make regulations doing three things. First, it would provide NHS patients with a right to choose to die at the place they regard as home or normal residence; secondly, it would make exempt from adult social care charges a terminally ill patient with six months or less to live; and, thirdly, it would require local authorities to consider the needs of such persons for care and support as urgent. I postponed a Question for Short Debate, which could have been scheduled for tomorrow, so I hope that this magnanimous gesture will get me favourable treatment from the Minister.
Around 500,000 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 of us die in hospital. In his farewell report as national clinical director for cancer and end-of-life care, Professor Sir Mike Richards, now chief hospital inspector, reported that by April 2012, 42.4% of people were dying at home or in a care home. This is an improvement from 38% four years previously. On present trends, this means that it will be at least the end of the decade before half the deaths occur in a place of usual residence.
The improvement in the national figures conceals considerable regional variation. If you live in the south-west, with 48% of deaths occurring in a place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. There is even wider variation between local authority areas. The great majority of us want to die at home or in the place where we normally live, rather than in the impersonal environment of a hospital ward. Perversely, we end up not only dying in the place where we least want to be but dying in the most expensive place. Marie Curie research has shown that a week of palliative care in the community costs about £1,000, whereas a week of hospital, in-patient, specialist palliative care costs virtually £3,000. 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. Macmillan Cancer Support polling has shown that eight out of 10 health and social care professionals agreed that community-based, end-of-life care would save money. On top of that, an unusual position is that nine out of 10 MPs believe that their constituents should be able to die in the place of their choice. This produces remarkable cross-party consensus among MPs on this particular issue.
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 family around them. That is more likely to be achieved if people have a statutory right to choose to die at home or in their place of normal residence. This would mean fewer people dying at hospital, thereby saving public money. That is likely to provide more than enough resources for terminally ill patients within six months of death to be exempt from local authority social care charges. Making local authorities give assessment priority to such patients is likely to have minimal extra costs and is much more a matter of humane and good professional practice.
I have no time to recite all the other arguments in favour of this approach in this amendment, as set out by Macmillan, Marie Curie and Help the Hospices, in the excellent briefing that they sent to Members of this House. None of this briefing or the amendment requires the Government to take action immediately. They can complete their pilots, do their own cost-benefit analysis and consult widely before bringing forward regulations. The amendment would put down a clear marker that Parliament wants government to move in the direction that most people want—towards the right to choose to die at home or their place of normal residence rather than in a hospital ward. I beg to move.
Amendment 105PA (to Amendment 105P)
Lord Warner
“Where an adult is terminally ill, a local authority must consider their needs for care and support as urgent.”
Lord Warner
I move this formally, on behalf of the noble Lord, Lord Patel, as I have already spoken to it.
Baroness Jolly
I support the two amendments in the names of the noble Lords, Lord Warner and Lord Patel, and the noble Baroness, Lady Greengross. The House is probably getting quite tired of hearing about the Joint Scrutiny Committee, but this is another area where we completely agreed, and our unanimous report recommended pretty much the contents of these amendments to the Government. Sadly, the Government indicated their willingness to fund end-of-life care, but have not put the amendments in the Bill. So it was a sort of “but not now and not yet” response. The response that came back from the Government to the report was:
“We note the Joint Committee’s endorsement of our position that free social care at end of life has ‘merit’ and note that they strongly endorse the case for its introduction at the earliest opportunity”.
That is the Government responding to the report, but nothing is reflected in the Bill before us.
Both the present system and the new system that we are debating for access to care are really longwinded, and a lot of people in this position, at end of life, do not need a longwinded system of access. The DS 1500 certificate, which indicates that you have a terminal illness, can take weeks to complete. We all know that NHS care is easier to access. However, it does not link up with social care in most cases. A terminally ill patient can get NHS care but it is really difficult to get social care. Bring on integration, really. This is not fair for somebody who needs and wants a dignified death—wherever it should be. As the noble Lord, Lord Warner, has said, most people want to die at home. Often, the inability to cope at home without any support and social care drives people to hospital. Therefore, they find themselves ending up in expensive hospital care in a setting that is just not their choice. The noble Lord, Lord Warner, has quoted some figures so I will quote a few more that support his case. The Nuffield Trust has researched this and a 10% reduction of hospital admissions for people at the end of life could result in savings of £52 million. According to Marie Curie figures, this would easily cover the costs of free care at home for all the people who would die within a year—with some to spare. This also leads into the debate of the noble Lord, Lord Warner, about moving funding from health to care. We are talking about £52 million that would be spent by people dying in hospital. We would save that £52 million if we were able to keep them where they wanted to be. The £32 million assessment by Marie Curie is more than easily covered.
We all die. Most of us will have care needs. Most of us would want to die at home. Funding adult social care at the end of life would go an awful long way to achieve this. I am therefore more than happy to support these two amendments.
Earl Howe
My Lords, I thank the noble Lord, Lord Warner, for tabling these amendments which bring us to an important and sensitive set of issues. The Government have great sympathy with these concerns and I hope that I can reassure the Committee on them.
Amendment 105P would give the Secretary of State a power to introduce regulations for two specific but related issues—a right for NHS patients to die in the place that they regard as their home and an exemption from local authority charges for care and support for adults who are in the final six months of their lives. The Department of Health’s End of Life Care Strategy provides a blueprint for improving quality and choice in palliative and end-of-life care, and NHS England, which is now responsible for end-of-life care, is pressing on with its implementation, including aspects relating to the pathway to which the noble Baroness, Lady Emerton, referred.
We made a commitment in Liberating the NHS: Greater Choice and Control to move towards a national choice offer to support people’s preferences about how to have a good death. This is not an easy task and it cannot be done overnight. For example, commissioners need to be sure that the right services are available in the community to support people to be looked after at home. A lot of work is needed to make choice in end-of-life care a reality. We shall take all the evidence into account and review progress this year to see how close we are to being able to introduce a national offer on the choice to die at home. The noble Lord, Lord Warner, rightly pointed out that there are variations across the country as regards people’s ability to die in the place of their usual residence. I take that point completely. However, if we are to solve that disparity, it is important that we do not act prematurely. If an area is not ready to roll out a better system for palliative and end-of-life care, it will serve no one’s purposes, so we must take the necessary time to do this.
On the issue of palliative care funding, as the noble Lord is aware, in the Care and Support White Paper, published in July 2012, we stated:
“We think there is much merit in providing free health and social care in a fully integrated service at the end of life”.
This followed the report of the independent Palliative Care Funding Review in July 2011, after which the Government set up seven adult and one children’s palliative care funding pilots. The pilots are running for two years, with the aim of having a new funding system in place by 2015, a year sooner than the review proposed. From April 2013, we gave responsibility for this work to NHS England. We need to analyse the evidence from the pilots thoroughly before the details of the new funding system are finalised. Any changes to social care palliative care funding could be made by secondary legislation under Clause 14(1) in due course and will not require an amendment to the Bill.
My noble friend Lady Jolly referred to the cost savings in hospital admissions at the end of life and suggested that this might cover the cost of nursing care at home. This is a point made cogently by Marie Curie. The issue we need to bear in mind here is the readiness of the service to cope with sudden changes in services that an amendment would entail, so we still think that it is better to gather the evidence, as the pilots are now doing, and allow services to be properly planned for.
I turn to Amendment 105PA. The Bill allows local authorities to treat a person’s care and support needs as urgent, as set out in Clause 19(3). We believe that in end-of-life cases a person’s needs would be highly likely to be considered “urgent” and therefore should be fast-tracked so that needs are met as quickly as possible. We do not believe that the Bill should set out a list of urgent situations where a local authority can meet an adult’s needs without having yet carried out a needs or financial assessment, or made an eligibility determination. The problem is, as we have debated on many occasions in the past, that such a list could never be exhaustive and might suggest that only certain situations could be treated as urgent. Local authorities must have the flexibility to determine themselves which situations they consider to be urgent, depending on the facts of each individual case. The wording of Clause 19(3),
“which appear to it to be urgent”,
enables this. However, I can say that we intend to refer to end-of-life cases specifically in statutory guidance.
I can readily identify with the questions asked by the noble Baroness, Lady Pitkeathley, about carers and the need to support them after the death of the person they have been caring for and to make sure that they are informed about the stages at the end of life, the additional pressures that may be placed on them and the need to plan. The duty on a local authority to provide information and advice in Clause 4 very definitely includes information and advice relating to support for carers, including in these circumstances.
The noble Baroness, Lady Wheeler, asked about end-of-life care for BME groups in particular and the need to address the low use of palliative care services among those groups. She asked how we are addressing that. I shall write to the noble Baroness on that point, as I do not have information in front of me on whether the pilots are collecting those data specifically. However, I agree that it is a material issue. The noble Baroness also asked whether the palliative care funding pilots had been impacted by the transition to the new NHS system and whether we would meet the timescales. I can reassure her that the work of the pilots is on track.
I hope I have demonstrated that the Government are committed to offering patients the support to facilitate their dying at a place that they regard as their home, when the system is able to meet this commitment and where this is the person’s wish. I hope that the noble Lord, Lord Warner, will be sufficiently encouraged to withdraw his amendment.
Lord Warner
I am grateful to all noble Lords, across the Benches, who spoke in support of this amendment. I will, of course, consider carefully the noble Earl’s points in his constructive response. I will discuss them with my co-signatories and the voluntary sector. However, I want the noble Earl also to ponder something. The idea of giving people a right to die where they choose is one of the major social right breakthroughs. It is on a par with some of the other things that Parliament has spoken on and passed legislation about. In my view, it is more than about waiting for the bureaucracies to give their blessing that there is a state of readiness for this change to take place. This is an issue where the political parties and Parliament should show their willingness to press on as a top priority. I will certainly consider what the noble Earl has said, but I hope he will consider what I have said. We did not have everything ready when Parliament decided to ban smoking in public places and the workplace. It thought it was the right thing to do and it did it. This issue of people’s right to choose where to die is in the category where Parliament should say, “It is the right thing to do and we are going to get Governments to do it”.
I may be wrong. The Government may bring forward these changes in good order. But I take a different view from the noble Earl about the issue of local variation. They need to put a marker in legislation to make jolly sure that those parts of the country actually deliver the goods on a similar timescale to everybody else. I do not think that we could rely on strong messages from NHS England necessarily to deliver that. In the meantime, I will consider carefully and I beg leave to withdraw my amendment.
Lord Warner
“Employment practices
(1) Where the Secretary of State has evidence that employment and payment practices used by service providers of adult social care are not consistent with the well being requirements in section 1, he may, after consultation, direct the cessation of such practices by making regulations.
(2) Such regulations may provide for financial penalties in respect of continued use of prohibited practices.”
Lord Warner
My Lords I will not detain the House long on this amendment. It gives the Secretary of State a regulation-making power to ban employment practices in the care sector that are inconsistent with the well-being principle in the Bill and to impose financial penalties for continued use of prohibited practices.
We all know about the practice that has grown up in recent times of 15-minute home visits to frail and vulnerable people, where the care-giver is not paid for travel time and is pressurised to fit more visits into a day than is reasonable. Practices of this kind are an affront to the care sector and it is a disgrace that any public agency should have been willing to collude in it, whatever the financial pressures. It is bad for the recipient, bad for the care-giver and bad for the reputation of all the agencies involved. It is, however, the kind of practice that can creep into low-wage sectors where a workforce is vulnerable to poor employment practices. It is what I call the “Morecambe Bay cockle-pickers syndrome”.
The front page of the Guardian today has an example from another sector, with its story of Sports Direct’s zero-hours employment contracts for part-time workers. These contracts, which appear to go to 90% of the company’s 23,000 employees, mean staff do not know how many hours they will work from one week to the next, giving them no guarantee of regular work, as well as no sick pay or paid holiday. I would not want to take a bet that somewhere in the care sector there is not an equivalent to Sports Direct.
The care sector is inevitably likely to continue to have relatively low-paid jobs and be vulnerable to entry by unscrupulous employers. Those giving care need to be more fairly paid and better trained, and to become a more reliable workforce that is able to spend enough time with those needing care, without cutting corners in the care they give. Experience so far suggests that we cannot always rely on commissioners of care to do the right thing. They need a bit of buttressing.
My amendment gives a power to the Secretary of State to intervene when there is evidence to suggest that intervention is necessary, and provides the back-up of financial penalties should a bad employer prove obdurate. The presence of the new clause would also be a deterrent to bad behaviour. If we are serious about safeguarding the vulnerable, we need a provision of this kind in the Bill’s armoury. I beg to move.
Lord Warner
Supplementary to that, my simple view of the world is that if the situation is so bad, the CQC ought to be able to deregister someone who persistently engages in these kinds of employment practices. Do the Government share that view?
Earl Howe
My Lords, I am the first to agree that these are very important issues. I cannot do justice to explaining where we are with them at the moment and I ask both noble Lords for their indulgence. I will write to both of them and provide more information on this subject.
I was referring to the role of the CQC, which has the power to act in response to any concerns and to take enforcement action where services are failing people. Failure to comply with the requirements is an offence and, under the Health and Social Care Act 2008, CQC has a wide range of enforcement powers that it can use if the provider is not compliant. These range from issuing a warning notice and fines through to cancelling a provider’s registration. The new Chief Inspector of Adult Social Care will be in post from October and will provide additional focus on quality issues in care and support.
I repeat my reassurance to the noble Lord, Lord Warner, that the Government fully agree with the intention behind the amendment—that employment standards and workforce issues are fundamental to quality care—but I hope I have demonstrated that there is a wide range of activity bearing down on poor practice and that the variety of existing law and other non-statutory approaches mean that further legislation is not required. I hope the noble Lord will feel reassured enough to withdraw the amendment on that basis.
Lord Warner
I am grateful to the noble Earl for his reassurances. However, like my noble friend Lord Hunt, I am still uneasy about the extent to which there is, if I may put it this way, a clunking fist that could be used to stop such practices in their tracks, possibly by the regulator.
It would be helpful if before Report we could meet, perhaps with David Behan or someone from the CQC, to satisfy ourselves that, possibly by using guidance and advice from the department to the CQC, enough priority will be given to this issue and systems will be put in place to take action swiftly when concerns are raised. However, in light of the possibility of further discussions, I beg leave to withdraw the amendment.
Care Bill [HL]
Lord Warner Excerpts(10 years, 9 months ago)
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Lord Warner
My Lords, one of these amendments has my name attached to it. I certainly fully support my noble friend’s other amendments and perhaps should have added my name to them. This is an important group of amendments in relation to the deferred payment arrangements, which are an equally important part of the architecture of the new scheme.
I agree very much with the purpose of my noble friend’s Amendment 92ZZX. When the Dilnot report proposed the idea of a deferred payment scheme, it was to be a national scheme that was totally consistent with the minimum national criteria threshold and portability. I have to say that we envisaged it coming into operation at the same time as the cap. The Government’s proposal of universal payment arrangements is certainly consistent with our approach but it leaves unanswered the question of whether you want to administer such a scheme through 152 local authorities.
