Care Bill [HL]

Earl Howe Excerpts

Wednesday 9th October 2013 Lords Chamber

[Lord Low of Dalston (CB)]

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

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

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

My Lords, I begin by thanking noble Lords for the excellent debates that we have had on these topics in Committee and again this evening. As the report by Leonard Cheshire Disability highlighted earlier this week, we need to move away from overly prescriptive commissioning, which focuses on price and time slots, to consider how local authorities can deliver better outcomes and quality care. I therefore fully agree with the principles behind the amendments that noble Lords have tabled with regard to poor local authority commissioning practices. Of course, noble Lords will be aware that Clause 5 requires local authorities to promote a market in high-quality services and specifically requires authorities to consider this duty when arranging services to meet people’s needs. This would make it very difficult for local authorities to commission services in 15-minute slots where doing so undermines the quality of those services.

Clause 5 also requires local authorities, in fulfilling this duty, to have regard to the need to ensure there are sufficient services available to meet people’s needs. With regard to Amendment 26, it is important to recognise that local authorities can achieve this only through working with providers in their area. We therefore do not believe that it would be appropriate to require local authorities to ensure sufficiency of services independently. This could lead to local authorities finding themselves forced into providing services where a market had not developed otherwise. Therefore, I cannot support the amendment tabled by the noble Baroness. She asked me to clarify what “having regard to something” means. Where that duty is present, it is not something that local authorities are able to ignore. In other words, if they have to have regard to a particular thing, that is not something they can disregard. Rather, the clause as drafted is intended to recognise, as I have said, that sufficiency of services can be achieved by local authorities only when working with providers and not by local authorities alone.

It was clear in Committee that, in the view of many in this House, the Bill as it stands does not go far enough in relation to poor local authority commissioning practices. We have reconsidered our position and developed our own amendment, Amendment 27, in the light of the concerns raised. This amendment would require local authorities, when commissioning services, to consider the effect of their commissioning decisions on the well-being of the people using those services. Our approach has some significant differences from and, I would argue, three clear advantages over, the approach suggested in Amendments 22 and 25, which seek to prohibit specific commissioning practices and in particular to require homecare visits to last at least 30 minutes. The first advantage is that our approach sends a clear message on the face of the Bill that commissioning services without properly considering the impact on individuals’ well-being is unacceptable. We believe, in the light of the arguments expressed in Committee, that it is important that we are able to send this message on the face of the Bill.

Secondly, our approach also explicitly prevents local authorities making decisions about how they commission services without giving due regard to the impact on individuals’ well-being. This goes a long way towards achieving the objective we all share of tackling poor commissioning practices while maintaining local authorities’ ability to decide the most appropriate approach to commissioning services for the people in their area, and acknowledging that the underlying issues here are cultural and cannot be tackled by legislation alone.

Thirdly, our approach has a singular focus on the outcome that we all want to achieve of promoting individuals’ well-being. Consequently, our approach is holistic of all poor commissioning practices and future-proofed against new practices that could emerge without risking the creation of perverse incentives through taking an overly prescriptive approach. Moreover, our approach is also holistic of commissioning for all types of care and support, not merely focused on one area: that is, not just on personal care.

In contrast, there are three reasons why I cannot support the approach set out in the amendments of the noble Baroness, Lady Meacher. First, it is important to recognise that local authority commissioners do not act in ways that undermine well-being because they want to, but rather because they do not recognise the effects of their decisions or feel unable to commission in other ways. As the president of the Association of Directors of Adult Social Services has argued, we should be careful of assuming that,

“simply by abolishing 15-minute slots a magic wand will have been waved, and improvements automatically achieved”.

It is important to recognise the limitations of legislation in tackling this issue. We have heard during this debate some appalling examples of people having to choose between being fed and being cleaned as a result of homecare visits being commissioned for too short a time. Local authorities that commission such services are palpably failing in their duty to meet people’s needs. That they still commission such services demonstrates the fact that the underlying problems here are cultural and cannot simply be legislated away. Banning specific poor practices will only lead to other poor practices emerging. Instead, I strongly believe that we need to work with authorities to enhance commissioners’ understanding of the effects of their commissioning decisions on individuals’ well-being and of how they can commission more effectively.

