Care Bill [HL]

Earl Howe Excerpts

Monday 22nd July 2013 Lords Chamber

[Lord Campbell-Savours]

My Lords, I intervene briefly to ask the Minister a rather pedantic question. Subsections in Clause 35 all use the word “may”. There is no actual requirement for the Government to introduce regulations and therefore for local authorities to be placed in a position whereby they can charge. Why has it been left open, rather than using the word “shall”? If we could take the wording as meaning “shall”, can we assume that each further instance of the word “may”—that is to say:

“The regulations may specify costs … The regulations may require or permit adequate security…The authority may not charge interest under regulations…The regulations may make other provisions”—

is part of a whole package? Or, if “may” does mean “may”, might only individual parts of this clause be introduced, as opposed to the whole clause? For example, subsection (2) states that:

“The regulations may specify costs which are, or which are not, to be regarded as administrative costs for the purposes of subsection (1)(b)”.

If that particular part of the clause were not implemented, it would leave local authorities open to decide for themselves what the administrative costs could be. Whatever internal reasons they may have—and my noble friend Lord Lipsey referred earlier to the reluctance of local authorities—should local authorities have that ability to be flexible? I am seeking to establish whether, if this is all going to happen and we should read “shall” for “may”, all the subsections of Clause 35 will be implemented and that isolated subsections will not be introduced in the regulations. That might create difficulties that we are not foreseeing during the passage of the Bill.

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

I am grateful to the noble Lord, Lord Lipsey, for his amendments. He has a unique perspective, having first put forward the idea of deferred payments—as he reminded us—when a member of the 1999 royal commission. The Government share his disappointment that deferred payments are patchy and inconsistent across the country. Many people going into care face difficult decisions as a result, and authorities lose money when they offer a deferred payment because they cannot charge interest.

We also share the noble Lord’s commitment to ensuring that deferred payments work better in the future. We agree with the Dilnot commission that deferred payments should become a full and universal offer across the country for people who have to sell their homes to pay for residential care. We intend the scheme to be cost neutral to local authorities, as the commission also recommended.

We are proud to introduce this universal scheme from April 2015. It will provide much needed peace of mind to the 40,000 people who sell their homes each year to pay for care. As well as offering time to make decisions and choices over what happens to their home —a point well made by the noble Lord, Lord Lipsey—it will open up new options, such as renting it out.

In his amendments, the noble Lord raises important questions about implementation. These concern the interest rate, the use of a deferred payment to purchase insurance, support for authorities to implement deferred payments and the timetable. Before turning directly to those amendments, it may be helpful if I briefly outline our plans.

Clauses 34 and 35 contain the necessary powers for us to introduce deferred payments. All authorities will offer deferred payments and it is our intention that people at risk of selling their home to pay for residential care will qualify. They will be able to defer reasonable residential care and accommodation fees, in the care home of their choice, for the whole of their lifetime. We are currently consulting on more detailed proposals on who will qualify and what fees they can defer, and are gathering more evidence on the costs and practical issues involved with offering deferred payments.

One practical issue that we are exploring in our consultation is the possibility of situations in which the authority cannot secure its debt through a legal charge on the property. This is why the Bill provides for other forms of security, including third-party guarantees. The noble Lord, Lord Lipsey, expressed doubts about this provision and wondered whether the proposals in the Bill may put people off taking out a deferred payment plan. Our guiding principle here is that we want as many people as possible to benefit from deferred payments, but it is equally important that local authorities are able to secure their debt.

Traditionally, deferred payments have been secured by registering with the Land Registry a legal charge on the person’s land, but this might not always be possible or offer sufficient security to allow the authority to recover its costs. Examples of this might include when a charge cannot be secured by registration with the Land Registry or where there is reasonable doubt about the person’s ability to afford the care home of their choice over the longer term, but we are consulting on whether there are situations in which offering a deferred payment is particularly challenging and, if so, on what a constructive way forward might be. That might include use of a different form of guarantee such as a solicitor’s agreement or the involvement of a third party. It is important that the Bill contains this flexibility so that when we design deferred payments to accommodate all situations that might arise, individuals’ preferences about the type of security that they wish to offer can be built in. I hope that this will persuade the noble Lord to withdraw his amendment, at least for the time being.

These issues will, in turn, inform how we set the interest rate, which has to strike an important balance. The rate must be enough to help authorities cover their lending costs but be affordable to people going into residential care who are at risk of selling their home. I understand the intention of Amendment 92ZZW to fix the interest rate at a predictable level but, as the noble Lord, Lord Lipsey, might have sensed—the noble Lord, Lord Warner, may have alerted him to this—I am concerned that setting the rate in the Bill before we have finalised other aspects of the scheme is premature. We will announce the proposed interest rate following the consultation and decisions on the wider design of the scheme. This will be set out in the regulations that we will consult upon in 2014. It will be a nationally set, maximum interest rate and local authorities will not therefore be able to charge excessive rates.

