Care Bill [HL] Debate
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Earl Howe
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Care Bill [HL]
Earl Howe Excerpts(11 years, 2 months ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I shall speak also to the other amendments in this group, Amendments 33, 36, 37, 39, 40, 42 to 45 inclusive, 62, 90, 91, 100, 101 109, 112, 115, 116 and 117. In Committee, we had a wide-ranging and informed debate on assessment. I have reflected on the issues raised and I have tabled amendments which I hope noble Lords will agree address those concerns and clarify our intentions around the assessment process.
In Committee, we considered a provision which was intended to ensure a focus on the adult’s strengths and how these can contribute towards the outcomes they want to achieve as part of the assessment. This provision was drafted to support our aim to build the care and support system around the person and to consider the adult’s own capabilities: what they can do—as well as their needs—and what they cannot do. While most noble Lords agreed with the principle, a concern in Committee was that the provision set out in the Bill might be wrongly interpreted by local authorities as allowing them to place additional caring responsibilities on family and friends rather than providing care and support. Amendments 32 and 33 look to address the concerns that arose.
Amendment 32 removes the requirement to assess the adult’s capabilities and other matters as part of the needs assessment. Amendment 33 provides for a consideration of such matters to happen separate to, but alongside, the needs assessment. Local authorities should have a discussion with adults or carers in parallel to the assessment, considering how their own capabilities and any other matters can help to achieve the outcomes they want to achieve on a daily basis. These amendments remove the source of concern, while retaining the important point of policy on which we agree.
In Committee, there was also concern as to whether the assessment process was sufficiently supportive of the focus of the Bill on the prevention of need. We have considered this and have also brought forward amendments to strengthen this focus. The second part of Amendment 33 and Amendment 45 require a local authority to consider at the time of the assessment whether any universal services available locally, whether provided by the local authority under Clause 2 or Clause 4 or by another organisation, would be of benefit to the person. This replaces the previous provision in which such a consideration took place only after the eligibility determination. This would support situations where, for example, a local authority might decide to defer the final eligibility determination until the person or carer has taken part in a preventive service, such as a reablement programme. Amendments 36 and 37 make similar provision in relation to carer’s assessments. Amendments 90, 91, 100, 101, 109 and 112 make equivalent changes in relation to the assessment of children, child carers and young carers.
In Committee, the noble Lord, Lord Low, pointed out that while the regulation-making powers would provide for an expert to carry out complex assessments, they did not require it. I assured the noble Lord that this was not our intention and that I would look again at the provisions to ensure they provided for this. Having considered the provisions I have concluded that they needed to be strengthened to provide for when an expert must carry out an assessment for complex needs, such as for a person who is deafblind. Amendment 39 rectifies this, and I would like to thank the noble Lord for raising this in Committee.
Through Amendment 40, we will require assessors who are trained but may not have experience of carrying out an assessment for a specific condition to consult a person with experience in that area. For example, an assessor who normally assesses older people who is asked to assess a person with learning disabilities would have to consult a person with experience in that condition.
I turn now to Amendments 42, 43, 44, 62, 115, 116 and 117. Members of the Committee asked to see clear links between this Bill and the Children and Families Bill, which is also before the House. I share their view that both Bills must work together so that no one falls through a gap in the legislation. Amendment 42 ensures that a local authority can combine an adult’s assessment with any other assessment it is carrying out, whether under this Bill or other legislation, as long as the individual or individuals being assessed agree. For example, it clarifies that the authority can carry out a needs assessment with a young carer’s assessment. Amendment 43 allows the authority to carry out a needs or carer’s assessment jointly with another assessment being carried out by another body, whether of that person or a person relevant to the situation, as long as the individual or individuals being assessed agree. Amendment 62 ensures similarly that local authorities have powers to combine care and support plans and support plans with any other plan of that individual or another. Amendments 115, 116 and 117 make similar provision for a child’s assessment, a child carer’s assessment and a young carer’s assessment when they are transitioning to adult services. These amendments reflect similar government amendments tabled to the Children and Families Bill and reflect the synergy between both Bills and how they work together to ensure that the needs of children and young carers are considered during the adult’s assessment.
I have listened to the strength of the arguments made in Committee. I hope your Lordships will agree that the amendments I have tabled address the concerns that were raised and that they strengthen and clarify the assessment provisions. I beg to move.
Baroness Pitkeathley (Lab)
My Lords, the changes that the Government have made concerning assessments are very welcome. I particularly thank the Minister for the careful and considered way in which he listened to the issues around young carers, and particularly the way in which these now mesh with the Children and Families Bill, which was a concern to many of us. That is very welcome.
Amendment 32, which removes the reference to support available from families and friends, is particularly welcome. Disability and carers’ organisations have very serious concerns that the original wording would lead to local authorities making assumptions about what families could provide without conducting a thorough assessment of a person’s needs and then carefully considering how those needs could best be met, particularly taking into consideration the family’s willingness to provide that care.
Amendment 33 also includes a requirement that when an assessment is carried out it is also considered whether the person would benefit from prevention services or from information and advice. That greater emphasis is also very welcome. However, I would like the Minister’s comments on one concern about Amendment 33. It refers to,
“which might be available in the community”.
If this wording is included in the Bill, it is vital that strong guidance is given to local authorities not to run the risk of negative, unintended consequences. There will be guidance, regulations and assessments, as we know. What assurances can the Minister give that community services will not be seen as an automatic alternative to statutory services and will not therefore create a further barrier for those in need of statutory support?
Can the Minister assure me that guidance will make it clear that local authorities cannot make assumptions about the availability and appropriateness of other support from community services and whether it is wanted by the disabled or older person? The Government have made it clear that they do not intend local authorities to look to families and friends to provide care and support, potentially taking on a greater caring role. Can the Minister give assurances that local authorities should also not be looking to families and carers to provide more care as a get-out clause, if you like, from providing statutory services? This is particularly important given the great variability in so-called community services from area to area and, of course, the huge stress on local authority budgets, which is a fact of life for all local authorities at present.
Earl Howe
My Lords, I am grateful for the support that noble Lords have given to the government amendments. Perhaps I may start by covering the questions that were put to me. The noble Baroness, Lady Pitkeathley, and my noble and learned friend Lord Mackay of Clashfern asked for assurances that the guidance will make clear that local authorities cannot assume that support will be forthcoming from community services or carers as a get-out. I assure the noble Baroness and my noble and learned friend that the intention in Amendment 33 is not to place extra responsibilities on carers and families, nor to delay local authorities in providing statutory services. I will commit to making this absolutely clear in the statutory guidance that will be co-produced with stakeholders. I hope that that is a valuable reassurance.
The noble Lord, Lord Low, asked for reassurance about preventive services remaining universal and free of charge, as well as intermediate care. I can reassure him that certain services will be provided free of charge, and regulations will set out which types of prevention services must be provided free of charge. Regulations will also set out which types of prevention services local authorities can charge for. It will then be for local authorities to decide whether they charge for such services. This will maintain the current position, where charging for preventive services is determined locally, in accordance with local requirements. Additionally, we would expect intermediate care, including reablement and community equipment such as aids and minor adaptations, to remain free of charge. That is a minimum. The regulations will allow for flexibility to keep the list up-to-date as services change over time.
The noble Lord, Lord Low, also asked whether the commitments in Clause 13(2)(b) will apply also to Clause 9. Will an assessment be deemed necessary where preventive services may be of benefit, even if someone is unlikely to be eligible? The duty to assess in Clause 9 is independent of the provisions on prevention. Amendments 33 and 45 make it clear that preventive services should be considered during the assessment rather than having to wait for the eligibility determination. This will mean that people can be advised during the assessment on their preventive needs, whether or not they have eligible needs. I hope that that is helpful.
