Health and Care Bill

Lord Kamall Excerpts

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

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

My Lords, I thank all noble Lords who have spoken and particularly thank the noble Baroness, Lady Pitkeathley, for her continuing championing of carers.

Discharging people as soon as they are clinically ready is increasingly recognised as the most effective way to support better outcomes. The evidence shows that the “discharge to assess” approach reduces time spent in a hospital bed and supports people to remain independent at home wherever possible. Although the hospital discharge clause does not mandate discharge to assess, the Government are supportive of local areas that choose to implement this best practice model. We believe that carrying out long-term needs assessments at a point of optimum recovery leads to a more accurate evaluation of people’s abilities and needs and more appropriate care packages. Many people discharged from hospital require longer than two weeks to recover. Requiring social care needs assessments to be completed within two weeks of discharge would not necessarily be in the patient’s best interests.

I understand that noble Lords are concerned about safe discharge from hospital and safeguards for patients and carers. However, relevant NHS bodies are expected to ensure that patients’ health needs are met safely in hospital and in the community. Local authorities also have duties to assess patients’ and carers’ needs and, where relevant, ensure that appropriate support is put in place for them. In addition, the CQC monitors, inspects and regulates services to make sure that they meet the fundamental standards of quality and safety, which are set out in legislation.

The Government do not believe that these amendments are in the best interests of either carers or patients. They would create new burdens on NHS bodies and local authorities, and Amendment 144 would create new penalties for local authorities for failing to carry out assessments within a specified timeframe. In doing so, the amendments would undermine the entire purpose of Clause 80 and hinder the ambition, shared across the health system and by Members of this House, to ensure that people are discharged in a safe and timely manner. The creation of significant bureaucracy between local authorities and the NHS risks damaging relationships and would go against the spirit of integrated working that this Bill seeks to support. We agree, however, that accountability and transparency are key to ensuring that local systems deliver high-quality and safe discharge services, which is why we welcome the fact that NHS England now publishes hospital discharge data.

Additionally, a duty on NHS bodies and local authorities to co-operate with one another is already set out in Section 82 of the NHS Act 2006. To specify how this duty will apply to hospital discharge, we are co-producing guidance with organisations including Carers UK, the Carers Trust and Barnardo’s. This will set a clear expectation that, where appropriate, unpaid carers should be consulted during the discharge process. As noble Lords have acknowledged, this guidance will be statutory; NHS bodies and local authorities will therefore be required to have regard to it or risk claims for judicial review potentially being brought against them. We agree that, where we can do more to “think carer” across the NHS, we should. With this in mind, we can commit that we will consult with the public, staff and carers on including a stronger reference to the role and regard of unpaid carers in the NHS constitution, for which a review will be launched this year.

I am also mindful of the specific concerns that have been expressed in relation to young carers. As well as using the guidance to include a much broader definition of carers than that set out in Schedule 3 to the Care Act, I can inform the House that the new Explanatory Notes for the Bill provide clarity that young carers and parent carers are included within the everyday definition.

In response to a number of noble Lords’ questions, I repeat what I said earlier: our new guidance includes a broader definition of carers than Schedule 3 to the Care Act, which applied only to adult carers of patients requiring a long-term needs assessment before discharge. Adult carers’ rights to an assessment of their own needs, under Section 10 of the Care Act, and young carers’ rights, including those as part of the Children Act, remain unchanged under the proposed hospital discharge arrangements.

We believe that statutory guidance is more appropriate here. At the moment, current guidance is not statutory; this will be statutory. Where a young carer is identified, or staff have concerns, the local authority should be notified. Local authorities must then carry out a needs assessment if it appears that the young carer needs support. We are not imposing new duties on local authorities; the existing legislative duties placed on local authorities to assess and meet patients’ and carers’ eligible needs remain unchanged.

I recognise the good intentions behind Amendments 113 and 144, but we believe they would have the effect of undermining the ability of local areas to adopt best practice for hospital discharge. I am not confident when I say this, but I hope that, having heard what I have said, noble Lords may feel able not to press their amendments when reached.