I have tabled government Amendment 92ZZAA, which would introduce a new clause allowing authorities to make alternative arrangements for people who would not wish to have a deferred payment because of their religious objection to paying interest. I am grateful to the Islamic Bank of Britain for its help on this amendment. We will work with the bank over the summer to produce detailed proposals, and ensure deferred payments are available to such people.

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[Lord Lipsey]

My Lords, I wonder if the noble Earl could clarify what he said about equity release as an alternative to deferred payments. There seem to me to be two absolutely insuperable objects to that working. One is that you could not have both a deferred mortgage and an equity release on the same property. You cannot have two things secured. More importantly, you cannot get equity release on a house that is empty. The rules of the Equity Release Council—I am on its advisory board—do not permit that. That is not a possible solution to the problem which I put forward.

[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.

[Baroness Barker]

Is the 20% to 30% an average across all authorities?

[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.

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[Lord Hunt of Kings Heath]

My Lords, the noble Earl has said, and I am sure it is welcome, that the Government intend to set a maximum interest rate to be charged by local authorities. Does he agree that, since it is a crucial part of a deferred payment scheme, setting a rate nationally is consistent with a much more uniform approach? That is why I would have thought my noble friend’s amendment would be a sensible way forward. It is not being mandatory and does not go as far as my noble friend Lord Warner, but simply asks for a model scheme to be introduced.

[Earl Howe]

We are absolutely on side with the suggestion that there needs to be a uniform approach to the essentials of this scheme. That includes a national maximum interest rate. I suggest to the noble Lord, Lord Warner, that we do not need a national body running an all-singing, all-dancing, nationally mandated deferred payment scheme. We want to build on the good work already going on out there. The noble Lord made a fair point that only a minority of local authorities currently operate deferred payment schemes. Of those that do, many provide us with a very good basis on which to build and share knowledge with other local authorities. That can start now before the regulations are drawn up. We can and will start work with local authorities to ensure that they are gearing themselves up in the right way to approach this task.

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[Earl Howe]

We fully expect a range of views about how to implement the proposals that we have set out in the consultation document. However, what we do not anticipate is wholesale objections to the very idea of the proposals, because by and large they are widely accepted as being the right ones. We need to ensure that they are capable of being implemented in a practical way.

[Lord Campbell-Savours]

I am sorry to press the Minister, but the point is that some local authorities—let us say Westminster, Maidenhead and Windsor or Wandsworth—may want to raise the charges for administrative costs while other authorities might be more sensible and reasonable about what those costs are. There has to be national uniformity in that area, and we should be given assurances today that there will not be flexibility, which would invite differential administrative costs between local authorities and trouble for many people.

[Earl Howe]

I can reassure the noble Lord that we are aiming to have uniformity. Merely because one local authority may present us with some rather maverick objections, I do not think that I could possibly envisage us capitulating to that kind of pressure. We want to see a system where people, wherever they live in the country, can rely on some clearly set-out rules and can thereby have peace of mind if they take out a deferred payment scheme. I hope and sincerely believe that the noble Lord’s fears will prove groundless, but I am happy to clarify as much of that as I can, given that we have only just gone out to consultation, in the letter.

[Lord Deben]

I wonder why the particular councils which were chosen by the noble Lord are all among the best councils in Britain, which would certainly behave in the most generous way.

[Earl Howe]

My noble friend is, of course, completely right. They are model councils of their kind. It is rather fanciful to present them as possible examples of councils that might wish to do badly by their residents.

This is a major reform that we have committed to introduce in this Parliament. While I am the first to agree that that in itself should not drive the timetable, we think that the timetable is achievable. We are consulting to get the details right and working with the care sector to ensure that implementation goes as planned. The noble Lord raised some important points. I am sure that he knows me well enough to accept that this is not the last occasion when I shall look at the points that he has raised. I shall do so further. For the time being, I hope that I have responded to his satisfaction, at least on some of the amendments, and that he will feel able to withdraw the amendment.

[Lord Lipsey]

My Lords, I genuinely thank the Minister for that response. I do not want to be the least bit churlish about these amendments which, after all, finally put into practice an idea that came to me in the bath 14 years ago. It does not happen very often, but this time we are on the verge.