Perhaps it will be helpful if I move on to the amendments tabled by the noble Baroness, Lady Meacher. Amendment 41 seeks to ensure that an appropriately qualified social worker will carry out complex assessments. I absolutely sympathise with the noble Baroness’s amendment and believe that my Amendments 39 and 40, to which she referred, will go some way towards addressing her concerns. I also reassure her that, through the powers in Clause 12, we will require local authorities to ensure that assessors have the appropriate training to carry out the assessment. We have listened to the concerns of adults who use care and support, and to their carers. They are right to say that assessors should receive appropriate training.
Amendment 39 will enable us to specify circumstances in which a specified person, such as a social worker, must or may carry out an assessment. We believe that an expert must carry out an assessment for a deafblind person. We will consult stakeholders during the development of these regulations to identify any other conditions where a specified person should carry out the assessment.
I am grateful to the noble Lord, Lord Dubs, for raising in his Amendment 60 the issue of fluctuating and emergency needs, and, in his Amendment 61, anticipated review dates in the care and support planning process. Clause 25 sets out the minimum framework for the planning process, and balances the need to set out standards for care and support planning while not constraining the ability of local authorities to fit the planning process around the person. I reassure the noble Lord that providing advice and information on what can be done to meet or reduce a person’s needs will include providing advice and information where an adult may be experiencing fluctuating or emergency needs.
In addition, where it is clear that an adult experiences fluctuating needs, the care plan should reflect this by specifying how the needs will be met. I undertake to the noble Lord to ensure that statutory guidance clarifies this, and that fluctuating and emergency needs are included in what advice is to be provided.
The issue of timescales of reviews is something we have considered carefully. The review is an important part of the process as it can identify where a person’s needs have changed and if their care and support plan should be revised to reflect this. Clause 27 on the review of care plans creates a general duty for the local authority to keep plans under review as well as a specific duty to review the plan when the authority believes the person’s needs or circumstances have changed. In addition, the clause contains a right to request a review. I reassure the noble Lord that nothing in the Bill prevents the local authority and the adult agreeing a time for the next review if they wish to do so. We believe this to be a more pragmatic way of fitting reviews around the lives of people, and one which supports our policy of personalised care. I reassure the House that we intend to detail these issues in statutory guidance on care planning.
I hope that I have reassured the noble Baroness and the noble Lord and that they will feel able not to move their amendments.
“( ) When carrying out a needs assessment, a local authority must also consider—
(a) whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcomes that the adult wishes to achieve in day-to-day life, and(b) whether the adult would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.”
“(5) A local authority may combine a needs or carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the adult to whom the needs or carer’s assessment relates agrees and—
(a) where the combination would include an assessment relating to another adult, that other adult agrees;(b) where the combination would include an assessment relating to a child (including a young carer), the consent condition is met in relation to the child.(5A) The consent condition is met in relation to a child if—
(a) the child has capacity or is competent to agree to the assessments being combined and does so agree, or(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that combining the assessments would be in the child’s best interests.”
(a) different amounts for different descriptions of care and support;(b) different amounts for different descriptions of support.”
Earl Howe
In moving Amendment 49, I wish to speak also to the other government amendments in this group, Amendments 50, 51, 52, 53, 54, 59 and 169. We are currently consulting on the detail of our reforms to care and support funding, including charging. This consultation and the accompanying engagement are looking at key issues around future charging for adult care and support. We need to ensure that the Bill has sufficient flexibility to take account of the views expressed through this consultation and the on-going engagement. This work has highlighted areas where the Bill as drafted may not be sufficiently flexible. I turn to my Amendments 49, 51 and 52 concerning local flexibility in charging policies.
Currently, local authorities are free to set their own charging policies for non-residential care. The intention was to create a more consistent framework for charging across local authorities. However, there was uncertainty whether the regulation-making powers as drafted would have allowed local authorities to contribute towards the care and support costs of people who have resources above the financial limits. A rule which prohibits local authorities from making any contribution towards the care costs of such people would restrict the ability of local authorities to use different arrangements when these would best meet local needs. For example, local authorities sometimes subsidise services such as telecare. We wish to allow this to continue and do not want to require local authorities to charge people the full cost of these services.
My other amendments, Amendments 50, 53 and 54, concern circumstances in which a financial assessment has not taken place or a local authority considers that a full assessment is unnecessary. We wish to encourage people to undertake financial assessments because this will enable local authorities to charge them a fair contribution towards their care costs. However, we recognise that some people are likely to refuse to undergo a financial assessment; for example, someone may be unwilling to allow the local authority to access their financial information. In order best to promote these people’s well-being, it may be appropriate for local authorities to arrange care on their behalf. The local authority would be able to charge individuals the full cost of this care and any arrangement fee.
These amendments will therefore allow regulations to enable local authorities to broker care on behalf of people who do not wish to undergo a financial assessment. The regulations will also make provision for light-touch financial assessments where a full financial assessment would not be proportionate, such as for low-cost care packages, in particular for carers. Regulations and guidance will be designed to ensure that such assessments are used appropriately.
The remaining government amendments in this group ensure that all those who should get an independent personal budget receive one and that the regulation-making powers retain their intended flexibility. I hope noble Lords agree that the additional flexibilities provided for by these amendments will equip local authorities with the tools they need better to promote individual well-being and that noble Lords can therefore support my amendments. I beg to move.
Baroness Greengross (CB)
My Lords, first, I add my voice in support of Amendment 55, in the name of the noble Lord, Lord Lipsey. We have not fully taken into account the impact that the Bill will have, when it becomes an Act and is brought into being, on the many people who are now in care homes and where the funding of those homes will suddenly become much more public. Everybody will report to the local authority to get on the meter and the extent of people’s self-funding will become better known. There will be a sort of explosion if we do not get this right and do not allow people to make top-ups. What are we going to do: assume that some of these people will be moved from the care home that they are in and where they are, we hope, happy to another care home because there is inflexibility with the top-up system? That would be really cruel and I hope that we can get as much flexibility and remove as many restrictions on people as we can.
Several cases have been brought to my attention of people who are already in a care home running out of money. They, or their relatives, cannot afford the whole amount but want to be able to top up the local authority amount, which, at the moment, nobody is fully aware of. As this is all going to become much more public knowledge, it is important to have as much flexibility as possible. I hope the Minister will have another look at this.
Earl Howe
My Lords, first, I turn to Amendment 55, in the name of the noble Lord, Lord Lipsey, which concerns the circumstances in which people wish to top up their own fees to pay for more expensive accommodation. To begin with, and for the avoidance of any doubt, I will emphasise that I agree that people should be able to choose to spend their own money on more expensive care, provided it is affordable. Like the noble Lord, Lord Lipsey, I want people to be able to choose to live in more expensive accommodation and gain from a cap on care costs, so that they pay part of the cost of care from their own savings and still receive local authority support.
Through the consultation and stakeholder engagement, we are seeking to better understand the impact of relaxing the rules on self-top-ups and to determine what protections may be needed for vulnerable people.
The answer to the question posed by the noble Lord, Lord Hunt, is that consultation will close on 25 October. The Minister of State for Care and Support and departmental officials have, over the past quarter, attended a variety of events covering the care and support sector, local authorities and financial services providers. These have been broadly supportive of the principle that people should be able to contribute towards their care costs from their own assets. Stakeholders have also recognised that people need to make decisions which are financially sustainable for the long term, and that financial information and advice need to play an important role in achieving this. We will be able to provide a more comprehensive overview of the views expressed in our response to the consultation in the new year. I repeat that we are on the noble Lord’s side. Our only concern is to ensure that when we relax the rules, there are sufficient protections, both for the individual and for the local authority.