One could make a case for a central scheme or latching the management of a such a scheme on to some existing agency. I think that the arguments are relatively evenly balanced. My noble friend has come up with one way of doing it, which is a model scheme that would be required to be adopted by most local authorities. The worst of all worlds would be not to take hold of this issue and leave it to a marketplace of 152 different bodies without much guidance or assistance with compatibility of IT and issues of that kind. We need to hear from the Government how they intend to ensure that this scheme is operated consistently by 152 local authorities. I personally do not have an axe to grind one way or another but I fear that if the Bill is left as it is, we may end up with a bit of a mess, with a wide range of diversity among the different local authorities.
I certainly see the sense of the first part of my noble friend’s Amendment 92ZZY. I shall be very interested to hear the Minister’s response. The second part raises a wider issue, which I still think we need to give more consideration to. There was considerable concern during the Dilnot inquiry about access to sound, independent financial advice, not just in relation to a deferred payment scheme but to some of the other financial products or major financial decisions on paying for care that people would be taking—often at a time of crisis in a family’s life. People would not necessarily be as clear-headed as they might otherwise be. There would be a lot of emotion, and it was important that people could feel confident about getting impartial advice. My sense is that as these major changes come closer, the financial services industry itself might well prefer some stronger statutory safeguards on accessing quality financial advice, if only to protect it from accusations that people had been misled.
I think that we need to come back to this issue. Can the Minister tell us more about discussions with the industry, and where the Government’s thinking is on a statutory requirement on accessing independent financial advice, not just in relation to deferred payments, but to a wider range of financial decision-making?
I added my name to my noble friend’s Amendment 92ZZZ because, like him, I have considerable doubts about whether by April 2015 we can get in place a well thought out and reliable universal deferred payments scheme in place, alongside all the other systems changes that have to be made. The new consultation document, at more than 100 pages, which came out last week on the new funding and payment arrangements demonstrates the complexity of what is involved. These changes will require a major public awareness and education campaign, as we discussed last week. By coincidence, last week I received a note, as other noble Lords may have done, from Saga. It suggests that there is still a mountain to climb in making the public aware of and well advised about these particular new arrangements.
As I have already mentioned, it is not at all clear to me whether we are talking about a nationally administered deferred payments scheme, or 152 separate schemes. That issue in itself will, I suggest, take some time to get sorted out. It is another powerful argument for not rushing our fences and trying to get this all in place by April 2015. We need some convincing chapter and verse from the Minister on readiness, because I, like my noble friend, cannot see how it is sensible to introduce a deferred payments scheme a year in advance of the new cap scheme, with all the interrelationships between these two schemes.
The good news is I perhaps slightly take issue with my noble friend, and give the Minister some comfort on Amendment 92ZZW. I am not sure about putting an interest rate into primary legislation. The ex-Minister in me would be saying, “I think we need a bit more flexibility than that”.
Baroness Barker
My Lords, I shall give some support to the noble Lord, Lord Lipsey. He has thought about this issue in greater detail than many, and that is very important. It is worth pointing out one thing which many people seem to have forgotten. We already operate deferred payments. We have done for a very long time; this is not new. My first question to the Minister is, what intelligence have the Government taken from the evidence which already exists about the operation of current deferred payment schemes—albeit not as part of the Dilnot scheme—in the assumptions they have made about how this legislation will be implemented?
Secondly, I share the view of the noble Lord, Lord Warner, that the potential effects will vary according to demography. In certain boroughs, the overall balance of the population and its longevity will mean that this has a greater impact than elsewhere. For example, in Greater London, the impact will be completely different in the London Borough of Newham and the London Borough of Richmond. Have the differing effects in different geographical areas been modelled? What lessons have the Government taken from that modelling?
I think that the noble Lord, Lord Lipsey, is right. This scheme is a very important part of the overall architecture of Dilnot, and if it does not work, given the sensitivities which there are around property and so on, it could be extremely damaging. The noble Lord may be right that it should be deferred, perhaps as the noble Lord, Lord Warner, suggested, for a year. It may be better to do it at leisure and in more detail than to do it in haste and get it wrong.
Earl Howe
I have received advice that, technically, that is not so, but I am more than happy to engage the noble Lord in discussion after this debate. It would largely depend on the availability of a deferred scheme, agreed to by a local authority. It would also largely depend on the quantum of the debt that was already in existence. Of course, setting aside this particular issue, there could be a property on which there was pre-existing debt of a considerable size. It would largely be for the local authority to judge in individual cases whether it was in a position to offer a deferred payment scheme, looking at the facts of the case. I do not think one can make generalised remarks about this. We think that technically it is possible for an equity release scheme to exist alongside a deferred payment loan. As I say, I am sure that the noble Lord, with his insight into the market, will be able to put us right if we have misread the situation.
Lord Warner
While we are on this topic, it seems to me that there is an issue for the Government to think about. What is the market rate for equity release, compared to the market rate for deferred payments? If you are not very careful, you could end up with a situation where one is incentivised over the other. I wonder what consideration the Government will give to that issue.
Earl Howe
We will, of course, give that consideration. I am just reflecting, in the light of the noble Lord’s comment, on whether deciding what arrangements suit the individual is a matter for the Government, or rather a matter of individual choice. If there were a difference in the interest rate, it would surely be up to the individual to decide whether they wished to avail of whatever facility was being offered to them. I do not see that it is necessary to go down the path that the noble Lord, Lord Lipsey, is suggesting, whereby a local authority should be the one and only provider of funding in that kind of situation, merely because the interest rate was perhaps more favourable than an insurance provider’s.
Deferred payments mean that people will not have to sell their home in their lifetime to pay for residential care; I do not think that any commercial product offers that. Equity release is not available to people currently in residential care. However, there is potential for equity release to help people with domiciliary care and other costs. We would welcome developments in that market but this is an evolving discussion with the industry.
In respect of Amendment 92ZZX, we will continue to work with the care sector to ensure that authorities are in the right position to offer deferred payments from April 2015. There will be a dedicated implementation effort led jointly by government and local authorities, learning from local areas with well established deferred payments schemes. This will help to achieve a consistent national approach that fits with existing local systems and structures. We have also announced £335 million of additional funding in 2015-16 to support local authorities to deliver funding reform, including the introduction of universal deferred payments.
Amendment 92ZZZ would delay implementation by one year, until 2016. Given the work already under way with the sector and the shared desire across both Houses to address the issue of care and support funding reform, it is surely only right that we implement this at a reasonable pace. My view—and I hope, on balance, that the Committee will agree—is that it would be unfair to persist with the current system for longer than is needed. The timetable we have set out has other advantages. The 2015 introduction means that deferred payments will be part of the new offer to self-funders coming into place that year, and the stronger engagement by authorities with self-funders will be excellent preparation for introducing the capped costs system in 2016.
The noble Lord, Lord Warner, expressed the fear that we would have 152 deferred payment schemes around the country. As we have discussed, some authorities already have established deferred payments schemes. We think it makes perfect sense to build on the good work that exists. It will also ensure that deferred payments integrate with wider care services. The point here is that authorities will be following criteria set out in national regulations. There will be a consistent approach to who qualifies and what fees they can defer, and a consistent policy around interest and charges.
There is, of course, work to be done by local authorities, but I suggest that what we are tasking them to do is not exactly alien territory to them. We are confident that local authorities have the skills to offer deferred payments. The requirements primarily involve financially assessing people and keeping a record of fees that people have deferred and the interest owed, which is all consistent with activities that authorities undertake as part of providing means-tested care and support. Many authorities already operate deferred payments very effectively. We will work with the sector to identify good practice, as I have mentioned.
In answer to my noble friend Lady Barker, in local authorities with established schemes 20% to 30% of self-funding care home residents take out deferred payment. The level of uptake in 2015 may be similar or it may be somewhat higher. Again, it is incumbent on us—and we recognise this—to work with the sector to identify good practice that others can learn from.
Earl Howe
Yes, it is intended to be an average estimate across local authorities.
The noble Lord, Lord Lipsey, was concerned that there might be an incentive to encourage people to go into care homes rather than receive care at home, which would be contrary to the direction of the policy. That is an understandable concern, but Clause 1 creates a new statutory principle that applies to all the functions under Part 1, including care and support and safeguarding and means that, whenever a local authority makes a decision about an adult, it must promote the adult’s well-being. That ensures that individual well-being is the driving force behind care and support so that local authorities focus on achieving the outcomes that matter to people.
Moreover, although local authorities will be able to charge interest they will not be able to make a profit on deferred payments, so there should not be perverse incentives. Even so, it is important that people who go into residential care should understand their financial options so they can decide what is best for them. Authorities will have a duty to establish and maintain a service to help people access independent financial advice. We are currently consulting on how this duty should operate in practice, including how it works for deferred payment.
The noble Lord raised an important point in relation to the details of the scheme. These are all things we want to look at as part of our consultation and in the work we are doing with the care sector on implementation of funding reform.
Lord Warner
I am sorry to interrupt the Minister, but he skipped past the whole issue of 152 schemes rather rapidly in his answers and brushed aside most questions. Have the Government actually considered a national scheme, which was one of my questions? Does the Minister realise that only a small number of local authorities are actually running deferred payment schemes? It is a very small proportion of the total. The overwhelming majority of them have no experience whatever of running a deferred payment scheme; very few of them are used to valuing assets. These are all new complexities, but the Government are not going to be producing their draft regulations until 2014, by the Minister’s own admission. This is a recipe for a total shambles.
Lord Pannick
My Lords, I add my support to Amendment 92AA to which the noble Lord, Lord Low of Dalston, spoke so powerfully a few minutes ago. I declare an interest—or, more accurately, a regret—in that I represented YL in the Appellate Committee of your Lordships’ House and failed to persuade a majority of that committee that those who operate care homes under a contract with a local authority are performing a public function for the purposes of the Human Rights Act and therefore are obliged to comply with human rights principles. The complexity of the legal issues was such that the much lamented Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale of Richmond, both dissented from the views of the three judges in the majority.
As the noble Lord, Lord Low, has mentioned, Section 145 of the Health and Social Care Act 2008 addressed the issue by bringing some care home providers directly within the scope of the Human Rights Act, providing direct legal protection for residents of such homes. However, important gaps in the law remain. Duties under the Human Rights Act are not owed by the person who provides residential care to persons who pay for it themselves—that is, when the local authority is not paying—and the provider of care services, when that provider is not a local authority, has no duties under the Human Rights Act when providing care in a person’s own home.
I share the concerns of the noble Lord, Lord Low, that, in the light of the changes to be introduced by this Bill, it is important that the law should clearly address liability under the Human Rights Act. I agree with the noble Lord, Lord Low, who made a very powerful case, that the vulnerability of the person receiving care, and the risk of abuse, mean that the law should now impose duties on the provider under the Human Rights Act in all these circumstances to encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases. It is really no answer for the Government to say, as they have previously indicated, that it is undesirable in principle to specify the scope of the Human Rights Act in relation to public functions. The YL judgment already does that in a deeply unsatisfactory and narrow manner.
I accept, of course, that improved regulation and proper training will play an important part in protecting the interests of those receiving care. However, I ask the Minister to accept that the principles and the remedies under the Human Rights Act will add a significant and necessary further dimension to the obligations of those providing care and to the rights of those receiving it. I hope we will receive a positive response from the Minister this evening to the amendment from the noble Lord, Lord Low, and the noble Baroness, Lady Greengross.
Lord Warner
My Lords, I follow the noble Lord, Lord Pannick, with some trepidation but I do so as a member of the Joint Select Committee that recommended a change to the Bill along the lines asked for so eloquently by the noble Lord, Lord Low. I remind the Minister of an individual case which demonstrates the lacunae in the current legislation. It was the case of a lady over 90, who wholly self-funded in a private nursing home. This lady expressed her views—I suspect rather trenchantly—about assisted dying. She did not ask them to do anything about assisted dying but merely offered her views—though probably, as I say, quite trenchantly—but the home owner and members of staff took great exception to those views. She was pretty much immediately given four weeks’ notice to quit. We are talking about an elderly person who was very vulnerable. Her son took counsel’s opinion, which seemed to be remarkably similar to the views expressed by the noble Lord, Lord Pannick. We are faced with a situation where you can fall down on two grounds: on the grounds that you are in a privately provided home, and on the grounds that you are a self-funder. Whatever the arguments, and we have been over this ground several times in this House, the reality is that vague requirements on the CQC to observe the requirements of the Human Rights Act do not safeguard elderly people in the kind of case that I have posited.
We have to look at this again, which is why, when the Joint Committee looked at this issue, we took advice from our adviser, who is legally qualified. If I may remind the noble Lord, the noble and learned Lord, Lord Mackay, was a member of the committee, which went along with that recommendation. The Government have to move away from the rather brushing-off response that they gave to the Joint Committee’s recommendation and think again, particularly in light of the powerful case made by the noble Lord, Lord Low, and strongly supported by the noble Lord, Lord Pannick.
Baroness Howarth of Breckland
My Lords, I had not intended to speak today. I support the amendment, but in a rather different context. I welcome the work that the Government have done on the safeguarding clauses. Those of us who work in this area find that extremely helpful. However, the tone of today’s discussion has been very negative about providers, so I am probably outside my comfort zone, even more than the noble Lord, as a provider. I declare my interest as the president of Livability; I chair both its providing committee and its safeguarding board.
Throughout the sector there are large numbers of organisations that run their own safeguarding boards within the organisation, where they review every single incident that occurs within it. Quite properly, they already refer to the local authority those cases where they think it should be informed, and indeed to the CQC. In the not-too-distant past I had conversations with the Charity Commission about its role in these areas as well as those of the providers and the regulators.
It would be a pity if we did not recognise the huge amount of work that was going on already on safeguarding, and that we can learn a great deal from it. I would be pleased to support the amendment that says the Secretary of State should collect any report, because we could then look at trends. There is not a single provider that would object to being controlled by the Human Rights Act; I think that we all see ourselves as already being controlled by that Act, because we work under contract to the local authorities and see that as a clear extension of it. If it were direct, we would not operate any differently from how we do already.
I apologise for taking the time of the Committee today because I have not intervened very often, but it needs to be on record that there are thousands of elderly people and disabled people being significantly cared for by very good providers in conjunction and partnership with their local authority.
One of the issues that I would really like to have supported is the amendment from the noble Baroness, Lady Greengross, saying that you have to change the culture. What will make the difference—this has made a difference in the organisation where I work, where we extended our services—is a culture of no blame. The sense that I have had here today is rather one of blame, but having no blame brings people forward and makes them report incidents that you can then look at. In my role, I am really concerned when no one comes forward and reports an incident.
I welcome what the Government are doing, but I hope that whatever else comes is not so draconian that it actually prevents people coming forward and making it clear that they want to report incidents in their organisation.
Lord Warner
Perhaps I could suggest that the Minister should have another conversation with the noble and learned Lord, Lord Mackay. After the quotation to which she referred, the noble and learned Lord signed and agreed the Joint Committee’s report that made the recommendation. The Minister might like to have a discussion with him about whether he has changed his position.
Baroness Northover
That is a very interesting point. This is a very serious area. We want to make sure that the Human Rights Act applies in the way that we think it does, and in the way that the noble Lord’s Government brought in and thought that it did apply. I have a feeling that this is an issue that we will revisit. I remember the discussions last year on this between the noble Lord, Lord Low, my noble and learned friend Lord Mackay and others. I would not be at all surprised if there were further discussions.