I warmly welcome the Minister’s assurance that there will be a national interest rate for deferred loans. That completely deals with the point raised by my amendment on interest rates and my point about Wonga rates of interest and is a tremendous breakthrough for this scheme, so I thank the Minister most warmly for that.

Moving to slightly more churlish mode, on whether we have 152 schemes or one, on balance, I buy the Minister’s arguments against having a separate national organisation imposing this or a compulsory national scheme, but that is not the proposal made in my amendment. My proposal was that the Government produce a model scheme that those who wished to could adopt. It might have some bits that could be added on or taken away as local options within the national scheme, but it would at least stop work being done 152 times over. As my noble friend Lord Warner pointed out, some people are working with this stuff for the first time because they have never brought in a deferred payment scheme. I ask the Minister, among the other things that he has kindly offered to consider, to have another look at that specially to see whether we can find some mileage in it.

I got no change on the time of introduction of the scheme, not perhaps greatly to my surprise, but I still believe in my guts that, as this process moves forward, it will become more and more apparent that it is not sensible to aim for 2015. I do not ask the Minister to comment on that now, but I give him an assurance that I—and I hope my Front Bench will do the same—will not accuse him of a U-turn if later on he finds that it is not sensible. A syndrome in government that comes up time and time again is that a Government announce a timetable and, when it is quite clear it cannot be met, go on fighting like made to preserve their original timetable. I shall not say the words “unified benefit”, but I easily could. This does not make any sense. We are all after the same thing here, and if the Minister decides—and I am sure that he will make a very good judgment on this—that it cannot sensibly be met, let him say so openly and we shall be welcoming, not critical.

My final point emerges partly from what we were just talking about: things on which the Government will possibly think again. The noble Earl very generously said that there are lots of things on which he will want to engage in discussions; at one stage he said, “at least not for the time being”, and has made many remarks of that kind. I will make a purely practical point. It is 22 July and the House will return to the Bill relatively early in October, although I do not know when, and many noble Lords are planning to be away for parts of that period. All of us want to resolve as many of these issues as we possibly can without the need for confrontation or debate in this House or, heaven forefend, Divisions, if they can be avoided. Therefore it is rather important that we all reflect on how we can set up a mechanism so that we can continue over this period to discuss the outstanding issues. I know that the Minister will reflect, but he and his officials may want to have discussions with some of us who are involved, so that by the time that we get to Report we will have made use of this Committee stage and found a way to move the House and the Bill forward without unnecessary rancour. With that, I beg leave to withdraw the amendment.

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Moved by

[Earl Howe]

92ZZAA: After Clause 35, insert the following new Clause—
“Alternative financial arrangements
(1) Regulations may, in such cases or circumstances and subject to such conditions as may be specified, require or permit a local authority to enter into alternative financial arrangements of a specified description with an adult.
(2) “Alternative financial arrangements” means arrangements which in the Secretary of State’s opinion—
(a) equate in substance to a deferred payment agreement or an agreement of the kind mentioned in section 34(8), but(b) achieve a similar effect to an agreement of the kind in question without including provision for the payment of interest.(3) The regulations may make provision in connection with alternative financial arrangements to which they apply, including, in particular, provision of the kind that may (or must) be made in regulations under section 34 or 35 (apart from provision for the payment of interest).”

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Moved by

[Earl Howe]

92ZZAFB: Clause 38, page 33, line 41, at end insert—
“( ) The reference in subsection (1) to this Part does not include a reference to section 28 (independent personal budget).”

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Moved by

[Earl Howe]

92ZZAGA: Schedule 1, page 91, line 34, at end insert—
“( ) Section 22 (prohibition on provision of health services) is to have effect—
(a) in its application to a case within sub-paragraph (1)—(i) as if the references in subsections (1) and (6) to the National Health Service Act 2006 included a reference to the National Health Service (Wales) Act 2006, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Local Health Board; (b) in its application to a case within sub-paragraph (3)—(i) as if the references in subsections (1) and (6) to the National Health Service Act included a reference to the National Health Service (Scotland) Act 1978, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health Board or Special Health Board;(c) in its application to a case within sub-paragraph (4)—(i) as if the references in subsections (1) and (6) to a service or facility provided under the National Health Service Act 2006 included a reference to health care provided under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health and Social Care trust.”

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Moved by

[Earl Howe]

92AB: Clause 47, page 38, line 21, leave out subsection (4)

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Moved by

[Earl Howe]

92AM: Clause 49, page 40, line 2, leave out “or 48(3)” and insert “, (Temporary duty on local authority in Wales)(3) or (Temporary duty on Health and Social Care trust in Northern Ireland)(3)”