Amendment 56 concerns review of the operation of the capped-cost system. I am sure we can all agree unhesitatingly that these reforms need to be implemented effectively to deliver the outcomes we are striving for. The capped-cost system will provide peace of mind and protection against catastrophic costs and will target most help at those with the greatest need. I am confident that we can further agree that to deliver these benefits, we need good oversight. Therefore, I am with the noble Lords opposite in spirit. To that end, we will be reviewing and assuring both implementation and funding, and have committed to reviewing the core elements of the capped-costs system within each five-year period. We will also conduct post-legislative scrutiny, as the Government have committed to do across the board for all new Acts. The agreement we have with the Liaison Committee in the other place is that this should be done between three and five years after Royal Assent.
Furthermore, we have established the Joint Implementation and Programme Board with the Local Government Association and the Association of Directors of Adult Social Services. We will use this to work with local government on continuing assurance and improvement of the arrangements. We are confident that, in their totality, these arrangements provide generous opportunity for assurance and review to ensure that the reforms remain true to our vision.
For that reason, I do not believe it would be necessary or desirable to supplement these arrangements with a further review by additional oversight bodies, such as an independent ministerial advisory committee. Such additional oversight would cut across the scrutiny conducted by the Health Select Committee and cross-government planning on spending through spending rounds. I am sure that noble Lords opposite will not be totally satisfied with that, but I hope that they will be sufficiently reassured by the confirmation I have given that we will conduct a proper review of the operation and funding of these reforms through several channels. I hope that they will agree that this amendment is, therefore, unnecessary.
Lord Mackay of Clashfern
Before the Minister sits down, is he satisfied that, without the amendment of the noble Lord, Lord Lipsey, there is sufficient flexibility under the system as it is presently provided to allow for the sort of difficulties that are envisaged as possibly coming out after the consultation?
Earl Howe
I can reassure my noble and learned friend that, if we look at the arrangements we are proposing in combination, there will be sufficient mechanisms in place to take account of any unexpected wrinkles that emerge of the kind that the noble Lord, Lord Lipsey, perfectly reasonably anticipates; and to react and respond to those difficulties as appropriate. The answer, in a nutshell, is yes.
“( ) Regulations under subsection (7) may make provision as to cases or circumstances in which an adult is to be treated as having income that would, or as having income that would not, fall below the amount specified in the regulations if a charge were to be made.”
“( ) A local authority may meet an adult’s needs under subsection (3) where, for example, the adult is terminally ill (within the meaning given in section 82(4) of the Welfare Reform Act 2012).”
Earl Howe
My Lords, I assure the House that the Government are in agreement with the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. We are working hard to deliver our shared objective of improving care for people approaching the end of their lives. It is in that context that I shall move government Amendment 57.
On the issue of treating the assessment of terminally ill people as urgent, I fully recognise noble Lords’ concerns. With that in view, I have tabled an amendment to make it explicit that the end of life is an example of when local authorities may treat cases as urgent. We do not believe that it would be right to require local authorities to treat all cases in this way—circumstances have to dictate the approach taken—but we agree that clarity around end-of-life cases as examples of urgent situations for the purposes of Clause 19 may provide a useful indication to improve practice. I shall not anticipate noble Lords’ remarks in support of their amendments, so at this stage I beg to move.
Lord Warner
My Lords, while I welcome Amendment 57, I want to set out the case for the Minister going a good deal further. Amendment 137 follows the discussion in Committee of amendments proposed by the noble Lord, Lord Patel, and myself. We have come back with an alternative amendment, which has also been signed by the noble Baroness, Lady Greengross. We have done this in consultation with voluntary organisations over the summer, and the wording of Amendment 137 reflects those discussions. To summarise, the amendment would enable the Secretary of State, after discussion, to make regulations that did three things: first, allow people to have their preference for place of death recorded by local health and social care services and for that preference to be implemented wherever practicable; secondly, have their care and support needs and those of carers treated as urgent in assessing needs—and we think, reasonably, that Amendment 57 deals with that; and, thirdly, exempt terminally ill patients from adult social care charges.
Since Committee the Government have brought forward Amendment 57 and, as I have said, I think that it meets many of our concerns about urgent assessment at the end of life. It has certainly had the effect of diluting enthusiasm in some parts of the voluntary sector for a more wide-ranging amendment on end-of-life choice, and I slightly backhandedly congratulate the Minister and his civil servants on achieving that. However, I would still like to have another go at trying to convince the Government, and possibly some members of my own Front Bench, that we should be a bit more ambitious.
Around half a million people die each year in England, about two-thirds of them over the age of 75. A century ago most of us would have died in our own homes. Today, most will die in hospital. The latest figures show that in April 2012, about 42% of people died at home or in a care home. This is an improvement from 38% four years previously, but on present trends it will be at least the end of this decade before half of deaths occur in the place of usual residence. These figures of improvement at the national level, however, conceal considerable regional and local variations.
If you live in the south-west, with 48% of deaths occurring in the place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. Of course, as a Londoner I think there are many benefits of living in London, but choosing where I die is not likely to be one of them. There is an even wider variation between local authority areas. The great majority of us want to die at home or the place we normally live rather than, I suggest, the hectic and somewhat impersonal environment of an acute hospital ward. Perversely, we end up not only dying not only in the place where we least want to be but also in the most expensive place.
Marie Curie research has shown that a week of palliative care in the community costs about £1,000 a week, whereas a week of hospital in-patient specialist palliative care costs virtually £3,000 a week. The National End of Life Care Programme shows an estimated potential net saving of £958 per person if you die in the community rather than in hospital. Polling for Macmillan has shown that eight out of 10 health and social care professionals agree that community-based end-of-life care would save money. On top of this, nine out of 10 MPs think their constituents should have the choice to die at home. What is not to like about the first prong of Amendment 137?
I am not trying to dragoon people into dying outside hospital to save money. I want people to have as good and dignified a death as possible, with their friends and families around them. That is more likely to be achieved if they have a right to register their preference for dying at home or their place of normal residence. This would mean fewer people dying in hospital and it would also reduce pressure on A&E departments and acute hospital beds. I suggest that this is a not inconsiderable benefit—as Sir Humphrey would have said—in terms of the cost savings that could arise from allowing people to express their preferences on their right to die at home.
I accept that at this point it may be rushing our fences a bit to pay for exempting terminally-ill patients from local authority care charges. We need some detailed costings and possibly—I suspect the Minister will say this—we need to wait to hear what comes out of the pilot schemes in this area. However, we would also welcome having more information from the Minister on the progress being made in those pilots.
Accepting the first part of Amendment 137 would lay down a clear marker that Parliament wants government to move in the direction that most people want: which is the right to choose to die at home or their place of normal residence wherever practicable. This amendment gives the Government plenty of time to consult on all the detailed arrangements. It does not require those regulations to be made by any particular time and it gives the Government a lot of freedom about what the nature of those regulations might be. We should not miss the chance of this Bill being before Parliament to move in this area and put this change on the statute book. I hope the Minister will respond favourably and be prepared to entertain at Third Reading an amendment of the kind set out in the first prong of Amendment 137. I would certainly be happy—as I am sure my colleagues would—to discuss this further with him.
Earl Howe
My Lords, I am grateful to noble Lords for expressing their views on this important subject so eloquently. As I said in Committee, I support the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. In looking at the amendment, the first essential question is whether we need to take legal powers in this Bill to fulfil those objectives.