[Lord Hunt of Kings Heath]

My Lords, I agree with the noble Earl that the commissioning policies of some local authorities are called into question. However, are there some issues here regarding the resources they have available? Is the overall reduction in local authority expenditure not also responsible for some of these policies?

[Earl Howe]

My Lords, we certainly know that the reduction in resources has had some effect. However, it is interesting that the feedback from local authority chief executives and directors of adult social services suggests clearly that the detrimental effect on the provision of adult social care is not as dramatic as one might suppose from the drop in local authority budgets. This is partly because of the funding provided by my department to local authorities to make up some of the gap. I would not wish to say that there has been zero effect. We think, from the feedback, that the volume of services has diminished by about 5%. This is 5% too much, in most people’s eyes, but may not be as significant as some have feared.

My second point is that central prescription risks prohibiting practices that may, in some circumstances, be consistent with high-quality care. For example, 15-minute homecare visits could well be appropriate in some situations, for instance for helping people to take medication, which is not a process that takes very long at all. Further, using legislation to ban specific processes may result in perverse incentives arising, without addressing the actual problem. A number of noble Lords made that point.

Thirdly, legislating for a specific period of time for which homecare visits must last risks reinforcing one of the key problems here: inappropriate use of time and task commissioning. Instead, we need to move away from overly prescriptive commissioning practices which focus on—

[Baroness Meacher]

My Lords, I apologise for intervening, but I want to make clear that there is absolutely no prescription: there is flexibility. It is simply saying that you cannot do a personal care visit of less than 30 minutes.

--- Later in debate ---

[Earl Howe]

I do understand that and apologise if I implied anything different. I was seeking to make the point that once you specify a period of time in a Bill it starts to look prescriptive, even if that is not the intent or the effect.

As I was saying, we need to move away from overly prescriptive commissioning practices that focus on price and time-slots, to consider how local authorities can deliver better outcomes and quality care. None the less, there is more that we can and will do to tackle poor commissioning practices. There is a role for regulation. We are therefore proposing an amendment that will make it clear that the CQC may, with approval from both Secretaries of State of DH and DCLG, undertake a special review of local authority commissioning of adult social services in cases of systematic failure. Subsequent to any such review, CQC could issue an improvement notice in the event of a non-substantial failing and recommend special measures to the Secretary of State in the event of substantial failings.

We also intend to issue statutory guidance specifically on local authority commissioning. This will be a valuable opportunity to influence local practice. In particular, we will include in this guidance clear examples of high-quality and poor-quality commissioning practices to support local authorities to develop and improve their own approach.

As well as tabling Amendment 27, we have also, in response to points raised in Committee, tabled Amendment 24, which will require local authorities to consider through their commissioning decisions the importance of fostering a workforce able to deliver high-quality services when shaping local markets. This amendment is, of course, not just about local authority commissioning practices but more widely about how the local authority can work with the market in its area, including with providers from which it does not commission services, to foster a high-quality workforce. This reflects our strong belief that the characteristics of the workforce, including opportunities for learning and skills development, have a direct relationship with the quality of the care that individuals receive. Improving the capability of the workforce through continued skills development and appropriate working conditions is therefore a key component of market shaping.

I therefore fully agree with the intention behind Amendment 151, but I note that the CQC already has powers to take into account standards of employment as part of its inspection of providers. A separate duty on the CQC to undertake periodic assessments of employment standards would duplicate what the commission is already able to do and compel it to undertake assessments of a very specific nature. For that reason, I cannot support Amendment 151, tabled by the noble Lord, Lord Hunt. It is vital that we give the commission the time and freedom to develop its own performance-assessment methodology. In the fullness of time, this may mean that ratings consider employment standards, but this should be a matter for CQC to determine after considering the views of key stakeholders.