[Baroness Pitkeathley (Lab)]

My Lords, I thank all noble Lords who have spoken and the Minister for his responses, particularly about consultation and about broader definitions and identification of carers. I was a little puzzled when he mentioned transparency, since the latest updated version of the impact assessment says:

“The level of support required as well as the associated impact on work hours and salary would vary significantly case-by-case and the impact on unpaid carers is difficult to assess. We are therefore unable to quantify the impact on unpaid carers at this stage.”


I am very concerned that, if we cannot quantify the impact on carers, we cannot really do anything to support them.

The problem with guidance, good practice guidance or statutory guidance, is that we have been here before. I have seen other bits of guidance—the identification of carers by GPs, breaks for carers—I have seen those bits of guidance fall away when another priority takes over. Therefore, I am very concerned that we need to have the rights of carers enshrined in primary legislation, and I wish to test the opinion of the House.

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Moved by

[Lord Kamall]

126: Schedule 16, page 242, line 11, after “(h)” insert—
“(a) omit the “and” at the end of sub-paragraph (iv);”Member’s explanatory statement
This amendment is consequential on paragraph 5 of Schedule 16 to the Bill, which adds a new sub-paragraph (vi) to section 19A(6)(h) of the Criminal Procedure (Scotland) Act 1995.

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[Baroness Walmsley (LD)]

My Lords, these Benches support Amendments 141, 143 and 144A. I congratulate all who have spoken and laid out the very important issues that we are talking about in this group. I will add one more point, which is that the fairly small savings that the Government might make under these measures, unless they are amended, would be paid for by the most vulnerable people. That is unworthy of a Government who say that their ambition is to level up across the country.

[Lord Kamall (Con)]

I thank all noble Lords who have spoken in this debate and I am sorry I was unable to engage as much on this issue as I was on others. I will speak first to government Amendments 128 to 140 and 187. We believe that these amendments are crucial to make the adult social care charging reforms work as intended. If they do not stand as part of the Bill, it will lead to unfairness between those whose needs are met by a local authority and those who self-fund their care. The intention of these amendments is to correct this.

Without these amendments, some costs which individuals have incurred will not meter towards the cap when they should do so. Currently, individuals eligible for funded support who have not had a timely needs assessment may incur costs in getting their needs met in the interim. This applies whatever system of charging we come up with. The costs incurred during periods of delay currently do not count towards the cap, and my amendments fix this. We came across this issue when we were looking back at previous Bills and unintended consequences.

I have also tabled an amendment to clarify the circumstances in which an independent personal budget must be provided by a local authority and what information those documents must include. We want these to be forward-looking documents, personal to the care user. To support this and to simplify the metering process, we are also removing the link between these documents and what meters.

Finally, as set out in the recent impact assessment, our charging reform implementation plan includes a small number of trailblazer local authorities that will implement charging reform earlier than others. I have tabled Amendment 187 to allow these trailblazer local authorities to begin implementing the reforms before others. For these reasons, I ask that noble Lords support my amendments.

On the other amendments, a number of noble Lords have asked questions and I will try to answer them. We believe that the £86,000 level set for the cap balances people’s personal responsibility for planning for their later years with a need to put in place a system to ensure that nobody faces unpredictable costs. Removing Clause 155 or simply omitting Clause 155(2) would have the effect of removing the ability to meter towards the cap by individual contribution only. Instead, progress towards the cap would be based on both individual and local authority contributions to care costs. This policy is unfair. However, it is also considered unaffordable.

Removing these clauses would increase the cost of the overall reforms by about £900 million per year, if you keep all other parameters the same—although. of course, other noble Lords have asked for other amendments, so those parameters would not necessarily be the same. This would require raising the cap, reducing means-tested support or expecting people to make contributions towards their daily living costs that are unaffordable from most people’s income. None of these is preferable to the approach that the Government are proposing to take.