I want to assure noble Lords that we already have the necessary legal powers to implement both choice in end-of-life care and a new palliative care funding system. In relation to choice, there is already a power in Section 6E of the National Health Service Act 2006 to make regulations, or standing rules, to require NHS England and clinical commissioning groups to make arrangements for patient choice in respect of specified treatments or services. We would use these powers to implement a choice offer in end-of-life care.
As noble Lords know, making the changes to the system required to offer real choice, which includes enhancements in community palliative care services, will not be straightforward. Not least of the issues is the cost of making these changes. I agree with noble Lords that there is the potential for savings to be made in moving these services out of hospitals and into the community. However, one of the most comprehensive studies in this area, the Cochrane review, found that while there were small but significant improvements from community-based palliative care, the evidence for its cost-effectiveness was inconclusive.
We must also guard against the danger of making changes too quickly, and I am thinking of a particular danger. It would be in no one’s interests if the upfront investment required to enhance community services came at the expense of existing services. That is why the Department of Health and NHS England will be working together, and with organisations from across the end-of-life and palliative care sector, on a review of the timescale for introducing this choice offer at a time that will be right for patients and for those in the NHS working in this vital area. We have to ensure that when a choice offer is introduced, it will be a real choice backed by a system that is able to deliver it.
On palliative care funding, as I stated earlier, the Government’s position remains that there is much merit in providing free health and social care in a fully integrated service at the end of life. One of the key conclusions of the Palliative Care Funding Review was:
“There is a stunning lack of good data surrounding costs for palliative care in England”.
We responded to that by establishing eight palliative care funding pilots, involving more than 80 organisations. The noble Lord, Lord Patel, asked me whether those pilots were essentially big enough to produce meaningful results. The palliative care pilots cover 80 organisations in those eight areas and we are confident that they will give us sufficient evidence to design a new palliative care funding system. We need to be absolutely sure that the evidence being gathered by the pilots, which are running for two years, until 2014, is thoroughly analysed and a complete picture is available to both the department and NHS England before the details of the new funding system are finalised. To answer the noble Lord, Lord Patel, yes, we are acutely aware of the benefits of introducing a new system in this important area.
The noble Baroness, Lady Wheeler, asked about the pilots. The Public Health England review that is taking place welcomed the work that is going on. NHS England is also looking at this, in conjunction with its review of the end-of-life strategy. As regards the timetable for that, NHS England is working to publish early in the new year. Supported by the data from the pilots, we aim to have a new funding system in place by 2015, a year sooner than the review proposed. Similar to any new policies on choice in end-of-life care, this can also be introduced through secondary legislation. In this case, Clause 14(6) of the Bill provides powers to make regulations that prohibit local authorities from making charges in specific cases.
I hope I have convinced noble Lords that I am very much behind their laudable aims in tabling this amendment and I completely understand their desire for us to do the right thing. I am grateful for the opportunity to set out on the Floor of the House the Government’s commitment to delivering solutions in relation to end-of-life care. But I hope I have also persuaded noble Lords that decisions on end-of-life care funding and on choice of place of death cannot be taken lightly or inadvisedly, and that we must first take account of the evidence and implications.
I am doubtful that I will be able to say anything further on these subjects at Third Reading beyond what I have said today, but I would of course be more than happy to meet with the noble Lords, Lord Warner and Lord Patel, and other noble Lords, after Report to explore the practicalities around all these issues, and indeed some of the very pertinent issues raised by the noble Baroness, Lady Finlay. I hope that for now noble Lords are assured that our plans for quality and choice in end-of-life care will deliver improvements, and that they feel sufficiently assured to withdraw their amendment.
“(3) Where a local authority is not going to meet an adult’s needs for care and support, it must nonetheless prepare an independent personal budget for the adult (see section 28) if—
(a) the needs meet the eligibility criteria, (b) at least some of the needs are not being met by a carer, and(c) the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence.”
“(11) A local authority may combine a care and support plan or a support plan with a plan (whether or not prepared by it and whether or not under this Part) relating to another person only if the adult for whom the care and support plan or the support plan is being prepared agrees and—
(a) where the combination would include a plan prepared for another adult, that other adult agrees;(b) where the combination would include a plan prepared for a child (including a young carer), the consent condition is met in relation to the child.(11A) The consent condition is met in relation to a child if—
(a) the child has capacity or is competent to agree to the plans being combined and does so agree, or(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that the combining the plans would be in the child’s best interests.”
Lord Warner
My Lords, perhaps it would help the House if the character from Hogwarts actually explained what was going on in our minds when we made the recommendation. I shall quote a sentence from the report:
“In making this change, we believe it would be sensible for local authorities to be allowed to charge interest to recover their costs, to make the scheme cost neutral”.
We were not trying to second-guess how many applicants there would be, but it would be sensible to set up a scheme that worked in a way which did not actually cause a charge to be made on the Exchequer for the running of the scheme.
Earl Howe
My Lords, perhaps I may deal first with the initial point raised by the noble Lord, Lord Lipsey, about the figure that I quoted in Committee. He asked whether I had in fact meant to say that up to 40,000 people might have to sell their homes every year. The answer is that I should have said “up to 40,000”. I am afraid that there is a conscious element of vagueness in the figure because there is no one comprehensive source to provide information about what the precise figure actually is. We have arrived at a figure of up to 40,000 as the best estimate. I hope and believe that over the summer my officials provided the noble Lord with a breakdown on how we reached that figure and that he has found the information useful. The point of quoting the figure is that we believe that it is around the number of people who could benefit from the arrangements we are discussing. I apologise if I misled the Committee and the House in stating a figure that sounded precise when I should have been a little more circumspect.
The second issue raised by the noble Lord was about the deferred payment scheme and his perception that the Government have effectively emasculated it. I do not share that perception. There will be some circumstances in which local authorities must offer a deferred payment, and that is when the Bill specifies that the local authority would be under a duty to offer a deferred payment. We are consulting on the eligibility criteria for when people must be offered a deferred payment, which is where the figure of £23,250 is used. The Bill has an additional power for local authorities to offer deferred payments more widely, and we are seeking views on this through the consultation. My noble and learned friend Lord Mackay asked why we need limits at all. It is our policy intent that deferred payments will be available more widely and consistently than they currently are, which I think is what the Dilnot commission intended us to do. We need to ensure, however—
Lord Warner
Perhaps I may correct the noble Earl. We actually referred to a universal and standard scheme. We assumed that such a scheme would be wider, but we were looking for a standard scheme that would make this widely available. That is the part which is missing from the Government’s reassurances.
Earl Howe
I shall come on to the standard scheme proposal in a moment. We need to ensure that this arrangement is rolled out in a way that is financially sustainable for the local authority in each case. We will be supporting the implementation of the capped costs system and an extension of deferred payments with £335 million, which should enable this to happen.
I shall move on to the amendments themselves. I hope that the House will forgive me if I do not rehearse at length the same points that I made about financial advice last week, but I should like to take a moment to reassure the noble Lord, Lord Lipsey, on the specifics of his proposal. It is imperative that everyone has access to sound, reliable information and advice while making decisions about their care to ensure that any option they choose makes good financial sense for them and is sustainable in the long term. It is clear that local authorities have a central role to play in ensuring that their local populations are aware of the range of information and advice, both regulated and non-regulated, that is available to them and that they know how to access it. Last Wednesday, your Lordships accepted my Amendments 16 and 17 which clarify this. The noble Lord’s amendment would underscore the need to make sure that everyone who decides to take out a deferred payment agreement reaches that decision in a considered and informed manner. I agree that that should be the case. All too often, people do not plan ahead for the possibility of needing care and so can find themselves having to make important and lasting financial decisions in a moment of crisis.