The important point here is to protect people, to make sure that the law protects them and to do nothing that undermines the effect of the Human Rights Act in other areas. The Government’s position has been that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves to be bound by the duty imposed by Section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the convention rights. The CQC, as the regulator, is subject to the HRA, which may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. As noble Lords will know, the Ministry of Justice is concerned that every time you add a provision, you may inadvertently have an effect on the umbrella application of the Act.
The noble Lord, Lord Low, asked about the repeal of the National Assistance Act. I assure the noble Lord that there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation. He will also be able to set in context that change, in the light of the discussions we had earlier.
I point out that there are strong regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements which are compatible with the provisions of the European convention. This applies to all providers of regulated care to people who use care and support services, whether publicly or privately funded.
As to Amendment 92ZFE, we agree with the noble Baroness, Lady Greengross, that people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution where an offence has been committed. This should also be read in the light of the discussion on the Human Rights Act. The Bill does not seek to duplicate existing law. Civil law currently provides redress for cases of neglect, and criminal law prohibits assault, which would include much of what is sought in this amendment. We therefore believe that there are already adequate provisions in place to deal with such cases.
My noble friend Lady Barker spoke of the potential creation of a new offence of abuse and neglect of somebody who has capacity. There is legislation that protects those with capacity, and there are powers that local authorities and the police can use. These include the Anti-social Behaviour Act 2003 and the Crime and Disorder Act 1998, and the police also have wide powers to enter premises for specific purposes with or without a warrant. The inherent jurisdiction of the High Court ensures that there is no gap.
Where an adult lacks capacity, there is an existing offence of ill treatment or neglect by a person who has care of the adult or is authorised to act for the adult under the provisions of the Mental Capacity Act. In our view, this is a case where an offence is justified because of the evidence that such people are highly vulnerable to abuse, neglect and exploitation.
I turn to Amendment 92ZK, in the name of the noble Baroness, Lady Greengross. We all want local authorities to foster an open and honest culture in which employees feel able to express genuine concerns without fear of repercussions. However, we do not feel that this amendment is necessary. As I think we would all agree, the law on its own cannot change organisational culture. We need to work with and through local authorities to consider what barriers exist to the type of open and honest environment that we want to see. This is something that we have debated a great deal and there has been much emphasis on leadership. However, legislation can have an effective role in setting parameters and reinforcing expectations, which in turn impact on culture. In this regard, the Government have already confirmed their intention to introduce an explicit duty of candour on providers of health and care and support. This will be introduced as a CQC registration requirement and will mean that providers will have to ensure that staff and clinicians are open with patients and service users where there are failings in care.
I turn to the need to be able to gain access to a person suspected of experiencing abuse or neglect where that access is denied by a third party. The Government carried out a full consultation on a potential power of entry, very similar to the access order proposed by the noble Baroness, Lady Greengross, in Amendment 92ZFC. We received no compelling evidence to warrant such a power and, indeed, there was and remains considerable opposition to it from members of the public and some third-sector organisations. We have heard some of the concerns expressed by the noble Lord, Lord Patel, and the contrary view expressed by my noble friend Lady Barker and the noble Baroness, Lady Wheeler. We recognise that this is a sensitive and complex area of work, but we believe that understanding what positive work by skilled professionals can achieve and promoting that is a more desirable, effective and sustainable route to take. As with all the new duties and powers in the Bill, we will pay close attention to implementation and address any issues that arise.
Perhaps I may mention to the noble Baroness, Lady Wheeler, that, although the consultation has ended, we have continued to get written correspondence from both members of the public and third-sector organisations petitioning the Government not to introduce a power of entry. They are particularly concerned that such a power would be used as a quick fix that would neither resolve the problem nor improve good professional practice where the intention is to try to build trusting relationships. From what noble Lords have said, it is very clear that trying to get the balance right and focusing on the protection of the individual can be very challenging in such circumstances.
We understand the concerns that lie behind Amendment 92ZF, tabled by the noble Baroness, Lady Hollins. It is of course imperative that anyone—but especially those in the NHS and local authorities—who suspects abuse or neglect knows what action to take. Organisations should make their procedures clear and boards should widely publicise information on this issue.
Amendments 92ZFF and 92ZJ, tabled by the noble Baroness, Lady Greengross, emphasise the need for the involvement of social work-qualified staff in boards and reviews. We understand what the noble Baroness is saying. In Schedule 2, we make it clear that both the chairs and members of boards must have,
“the required skills and experience”.
We will elaborate on that in guidance and ensure that the importance of social work is recognised and supported. Guidance will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.
This has been a very important and wide-ranging group of amendments concerning a new step that we are taking to try to ensure that vulnerable adults are offered the best protection. We welcome noble Lords’ probing of the Government. We are all trying to secure the same outcome, and we need to be challenged on how best to achieve that. I hope that noble Lords will have taken on board our reasoning behind doing things as we are and that they will be reassured that we are indeed delivering through this Bill what they are seeking. I hope that they have been reassured that their concerns have been carefully considered and addressed and, on that basis, I hope that the noble Baroness will withdraw her amendment.
Care Bill [HL]
Lord Warner Excerpts(10 years, 9 months ago)
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Lord Patel of Bradford
My Lords, I shall also speak to Amendment 92AZ. I welcome the aspects of the Bill that are aimed at securing the sustainability of the social care sector and social care provision. It is particularly important to put measures in place setting out the action to be taken to protect people from the negative impacts of business failure in adult social care. However, I have some concerns about the key clauses that relate to provider failure and market oversight. I refer specifically to Clauses 47 to 54, which specify the criteria for the application of market oversight, determine whether criteria apply to a care provider and cover the assessment of financial sustainability of care providers.
Amendment 92AY focuses on the financial regulation of providers. The Bill currently allocates to the Care Quality Commission responsibility for maintaining quality care services, mitigating risk to business sustainability and ensuring continuity of care for any person who receives care services. These steps will include obtaining regular financial and relevant performance information, working with the provider to develop a sustainability plan to manage any risk to the organisation’s ongoing sustainability, using powers to commission an independent business review to help the provider to return to financial stability and requiring information from the provider to enable the CQC to support local authorities to manage provider failure.
I concur with the view that all providers of care and support services should be subject to thorough financial checks which may indicate that a care organisation might be unable to fulfil its obligations as a provider of services in the future. However, plans to allocate responsibility for financial regulation to the CQC appear to be poorly thought through and Monitor, as the current financial regulator for health services, should assume this role. The pressures facing the CQC as part of its expanded remit for regulating quality across the health and social care sectors have already been eloquently highlighted in previous debates on this Bill by many noble Lords, including the noble Lord, Lord Sutherland, and my noble friends Lord Hunt and Lord Campbell-Savours.
We are all aware that the CQC is undergoing significant structural change and it does not have the capacity and organisational expertise to take on responsibility for assessing the financial stability of care providers. This is being proposed because of the belief that service users would benefit from having a single regulator, specifically the CQC, to oversee care and support services and provide an overall assessment of performance, combining quality and financial data. I am also aware that the Francis report highlighted the importance of simplifying the quality and financial regulation regime for health providers to eradicate overlap and minimise the gaps between the functions of the different organisations and regulators. This included changes to the current division of regulatory responsibilities between Monitor and the Care Quality Commission.
However, the noble Lord, Lord Sutherland, in a previous debate, specifically highlighted the key concerns—which I share—about giving the CQC additional responsibilities for financial assessment. He stated, and I agree, that the CQC is not prepared for these additional responsibilities. I would question whether it has the specialist staff, skills, experience and, most importantly, expertise required to decide whether care providers have financial sustainability.
Alongside all the other demands it faces, the CQC will also be pressured into developing a rushed financial accountability system, without proper consultation and checks and balances. These additional responsibilities for financial regulation place added pressure on an organisation that is already undergoing significant change and faces a greatly increased workload as part of its expanded duties for quality assurance. The development of a poor-quality financial accountability system will only affect its credibility further and I therefore question the rationale for designating the CQC as a financial regulator for the care and support sector.
In fact, under the Health and Social Care Act 2012, Monitor became the economic regulator to promote effective and efficient providers of health and care, promote competition, regulate prices and safeguard the continuity of services. Monitor can license providers, work with NHS England to set prices for NHS-funded services, prevent anti-competitive behaviour and work with commissioners to ensure continuity of services when providers get into financial difficulty. I would therefore argue that Monitor already has its own robust financial oversight regime for healthcare providers that can be adapted and applied to the social care sector; and the Government should use these existing powers as a means to effectively regulate the sector in the future. My amendment to Clause 52, on the assessment of financial sustainability of care providers, simply replaces the CQC with Monitor. I hope that the noble Earl will agree that this is a sensible and helpful amendment.
I now turn to Amendment 92AZ on the accountability of commissioners. As many noble Lords have commented throughout the Committee stage, the focus in the Bill on greater integration between health and social care services is to be welcomed. As services between health and social care become more integrated, it is essential that the plans of local authorities face the same levels of scrutiny as clinical commissioning groups and have clear lines of local and national accountability.
However, there is at present no effective regime in place to oversee and monitor the standard of local authorities’ commissioning of care and support services. The annual performance assessments previously undertaken by the Care Quality Commission to evaluate the quality of councils’ commissioning of adult social care services were scrapped in 2010. Of course, the Minister may argue that the scrutiny of commissioning plans is now covered under the provisions of the Health and Social Care Act 2012 and that additional oversight is not therefore required.
I know that that Act contains a number of duties that focus on aligning the plans of clinical commissioning groups and health and well-being boards to ensure that clinical commissioning groups take into account the joint strategic needs assessments when preparing their commissioning plans. Equally, I am also aware that health and well-being boards are expected to have a key role in bringing together local authorities, clinical commissioning groups and local Healthwatch to assess the health and care needs of local populations through joint strategic needs assessments and joint health and well-being strategies.
However, recent cases such as those at Winterbourne View and Southern Cross have demonstrated the devastating impact on vulnerable people when commissioners, commissioning systems and processes are found wanting. Winterbourne View was set up as an assessment, treatment and rehabilitation centre for people with learning disabilities and autism, but the review into Winterbourne View found that it had “strayed far” from this purpose and stated that the commissioners, as well as the owners, Castlebeck, were to blame for this. The primary care trust commissioners who placed people at Winterbourne View did not set performance targets for the company or effectively check the progress of patients, despite being charged an average of £3,500 a week for places. Their reviews were clearly flawed, completely ineffective and did not bring to light either concerns about the quality of assessment and treatment or the detail of abusive practices. Strategic health authorities also did not effectively performance-manage primary care trusts in their commissioning of placements for this client group. The review concluded that closed establishments such as Winterbourne View would benefit from a more prescriptive approach. This includes far more effective planning processes, and performance management and monitoring systems by commissioners.
That is why I am proposing a new clause that focuses on the accountability of commissioning organisations that would give NHS England a duty to scrutinise the commissioning plans of local authorities for adult social care services to ensure that they are upholding the safety and care of vulnerable people, and the efficient and effective operation of a market. Equally, notwithstanding my previous comments, I would be content if the noble Earl thought that the CQC rather than NHS England would be able to provide that scrutiny. I beg to move.
Lord Warner
My Lords, I intervene briefly to make a couple of observations and put a question to the Minister on this set of amendments. I must confess that I am not thrilled by the idea of NHS England being asked to supervise the commissioning of local authorities. I think that it may struggle to supervise the commissioning of 211 clinical commissioning groups, or however many we have this week, without our turning it loose on 152 local authorities as well. There must be some doubts about whether it is the right body to supervise local authority commissioning.
My noble friend Lord Patel of Bradford makes a very fair point in asking where we will get some sort of overview of the quality of local authority commissioning. It may not be NHS England, but we could perhaps have some idea of the Government’s thinking on how they will be satisfied that the commissioning is of a reasonable standard across 152 local authorities. If the Minister could tell us this evening which quality assurance mechanism the Government have in mind, that would be a useful insight.
The other point was about whether it should be Monitor rather than the CQC. This is an area where I have struggled quite a lot, because I think that there is a problem with what is going on with the financing of adult social care. Who actually bankrolls the providers in this sector? I question whether, without a lot more expertise, either Monitor or CQC are well placed to penetrate some of the private equity models of financing adult social care provision. These models are being brought in almost as we speak.
The financial complexities of this sector are very considerable. The providers of residential and nursing home care within the adult social care sector have moved on a long way since my days in local government as a director of social services. People are assembling packages of money to buy groups of homes, and they put groups of homes together in what is often basically a hedge fund or private equity-type process, essentially consolidating providers in this sector. The days of mom and pop homes seem to be passing quite quickly, as the sector tries to secure greater financial capability to respond to the buffets of a market system.
In this extraordinarily complicated market, it is not clear to me how the Government will equip any regulator—or help it equip itself—to secure the expertise to actually raise the money to buy and merge groups of residential and nursing home providers. It is not a very transparent system. Either CQC or Monitor will require a lot of expertise. It will have to go into territory into which few of us are equipped to go, and find out what is actually going on, if we are not to have another Southern Cross experience.
I suggest that the risks of that happening again are becoming greater as the funding systems for these organisations become less transparent. They are not publicly quoted companies, and in many cases they are hidden behind a rather mysterious cloak of financial allocations. Without making adverse comments, I suggest we look at what happened with Four Seasons, which was taken over by Terra Firma. Where are the loyalties? Are the loyalties of that organisation to the people receiving care, or are they to the people who are creating the funds for the purchase of that organisation? I would like some reassurance that CQC or Monitor—I do not feel strongly doctrinal, one way or the other—will have the expertise to penetrate some of these rather opaque organisations that are now involved in funding providers in this sector.
Earl Howe
My noble and learned friend is, of course, right. That goes back to a question posed in an earlier group by the noble Baroness, Lady Wheeler, about what the definition is of business failure. We propose to define in regulations circumstances in which a provider can be deemed to have failed. Those circumstances may include a situation in which a provider is struggling to service its debts as they fall due or has breached its financial covenants under loan agreements, or an administrator, liquidator or receiver has been appointed—which is a clear-cut case of failure. As I said, this will be defined in regulations because we want to capture these various different scenarios where a business can be deemed to have failed. We will, of course, consult on the regulations before they are laid. No doubt what I have just said will be refined and augmented during that process.
Lord Warner
The Minister mentioned that the Government will look very closely at some of these ownership issues and their opacity. Will he be willing to look at some of the other sectors which have been regulated? I would cite water and the electricity and gas industries, where we are already seeing the emergence of a clear conflict between the rights and needs of shareholders and those of consumers. There are lessons to be learnt from these other sectors, which now have a lot of experience of regulators trying to hold the balance between those who invest and those who are receiving the services from the providers of those services. Consolidation has also taken place in those industries, particularly in the energy sectors.
In this sector, we are seeing the early stages of consolidation, which is moving apace. Given the vulnerabilities of the people who live in these homes, it is conceivable that some ownership patterns could simply not be acceptable in this particular sector because of the high risk that they pose for the users of the services. Will the Government look at those other sectors and at that issue as they start to consider this? I am the last person to want to stop new entrants coming into a market, but Southern Cross was a wake-up call for us. We have to see whether certain ownership patterns have too much of a conflict of interest between the investor and the user of the services for us to be able to be comfortable that they could ever deliver the bacon in a satisfactory way.
