Health and Care Bill

Baroness Garden of Frognal Excerpts

Lords Hansard - Part 1 & Report stage
Monday 7th March 2022 Lords Chamber

[Baroness Wheeler (Lab)]

My Lords, I will also speak to my Amendment 141, which would delete Clause 155. I am very grateful to the noble Baronesses, Lady Campbell and Lady Brinton, and to the noble Lords, Lord Warner and Lord Lansley, for their combined support of these amendments. Sadly, the noble Baroness, Lady Bull, and the noble Lord, Lord Lansley, cannot be here, but the noble Baroness, Lady Campbell, and the noble Lord, Lord Warner, will speak to my amendments. I understand that they will move Amendments 143 and 144A.

In the Care Act 2014, we have a carefully crafted, step-by-step, cross-party agreement implementing the key recommendations of the 2011 Dilnot commission on the cap-and-floor model of social care funding, which went through the full parliamentary processes in both Houses. It built a consensus for implementing and funding the introduction of the care cap in 2016, and enshrining the key Dilnot principles of fairness and equity across all those needing social care. However, as we know, this agreement was never implemented following two separate postponements and a final cancellation in 2019.

Instead, the short Clause 155 we have before us on the Government’s proposals is a last-minute, hastily scraped together, ill-thought-through mishmash of subsections added to an essentially NHS Bill after its Commons Committee had finished, which was then bombarded through that House without any time for close scrutiny and debate. Our own Committee session on this clause started late in the evening at 10.30 pm and lasted not much more than an hour, so we fared little better on such a major and fundamental issue that will impact hundreds and thousands of lives. Moreover, the Minister, despite his offer on the record in Committee to talk to noble Lords about their questions and concerns, has been given no authority to discuss or agree any possible changes to the clause, which is so clearly ill thought through—contrast this with the fruitful discussions that have been held on a number of other important issues in the Bill.

My Amendments 127 and 141 to delete Clause 155 would ask the Commons to think again about how it implements the care cap. It presents a key opportunity for fundamental reconsideration of the Government’s proposals. There has now been time for greater analysis and scrutiny of the proposals and their impact by key stakeholders and expert think tanks, such as the Nuffield Trust and the King’s Fund, both of which have called for the clause to be removed. Its deletion would restore the full provisions on the cap under the Care Act 2014. It would mean that there would be reconsideration of how the cap should be implemented, not whether it would be implemented. Amendment 144A would reinforce this.

Labour strongly supported the 2014 negotiated care cap, its charging package and the costs involved. This has always been in the context of the care cap as part of a much wider social care reform that is needed to address the current crisis and build long-term sustainability and growth, which the Government have yet to address. We know that the Government’s proposals for the cap were discounted by Dilnot in 2011 as unfair, because they will result in people with low levels of wealth spending the largest proportion of their income on their care. The cap at £86,000 is set too high to benefit the majority of people who need to be protected, and the bombshell of abandoning the key safeguarding Dilnot principle enabling local authority care costs to count and accrue towards the cap means that poorer people will be exposed to the same care costs as the very wealthiest in society.

Despite the pledge that nobody should have to sell their homes, the fact is that someone with assets of £100,000 will lose almost everything, whereas someone with assets worth £1 million and over will keep almost everything. This is clearly shown in the extensive modelling by stakeholders such as Age UK, Mencap, the Alzheimer’s Society and the think tanks. That was detailed during our Committee debate, particularly the impact across some of the most deprived areas in the country. The Government’s own figures show that more than one in five older people will not see the benefit of the cap at all, and poorer care users are much more likely to die before they reach the cap than someone who is better off with the same care needs. Only 19% of people with dementia will reach the cap.

Moreover, Amendment 143, which will now be spoken to by the noble Baroness, Lady Campbell, and the principle of which we strongly support, reinforces the key point that a fair cap and charging system has to provide essential support to older adults and working age disabled adults, many of whom have lifelong conditions, including those with learning difficulties and who have to draw on social care support for their daily needs and support. The Dilnot proposals recognise this by seeking to ensure that adults entering the care system under the age of 40 or who were under 40 when they first entered it would have their care capped at zero.

I commend Amendment 144A from the noble Lord, Lord Lansley, to which I added my name. This fully complements the deletion of Clause 155 in restoring the current charging provisions in the Care Act. It would add a new clause to require the Secretary of State to make regulations under the Care Act to ensure that all its provisions on the care cap—Sections 15 and 16—come into force before 1 April 2023. This would mean that there would be no delays to the implementation of the care cap based on the relevant sections of the Care Act. It also means that the uprating of the care cap value from the level fixed in 2014 could take place—the concern of Amendment 182.