Deferred payment agreements can be used to reduce some of this urgency and ought to be accessible to ensure that they provide the peace of mind that they are intended to. For this reason I would hesitate to make the process through which a person can access a deferred payment too onerous. We are currently consulting on the information and advice a person should receive before taking out a deferred payment agreement. We will listen carefully to what is said and we will use this to inform the approach that should be taken. I have already given the noble Lord my undertaking to discuss further what remaining differences we have about financial advice, if any, and I hope that those discussions will allow us to explain in more detail our policy intentions and what our own government amendments in this area aim to achieve. I hope that the noble Lord will agree that we are essentially of the same view about this and that he will be content to discuss the matter with me further outside the Chamber. That being so, I hope that he is sufficiently reassured today to withdraw his amendment.
I turn to Amendment 63, tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Wheeler. We are in concordance with them that a model deferred payment agreement would help local authorities and that is why we already have one in place for the schemes that are currently operating. What we intend to do now is build on and improve the current model. In doing that, we will work in partnership with local authorities to learn from the well established schemes, some of which have a decade of experience. While the case for a model scheme is clear, I think it would be wrong to mandate national systems and structures for deferred payment agreements. It is important that we strike the right balance between local flexibility and national consistency. Systems and structures must be developed in partnership with local government and allow for and, indeed, encourage local efficiencies to flourish. As noble Lords may know, we have established with the Local Government Association and the Association of Directors of Adult Social Services the joint implementation and programme board to support the implementation of these reforms more generally and, through this, we will support local authorities to deliver the universal scheme from April 2015. This work will include our commitment to providing a model deferred payment scheme, based on the current model, as well as statutory guidance to support local authorities in exercising these functions.
The statutory guidance on deferred payments, in particular, will have a clear legal status. Local authorities must act under this guidance. This means that they must consider and should follow it, unless they have a justifiable reason not to do so. This would seem to be the same status as is envisaged by noble Lords in their amendment. I hope therefore the noble Lord feels able to withdraw his amendment in light of the reassurance I have given on supporting local authorities to deliver the universal deferred payment scheme and the model agreement in particular.
My noble friend Lady Barker asked whether the scheme was a model for how local authorities manage the burden on themselves. This is not designed to be a scheme that makes a profit for local authorities. The interest rate is likely to be set at a rate which recognises local authority borrowing rates, and so ensures that the scheme is cost-neutral.
Lord Lipsey
My Lords, I thank the Minister for that reply. On the first two of the three legs of his argument, I am happy to support what he said. Through helpful discussions over the summer, I understood that he had meant to say “up to 40,000.” I make no criticism of him for misleading the House. Any misleading he did is on a tiny scale compared with the misleading that has taken place with the whole country through these repeated cuttings file references. History will now have on record in this debate the truth about these numbers. That is a form of progress, if not legislative progress.
Secondly, I should like to thank the noble Earl for what he said about advice. We are near to having another meeting before Third Reading on advice. We are all after the same things on advice with the same constraints. We have not quite cracked it yet, but I hope when the House comes back on Third Reading to the matter of advice, we shall do so, either in the form of an amendment, or of a shared understanding on where we are going which might take the form of regulation or guidance. On those two things, I agree with the Minister.
However the Minister did not confront my most important point. Let us be absolutely clear. This Bill does not provide a universal deferred payments scheme. It provides a deferred payments scheme only for people who have less than £23,250 in assets. There is no universal deferred payments scheme. Further, this has been done in a back-door manner which disgraces the Government. It was not in Dilnot. We have heard decisive testimony on that from my noble friend Lord Warner. It was not in the Government’s announcement of their response to Dilnot. It was not in the Second Reading speeches. It came out between stages of the Bill in this consultation document. The noble Earl suggested that there would be people with more than £23,250 who could benefit from deferred payments so we did not have to worry. The relevant bit from paragraph 154 of the consultation document says:
“More generally, we also intend that authorities should have the discretion to provide deferred payments to people in residential care who do not necessarily meet all of the mandated criteria.”
Those criteria include the £23,250, so that sounds quite good. The next sentence says:
“For example, if someone has slightly more savings”—
I stress the phrase “slightly more savings”—
“than the £23,250 threshold but would qualify for a deferred payment soon, an authority might prefer to offer the option upfront.”
That is a tiny loophole. This is essentially a £23,250 threshold that the Government have smuggled in, telling nobody until they had to produce this document and hoping no doubt that by 25 October, nobody would have noticed. I shall tell you who will notice. The Daily Mail will notice. The Daily Mail and other newspapers which campaigned so that people would not have their houses seized—I applaud them and have applauded them before for doing so—are now going to learn that the Government have welched on the deal. The tsunami that will hit the Government in consequence will hurt not only this proposal but the Government as a whole.
Earl Howe
My Lords, the Care Bill will for the first time introduce a duty on local authorities to ensure that where a person is receiving care and support they can move home to another local authority area, confident that they will have services in place on the day of the move. The noble Baroness, Lady Campbell, has been a leading advocate in this area for some time, and I acknowledge that her Private Member’s Bill was a template for the provisions in this Bill.
The noble Baroness’s Amendment 63ZA looks to ensure that when the second authority is carrying out the assessment of the adult moving and, where appropriate, their carer, it meets the outcomes that they want to achieve. I reassure her that the provisions on assessment for the person needing care and their carer apply to when a person is being assessed for continuity of care. Assessments must look at achieving the outcomes that the person or carer want to achieve, and Clause 37(8) confirms that. I also give an assurance that we will emphasise this in the statutory guidance.
Amendment 63B proposes that the first authority is responsible for arranging services on the day of the move. I say immediately that I sympathise with the sentiment of the noble Baroness’s argument; neither of us wants a gap during which a person is left without services. However, our view is that the second authority is best placed to maintain continuity of care. Our reasoning is that the person will now be living in the area of the second authority and, as for anyone who has eligible care and support needs, the second authority has a duty to meet those needs. The second authority will also know its local market and will be far better placed to put in place arrangements that support the person and maintain their level of independence from day one.
My concern is that it would be difficult for the first authority to make such arrangements, particularly where the person moves a long distance away. In practice, if the first authority is responsible for making arrangements it would have to contact the second authority to discuss the local market, which raises the question of why the second authority is not responsible for putting in place services in the first instance.
For the reasons that I have explained, I believe that the second authority must be the one responsible for delivering services on the day of the move. However, in light of the concerns raised by the noble Baroness during Committee, I have looked again at the provisions in the Bill. My Amendment 63A will require the first authority to contact the second authority and maintain this relationship so that it is aware of where the second authority is with putting services in place. It will also require the first authority to keep the person involved with discussions about their services and informed of progress for putting these in place. In other words, the amendment will put the person at the centre of the process. Both ADASS and the Local Government Association have indicated that this amendment will strengthen the process.
The noble Baroness questions whether placing the responsibility on the second authority is the right approach. I believe that it is. However, I fully understand her concerns, and I commit now to my department reviewing how the continuity of care arrangements are operating three years following implementation. This will provide us with more information, which will help us to understand if the process can be improved.
We are already considering how we might implement the provisions in the Bill. The first step will be to develop the regulations and statutory guidance. Given the noble Baroness’s knowledge in this area, I hope that we can draw on her experience and that she will be able to advise us on the preparation of the regulations and guidance. I sincerely hope that in strengthening these provisions and in the commitments that I have given, I have been able to convince her not to press her amendments.