Earl Howe
The noble Lord is absolutely right. We are entirely open to looking at the lessons to be drawn from other sectors and the regulators of other sectors. I am sure that important messages will come from such sectors of the kind the noble Lord describes—no doubt not just the energy and water sectors but others, too.
I will move on to the question of whether there should be central oversight of local authority commissioning practices. I wholeheartedly agree with many of the arguments that have been expressed this evening. Commissioning practices which risk undermining personal dignity and lowering quality are simply not acceptable. That is why Clause 5 of the Bill introduces a duty on local authorities to shape high-quality, diverse and sustainable markets in care and support services. Clause 5(4) requires local authorities to have regard to this duty when commissioning services. As I said when the Committee discussed Clause 5, we are aware that there are examples of poor commissioning practice across the country. We need to move away from overly prescriptive commissioning that focuses only on price or time slots, to consider how it can do things differently and deliver better outcomes in quality care.
In relation to the option of central oversight of local authority commissioning that the noble Lord, Lord Patel of Bradford, suggested, the Bill leaves open the possibility of the CQC conducting reviews of local authority commissioning. However, by enabling the CQC to review local authority commissioning, if it is prescribed in regulations, the Bill gives us the opportunity to discuss this option further. In particular, we are considering whether the new chief inspector, who will work with local authorities that commission care and support, should have a formal role in assuring the performance of those authorities, building on the strength of the current programme of improvement activity and peer assurance led by councils.
I emphasise at this stage that if there is to be central oversight of commissioning, the CQC, as a consequence of its links with the chief inspector and its existing relationships with, and expertise in, the social care sector, will be the most appropriate body to undertake this function. Although we have not closed our minds to the option of central oversight of local authority commissioning, the fundamental problems underlying poor commissioning practices are cultural and structural. Central oversight on its own will not necessarily tackle these issues.
The noble Lord, Lord Warner, asked how we could be satisfied that local authorities’ commissioning will be of a suitable quality. It goes without saying that it is for local authorities to decide the most appropriate way for them to fulfil their duty of commissioning and of shaping local markets, responding to local needs and circumstances. They will be accountable locally for those decisions. However, we are working with local authorities to support them to develop their capacity to shape local markets. We launched a programme of support last year and intend to continue working with local authorities to improve commissioning practices. We are committed to working with the sector to support local authorities to shape diverse and high-quality markets, including through improving commissioning practices, through the recently announced homecare challenge and through a programme to support the authorities in their market-shaping capacity.
In conclusion, I fully understand and sympathise with the issues raised by the two amendments. However, I hope that I have been able to shed some light on why the Government have come to their view on the issues. In so doing, I hope that I have provided a measure of reassurance to the noble Lord, Lord Patel of Bradford.
Lord Adebowale
My Lords, I support Amendments 92B, 92C and 92D, which are also in the names of the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Patel, who have spoken eloquently on this matter. I declare an interest as the chief executive of Turning Point, which provides health and social care to many young people in the process of transition. I know, as we all do, that transition can be a very delicate process if not done well. Young people slip through the net between children’s and adult services and begin their adult lives without adequate care and support, which risks deterioration of physical and mental health, and the escalation of need to the point of crisis. That is both immoral and expensive.
The Bill goes a long way to improve the current situation. I am pleased to hear that Ministers informed the House during an earlier session that discussions between the Department of Health and the Department for Education about the links referred to between this Bill and the Children and Families Bill are already taking place. These transition amendments offer an opportunity for us to go further—it is quite rare for a Bill to offer an opportunity to do something quite brilliant for young people—and to ensure that all young people receive support under other legislation. That support is likely to continue after young people reach 18 and they will receive an offer of a needs assessment from their local authority. Importantly, this process will begin in good time.
This includes those young people—or their families and carers, as has already been mentioned—who have not themselves requested an assessment. It is an important addition to recognise that there may be cases, as mentioned by the noble Baroness, Lady Tyler, where a family just does not realise that they need to request an assessment. Good transition is about helping to ensure that local authorities are better prepared to meet the needs of young people. If assessments can be conducted earlier, so long as this is what young people and their families want, care and support can be in place sooner, and there is less risk of people’s needs escalating to the point of crisis.
I hope that the Minister will agree that the assessment process needs to begin in good time, and that he can assure the House that those who do not themselves request an assessment will also be able to benefit from the improvements that this Bill offers.
Lord Warner
My Lords, I will make two quick points, the hour being late. The Government need to look again at the way this Bill works with the Children and Families Bill. These arrangements look clunky for those moving from childhood into adulthood. The real problem is that this Bill does not seem to work on the basis that many, if not most, of these children will be known to the same local authority. Why, then, is this Bill framed as though they are strangers coming into the system, in which the local authority is permitted to involve them? The local authority should have an obligation to make seamless the move from childhood to adult services. The Bill does not really deliver that. The Government need to look again at that transition point, and reconcile the Children and Families Bill and the Care Bill, because they do not work together as well as they might.
NHS: Foundation Trusts
Lord Warner Excerpts(10 years, 10 months ago)
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Lord Warner
To ask Her Majesty’s Government what progress the NHS Trust Development Authority will have made by April 2014 with NHS Trusts becoming NHS Foundation Trusts; and when they forecast that the Authority will have completed its work.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, in the light of Robert Francis’s recent report, we have allowed the NHS Trust Development Authority to agree trajectories for NHS trusts to reach foundation trust status that go beyond 2014 on a case-by-case basis. In doing so, we will ensure that the primary focus of the NHS Trust Development Authority and of NHS trusts themselves is on improving the quality and sustainability of services for patients.
Lord Warner
My Lords, I thank the Minister for that reply. Does he recall that in a recent Written Answer to me he identified 26 acute hospitals under the stewardship of the TDA which have cumulative deficits running into hundreds of millions of pounds? Does he agree that many of them are unsustainable and potentially unsafe and need their services reconfigured? Will he tell the House why the Government refuse to publish the review by Sir Ian Carruthers on the procedures for service reconfiguration and why they resist publication by declining FOI requests?
Earl Howe
My Lords, there is no doubt—and we have never denied this—that there will be a hard core of organisations which will be very difficult, if not impossible, to bring to foundation trust status. For those trusts, it is necessary to look at other options, including, for example, mergers. That work is being taken forward. Although some trusts are in deficit, the NHS TDA is working very hard to mitigate those deficits in-year and when the first quarter board papers are published in September we will know what its predictions are for all trusts for the current year. I will come back to the noble Lord on the report of Sir Ian Carruthers because all FOI decisions are reviewed at regular intervals to make sure they are current. I want to make sure that there is a plan to release that information in due course. I am sure that there is.
NHS: Keogh Review
Lord Warner Excerpts(10 years, 10 months ago)
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Lord Warner
My Lords, I want to ask the Minister about the Government’s future intent. Are he and his colleagues now satisfied that Sir Bruce has found an indicator or indicators which require constant attention, year on year? Can we expect to see, either by Sir Bruce or by the new Chief Inspector of Hospitals, an annual look at the outliers on mortality rates and a regular report to Parliament about the findings of the exercise? Is this going to be institutionalised as part of the performance management of the NHS?
Earl Howe
We will see the Chief Inspector of Hospitals picking up the baton, as it were, from Sir Bruce Keogh, whose way of working in this exercise has been very instructive. His judgments were based on talking, not just to a few people in the trust, but to patients, a wide range of staff and, in some instances, people outside the trust. I am sure that Sir Mike Richards, the new chief inspector, will want to learn from that. It will be up to the CQC to decide whether this will be institutionalised. Its methodology is evolving. The hospital aggregate rating system will have a role to play in systematising the evaluation of performance and in any future instances of very poor care we will no doubt see a level of transparency from the CQC which we have, perhaps, not had before. However, I would not want to commit the CQC to reporting annually to Parliament in a particular way. It will report annually to Parliament but it is largely up to it how it does it.
Care Bill [HL]
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Baroness Greengross
There are vast numbers of older people—for whom this Bill is designed, in terms of quantity—who we know want to stay in their own homes in their community. Early intervention can make that possible. If we delay, the alternative is crisis-driven. It leads to many older people going into expensive care homes where they do not want to be and from which they do not emerge again or into hospitals, adding to the problems we know about with frail elderly people. I very much hope the noble Earl will reconsider and enable people with moderate needs to have access to services.
Lord Warner
My Lords, I hesitate to intervene in the debate on Amendment 88Q but I feel under some obligation to share with the Committee some of the thinking of the Dilnot commission where we went into this issue and set out our views in our report. I declare my interest as a member of that commission. I suspect that what I am going to say may be thought of more advantageously by the Minister than by those who tabled the amendment; however, it is important that we consider these factors.
First, we made it very clear in the report that,
“we believe that those who develop a care and support need during their working life should be assessed in broadly the same way as an older person”.
We tried to create an architecture that was reasonably consistent between the needs of those of working age and older citizens. Secondly, when we were asked to undertake this assignment we were asked to consider the feasibility of introducing this and the affordability of the changes. We wrestled with this quite a lot in our deliberations but we concluded in recommendation 6 of the report:
“In the short term, we think it is reasonable for a minimum eligibility threshold to be set nationally at ‘substantial’ under the current system”.
Our concern in doing that was not just that we were mealy-mouthed stooges of the Treasury but the overwhelming amount of evidence given to us about underfunding of the adult social care system over a long period. We considered that and said in the report that it was seriously underfunded and that funding had failed to keep pace with demographic changes in people of working age and those who were not. We thought that the deficit had to be made good but that that was a matter for the Government of the day and would need cross-party consensus if improved funding for social care was to be maintained.
Lord Warner
I do not think we want to have a debate on our report, but I suggest that the noble Lord reads Chapter 2 which sets out the arguments why we should have consistency between the two age groups and why there was a fairness issue about that. If you distinguish between the two age groups, we favoured not being over-elaborate in means-testing working age people. If the noble Lord reads Chapter 2, he will see that we have in many ways discriminated in favour of working-age people in the treatment of them under a means-tested system. We were not being hard-nosed about it; we were saying that there was a general equity issue about treating people of working age and non-working age under the same architecture in this system. I do not want to detain the Committee with the Warner standard lecture on the Dilnot commission, but I recommend to the noble Lord that he refreshes his memory on Chapter 2, which sets out our arguments.
Lord Warner
I do not think that we said that they should fund the deficit. We said how they should be treated under the architecture of a new system for funding care and support in the future.
Lord Lipsey
My Lords, I rise to make two brief points. First, this argument is not really about eligibility criteria but about money. It would be highly desirable to extend eligibility to people with only moderate needs, but we will find it extremely hard simply to cater for people with substantial needs unless the pot of money is substantially expanded. That is the elephant in the room. In all the discussions here, we are describing a marvellous new system, but we have not yet said how it will be paid for.
Secondly, I think that eligibility criteria are, to a degree, a bit of a phantom. We know that there is variation between authorities across the country: some accept people with moderate needs and some accept them with substantial needs. Quite aside from that, there is overwhelming evidence of enormous variety not between local authorities but within local authorities depending on who is assessing you and their state of mind. I quote in support of this a report from the National Care Standards Commission in 2005-06 and an excellent report by the PSSRU last year which tells you what actually goes on when people are being assessed. You might have a social worker who is terribly sympathetic to the older or disabled people she is assessing, and her boss who is, no doubt, sympathetic but who knows what budget he has to meet each month. In those cases, you simply get a wrestling match.
Thirdly, and to me most worryingly, once the cap comes in, people and their families will have a huge economic interest in demonstrating that they have substantial needs because that is when the meter starts ticking for them getting help. The danger is that those with, in some cases, the biggest needs will not be very good at gaming the system. Somebody with autism may be told by their parents to seem as bad as possible so they can get the meter ticking. They are not going to be very skilled at that, but the mums and dads of articulate middle-class people will have a different set of instructions to go on. There will always be a tendency to exaggerate—play up to the full may be a better way of putting it—their needs to get them graded as substantial.
I make these points, not to draw any firm conclusion, not even on the question of whether those with moderate needs should be catered for, but to say that more fundamental thinking has to go into deciding how eligibility criteria should be set and operated. This has not yet been apparent, even in the Government’s improved scheme which is encapsulated in the Bill.
Baroness Barker
My Lords, I support all the amendments in this group. On these Benches one of our great hopes for a national system of criteria is that it will lessen the frequency with which people in different parts of the country are wrongly charged for services that should be free. It has always been the case that older people, and carers in particular, can find themselves being charged by a local authority for things that are in fact free under various different pieces of legislation, notably the Community Care (Delayed Discharges etc) Act.
All of these amendments have things to commend them. I will start in reverse order, with the amendment of the noble Lord, Lord Lipsey. He has hit on something that is a bigger issue than perhaps has been realised yet. When we were debating the pension credit legislation in this House, the noble Baroness, Lady Hollis, talked about the fact that she had taken over the affairs of an elderly relative. She was probably the one person in the whole of Britain who at that time knew exactly what the regulations were. Yet it was only after the person died that she discovered that they had a little account about which she had known absolutely nothing. Why? Because many older people put money aside to cover their funeral. That is the truth. It is something that is very important to them. They probably do not tell people about it. I am sure that they also have other reasons, but that is a very common one. It is not uncommon for relatives to discover such accounts, although they are not vast amounts of money. The noble Lord, Lord Lipsey, is absolutely right that if, in a circumstance like that, somebody was deemed to have transgressed the law, it would be unfair and unjust.
I also add support to Amendment 89BA, an amendment of the noble Lord, Lord Low of Dalston. I was lucky to serve with the noble Lord, Lord Best, last year on an inquiry into the availability of aids and adaptations for older people who need help to remain in their own homes. We discovered extraordinary variations across the country and heartrending stories of elderly ladies having to carry their very elderly husbands up and down flights of stairs on their back, in a way that was simply unsustainable.
I commend to noble Lords the policy that was adopted by the local authority in Hull. It occurred to officials one day that, truth be known, nobody really wants a ramp outside their door. So they abandoned their assessment procedure; they stopped sending social workers out to discover whether or not this was necessary. They saved a lot of money that went instead into direct services. That is a commendable approach, and one that probably saved the city of Hull a lot of money in immediate and direct costs. Would that that spirit could go into the implementation of this Bill.
Lord Warner
My Lords, I rise briefly to support the amendment of my noble friend Lady Pitkeathley. As someone who has spent six years in the local authority salt mines, I say that one should never underestimate the capacity of any local authority, when times are hard, to scratch around for things by which they can raise some money—I say this with affection. If there is a scintilla of doubt in this legislation about the ability to charge carers for services, we should remove it immediately. Otherwise I would be willing to bet a reasonable sum of money that when there is a financial crisis in some part of the country at some point in the future, a bright spark in a local authority will light upon the chargeability of carers for particular services. I am not sure whether my noble friend’s wording is the right way of doing this, but her intention is absolutely right. I hope that the Government will take this issue away and make sure that this particular piece of legislation is totally fireproof in terms of the ability of local authorities to charge carers for services.
I also support the amendment of my noble friend, Lord Lipsey. Evidence was given repeatedly to the Dilnot commission about the distressed state that many people were in when they made key decisions about their family’s circumstances. I suspect that he is on to something important that affects quite a lot of people.