[Lord Hunt of Kings Heath]

I am grateful to the noble Earl for giving way and I imagine that we can debate this more fully when we come to his amendments around CQC independence. However, there is surely a distinction to be drawn between the way that the commission does its work and the overall strategic framework in which it does it. I should have thought that it would be appropriate for Parliament to lay down that it would be right for the CQC to focus on standards in the care sector. Does the noble Earl agree that you can draw a distinction between the framework that is set out in legislation and the way in which the CQC does its work—and I very much support the idea of its independence?

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

[Lord Warner]

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

[Earl Howe]

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

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

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

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

[Baroness Meacher]

My Lords, I thank the noble Earl for his thoughtful response and also all noble Lords who contributed to this debate. It has been very considered, and the points raised have been very important. These visits can require three hours of work, or one and a half hours—all sorts of different lengths of time. Whatever is decided ultimately must enable those visits needing that length of time to be undertaken in that way. I welcome the amendment of the noble Lord, Lord Hunt, and I am sure that the CQC has an enormously important role to play in this. I wonder whether the Minister would think it appropriate to require a thematic review of this issue to be undertaken by the CQC, bearing in mind the level of concern across the country about what is happening at the moment, which clearly is not acceptable in terms of these very short visits for personal care.

The noble Earl mentioned the 5% reduction in the budget for adult social care. It sounds small, but we all know that the adult social care budget has always been incredibly low—way below what it should be. Priority has never been given to this area of work, so a 5% reduction is pretty serious. There is a lot to be done. The noble Earl referred to guidance, regulations, and so on. I personally would welcome an opportunity to have a discussion with him about how, in the guidance and regulations, it might be possible to ensure that adequate priority is given to this area of work. This is really what we are talking about here.

My amendments are aimed at stimulating the debate. They are also an effort to draw out some commitments from the noble Earl, and to some degree I think we have achieved that objective. I do not know whether the Minister would be willing to have a conversation about what might be included in the guidance and regulations.

[Earl Howe]

My Lords, if it will assist the noble Baroness, I will be very happy to have a conversation with her at a mutually convenient time.

[Baroness Meacher]

With that assurance, I am happy to withdraw the amendment.

--- Later in debate ---

Moved by

[Earl Howe]

24: Clause 5, page 5, line 22, at end insert—
“( ) the importance of fostering a workforce whose members are able to ensure the delivery of high quality services (because, for example, they have relevant skills and appropriate working conditions).”

--- Later in debate ---

Moved by

[Earl Howe]

27: Clause 5, page 5, line 26, at end insert—
“( ) In arranging for the provision by persons other than it of services for meeting care and support needs, a local authority must have regard to the importance of promoting the well-being of adults in its area with needs for care and support and the well-being of carers in its area.”

--- Later in debate ---

Moved by

[Earl Howe]

28: Clause 6, page 6, line 6, at end insert—
“( ) The following are examples of persons with whom a local authority may consider it appropriate to co-operate for the purposes of subsection (2)—
(a) a person who provides services to meet adults’ needs for care and support, services to meet carers’ needs for support or services, facilities or resources of the kind referred to in section 2(1);(b) a person who provides primary medical services, primary dental services, primary ophthalmic services, pharmaceutical services or local pharmaceutical services under the National Health Service Act 2006;(c) a person in whom a hospital in England is vested which is not a health service hospital as defined by that Act;(d) a private registered provider of social housing.”

--- Later in debate ---

[Baroness Finlay of Llandaff]

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

[Earl Howe]

My Lords, I should like to thank the noble Baroness, Lady Greengross, for tabling Amendments 29 and 125, on what is undoubtedly an extremely important issue, not just for the system but, most importantly, for the patients themselves. When someone is discharged from an acute care setting, care and support must be joined up to prevent unnecessary delays and readmissions that can be distressing to patients and their families and carers. The noble Lord, Lord Hunt, was absolutely right on increasing pressure on acute trusts, not least in A&E.