The amendments relating to ordinary residence will provide clarity in respect of three areas: the overall principle of ordinary residence; the principle of ordinary residence so that it applies to after-care under the auspices of the Mental Health Act; and finally, the cross-border placement of individuals so that service users can move between the four countries of the UK where this is deemed to be in their best interests.
The noble Baroness, Lady Wheeler, asked whether reciprocal agreements are now in place or whether there would be more changes in this area. The answer is that the basic structure is in place in terms of reciprocal arrangements on cross-border care. However, some small details remain to be finalised through regulations and statutory guidance. We will work closely with the devolved Administrations on this.
First, government Amendments 66 and 67 address a potential lacuna in respect of people who may live in England—and therefore be ordinarily resident in an English local authority—but who are treated entirely within the NHS of a devolved Administration. The amendments ensure that they would remain ordinarily resident in England. Secondly, Amendments 64, 65, 126 to128 and 132 to 136 apply consistent ordinary residence rules in England and Wales in respect of after-care under the Mental Health Act 1983, and reflect our agreement with Wales that Welsh Ministers or the Secretary of State will determine cross-border disputes according to agreed arrangements.
Thirdly, Amendments 68 to 75 relate to cross-border placements. The cross-border provisions in the Bill reflect the outcome of solid collaborative work with Scottish, Welsh and Northern Irish colleagues to remove legal barriers restricting the placement of an individual from one territory of the United Kingdom to another. These amendments make technical adjustments to those provisions, following further discussion with the devolved Administrations about the detail of the arrangements.
The purpose of the amendments on cross-border placements is threefold. First, they ensure that the established principle that the placing authority retains responsibility for the care of those individuals placed cross-border is not interrupted should the individual receiving care require a period in hospital or other healthcare accommodation. Secondly, they enable regulations to provide for the cross-border placements provisions to apply to individuals who receive direct payments. Thirdly, they provide a regulation-making power that would allow our cross-border provisions to apply to individuals placed in a setting other than a traditional care home—for example, supported living arrangements.
The noble Baroness, Lady Wheeler, also asked about the impact of cross-border placement provisions on cost pressures. It is our understanding that the number of placements between countries of the UK is likely to be minimal, certainly in terms of the overall budget. However, we will work closely with colleagues in the devolved Administrations to further understand and bottom out the financial implications.
This group of amendments provides further necessary clarity to enable people to receive care and support in locations that suit their needs and I commend them to the House.
Baroness Campbell of Surbiton
My Lords, I thank noble Lords and the noble Baronesses, Lady Wheeler and Lady O’Loan, for speaking in support of my amendment. I warmly thank the Minister for his thoughtful reflections on my amendments and for tabling his amendments to meet some of my concerns—followed up at the last minute by a very good, timely review. Although I had hoped to see both my amendments on the statute book tonight, I am happy to acknowledge that the Government’s proposal is a ginormous step in the right direction to full portability. If it reduces the prospect of a cliff-edge scenario, it will achieve its purpose. I know that disabled people will feel encouraged to move instead of staying put.
Finally, I am grateful to the Minister and especially his officials for their positive approach to this issue, which I have raised in Committee and, quite frankly, over the past three years. We have burned a lot of midnight oil together and I have been very impressed by their efforts to find practical solutions. It bodes well for our continued collaboration on this landmark reform—and it is a landmark. Do not forget, we were tied to our local authorities since time began and this is the first time that disabled people will have the right to freedom of movement if they require support. I will be pleased to be involved in the regulations and of course I will be there. Frankly, you could not stop me. I beg leave to withdraw my Amendment 63ZA.
“(8A) Pending the adult’s move, the first authority must keep in contact with the second authority in order to ascertain the progress that the second authority is making in preparing to meet—
(a) any needs for care and support under section 18 or 19 in the adult’s case, and(b) where the adult is proposing to have a carer immediately after the move, any needs for support under section 20 in the carer’s case.(8B) The first authority must keep the adult (and, where applicable, the carer) informed about its contact under subsection (8A) with the second authority and must involve the adult (and, where applicable, the carer) in the contact.”
Lord Hunt of Kings Heath
My Lords, I have added my name to Amendment 76 of the noble Baroness, Lady Greengross. I also support Amendments 123 and 124. Leonard Cheshire Disability put it so well when it said that it was concerned that the Bill, in placing a number of important and complex duties on local authorities, will have a substantial impact on the lives of older and disabled people without providing appropriate routes for appeal against unjust or factually inaccurate decisions. It says that there is a compelling case for the Government to set up a system to resolve cases where there are disagreements between the local authority and the individual.
When we think of the various ways in which local authorities can impact on individuals who have come within the care system—support eligibility criteria, financial assessment, operation of the cap, charges, personal budgets and the boundary between NHS continuing care and means-tested social care—surely there have to be opportunities for a person to appeal against decisions of the local authority. In Committee, the noble Earl relied first on the current complaints system of local authorities and, secondly, he went on to point out that if a complainant was not satisfied with the response from the local authority, they were then able to refer the case to the Local Government Ombudsman.
However, a complaints system is not really what noble Lords are calling for. Anyone who has seen responses from local authorities to complaints will know that they tend to find in favour of themselves and rarely reopen a question of substance. Noble Lords want an opportunity for a person concerned to put their case and for that case to be considered by a group of people who may be said to be independent of the local authority. Like the noble and learned Lord, Lord Mackay, and my noble friend Lord Warner, I am keen on the tribunal approach which deals with social security cases; I have witnessed these cases. Although the noble Earl felt in Committee that these would be expensive, I believe that it is a cost-effective way of allowing people to put their case and for that matter to be decided. I am sure that in the long term it will be more expensive if there is no proper decision. I suspect that we will see lots of judicial reviews being initiated against local authorities. They do not and will not have a proper system for dealing with appeals.
The noble Earl said in Committee that the Government were consulting on processes for providing redress. Although he thought that the results of that review would be available before the Bill had concluded its passage through Parliament, I suspect that that will be too late for your Lordships’ consideration. I therefore hope that the noble Earl might be able to give us some comfort that he will in fact give further consideration to this. I hope that we might return to this point at Third Reading.
Earl Howe
My Lords, at the heart of these amendments is an important issue: the voice of older and disabled people. I hope that I can give some reassurance to the House.
Amendments 76, 123 and 124 would include in the Bill provisions for an appeal system that allows individuals to appeal against decisions of, first, the local authority relating to their needs for care and support and, secondly, the relevant NHS body relating to their eligibility for NHS continuing healthcare. Of course, those are quite separate matters.
On the amendments relating to local authority decisions on care and support, I will briefly run through the current, essentially complaints-based, arrangements. These arrangements were reformed via the 2009 regulations, which require local authorities to publish arrangements for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedures, which may of course result in varying user experiences. If, having raised a complaint with a local authority, a person is not satisfied with the response, they can refer the complaint to the Local Government Ombudsman. The ombudsman is independent of the local authority. It can investigate whether the decision-making process has been conducted appropriately and make a recommendation to the local authority.
As has been said, the Bill will result in many more people being brought into contact with their local authority, so it is appropriate that we are reviewing the current arrangements regarding appeals via a public consultation. If that is consistent with what the noble Lord, Lord Hunt, regards as the Government having a second look, I believe that we are doing so. Through the consultation we have heard from user representatives a concern voiced this evening by the noble Lord, Lord Warner: that current arrangements are not sufficient to withstand the additional pressures of the Bill reforms.