Baroness Wheeler
My Lords, these amendments under Clause 14 deal with the difficult area of charging for the care and support that we have established is required through assessment. The historic settlement of charging for social care but not for healthcare is being increasingly challenged and the obviously linked issue of funding for social care is ever present, as we have been reminded in today’s debates.
The common agreement about charges is that they should be fair and that the process for means testing should be as simple and as unintrusive as we can make it. Fairness in the eyes of the public means no postcode lottery, but the excellent work by my colleague Liz Kendall, our shadow Care Minister, has shown just how stark the variations are across local authorities today. This is something that we need this Bill to address. Why should charges for the same service be allowed to vary so much? This is seen as unfair and it is. I will be interested to hear from the Minister about this variability of charges and what actions the Government are taking to address it.
For many older people, claiming for any kind of help is hard. We need a system that is easy to use and we could do far more to integrate the various bureaucracies to minimise form filling and document checking and having to repeat the same information over and over again. We could use income information from the Inland Revenue, for example, and we could unify all assessment frameworks and use passporting of entitlement to minimise bureaucracy and administration costs. Much of the detail is for the future in the regulations, but this is our opportunity to remind ourselves of key principles, such as fairness and simplicity, that should shape those regulations. Can the Minister tell us when the draft regulations relating to Clause 14 and charging will be published?
When they are published, the regulations themselves will inevitably be complex and disputes are likely. Dispute through judicial review or the courts is not the way. Will the Minister explain why there appears to be no response to appeal or conflict resolution processes contained in this part of the Bill? Why do many of the decisions made under provisions in Part 1 seem not to have some mechanism of appeal attached to them? The appeals system should be fair, easy to access and independent. Does the Minister acknowledge that this is needed?
On the specific amendments in the group, my noble friend Lady Pitkeathley has provided an excellent explanation of the importance of her two amendments, Amendments 89A and 89B. As usual, it is very hard to find anything additional to say when it comes to carers and carers’ rights after she has spoken. It is right always to underline our support for the provisions in the Bill providing statutory rights for carers, but there are still areas of concern that need to be addressed relating to means testing and local authority care charges, and the widespread fear among carers about charges as local authorities become increasingly strapped for cash.
Earl Howe
I am more than happy to discuss this with the noble Lord and I apologise if I have misunderstood his amendment. I certainly would not wish to do that.
The noble Lord, Lord Low, asked me how equipment and adaptations will be addressed in a personal budget. Those costs that are intended to meet eligible needs will be included in the personal budget, or the independent personal budget, and will count towards the cap. We intend that aids and minor adaptations will be provided free of charge however they are funded, including by way of direct payments.
The noble Baroness, Lady Wheeler, asked me when the regulations under Clause 14 will be published. We intend to publish the draft regulations after the forthcoming consultation on funding reform. This consultation will enable the regulations to be based on the best available evidence. She asked where are the provisions about complaints and redress in relation to charging and, indeed, all of Part 1. Existing complaints provision for adult social care is through regulations. The provisions of the regulations mean that anyone who is dissatisfied with the decision made by the local authority about their assessment or eligibility would be able to complain to the local authority and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 regulations.
The Government recognise that the existing framework allows local authorities flexibility in the development of the process for dealing with appeals and challenges. There are options for local authorities to introduce independent elements to the complaints process through a range of formal and informal measures. Each local authority will therefore have a different process and we appreciate that local variation will result in varying user experiences. If a complainant is not satisfied with the response from the local authority, they can refer the case to the independent Local Government Ombudsman.
I hope that those remarks will be helpful and that the noble Baroness, Lady Pitkeathley, will for now be able to withdraw her amendments.
Lord Warner
Can the Minister clarify his response to my noble friend’s amendment that there would be statutory guidance? I know that I have been away for a few weeks, but before I left, the Government had turned their back on a statutory code of guidance, as I understood it. Has there been a change of heart in my absence?
Lord Lipsey
Now for something completely different. These amendments hardly deserve the epithet “probing”—more a light examination by the doctor’s fingers. What they do is, in essence, simple. They substitute for the monetary cap proposed by the Government a cap based on the number of years a person has been receiving care at a substantial level.
The origins of my amendment were in a proposal floated in the minority report to the 1999 royal commission on the funding of long-term care. As I was the author, I remember this quite well. It did not even gain the support of a majority of the minorities, as the noble Lord, Lord Joffe, declined to sign up to it. Nevertheless, it has had a life after death and I think it can claim paternity —the noble Lord, Lord Warner, knows better than I—for the cap proposal in the Dilnot report, because it shares precisely the same objective as the cap: to limit the costs of care to those unlucky enough to require it for a long time as it costs a lot of money. That is the aim of the proposal.
When I first saw the Dilnot proposal, I thought that it was clearly superior to the one in the minority report—everyone would spend the same before the state kicked in. But as time has gone on I have become much less sure of this as two defects of the Dilnot version have become more apparent. The first is that it is extremely complex for local authorities to administer. There have been figures of between £300 million and £500 million floating about for the cost of administration, before money is handed out to people. That is because, to implement the Dilnot report, it is necessary to track each individual from the time the meter starts ticking to see exactly what they are spending on care or, rather worse, to see exactly what a local authority thinks it should be providing in spending on care for each individual—a sort of abstract concept that has to be turned into a concrete figure.
As will be apparent from other amendments I have tabled, I am not even confident that local authorities will have their systems sufficiently sorted to manage it by the proposed start date of April 2016. There is a non-negligible risk that this will prove to be universal benefit mark 2, a scheme that will in practice prove impossible to operate. I hope I am wrong but the fact is that, putting the best face on it, it will cost a lot of money to implement without any of that money going to better care, and not a penny of it going to the people who should be helped. In the Government’s ghastly jargon, it will be money spent on bureaucracy, not front-line services. That is my first query about the Dilnot way of doing things.
My second point is equally worrying. The Dilnot system is terribly difficult for anyone normal to understand. When do you start to get it? How much is assessed as being the cost of the care that you may get from the council? How much have I spent? How much of that counts towards the cap? People may say, “My care costs differ because my condition goes up and down”. All those factors are crucial if people are to know what they spend out of their own pockets. I am sure that better-off people who are in full possession of their faculties will work it out, but we know that 40% of people over 80 have some degree of dementia and are therefore not in full possession. Certainly, those with computer-literate families and sons or daughters who happen to be independent financial advisers will crack it all right. Their claims for substantial care needs will be there on day one in a large pile on the local authority’s desk. They will know every penny that has been spent, but are we confident that everyone else will? Just explaining the system and the process of communication, to which we shall come later, will be jolly difficult. It should be remembered that more than half the people think that the state at the moment pays their entire care costs without deductions. There is a long way to go from there to understanding Dilnot.
By comparison, a time-based system is simplicity itself. You have an assessment, and if it shows that you need substantial care or its equivalent under the new system, the clock starts ticking. Five years later, you no longer have to pay the cost of your care. That is very simple. Five years is what you have to find. In my variant, the council would then pick up the whole cost, not some notional cost, as under the Dilnot cap, and you would simply have to find your hotel costs where applicable. That is simplicity itself and, incidentally, it makes it much easier for you to insure privately. Private insurance companies are going to struggle to know how much their liability will be under the Dilnot system. Under a time-based system, they will know that they have a liability. If you live more than five years the state will pick up the bill and the only bit that they will have to cover is the first five years.
How does that compare in generosity with Dilnot? It will probably be about the same. The Dilnot cap would be reached by someone in residential care rather more quickly than the five years but, on the other hand, as you are going to be paid only in part if you reach the cap, you may not be any better off. I suspect that for those receiving care in their own homes my proposal will prove to be more generous than Dilnot’s £72,000 cap. In most cases, people will take more than five years to reach the £72,000 and it may therefore be slightly more generous to people who live at home, which is no dreadful thing.
Sunny optimist though I am, I do not expect the Minister to go snap on my scheme today. I am not even sure that I do. He and his colleagues had enough trouble getting the Government to sign up to Dilnot, and they will not want to execute any unnecessary U-turns now. However, I suggest that he puts this proposal in his bottom drawer because it may become apparent in six, 12 or 18 months’ time that Dilnot, as encapsulated in the Bill, is simply impossible to administer on any realistic timetable. When that day dawns— I hope it does not—my scheme may come in handy. I beg to move.
Lord Warner
My Lords, my noble friend will not be surprised if I gently defend the Dilnot commission’s recommendations on a cap. His final suggestion of putting his proposal in the bottom drawer was actually rather good. I remind the House that as a young civil servant I was once the recipient of a Health Minister’s regular manuscript notes asking me about progress on various matters. They ended up in my bottom drawer because he had usually forgotten about them. Putting this recommendation in the bottom drawer may be the best thing to do.
I think that my noble friend has forgotten the task that the Dilnot commission was set. It was not the case that we just brought a cap out of the ether and projected it on to an unsuspecting world. We were trying to fulfil the task that we were given, which was to make recommendations on how,
“to achieve an affordable and sustainable funding system … for care and support for all adults in England, both in the home and in other settings”.
In particular, we were asked to examine,
“how best to meet the costs of care and support as a partnership between individuals and the state … how people could choose to protect their assets, especially their homes, against the costs”,
and,
“how both now and in the future public funding for the care and support system can be best used to meet care and support needs”.
I suggest that to fulfil those requirements it is probably better to concentrate on money and try to achieve a credible system than to concentrate on time. One of our main purposes was to project the idea that if we could get citizens to be more engaged with the realities of a means-tested adult social care system, they would plan for the future in a better way than at present. Money is the currency in which they would be thinking, to all intents and purposes. That is why we came up with the idea of a cap.
My noble friend is right to ask how well prepared local government is to introduce this system. There are some genuine concerns about that, which we will debate later. However, he is a little pessimistic about our ability to develop, perhaps over a longer period than the Government might like, a taxi-meter system that works for the Dilnot proposals. They are essentially a taxi-meter system. You need to clock up the costs that are being spent over time until you reach the cap. There is a thing called IT; it is not always well used in the public sector but it is possible to take the pain out of all this. We as a commission did not envisage a new pencil-and-paper system that 152 local authorities would reinvent in individual and separate ways. It is a complex system but it is actually not that difficult to manage, once you get into the swing of it.
I say very gently to the Minister and to my noble friend that we sweated blood for about a year to try to get a very large number of people to agree on a way forward. This is not the time to go back to square one and think of another way of doing it.
Lord Lipsey
My Lords, I will speak to the amendments in this group standing in my name but, before I do so, I should like to offer the strongest possible support for the noble Lord, Lord Sharkey, and particularly for the words that he said at the beginning about the information task that we face here. This is not just a question of advising individuals when they go to their councils, although that is important and we have had a debate on that. It is a question of making the whole of our society aware of what is going on against a background of very great ignorance and misinformation. It is crucial that something is done on a real scale to turn that around and that the best communication skills are used in doing so. We have to move from the language that we use in this Chamber as aficionados or geeks studying the detail of the Bill to the general public out there, and that is a hell of a task.
As I said, I will speak to my Amendments 90D, 92ZZB, 92ZZC and 104ZC. Amendments 90D and 92ZZC relate to a topic that we touched on in the debate on the previous amendment—namely, the costs and administrative difficulties for local authorities of introducing the cap in the scheme. The Local Government Association has expanded on the numerics in the briefings for this debate, as has London Councils. I think that the local authorities have a slight tendency to underplay what is going on for fear that the Government will take the whole thing away from them, and they want to be shown as “can do” rather than “can’t do”. When you get into the detail, and look below the politicians in local government at the fine detail of those who have to implement it, you find that it is quite difficult.
The Government have in principle accepted the burdens doctrine, namely that if they make local government do something they will pay for it. They have provided around £335 million to pay for that. None of this extra money is coming now, by the way. The contributions will not start until 2016. Bad though the administrative mess may be, if local government does nothing to prepare for this scheme until 2016 it will certainly fail. Already it is doubtful whether the burdens scheme is really being met. Many of the costings put forward are fingers in the air stuff. The detail has yet to be grappled with. Details crucial to costing the implementation of the scheme, such as the eligibility requirements, are only emerging bit by bit. We do not even know what the government money is supposed to cover. Does it fund in full the cost of additional self-assessments, when the self-funders and people who will potentially benefit from Dilnot queue up for assessments? I really do not think that we know the detail of duties around advice and information, on which we spoke earlier, or on the funding for setting up new deferred payment schemes.
My change is designed to write into the Bill what is in effect the burdens doctrine. Whatever the cost, the Government must pick it up. It is not as if local authorities have got large chunks of money in their pocket at the moment to reach in and pay for all this stuff. They do not. They cannot afford basic care services at the moment, so this is a huge task. There is a huge task, too, in training the local authority workforce to do assessment and implementation on this scale, and indeed in creating the workforce.
These facts lead me to believe—and I am very glad that my noble friend Lord Warner, with whom I agree on nearly everything, agrees—that it was a terrible mistake to bring forward the start of the scheme from 2017 to 2016. We know why it happened, do we not? The Government found that they had a few spare quid in their pocket, and wanted to be able to tell the electorate that Dilnot was nigh, and so without proper consideration of any kind they brought the date forward. It was a U-turn, and my amendment U-turns on the U-turn to get back to the right place where they were to begin with, namely that the scheme will come in in 2017. This would give it a good chance to work.
I turn now to my other amendments in this group. I hope that we might finally get an actual concession from the Minister, instead of words of great sincerity and great sympathy and not much change. My other amendments in this group refer to the setting up of a ministerial advisory group on the cap and the means test. They insist that this group should be consulted in the planned five-year review of how all of this is working. This is not a criticism of the Department of Health. I have been impressed by how effective officials have been in grasping this scheme, particularly as for most of the time that Dilnot was under consideration they probably thought that it was never going to happen. They are a first-class team, but I do not think that they possess a monopoly on wisdom, and indeed they do not think so, either. The Minister just referred to the working parties with the financial services sectors that have been set up to give advice. I applaud that.
I think that there are complexities in all of this that even the most literate advisers have barely grasped. I will come to some of them, for example when we come to the detail of the proposals on the means test. It would be helpful if Ministers had to hand a helpful advisory group comprising academic experts, local authority representatives, representatives of the financial sector and someone from Dilnot. Maybe the noble Lord, Lord Warner, would like to volunteer. A group of that kind would not second-guess Ministers on every detail, but would offer its general advice on how things are progressing and how they may be set right if there are departures from the course on the way forward.
Lord Warner
My Lords, I support the comments made by my noble friend Lord Lipsey. There is a case for setting up some sensible monitoring arrangements. This is not just to check up on the Government, but to make sure that this system is working in the way that everybody wants it to. It is a big change, and we are starting from a position which means we have to grasp the nettle, as the noble Lord, Lord Sharkey, said. I strongly support his amendments.
I want to refresh the House’s memory of what we said in the Dilnot commission report. I will briefly detain noble Lords with a quote:
“There is very poor understanding of how the adult social care system currently works and how much it can potentially cost. Many people live under the false impression that social care will be free if they need it. If people are confused over how the system works and the costs that they potentially face, they will not prepare appropriately for the future”.