There is a mixture of reasons why this is occurring: the weight of patient demand; the acuity of patients who present at A&E, more of whom have to be admitted; workforce issues in some A&E departments; hospital discharge practices that may not be as efficient as they should be; an absence of follow-on care in certain locations or, indeed, adult social care services; and delays in installing home adaptations. One cannot generalise about this problem. One can say only that in many areas it is very real.

I will just correct the noble Lord on one issue: the £250 million that we have allocated to ease the pressures on A&E. Those moneys went to 53 NHS trusts before the end of September. They went to trusts that were most at risk of breaching the A&E standards. They were not chosen by Ministers or the Government. The process was led by NHS England and Monitor, so it was done on a structured and objective basis.

[Lord Hunt of Kings Heath]

The point is that the chief executive of each of those trusts had to sign, if you like, for the money, but they did not get all the money. Most of the money went to clinical commissioning groups. Some of them are still meeting to discuss how to spend it, which is the worry.

[Earl Howe]

At least we have given them more notice this year than they have had in previous years. Quite often, winter pressure money has been released into the system only around Christmas. We have consciously tried to do it several months earlier. While I acknowledge the truth of what the noble Lord said in certain areas of the country, I hope and believe that by the time the pressure becomes significant, those crucial decisions will have been made.

[Baroness Masham of Ilton]

As the Minister has brought this matter up, I shall ask about the hospitals that got the money. York and Leeds got extra money, but Hull did not. Hull is one of the most deprived and difficult areas in the country. Will he look into it and let me know?

[Earl Howe]

I will happily look into it, because I do not have with me the complete list of trusts and the factors that lay behind the decision that was taken by NHS England. I will certainly write to the noble Baroness about that.

Delivering joined-up, person-centred and co-ordinated care in a way that stops patients falling through the gaps in the system is of key importance to improving their outcomes and experiences. I believe it is incontrovertible that local authorities and relevant partners must co-operate in order to ensure safe and timely transfers of care. Indeed, the Bill already requires that. Clause 6 requires that local authorities and relevant partners co-operate with one another where this is relevant to care and support. Subsection (5) of the clause sets out some key examples of when this duty should be used. There can be no question that this duty would apply also to ensuring safe and timely discharges, and we do not see the need to add further detail to such broadly worded provisions. New guidance on discharge planning and on how local authorities should perform co-operation duties under Clauses 6 and 7 will be issued following the passage of the Bill.

Further, Schedule 3 to the Bill sets out a process around ensuring the safe and timely discharge of acute hospital patients. This not only requires the local authority, following notification from the responsible NHS body, to assess a patient who it appears may have a need for care and support before they are discharged but requires the authority to have the necessary care and support package in place before discharge takes place. The duties to co-operate apply to that process as well. In fact, to come back to the point that the noble Lord, Lord Warner, raised about guidance, the current discharge guidance, Ready to Go, makes it clear that discharge planning should start before or on a patient’s admission to hospital. We know that that does not always happen, but it is best practice, and has been best practice for some considerable time.

Amendment 125 would allow the Government to specify what the authority and its partners must have regard to when performing that assessment. Surely this is right. I reassure the noble Baroness that, as the assessment required to be carried out by this schedule is the same as the one in Clause 9, we already have this power in Clause 12(1)(b) of the Bill, which allows for regulations to,

“specify other matters to which the local authority must have regard in carrying out the assessment”,

and in Clause 12(6) which allows for an assessment to be carried out jointly.

I hope that I have reassured the noble Baroness that the Bill already requires local authorities and “relevant partners” to co-operate in the safe and timely discharge of patients and contains sufficient provisions to make such regulations and to issue guidance on this matter. With those reassurances, I hope the noble Baroness will be able to withdraw her amendment.

--- Later in debate ---

Moved by

[Earl Howe]

31: Clause 6, page 6, line 44, at end insert—
“( ) the Minister of the Crown exercising functions in relation to social security, employment and training, so far as those functions are exercisable in relation to England;”