While our initial view is that it is likely that some changes are needed, we really need to wait for the consultation to close before making any judgments. I will be in a position to update noble Lords about that in December. Although I acknowledge that this is a work in progress, the Government are on the case. I hope, with that assurance, that the noble Baronesses and the noble Lords will therefore be content to withdraw Amendment 76 and not to move Amendment 123.
In response to the noble Baroness, Lady Meacher, who asked whether we would consider a formal tribunal, our current assumption is that a tribunal process would be likely to slow down the process of resolving complaints and would add significant costs which would, in turn, produce a further burden on the system. There is a range of approaches to resolving complaints and providing redress. It is advantageous to have a flexible system that works well and efficiently at a local level, in a manner that is proportionate to the type of complaint.
The noble Baroness also asked whether we might consider an independent panel rather than a tribunal, although I was not sure whether those two were the same thing in her mind. The funding reform consultation that covers this issue will close late in October. Following this review, should we decide to make a change we expect we could do so through secondary legislation. Of course, we are not ruling anything out in the consultation. If it transpires that we wish to make changes that require primary legislation we would ensure that proposals were brought forward at the earliest opportunity. However, if changes were desired—for example, to introduce a requirement whereby a decision was reviewed by an independent panel—in this case we would do that by amending existing regulations.
The noble Baroness asked whether I could assert that decisions in this area will not vary across the country and that there will not be errors. Of course, there is scope for errors to take place and for variation. I can say that we would want the following principles to underpin the mechanisms for redress and resolving complaints: clarity, local accountability, fairness and timeliness. Lastly, there should be an independent element. I hope that that is helpful as a guide at this stage.
Lord Warner
Before the Minister sits down, I will ask on a point of clarification. He made a lot of reassuring noises about the ability at the end of the consultation process to deal with some of the outcomes of that process under secondary legislation. Can the Minister clarify whether that also included—if the Government have had a damascene conversion to a tribunal-type arrangement—that secondary legislation could introduce a tribunal-type of arrangement for adult social care?
Lord Mackay of Clashfern
Again, before my noble friend finally sits down: he mentioned the principles that would seem applicable to local authority decision-making and appeals from that. I wonder whether one of the principles that should be given effect might be consistency across the country—in other words, fairness between people who live in X and people who live in Y. I suspect that there is a possibility that different local authorities will take different decisions in very similar cases, and consistency across the country would be an important element in the fairness of this new system.
Earl Howe
I take the point made by my noble and learned friend. We cannot iron out every kind of disparity, but we should aim for the kind of fairness that he talks about.
I have misled the House: we would not be able to establish a tribunal by secondary legislation—it would require primary legislation. However, as I said earlier, in the consultation that we are carrying out we do not rule out any solution. Clearly, if it transpires that we want to make changes for which primary legislation is needed, we would need to ensure that proposals were brought forward for consideration at the earliest opportunity. In general, we hope that the consultation will flush out any concerns in this area, not least in the area of fairness, as referred to by my noble and learned friend.
Lord Warner
Just to finish off this discussion, I have another point for the Minister to consider, which was made by the noble and learned Lord, Lord Mackay. The whole point about a tribunal system is that you build up case law, so you spread consistency across the country through the case law that individual tribunals have made. Without that structure of a tribunal system I suggest that it is very difficult to achieve the objective that the noble and learned Lord is seeking. Might the Minister ponder on that before we discuss this again?
Baroness Greengross
My Lords, I thank all the noble Lords and noble Baronesses who have supported these amendments. I am encouraged that the issue is being taken so seriously by the noble Earl. In a way it is a shame that the timing of the consultation is as it is, and that we will not get it through until December. I have always been worried about certain aspects of NHS complaints procedures, when the body that looks at those procedures is the NHS itself. I have felt for many years that that is unfortunate. I am very pleased that the Minister has agreed to look again seriously at all this. We need to protect these extremely vulnerable people from not getting the best level of service that they can because of a decision that could be to the detriment of their care, which could leave them feeling that their situation is hopeless and that there is nothing they can do.
I therefore thank the noble Earl. I am pleased that he is prepared to look at all this again and I hope that we can have some discussions on the outcome. This was a probing set of amendments—I did not intend to do anything other than probe—but I thank him and hope for better news about this or for more detailed decision-making in the near future. In the mean time, I beg leave to withdraw the amendment.
Baroness Wheeler
My Lords, in addressing these amendments I once again emphasise that we very much welcome the placing of safeguarding on a statutory footing in the Bill, and the establishing of statutory safeguarding adults boards. This builds on the legislation, regulations and advice on principles and frameworks for safeguarding for both adults and children that we established up to 2009, which are now being taken forward in the Bill.
The noble Baroness, Lady Greengross, and other noble Lords, again made a comprehensive case for granting the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. The noble Lord, Lord Rix, spoke of “mate” relationships among people with learning difficulties. It was a powerful example of what we need to address.
We know that there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions, and patients and user organisations on this sensitive and complex issue. However, we have to remember that the Government's consultation had a relatively low response, particularly in terms of local council and NHS trust participation. On top of that, many of the consultation responses appeared not to have fully understood the limited nature of the change that was being proposed: namely, that the new power would apply only to situations where it is the third party who is denying access, not the individual.
The noble Baroness’s amendment sets out tough limitations and restrictions that would apply to such a power. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone was in danger of abuse. The power of access would be to enable the local authority to access the person and speak to them alone to assess the situation. It is clear that it is intended as a last-resort power to address third-party denial of access to a vulnerable adult, for use after all other efforts and mechanisms have failed.
Getting the balance right between proactively intervening in the lives of individuals in this way and limiting the extent to which this interferes with their rights to freedom and family life is the challenge that we face. Certainly there is widespread acceptance that the existing powers to intervene under government legislation are not being fully utilised and are not addressing the issues, and that the training of specialist staff needs urgently to address this. Will the Minister explain to the House how the Government intend to deal with this?
As we said in Committee, on balance we support the case for inclusion in the Bill of the power of access by a social worker or the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment of the noble Baroness, Lady Greengross. We recognise that safety should be paramount in this instance. However, we recognise the strong concerns of Mind on this issue, and of the Royal College of General Practitioners, which would prefer to use other powers, such as working with the sector to co-produce best-practice guidelines. Will the Minister explain how the Government propose that denial of access by a third party to a potentially vulnerable adult will be addressed if the issue is not dealt with in the Bill?
I support the intention of Amendment 79A, tabled by the noble Lord, Lord Rix, to include in the Bill a definition of abuse that reflects other types of abuse besides the financial abuse currently included in the Bill. The noble Lord has the very real concern that this would encourage hard-pressed local authorities to narrow their focus to financial abuse alone. The Confidential Inquiry into Premature Deaths of People with Learning Disabilities published its findings in March 2013. It looked at the deaths of 233 adults and 14 children with a learning disability in the south-west and found that 20% of the people concerned had experienced safeguarding concerns. While some of these may have been due to financial abuse, it is more likely that they concerned other forms of abuse: in particular, neglect. The study showed that 37% of deaths would have been potentially avoidable if good-quality healthcare had been provided. Neglect is undoubtedly one of the reasons, and thus the definition in the Bill should be broadened. I ask the Minister to look again at this and come back with a more balanced clause reflecting other types of neglect and abuse. It is important, for example, that hospital safeguarding leads should be clear that the definition is broad, and should take appropriate action.
The noble Lord’s Amendment 81A would also be a welcome alteration to the Bill. It is a small but important matter, because sending SAB annual reports to the Secretary of State will ensure that safeguarding is given the high level of oversight needed, particularly over areas that might be failing.