That setting was why two of our 10 recommendations were that the Government should develop a major new information and advice strategy to help when care needs arise. To encourage people to plan ahead for their later life, we recommended that the Government should invest in an awareness campaign. We deliberately put those responsibilities on the Government. We did not put them on local authorities. We did this because we thought that unless the Government of the day—and this would apply to a Labour Government as much as a coalition Government—took a grip on this awareness campaign and planned the information and advice strategy, we would end up with a badly informed public and a mishmash of different local authority systems up and down the country.
We are not going to make this system work well or deliver the changes in the Bill and in the Dilnot commission report, unless there is investment. In our report we put the price tag of this as being a massive public awareness campaign. The public do not start from a position of being well informed about how they prepare for the future care and support needs that they will have in later life. The only way to start to change that is for the Government to grasp the nettle. I strongly support the proposals of the noble Lord, Lord Sharkey, to put this in the Bill. We should put a clear responsibility on the Secretary of State to run with the ball on this issue and, in effect, to monitor progress, not on a five-year basis but on a regular, annual basis. If we do not do something like this, we will live to regret it. We will see failure of implementation and failure to take the public with us on this major set of changes.
Lord Campbell-Savours
My Lords, my noble friend refers to the exhortations in the report to require the Government to carry out an awareness exercise. However, the reality is that there has been a huge spin on the whole Dilnot proposal. Many people, even those in care, believe that as of the starting date, 2016, everyone who has already spent something like £70,000 will suddenly receive free care. Of course, that is not true. It only affects people who enter the care system after a particular date. That is all part of the spin which has now led to a gross misrepresentation of what Dilnot proposes. Dilnot, while I oppose it, is offering a lot less than the spin suggests.
I want to talk about the reference in the amendment to the,
“implications of the cap on the cost of care”.
The implications of the cap on the cost of care are that there will be far greater transparency in the system, which was what the Minister told us in the debate that took place last week, when we debated the question of transparency. I argue that that transparency will lead to a lot of conflict between self-funders and people who are in receipt of support from their local authorities.
There is a group of people who will be over the means-test threshold but will pay the full cost under the cap. They will suddenly be confronted with information in this new regime of transparency which will give them far more information about what other people are paying in the home, what the local authority is prepared to pay and what the local authority believes to be a reasonable fee for care. That could lead to conflict within individual care homes and I wonder to what extent Ministers have taken it into account.
An amendment such as this is absolutely necessary because, before people are confronted with this decision when it comes later in this decade, it will at least give them some indication of where the truth lies and will perhaps bring an end to the misrepresentation that is taking place.
Care Bill [HL]
Lord Warner Excerpts(10 years, 10 months ago)
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Lord Warner
My Lords, I support the creative thinking of my noble friend. The truth of the matter is that we certainly did not have enough time to go into the kind of detail that he has done, which he has explained very clearly. I have to confess that we were not aware of the nursing allowance. Perhaps we should have been. If we had been, I think that we would have justified the scrapping of it by saying that that would be used to help to finance our mainstream proposals.
Also, we said in our report that we thought that the Government should look again at the personal expenses allowance. We thought that it was extremely mean. In a way, it has not kept pace with inflation over the years and it now seems a rather derisory amount. Therefore, anything that could be done to improve that without increasing the cost of public expenditure would seem to us a good idea.
I commend my noble friend for his creativity. I hope that the Government will take his amendment away and look at it seriously to see whether something can be done with it, because I think that it is an improvement on our recommendations.
Lord Hunt of Kings Heath
My Lords, I, too, have a great deal of sympathy for the core of my noble friend’s proposal to change the means test to increase personal allowances to support people so that they have enough money for what he described as “small treats”. Like my noble friend Lord Warner, I should be interested in the noble Earl’s response to that point.
I also sympathise with my noble friend’s second proposal to help those with modest assets by making the means test less severe. It is clear to most of us that the benefits of Dilnot will go to the better off. I think that one must be sympathetic to my noble friend’s aim of trying to spread the benefits more widely. Of course, that comes with a cost, and my noble friend’s answer to that is the proposal to abolish the nursing care allowance or to phase it out. Perhaps the term is grandparenting; I am not sure of the phrase but the Lords reform proposals come to mind—the transition.
Whether that is the right approach must of course be subject to some debate, and I would certainly need some convincing about the phasing out of the nursing care allowance. However, I think that my noble friend has done us a service and I hope that we will have further discussions on it between now and Report.
Lord Lipsey
This is another piece of arcanery, I am afraid, for the House. It is a genuinely probing amendment.
Not everyone may know what top-ups are, any more than everyone knows what nursing care allowances are. They arise for people who are not paying in full for their own care but want a better standard of care than the local authority is prepared to pay for. There are a quite a lot of these people. There are about 350,000 people in care homes and about 50,000-plus of them get care allowance. If a local authority claims a person’s needs can be met in a home costing £400 a week and the old person or their family prefers one costing £500 a week, they get the means-tested support as if they were in a £400-a-week home and the family finds £100 from their own pockets.
However, there is a strange twist. As long as a third party—usually the old person’s family—is prepared to dip into their pockets for the extra £100, there is no legal problem. They can do so under LAC circular (2004) 20, which derives from the National Assistance Act 1948. But if the old person wants better care, they can top up out of their own pocket only in very limited circumstances. They can do so only if they are subject to the 12-week disregard—which is the period you can be in a care home to see whether you get better and come out—or if they have a deferred payment agreement with the council, when the council may make top-up payments on their behalf. In theory, people cannot top up their own home fees but these can be topped up by other people.
As a historian of the Treasury, I can sort of see how this might come about. The Treasury would not want those whose means-tested contribution is offset by the tariff, as has been discussed, running down their assets to pay for better care, thus throwing more of the burden on the state. However, those in the know say that the restriction is widely ignored, often with the connivance of councils that do not want to get into an argument about whether the accommodation they will provide within their own limits is adequate for the old person. As a result, they allow the old person to chip in for their own care—perhaps he or she puts the money into a son’s bank account, the bank account pays the home and we do not know what goes on.
In parentheses, it is perfectly clear that local authorities know very little about what is going on with top-ups. I refer to the report due to be published by the charity Independent Age tomorrow, which analysed this after doing a freedom of information request on all councils. Out of the councils they asked, only 30 or so can be reckoned to have best practice or a good system for keeping account of top-ups. The rest are either bad or worse.
These mysterious top-ups go on, otherwise the old people would have to move out of the home they are in and into a local authority home. As noble Lords know, if you move old people from the home they are in to another home, what frequently happens, I am afraid, is that they die. This strange top-up mess is more difficult in the post-Dilnot world. Because of the extension of the asset limit for means tests, many more people will be receiving means-tested support, and anyone who is receiving means-tested support cannot do a top-up; that is the law. Many more people will therefore find themselves limited in what they can do if they stick by the law—which, as I say, they often do not.
Secondly, because the deferred payments scheme will be made available to everybody, more people will escape through the loophole in the current regulations that allows those on deferred payments to top up—you can do it if you have a deferred loan from the local authority but you cannot if you do not. The injustice between those who can and do defer and those who do not is made worse—the former can top up but the latter cannot. That will be a growing problem and a huge incentive for people to take out deferred payments, because they can legally top themselves up that way.
Thirdly, and potentially more importantly, let us suppose a person is self-funding and in a home where the fee exceeds what the local authority will pay. They reach the cap, having spent their £72,000. What will happen then? The state will meet that part of the cost of the home that they are in which is equivalent to what they would pay if they were in the home selected and provided by the local authority—their limit. If the home costs more than that—£600 a week not £400—where will the rest of the fees come from? Perhaps their family does not have any money for a top-up or is unwilling to provide it. Who is going to top it up? I am afraid that the crude reality is that some people will persuade the council to pay the higher fee while others will be moved—and, as I have already said, people who are moved will as a result, on average, die considerably younger. That is not a side-effect that Dilnot planned for but it is a side-effect of the way it is going to work out. Nothing much has been said by the Government about what happens if you reach the £72,000 cap and are in a home costing more than the local authority is prepared to pay. Until we get reassurances on that, the reality must be that they will be moved out to another, poorer, home and that this is going to be a tragedy.
The irony is that these are not poor people falling back on the state. They may well have assets and might be very willing to put in a bit extra to ensure that their last years are comfortable, but they are prevented by law—if they obey it—from doing so. Either they decide to opt out of Dilnot and fund their care in full, in which case they will not benefit from the cap and Dilnot, for them, amounts to nothing, or they go through the business of moving to the inferior home and we will have inflicted that disaster on them.
This area has not been much explored but there is a simple way of dealing with it, which is incorporated in this amendment. It is simply to end the ban on residents topping up their own fees. I do not think the cost would be very much but if the Minister has some other way of dealing with it, he should tell the Committee now before we endorse a policy which could lead to the mass eviction of old people from the residential homes in which they have long lived, in sharp contravention of all we are aiming to do in this Bill. I beg to move.
Lord Warner
My Lords, I intervene on this to talk very briefly about what the Dilnot commission said on this issue. I will quote just two sentences from page 22 of our final report, which are worth putting on the record. We said very clearly:
“The state-funded care element will be based on a local authority care package, but people will be free to top up from their own resources, should they wish. If someone moved to a different local authority, they would take with them a record of their contributions to date”.
That is a very clear statement of what our policy was. When we were taking evidence, there was not a lot given to us about the extent of top-ups.
If I fast forward to my time on the Joint Select Committee with other Members of this House, the issue of top-ups seemed to have changed quite significantly between the time when the commission reported, having considered all this, and the time that the Joint Select Committee was working on it. There were not good data, other than that many of us have been increasingly learning that the top-up levels have been quite considerable in some homes. There is clearly a problem with the cross-subsidising of people who are state funded from self-funders. The issue is now complex and I do not know how good the Government’s data are on the use of top-ups. We were clear that you could count towards the cap only what the state-funded element of that payment was, which would be determined by what the local authority would pay in its area for the care being provided. If we depart from that principle, we will end up in chaos—and probably end up with a much higher public expenditure bill.
There is an issue here that the Government need to think about, but in principle we should do nothing to stop people topping up if they and their family are prepared to provide for a higher level of care. The present rules were drawn up for a different time and on top-ups, the world has moved on. We need to get this straight before we finish this Bill.
Lord Hunt of Kings Heath
My Lords, I, too, would welcome a debate about top-ups and the Government’s present position and response to the Dilnot proposals, as enunciated by my noble friend Lord Warner. It would also be helpful if the noble Earl could give us a little thinking about how the Government expect this to work out in practice.
We start with the fact that a local authority has to have an assessment to add to the baseline to set the clock running, so as to get to the £72,000 cap. We have already discussed transparency and the problems arising where self-funders find that they have in fact been subsidising those people funded by the local authority. I would be particularly interested to know from the noble Earl what calculations have been undertaken by his department about the impact on self-funders when responsibility is taken over by the local authority once the cap has been reached. Has any work been done on the extent to which those self-funders will be forced to move home because the local authority will not fund them at the rate that they have been self-funding, while the home itself is requiring those people to move?
My noble friend Lord Lipsey referred to the general experience—we have seen it in the health service—that when very frail elderly people are forced to move from one care setting to another their life outcomes are very poor indeed. Clearly, it would be wholly unsatisfactory if, as a result of bringing in the £72,000 cap, we had the perverse incentive of forcing a lot of movements by frail, vulnerable people that would have a deleterious effect on their health and life outcomes.
That brings us to whether removing the top-up restriction would be an appropriate response. My noble friends have put forward a persuasive case. It is important that the Government should enable the House to come to a view on these matters, having made an assessment of how the introduction of state support for self-funders who have reached the cap is going to work in practice.
Health: Children's Heart Services
Lord Warner Excerpts(10 years, 11 months ago)
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Lord Warner
My Lords, I take us back to Sir Ian Kennedy’s review 12 years ago in which he made it crystal clear that unless we significantly reduced the number of these centres, children would continue to die unnecessarily. That was the brutal conclusion of the Bristol inquiry. Has anything come out of the IRP review that fundamentally changes the July 2012 decision of the Joint Committee of Primary Care Trusts that seven centres, with clinical networks built around them, was the right number? As I understand it, the argument is not necessarily that seven was the wrong number of centres, but that the wrong seven were chosen. Are we not now opening up the whole issue of the relationship with adult services, which will take us back to a situation where we start to review from the beginning the appropriateness of the particular centres? Do we not need to get back to where the JCPCT was when there was a good deal of consensus around the idea that seven was the right kind of number? The issue is really about east coast versus west coast, and the danger of this report, thorough though it may be, is that it will now reopen all the issues on which we had actually made a good deal of progress by 2012.
Earl Howe
That is indeed the core of the disappointment felt by the clinical community and noble Lords: that we are little further forward in terms of deciding exactly where these services should be delivered. The noble Lord is also right to say that support for a philosophy of improving children’s heart services by concentrating surgical expertise to provide round-the-clock cover and develop networks of care is as strong as ever. There is a rare consensus on the clinical case for improving services on the pathway of care for children. The IRP has said that its report is not a mandate for going back over the ground of the past five years; indeed, it commends a great deal of the work done by the JCPCT. The IRP says that that work should be built upon. The JCPCT should not necessarily feel bruised by this, although I am sure that it will feel thoroughly disappointed. However, its groundwork has been publicly appreciated, and it is now for NHS England to take that work forward as swiftly as it can.
Care Bill [HL]
Lord Warner Excerpts(10 years, 11 months ago)
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Lord Patel
My Lords, I rise to speak to this amendment in the name of the noble Lord, Lord Willis of Knaresborough, with some trepidation. It is not because I do not strongly support his amendment, but because I hope that I can do justice to it with the kind of passion that he would have demonstrated when presenting the argument if he had been here. However, I have no doubt that while resting in his bed, he has probably turned on BBC Parliament and is watching to see that I do the task adequately.
I think the reason why the noble Lord, Lord Willis, has demonstrated such passion is because he recognises that there is a need to reduce bureaucracy. Too many regulatory bodies mean more bureaucracy. To give an example, we have the second-highest number of competent authorities in the EU. Joint highest are Poland, Romania and Italy. However, on top of that, we have more regulatory authorities—over a dozen—than any other EU country. I see noble Lords look rather surprised, but I believe that to be true.
One issue is reducing unnecessary regulatory bodies. Another issue is reducing bureaucracy. The third issue is reducing duplication. The Human Fertilisation and Embryology Authority’s key role is to improve clinical services related to patients with fertility problems. The key reason that the authority was set up, following the birth of Louise Brown, was to reduce public anxiety about in vitro fertilisation. No such public anxiety now exists related to in vitro fertilisation.
Further functions were added to that authority in terms of embryo research. There may still be a need for that, but a reducing one. To give an example, we have enough clinical grade embryonic stem cell lines to last us a century and supply the world. I think the derivation of more embryonic stem cell lines is probably unlikely, unless there is some kind of major breakthrough. Research on embryos and embryonic stem cell lines is also now slightly superseded by induced pluripotent cells, dendritic cells and adult cells. However, I agree that there might still be a need for some embryo research and that function needs to remain.
The duplication is likely because the CQC will have a licensing role for those trusts that provide clinical services in infertility. Of course, I accept that the majority of infertility services relating to in vitro fertilisation—and I have no doubt that the noble Lord, Lord Winston, who is listening to me carefully, will correct me wherever I go wrong—are in the independent sector. Unless that service is provided for an NHS patient, the CQC does not have a role, and there must be a way of overcoming that. If we do not overcome that, the services provided within the NHS will run the risk of duplication of effort by the Human Fertilisation and Embryology Authority and the CQC.