What is crystal clear is that the Minister’s repeated claim—or rather, as he described it in Committee, his “hope”—that

“no one will lose out when compared to the current system”—[Official Report, 31/1/22; col. 751.]

or face “unpredictable care costs” just is not borne out by the evidence proving otherwise, which is stacking up every day. Increasing the complexity of local authority charging arrangements on personal budgets, as the government amendments to the Care Act seek to do, makes an already hugely complex and system-heavy admin and technical system even worse. How many care users will be able to understand what is happening? I was particularly interested in the comment by the noble Lord, Lord Lansley, in Committee that a number of the issues that the government amendments sought to rectify or amend were never introduced in 2014 anyway.

How much more straightforward to use the sections of the Act developed for implementation than to try to patch up the provisions and hang them on a different Bill. We support the ambitions of self-funders to pay the same rate for care as local authorities pay for the people they fund, but there is absolutely no evidence of any government intention to provide cash-starved councils with the huge costs involved in this, and bearing in mind the massive underfunding of social care over the past decade.

Clause 155 must be deleted so that the key Dilnot principles of fairness and equity across all those needing social care can be reinstated. Deletion of the clause would mean that implementation of the care cap could proceed but under the provisions of the fully scrutinised Act designed to implement it: the Care Act. Under Amendment 144A, all provisions relating to the cap would be implemented by 1 April 2023.

At the appropriate time, I shall withdraw Amendment 127 and then move Amendment 141 in its place and seek to test the opinion of the House. I understand that the government amendments to Clause 155, which come before Amendment 141, will be agreed on the nod and will then fall if Amendment 141 is carried. I beg to move.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.

[Baroness Brinton (LD) [V]]

My Lords, I thank the noble Baroness, Lady Wheeler, for introducing so comprehensively this group of amendments on care costs. Given the lateness of hour in Committee, the House needed to hear the detail of this.

Her Amendments 127 and 141, which I have signed and which we will support if she calls a Division, would remove the cap on care costs which was announced and introduced by the Government in the Commons. It was not widely consulted on, and is a deeply unfair element of the Government’s proposals for the new social care payments arrangements. Far from fixing the ongoing crisis in social care “once and for all”, which the Prime Minister said from the steps of No. 10 Downing Street in 2019 he would do, these divisive plans will not stop people needing to sell their homes to pay for care and are a breach of the Government’s promise in that election. It is very important that the Commons have the time to discuss the consequences of the detail of removing that cap now that the announcement has been better understood, especially by the professionals, including the think tanks, who are very concerned about it.

We also support the noble Baroness, Lady Campbell of Surbiton, who will speak to Amendment 143 in the name of the noble Baroness, Lady Bull, which would ensure a zero amount for personal care charges for those under 40. It is absolutely against the spirit of Dilnot and a deep injustice to those under 40 with personal care needs that they are treated the same as those whose working years are behind them. It is a huge injustice that we have an NHS that is free at the point of use and yet younger people with learning disabilities and life-limiting health conditions are charged for essential care. There are also a number of deep, practical contradictions in this arrangement that make it particularly shocking, including a survey that found that charges made by cash-strapped local authorities—made because they could charge them—had forced people to stop the care they needed or made them face difficult choices for financial reasons, with the results showing an increased reliance on family members and high levels of deteriorating mental health, including suicidal thoughts.

Amendment 144A from the noble Lord, Lord Lansley, and as outlined by the noble Baroness, Lady Wheeler, supports the principles behind both Amendments 127 and 141, which would remove Clause 155. It proposes that all provisions on the care cap are brought into force by 1 April 2023 by regulation under the Care Act, resulting in no delay to its implementation. We support that too.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, the noble Baroness, Lady Campbell of Surbiton, is also taking part remotely. I invite the noble Baroness to speak.

[Baroness Campbell of Surbiton (CB) [V]]

My Lords, I support Amendments 127 and 141 in the name of the noble Baroness, Lady Wheeler; Amendment 143 in the name of my noble friend Lady Bull; and Amendments 144A and 182. Sadly, my noble friend Lady Bull is unwell, so I will speak to Amendment 143 and do my best to encapsulate her reasons, as well as mine, for returning to it on Report. I shall not move it later when it is called.

Unfortunately, at this hour, my voice is fading because I have had to use it a great deal today, so I shall use my speech facilitator, as allowed by the House, more than I would usually.