We also support the amendments to Schedule 2 contained in Amendment 81 from the Government, and Amendments 80 and 82 from the noble Baroness, Lady Greengross. The SABs would benefit from professional social worker representation, as would safeguarding adult review teams from having a qualified social worker supervising the review.
The two final amendments of the noble Baroness, Lady Greengross—Amendments 78 and 79—raise the important issue of establishing a new duty of care on a local authority or its relevant partner to report to the authority if they suspect that there is a failure of care, and to set out the terms of conviction for any person guilty of neglecting or ill treating an adult at risk of abuse. We share some of the concerns of the LGA, for example, on these amendments: namely, that there would need to be clarification of exactly what the care quality, professional practice and safeguarding concerns would be under the new duty, and how the duty would relate to other partners involved in service delivery. We also share concerns that while the criminal conviction provision may present the way forward in cases of neglect, it might unintentionally create a lower order of offence and tariff for older and disabled victims of crime.
Finally, I underline the vital need, when so much care now is contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister tell the House how the Government intend to ensure that this will happen?
Earl Howe
My Lords, for the first time the Government will, through this Bill, place adult safeguarding in primary legislation. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. This sends a clear message that safeguarding is not the sole responsibility of one agency but requires the very best of partnership working and information sharing. Amendment 77, which would introduce a power of access to a person for a confidential interview, runs counter to that message. Having said that, I am well aware of the strength of feeling in relation to this matter, both inside your Lordships’ House and elsewhere. Whether there ought to be a power of access or entry is a sensitive question. That is precisely why the Government launched a three-month consultation in 2012 to gauge the opinions of professionals and the public. The consultation revealed no clear consensus. Of 212 respondents, 50% backed a new power, with 40% opposed. However, among individuals, 77% disapproved. The majority of respondents in favour of a new power of access were health and care professionals, yet it was very noticeable that their responses revealed the painstaking weighing of potential benefits against unforeseen consequences.
The mental health charity Mind said:
“A power of entry risks being seen as a quick solution, in place of greater focus on community engagement, co-operation and a preventative approach that can be truly empowering to the people involved”.
This was a theme found in many responses. I stumble over the consequences of what the noble Baroness seeks to do. Here I respectfully but fundamentally disagree with my noble friend Lady Barker who said that there was no real comparison with the situation in mental health. A power such as this might well ensure access but the central issue will remain—how will the professionals then work with the situation to achieve the best outcomes? Trust will have been compromised and, short of a power of removal, which we certainly would not want to see, the options for action seem pretty limited.
Our consultation revealed no compelling evidence for further legislation. Even those respondents in favour pointed to how rarely a new power might be applied and identified potential unforeseen consequences. Proposed new Subsection 4(c) of the amendment states that an access order should be granted only if doing so,
“will not result in the person being at greater risk of abuse or neglect”.
I have to ask how a court could ever reliably make such a judgment in these circumstances.
The other key point which I would like to believe may sway the House is the following. There exists no legislative vacuum preventing care or other professionals accessing those in urgent need of assistance. Under the Police and Criminal Evidence Act 1984, the police have the power to enter premises if harm has occurred or, indeed, is likely to occur. The Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 and, for those lacking capacity to make decisions, the Mental Capacity Act 2005, provide a wealth of powers for use at the front line, and the inherent jurisdiction of the courts to intervene provides a secure safety net. Therefore, it is not the lack of legislation; rather, as safeguarding lead directors at ADASS have put it, it is a question of a “lack of legal literacy” within the social care and other professions. What is needed is greater knowledge of existing legislative options. If they have that, professionals will be fully equipped to support people to be safe. The core role of an adult social worker is to support people. Further legislation for a new power of access risks undermining this approach, sending the message that legal intervention takes primacy over negotiations and consensus. I stress that legal intervention, on those rare occasions when it is needed, is already possible under the law. For those reasons, I cannot accept this amendment.
Lord Rix
I fully understand the argument that the Government do not want a great list of what constitutes abuse. However, the Minister said earlier that it would be possible to give local authorities a batting order, as it were, of what is in legislation. I realise that abuse is covered in legislation, but would it be possible at least to make sure that local authorities do not suddenly think that only financial abuse is to be considered when they look at this Bill? That is all I am asking for.
Earl Howe
I will gladly look into that point. I am sure that it is possible to do that but, as the noble Baroness, Lady Barker, said, many provisions on the statute book are designed to protect individuals from abuse in one form or another and make criminal offences of those actions. Nothing has changed as regards those criminal provisions. If they need to be underlined, however, and if there is scope for misunderstanding what the Government are doing here, then I take the noble Lord’s point, and will gladly reflect and come back to him on that.
Amendments 80 and 82 emphasise the need for involvement of social work-qualified staff in boards and reviews. In Schedule 2 we make it clear that chairs and members of boards must have the “required skills and experience”. It would be impracticable to put into primary legislation every possible type of expertise and professional knowledge that might be needed. We must allow boards the flexibility to appoint members as they see fit. We will, however, ensure that the importance of social work is recognised in guidance, which will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.
Government Amendment 81 responds to an amendment tabled in Committee by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins. On reflection, I see merit in placing a duty on safeguarding adults boards to publish an annual report. This amendment will increase the transparency and accountability of boards.
Finally, Amendment 81A, tabled by the noble Lord, Lord Rix, requires that safeguarding adults boards provide their annual reports to the Secretary of State. With a duty on boards to publish their annual report, we can be assured that they will be publicly available. We would expect the local Healthwatch and health and well-being boards to monitor the safeguarding adults board’s progress and report to the Secretary of State if there are particular matters of concern. To require the board formally to submit a report to the Secretary of State would, if nothing else, undermine the primacy of local accountability, which is at the heart of our approach to safeguarding. I hope that, on reflection, the noble Lord will agree with me.
I hope that I have convinced your Lordships that we have done all that we properly can to provide the right legislative framework for safeguarding and, in consequence, that noble Lords will feel able not to move their amendments.
Baroness Greengross
My Lords, I have to say that I am extremely disappointed that the noble Earl cannot in some way meet the requirements that I put forward in my amendments. Unfortunately, the number of older people who suffer abuse is growing all the time. The sort of personal plans for care that we now want to introduce for everyone just make such abuse a greater risk than it was before. We know that an awful lot of older people are shoved in a room, the door is closed, they get their meal and no one does anything else. Over a long period, those people’s conditions can get worse and worse. When and if they are eventually discovered, it is too late to do anything to help them.
The sort of care that we want to provide for people might be damaged by a refusal to look at this issue in greater detail. I am really disappointed. I understand the noble Earl’s views but disagree with them. I thank all noble Lords who supported what I have said and I assure my noble friend Lady Meacher that I was not intending to persecute carers. My intention related to people who, I am afraid, inflict real harm and hurt on some of the most vulnerable people in our society. I have worked on this issue for years; that is why we set up Action on Elder Abuse, the only specialist agency to look at this. Its view is strong and has not changed. We must have some sort of protection for these very vulnerable people. I hope that one day we can get this matter looked at again and I hope that the Minister will consider it in the future. In the mean time, I withdraw my amendment.
Earl Howe
Before the noble Baroness makes a final decision, I hope that I have been clear that I have reflected on her amendment. I cannot give her false hope that I will reflect further between now and Third Reading; so if she wishes to test the opinion of the House, she should do so now.
Baroness Greengross
I am hesitating only because of time and I know that a lot of people have gone home. I thank the noble Earl for his advice and, on that basis, I seek to test the opinion of the House.
“( ) what it has done during that year to implement the findings of reviews arranged by it under that section, and( ) where it decides during that year not to implement a finding of a review arranged by it under that section, the reasons for its decision.”