There is also a fourth argument, and that is the reduction of cost. The noble Lord, Lord Willis, wrote a letter to the Times asking why all these regulatory authorities have a whole army of communication officers. What do they communicate? Why do they need so many? The noble Lord referred to the cost, and there are also other back office costs that are increased unless we reduce the number of regulatory authorities. His proposal is that there should be a reduction and that a body called the Human Tissue and Embryo Authority should be established rather than the HTA and the HFEA. The noble Lord lists where the changes would be required in their functions and in subsection (15) sets out the role of the Care Quality Commission to streamline all these efforts and reduce costs.
It is interesting that initially, in an attempt to reduce the number of quangos, the Government in the Health and Social Care Act decided that the HFEA and the HTA, with other quangos, would be abolished. Now, with the high profile of patient safety, we wonder whether some of the others should have been abolished. If I remember correctly, we debated the HFEA and the HTA during the passage of the Health and Social Care Bill and, in fact, we had a Division on it.
However, the Government decided to go to consultation, and I understand that Justin McCracken has been commissioned to review the operating functions of the HFEA and the HTA to see how they might deliver greater efficiencies. I think that this amendment, in the name of the noble Lord, Lord Willis of Knaresborough, would deliver those efficiencies, and I should be interested to know whether the Minister agrees that this would be a better way forward in dealing with the Human Tissue Authority and the Human Fertilisation and Embryology Authority. I beg to move.
Lord Warner
My Lords, I rise because I gave an assurance to the noble Lord, Lord Willis, that I would speak on this amendment as I have form, as they say, in this area.
Ten or so years ago, when one person accused me of being rather like Vlad the Impaler and we were slaughtering, as well as merging, a number of quangos, two of the candidates for merger were the Human Tissue Authority and the HFEA. Much of the argument for doing that was very similar to the argument that the noble Lord, Lord Patel, has advanced, although I did not know as much then as I know now about the number of bodies that we had compared with other countries regulating in this area. However, I assure the Committee that we had a lot more in 2003-04. Therefore, there is a case for this merger, and it has been made.
By backing away from this merger in the face of the arguments that were put forward, I ceased to be Vlad the Impaler and became Warner the Wimp. To their credit, this Government decided to have another go, but they seemed to get themselves in roughly the same position as Warner the Wimp and withdrew. Really, they withdrew because at the end of the day the savings were—certainly so far as I was concerned—not significant compared with some of the other savings that could be made. However, we have grown to appreciate more the importance of health research and the role of the life sciences in our economy, and I think that there is still a case for going the extra mile, when you can, to streamline the regulatory system in this area.
I hope that the Government will look sympathetically on this amendment, even if they do not want to accept it in its present form. I hope that some of us speaking out on this in the review will give the Government some courage to be a bit braver than they were, and than I was, in the past. Therefore, I support the spirit and the ideas behind this amendment.
Lord Winston
My Lords, I fear that I have to support the noble Lord, Lord Patel, on this amendment, even though I do not think it goes far enough. In my view, the case for having a Human Fertilisation and Embryology Authority at all is now quite dubious. It is 20 years or more since this treatment was established. There is no longer public anxiety about it, as there was in 1990, when the Act was introduced. It is now a regular treatment. As long as this treatment is licensed in this way, it will look like a maverick treatment to people—something extra, outside the health service.
One issue is that, sadly, these treatments are affordable only in private practice. Of course, the health service has done a good deal towards trying to supply them, but as the noble Earl knows, there are many examples where people pay very large sums in the private sector for these treatments and they are not and cannot be regulated. If one was really going to be serious about regulating in vitro fertilisation, the first thing that would be needed to prevent couples being exploited would be to find a way to reduce the massive burden of cost, which is out of proportion to the actual expense of the treatment. That is really something that needs to be looked at.
Sadly, the HFEA has not performed particularly well in the areas of research. I would like to recount briefly as an example the last licensed inspection of my own laboratory where we conduct experiments on embryos where there is no possibility of those embryos being transferred to a human patient. They are of course effectively dying in culture. It is extraordinary how stringent the last inspection was with regard to the quality of our laboratory. Why our laboratory should be seen to be more up to a particular standard than others doing cell culture work was beyond my comprehension given the fact that these cells, under no circumstances, could be used for human treatment: they were simply to investigate a phenomenon.
I could not help wondering whether in fact that particular inspection committee was being vituperative, because it had heard me speak against the HFEA at a previous debate in the House of Lords. I have no idea about that. But certainly, given that the previous year we had had a gold standard approval for our methods, I have to say that the inspection process is a patchy one. The problem really is that, currently, the HFEA licenses treatments that are practically research procedures that have not been validated and which are being charged to patients.
There are many examples of anomalies that are worrying. The noble Earl may have seen this week a full-page advertisement for egg sharing at a London private clinic. Incidentally, that clinic has been run by a member of the HFEA. One cannot help but feel that this is a shocking conflict of interest given that egg sharing is somewhat difficult to justify in certain circumstances as poor women may be persuaded to give their eggs under situations that are perhaps not ideal for them. They may in fact end up with someone else getting treatment at their mental expense—not their physical expense because they get a free treatment—and then 20 years later finding a child they do not even know about trying to trace them because of the information shown on our birth certificates. That anomaly has never been worked out.
I am really very surprised, too, that no serious attempt has been made to bar clinics that seek to send patients overseas for treatments that are not allowed in this country. There are many examples where patients are sent for various treatments where they might receive more than two embryos at a treatment, which would be against the regulations in this country, but they can come back and give birth to their triplets on the National Health Service. Clearly, that is an anomaly.
While I have absolutely no axe to grind about good private practice, there is no question that sometimes there are issues where clinics advertise wares that are unjustified. That happened two weeks ago when a clinic announced that it now had a treatment that could improve the success rate threefold. Of course, if I as a medical practitioner said that to the press, I could be held in front of the General Medical Council for advertising. But a clinic can get away with that kind of approach if it is not actually being mentioned by a medical practitioner.
The real reason for wanting to see at least some slimming down—we may need to come back to this at the Report stage to see exactly what clauses would be eliminated; it is difficult to see the whole of this rather large amendment now—is that at some stage in the near future we should revisit the Act of Parliament to see what would be best for purpose. In the mean time, however, there is a great deal of force in agreeing to slim down the number of regulatory authorities. As everyone across the House knows, regenerative medicine is one of the great opportunities for British medicine. At the moment, one may have to apply to up to 10 different regulatory authorities to get full licensing for the sorts of procedures one might want to follow for research, particularly where animal research may have to be done in parallel. That seems to be a very inhibitory process and there is evidence that it is preventing many bright people going into this research. They need to launch their PhD projects in other ways as quickly as possible.
While the amendment of the noble Lord, Lord Patel, is not perfect, slimming it down like this is a good start and an opportunity. I am also delighted to hear that the noble Lord, Lord Willis, who would have moved this amendment with the noble Lord, Lord Patel, is on the mend. That is good news about an outstanding parliamentarian. If the amendment were to be pressed, I would wish to vote for it.
Lord Walton of Detchant
I intended to say, but did not, that the two different bodies’ areas of authority collide when you deal with stem cells, because they are derived from embryo research but then become cells that are used for tissue research and transplantation and so on. That is where they collide. That does not necessarily mean that it is crucial to merge the two authorities.
Lord Warner
My Lords, at the risk of lowering the tone even further, perhaps I may just take us back and slightly challenge the noble Lord, Lord Walton, which I do not normally do. I also took the Human Tissue Act through this House. I am well seized of the circumstances that we faced then. At the time, I was bombarded by the research community with their concerns about setting up that body and whether it would be another obstacle to research. They recognised that this country had to do something in legislation in terms of the EU directive on human tissue. We were caught between a rock and a hard place. We had to do something about the EU directive; we had all the concerns about what had happened in Liverpool; but we were also conscious that we needed to ensure that we did not put another set of barriers in the way of medical research.
When we were considering the merger of the Human Tissue Authority and the HFEA we were very strongly of the view—which is very similar to what the noble Lord, Lord Patel, has said—that there was not a great deal of difference between the nature, if I may put it that way, of the matter being used for research under the aegis of those two regulatory bodies. In some cases, human tissues were themselves living cells being used for research, and we did not regard that as fundamentally a different type of matter from the one that is regulated for research purposes by the HFEA. I cannot even brag of an O-level in science—“Shame on you, Warner”, says Michael Gove. But in my lay view we had a situation where the advice we got from the scientists was that having two bodies was likely to be a greater impediment. There was a case on savings grounds—back-office services etc; the kind of issues that the noble Lord, Lord Willis, mentioned in his letter to the Times—but there was also a science argument for putting the two bodies together.
Lord Warner
My Lords, I will speak to Amendments 65, 66 and 67 and to Clause 77 standing part. I share very much the concerns expressed by my noble friend Lord Hunt and I am not going to repeat what he said about the slightly strange situation that we are now in with the CQC having enforcement responsibilities in relation to some bodies that it registers but not in relation to others.
I want to concentrate on the missing part of this group of clauses, which is the Trust Development Authority, and go into a bit more detail on this area than my noble friend Lord Hunt had time to do. The purpose of these amendments is to try to pursue the question of whether there is parity of action required by the Trust Development Authority and Monitor, when the CQC issues a warning notice, irrespective of whether that notice applies to an NHS trust or an NHS foundation trust. There is something very curious about writing this quite complicated legislation, which, if I may say as a connoisseur of health and social security legislation, has the air of a rather rushed job. The builder was going to go off site quite quickly if we did not get the trimmings of the house finished—it has that feel to it.
The Bill is very focused on the enforcement action by Monitor, but is pretty much silent on what the TDA does. Like my noble friend Lord Hunt, this strikes me as extremely odd, because, as a general rule, the weaker trusts—I exempt my noble friend Lady Wall and her skilful chairmanship of her trust—are tucked away in the Trust Development Authority. You have to remember that they have all had the best part of 10 years to convince people that they could be given the autonomy of NHS foundation trust status.
I seem to recall that since its inception the TDA has not made a great deal of progress in getting over the hurdle trusts for which it has responsibility. My recollection, and the noble Earl will be able to correct me if I am wrong, is that there is only one trust in the past 18 months, Kingston, which has made it to FT status. There is hardly a queue of candidates in Monitor’s FT pipeline. Indeed, there is a real danger—if I may say so, slightly pessimistically—that the Trust Development Authority will struggle to live up to the middle word in its title.
What seems likely to happen, as we move forward into the next few years, is that as the money gets tighter we start to see increasing failure among some of the TDA trusts and a greater flow under this new legislation of warning notices from CQC. I have therefore become rather intrigued as to what should happen when the warning notices thud on to the desks of NHS trust boards and they fail to respond adequately.
Under this Bill, it is relatively clear, even with the reservations my noble friend Lord Hunt made, what happens with FT boards and Monitor. Far less clear, indeed totally unclear on the basis of the legislation, is what happens with TDA trusts, which after all account for about £30 billion a year of public sector expenditure, so there are quite a lot of patients going through their beds and doors.
In my search for further enlightenment, I have taken the trouble to read the document that the Trust Development Authority published last December with the rather upbeat title, Delivering High Quality Care for People, the accountability framework. This is a model of Department of Health speak—I am something of an expert on this, as is the Minister. It makes clear that trust boards will have to comply with some of the licence conditions set by Monitor, but it is rather uncertain which ones it will have to satisfy. It has set a lot of operational performance standards which look uncannily like the evil Labour targets imposed from time to time. It promises more details on the Trust Development Authority’s oversight model. I have yet to see very much of that further detail, but nowhere in this document is it clear what happens to these trusts that fail to live up to the expectations of that accountability document published about six months ago.
Continuing my search for enlightenment, I have moved on to read the May Department of Health document entitled, The Regulation and Oversight of NHS Trusts and NHS Foundation Trusts. It claims to throw light on the Bill’s quality of services clause. The first nine pages are pretty clear. We start to get into a bit of difficulty when we get to page 10, which is headed “Intervention”. That is when I became really puzzled. It says—I am not quoting, but this is pretty much what it says—that the TDA can request recovery plans, increase engagement with the trust, commission an independent and rather exciting thing called a deep dive, review the skills and competencies of the board and executives, and commission an interim report.
The noble Lord, Lord Hunt, and I are veterans of debating the regulations setting up the Trust Development Authority. Many of us thought it would be doing that anyway. We did not think this was some kind of new regime. This looks like a bit of a rehash of what it should have been doing in order to get the trusts for which it was responsible to pass the foundation trust tests set by Monitor. When it was set up, it was supposed to have that responsibility for quite a short period of time. It hardly looks like some new, sexy enforcement set of procedures which we would expect it to take when the CQC warning notices come to its attention. It looks as if the enforcement procedure for the trusts in the TDA remit is that they have to be given further chances. It is not explicit but—dare I suggest, as my noble friend Lord Hunt I think implied? —we could be heading back down the road of money being taken away from the successful trusts to buttress people in organisations who are not cutting the mustard in terms of the quality of services or the financial management that is required not only to be an effective foundation trust but to be an effective trust.
It is not at all clear to me how the Government are going to tackle the fact that the weaker brethren are within the responsibility of the Trust Development Authority but there is nothing in the Bill which actually says what the TDA will do. I am sure that the noble Earl will tell me about other bits of legislation, but it seems to me that if we want to convince the public that there is a new show in town for real enforcement when things continue to fail in a trust, whether it is an FT or an NHS trust, it would be sensible to put these provisions in the same Bill, particularly when we all know that the weaker trusts are under the TDA.
Paragraph 27 of the May document I mentioned is pretty elusive. Commissioners can have a go at reconfiguring if there is failure but that may not work. Eventually, the trust is unsustainable and becomes the responsibility of the TDA. Guess what the TDA can do? The TDA has absolute discretion as to whether it advises the Secretary of State. It can advise the Secretary of State to appoint a trust special administrator but is not required to. Under the current guidance, which only came out a month ago, the most the TDA is required to do is to consider doing that. If it chooses not to, it need not. We therefore have a situation in which the TDA seems to be operating under a different regime from Monitor. This is a really serious situation to be considered, and I suggest to the Minister that it will become a public confidence issue. I am not making a party political speech—this is all about getting legislation which is fit for purpose to restore public confidence after the Mid Staffordshire debacle.
Why does this Bill not provide for a much sharper set of actions from the TDA when the CQC issues a warning notice to a trust? The notice is a clear signal that the TDA’s efforts to rehabilitate the trust are simply not working. I suggest this with a bit of nervousness, but should the Government not consider withdrawing these clauses and provide a clear set of rules and requirements that protect patients effectively, whether or not they are in NHS trusts or FTs? I do not think that the Bill, as drafted, does the job of protecting patients. I do think that the TDA needs to be brought into this part of the Bill on a basis of parity and equivalence with the requirements that will be made of foundation trusts through the enforcement panels of Monitor.
Baroness Wall of New Barnet
My Lords, unlike my noble friend Lord Warner, I am not a connoisseur, other than about what happens in my trust. Maybe I can share our experiences in response to the questions on which my noble friend Lord Warner has been seeking clarification. I think it will answer some of them, although not all.
As many noble Lords will know, 18 months ago Barnet and Chase Farm Hospitals NHS Trust took the decision that it could not comply with Monitor’s requirements, primarily the financial aspects, and brought in Deloitte to do a complete survey of all our services. We met the benchmark for clinical services but, because of the historic debt, we did not meet the financial benchmarks. We went up to two for Monitor’s rating on finances, but it goes up to four, and so we were two—two and a bit—for one period. Although we sought support through the SHA at the time, from a body that offers trusts opportunities to apply for funding, we were unsuccessful. This is where I may not be able to assist my noble friend Lord Warner, because we decided ourselves, as a trust, that we would not be fit for purpose in that sense. There is a process, and people who have been involved in it much more than I have will know what that process is. We notified Monitor that we would not be able to do that.
Lord Warner
My Lords, I clarify that I did not seek to attack the TDA. What my noble friend has said has made me more worried. What happens if these trusts do not make it to FT and people get fed up with the TDA and decide to try something different? We would still have these trusts, which would be providing services, still on the receiving end of CQCs, so why does the Bill not provide for some of these eventualities—which again, could happen in the real world?
Lord Campbell-Savours
My Lords, I will intervene only briefly, unlike yesterday when I went on at length on a couple of the amendments. My noble friend Lord Warner referred to the absence of a new force in town. I suspect that in some ways he is referring in part to the confusion referred to by my noble friend Lord Hunt. I will deal with paragraphs 60 and 61 of the Francis report, where two recommendations are made. Will the Minister, in his response to this debate, just tell us why the Government are refusing to implement those recommendations? I will not read those paragraphs in their entirety, but just the key points. The report states:
“The Secretary of State should consider transferring the functions of regulating governance of healthcare providers and the fitness of persons to be directors, governors or equivalent persons from Monitor to the Care Quality Commission. A merger of system regulatory functions between Monitor and the Care Quality Commission should be undertaken incrementally and after thorough planning”.
I would have thought that the Bill was the opportunity to do that. If that is the case, will the Minister tell us precisely what the objection is, and why we are not taking up that particular recommendation from the Francis report?
Lord Warner
My Lords, I am sorry to interrupt, but I have here a document that the noble Earl’s department sent out in May, signed up to by the TDA, Monitor and the CQC. I want to direct his attention to paragraph 27 of that document, which I mentioned in my remarks. As I understand it, this sets out the Government’s policy on the relative difference between TDA and Monitor. It makes it very clear. I shall quote from it, because this is absolutely the nub of the issue:
“Monitor can also place a foundation trust into special administration directly, following consultation with the Secretary of State and the CQC, on the grounds that it has, or is likely to become, financially unsustainable. The changes proposed in the Care Bill will enable it also to do this where it is apparent that a provider is clinically unsustainable”.
The initiative lies with Monitor. It can do this in relation to the trust of my noble friend Lord Hunt or to any other foundation trust when it has had a warning notice from the CQC and thinks change has not taken place. Hold that thought in the head and look at what the document says about NHS trusts that are in the maw of the TDA. It states:
“Managing the process of reconfiguring local services to provide sustainable, high quality healthcare that meets patient expectations and needs is primarily a role for local commissioners, supported by NHS England. In the event that an NHS trust or foundation trust has failed to make improvements and commissioner-led efforts to resolve the issue have not succeeded, special administration may, as a last resort, provide a mechanism for dealing with NHS trusts and foundation trusts which have become either clinically and/or financially unsustainable. Where the TDA considers it is in the interests of the health service, it can already advise the Secretary of State to place an NHS trust which it considers to be either clinically and/or financially unsustainable into special administration”.
Monitor can simply take that decision itself when it has the evidence. The TDA has to go through a series of hoops with commissioners before it can advise the Secretary of State. That is what this document seems to say. If it is wrong we need to be clear that it does not say what the Government mean it to say.
Earl Howe
I think the noble Lord has misled himself. The way in which we envisage the system working for both trusts and foundation trusts, where we have a provider that looks as though it might be clinically unsustainable, is to encourage commissioners and the provider concerned to come together and have a grown-up conversation about the configuration of services. That is the first resort and it is the normal course of action that we would expect, whether it is an NHS trust or an NHS foundation trust. In either case, trust special administration is going to be a last resort.
The noble Lord is right that, while we envisage the process of trust special administration to be broadly the same in both instances, there has to be a difference. The difference arises from the fact that foundation trusts are, in statute, much more autonomous bodies than NHS trusts. NHS trusts are still subject to directions from the Secretary of State. What the TDA does is act as the Secretary of State’s proxy in overseeing their quality, sustainability and governance. That is why there is a process around referral to the Secretary of State before a trust special administration can take place for an NHS trust, whereas that is not the case with a foundation trust. That is because Monitor is the independent regulator for FTs charged with doing that.
The noble Lord does not need to make too much of the differences that he has purported to identify in that document, which I will, of course, re-read in case we have inadvertently misled the Committee. The point I sought to make was that in no way do we envisage a material difference in the process which will ensue from a clinically unsustainable provider, or one whose quality is in question.
The noble Lord, Lord Warner, asked what will happen to NHS trusts that do not meet expectations of the accountability framework published last December. The accountability framework covers clinical and operational metrics, governance, leadership and finance. If the TDA judges that a trust is failing the accountability framework, it has a number of options. It can request recovery plans—Monitor is also in a position to do that with FTs; it will increase the frequency of its engagement with the trust; it can commission an independent investigation; it can review the skills and competence of board members. Again that is something that Monitor can do with FTs. It can commission interim support to provide additional management capacity—again that is something that in theory Monitor could do under its licensing arrangements. Ultimately, the TDA can exercise the Secretary of State’s functions and terminate appointments. Monitor has similar powers. I want to reassure the noble Lord, Lord Warner, that there is not such a gap as he has made out in this area.
Incidentally, the noble Lord called into question the speed of progress of the foundation trust pipeline. I can assure him that the pipeline is moving. It may look rather glacial from his perspective, and I can understand why. However, even though the TDA was established only on 1 April, two foundation trusts have been authorised since then—Kingston on 1 May and Western Sussex, which was announced today.
The noble Lord, Lord Warner, sounded a warning that this kind of arrangement posed a risk that money could end up being taken away from successful trusts to bolster poorer performers. It is precisely to avoid that that we need to grasp the nettle in some cases as we had to do in south London to ensure that one part of the NHS did not drain the resources that should be shared out more equitably among the rest of the health service. Certainly, this is not the intention of our policy. In fact, the purpose of special administration, if it is deemed necessary, is to ensure both clinical and financial sustainability. When it is clear that a hospital cannot resolve quality failures in its current form, we will no longer have to wait until a trust fails financially before action is taken. That is why I shall talk about special administration in more detail in a second.
In future, issuing a warning notice to a trust or foundation trust will be a sign that there is a serious quality issue at that trust and that significant improvements are required. I fully agree with the noble Lord, Lord Hunt, that it will be important to determine what significant improvements could encompass, as proposed by Amendment 64A. We have been clear that the new warning notices are designed to highlight serious failings, such as a systematic failure to meet fundamental standards. As noble Lords will remember, the fundamental standards are a concept that Robert Francis put forward, whereby treatment or practices in a trust could be said to be absolutely unacceptable by anyone’s measure. The fundamental standards themselves have not yet been defined; that process will be taken forward in the coming months with full consultation with the public, and we need to get that right. That is the issue underlying the provision around significant improvements. Under the 2008 Act, the CQC is already required to publish guidance to detail its approach to issuing warning notices. This will be revised in light of this Bill to include its interpretation of “significant improvement”. That is a flexible and proportionate approach.
When a trust receives a warning notice, just as happens now, it will be published and the CQC will send a copy either to the TDA or to Monitor, depending upon whether they relate to an NHS trust or foundation trust, as proposed by Amendment 65. Clause 74 amends Section 39 of the 2008 Act, which requires that a copy of the notice be sent to Monitor and any other persons whom the CQC considers appropriate. When the notice relates to an NHS trust, this would include the TDA.
I have listened carefully to the noble Lord’s arguments in favour of Amendment 66ZB regarding large providers spread over many sites. This is not a new issue; having a regulatory system that is flexible enough to cope with such organisations has always been critical. At present, the CQC has to ensure that they can take a differentiated approach and can deal appropriately with providers, ranging from large multisite hospital trusts to care homes. This will continue to be the case, so I feel that this amendment, while I sympathise with its intent, is unnecessary.
Clause 75 introduces changes to ensure that when failures are identified, there is a prompt and firm response. We have been clear that when a provider receives a warning notice, the responsibility to resolve problems will remain with the provider in conjunction with the local commissioners, as I referred to earlier. However, serious failures in the quality of care must not be allowed to be endure, so Clause 75 makes changes to ensure that, when quality of care at a foundation trust requires significant improvement, Monitor can take timely action to make changes to leadership or governance to secure improvements in those services. It amends Monitor’s powers under Section 111 of the 2012 Act to enable it to impose additional licence conditions on foundation trusts when the Care Quality Commission has issued a warning notice to that trust. At present, Monitor can make use of these powers only if there is a failure in governance. If the foundation trust breaches those additional licence conditions, Monitor will be able to use its powers to suspend or remove directors or governors. The NHS Trust Development Authority already has powers to intervene in NHS trusts or to remove or suspend boards, as appropriate.
Care Bill [HL]
Lord Warner Excerpts(10 years, 11 months ago)
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Lord Warner
Lord Warner
My Lords, the purpose of this amendment is to require HEE to give attention to ensuring that, in educating and training staff for the NHS, it also ensures that, as far as possible, staff can work across the health/social care boundary in an integrated way. I welcome the fact that the Government have inserted into Clause 88(1) paragraph (h), which states that Health Education England must have regard to,
“the desirability of promoting the integration of health provision with health-related provision and care and support provision”.
That strengthens the Bill from its draft version, but the Bill should go further, hence my amendment.
I would like to ensure that when separate regulations are made under Clause 85 for particular groups of staff, Health Education England is also required to try to use particular regulations to promote integration in accordance with the Clause 88 provision. For example, if there are to be regulations on community nurses or healthcare assistants, the issue of training them or recognising qualifications or registration, Health Education England should act in a way that facilitates integration of services by enabling those staff to carry their training and qualifications across employment in as wide a range of settings as possible. In short, it is to help secure an integration through portability of training and qualifications provision.
We are very good at mouthing platitudes about integration and swearing undying fealty to that great god, but we are rather less good at removing the blockages to it. One of those blockages can be training and education that prevents staff from working in a range of settings, with qualifications that are not always recognised by a range of employers. We need to do our best when we have the opportunity to remove those blockages and secure more people who are equally at home working in a predominantly health or a predominantly social care setting and can easily move between those settings for the benefit of services users. These staff need to be alert also to the importance of integrating care for individual service users across organisational boundaries. I want to ensure that Health Education England is in no doubt that this approach is important for tomorrow’s workforce. That is what my amendment seeks to achieve.
I recognise that there may be better ways of reflecting my intentions in the Bill than the precise wording of my amendment. However, I think we should go further than the broad duty in Clause 88 and relate it specifically to regulation-making powers for particular groups of staff. I would certainly be happy to discuss other ways of achieving this in the best interest of patients. I beg to move.
Baroness Pitkeathley
My Lords, I speak in support of the amendment. It is absolutely vital from the point of view of the patient and the family that the workers with whom they come into contact have an understanding of the whole of their situation. The training and experience of such workers has to encompass that whole situation. For example, a person who is admitted to hospital quite suddenly with a stroke has contact with social care services, finance departments of local authorities, charities of all kinds, reablement services, private care providers, as well as all the health services concerned with the actual condition.
Most people in that situation have none of the hinterland that some of us in the House have. We start with knowledge that, for example, health and social care systems are differently funded and that there is no commonly understood framework for integration. Most people experiencing services do not have that pre-existing knowledge. If such a person is going to have the opportunity for choice, to which we are all committed, it is absolutely vital that the workers with whom they deal have the broadest range of knowledge and experience. People’s experience of health and social care does not come in discrete packages. It is vital that the experience of workers does not come in discrete packages either.
As this is the first day of Carers Week, I will add a further point about carers. The report published today by Carers UK, Prepared to Care?, shows that every day 6,000 people take on a caring responsibility, often without any preparation, information or advice. Therefore, I hope that the Minister will agree that the responsibilities of the workforce across all services should include training and awareness of the needs of carers. The promotion of integration contained in the amendment would also address that issue.
Lord Warner
I am grateful to the Minister for his remarks and I take them very seriously. I do not wish to be churlish, but I may be tempted along that path a little way.
Clause 85, as I understand it, is a regulation-making power. It seems to envisage that the Government of the day will from time to time make regulations that relate to very specific groups of staff. I have read the provision carefully, and it could presumably make regulations that exclude particular groups of staff. Somewhere along the way, there is a very real possibility that we will get regulations that cover particular groups of staff in a very specific manner. I am particularly interested in those groups of staff who work at the sub-professional level—the healthcare support staff. As my noble friend Lord Campbell-Savours said, these are very much the people who work across both these settings. At the moment, I cannot see why it will do harm—indeed, it is likely do some good—if we require this regulation-making power to take account of the kinds of issues which foster integration that I and other noble Lords have spoken of. The Minister mentioned the mandate. I know that mandates are extraordinarily fashionable at the moment, but mandates come and mandates go. Regulations tend to have a bit more sticking power than mandates, which might get out of date or move out of fashion.
I think that there is an issue here. I would probably be more reassured if the noble Lord could write to me, and send a copy to other Members who have spoken in this debate, on which groups the Government envisage covering in regulations under Clause 85(2).
Earl Howe
I would be happy to write to the noble Lord and other noble Lords on this topic. Perhaps I may add one final comment. If we were to go down the road proposed in this amendment, by providing a cross-reference to Clause 88(1)(h) in Clause 85, it could suggest that consideration of this factor alone takes priority over other factors. We want to avoid the risk of creating any perceived hierarchy in the matters to which Health Education England must have regard in the exercise of its function under Clause 85(1).
Lord Warner
I would like to reflect further on this. In the mean time, I beg leave to withdraw the amendment.
Lord Warner
My Lords, perhaps I may ask the noble Earl a question before he sits down because I am getting increasingly puzzled by this debate. I agree with him that a list does not of itself do very much to protect the public, particularly if it is a list of apples, oranges, bananas, pears, cherries or whatever—and this is a list of people with different qualifications or experiences. However, the whole point about HEE is that it is meant to be a game-changer and to standardise some of the training for particular groups. Is it the Government’s view that the term “healthcare assistant” will start to mean the same in Cornwall as in Cumbria, because HEE has defined the training for those covered by that terminology to be the same wherever the person is trained?
Earl Howe
That indeed is the ambition whereby there should be consistency of standards throughout the country and people should know precisely what those standards are. The problem with this sector of the workforce is that the standards have not properly been defined until now—hence the work that Skills for Health and Skills for Care are doing. However, we will see from that work and the work of Camilla Cavendish where the gaps are and where we need to focus our attention. The noble Lord is certainly right to say that once we have these standards in place, Health Education England will be responsible for ensuring that they are properly promulgated and rolled out.