We argue that the Government’s reform package is affordable and deliverable. We have indeed seen many reports over the years, and I understand that the noble Lord, Lord Warner, was on the Dilnot commission, but we have to ask ourselves why these were not implemented. Although we may see many merits in a number of a different systems, and we all have our own biases or views on what the system should—

[Lord Warner (CB)]

May I give the Minister the answer to why they were not implemented? Successive Conservative Chancellors declined to implement them.

[Lord Kamall (Con)]

The noble Lord may say that, but I have been advised that they were considered unaffordable.

On Amendment 142, I thank the noble Lord, Lord Lipsey, for his engagement with me on his very interesting idea. I agree with him; I regret the fact that the private sector has not come forward sufficiently to offer products. I agree that that could have solved a number of problems, but I should clarify that the taper rate is not linked to income, as suggested. It is what people are considered to be able to afford to pay towards the costs of their care, based on their capital.

The amendment would make the means-testing regime significantly more generous than in the Government’s proposal, and I can see why that is attractive. However, once again, to answer the questions from many noble Lords, that would be considered to make charging reform unaffordable. We would be unable to afford to invest in wider improvements in the social care system that we are all keen to see. The Government’s plans balance providing protection and predictability when it comes to care costs with how much additional burden should be placed on the taxpayer. We believe that our reform is responsible, deliverable and affordable. I repeat that although it may not be optimal, our proposal is better than the existing system, where there is no cap.

Amendment 143 suggests a zero cap, which would equate to free personal care for those identified as having eligible care needs before the age of 40. We considered this issue carefully and, as acknowledged by the noble Baroness, Lady Campbell of Surbiton, we looked at this system and engaged with her, but, as she rightly said, the issue was the cliff edge. One may disagree about the cliff edge, and there are other cliff edges, but we felt that one of this magnitude was unfair. We also believe that younger adults will benefit from the announced charging reforms. From April 2022, the social care allowances will be uprated in line with inflation to allow everyone to keep more of their income.

The noble Baroness, Lady Campbell, asked about data on the under-65s. We need to improve the data that we hold on under-65s who are drawing on care and support so that we better understand their needs and how reforms impact them. The Minister for Care and the Minister for Disabled People this week met a large number of organisations representing working-age disabled adults to discuss this and other issues. This group will continue to meet as our reform programme progresses. I hope that that offers some reassurance to the noble Baroness.

Amendment 144A would require the full rollout of the government reforms to be commenced before 1 April 2023. One of the reasons we looked at October is that we recognise that implementing reforms of this magnitude —noble Lords will have heard me say previously that we have grasped the nettle—requires a significant lead-in time to enable local authorities to prepare. We have invested £3.6 billion in preparation for these reforms, and we cannot do it overnight. In addition, we want to have the flexibility to work with some of those trailblazer authorities to make sure that we really get the best of the discovery process to ensure that it works and that we can spot any unintended consequences.

We do not believe that there is sufficient time for local authorities to prepare for full national rollout by April 2023. It is vital that we take the time to work with the sector and local authorities on the process of implementation if we are going to get this right. To enable a successful rollout, we want to see how the trailblazers will work before we go for the full national rollout by 2023. Trialling and engagement with the sector would have to happen anyway, whether Clause 155 stood or not. As I have said, if Clause 155 does not stand, we would not be able to afford to implement charging reform.

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Moved by

[Lord Kamall]

128: Clause 155, page 124, leave out lines 19 to 29 and insert—
“(a) in relation to eligible needs met by a local authority, to any amount the local authority charged the adult under section 14(1)(a) or 48(5) for meeting those needs;(b) in relation to eligible needs met by a person other than a local authority, to what the cost of meeting those eligible needs would have been to the local authority that was the responsible local authority when the needs were met.”Member’s explanatory statement
This amendment de-couples the costs that accrue towards the care cap from the costs specified in the budgets and simplifies the drafting for determining those costs that accrue.

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[Baroness Greengross (CB)]

I will be very brief because this is a slightly different subject. I shall speak to Amendment 181, which places a duty on the Secretary of State to ensure that each hospital has sufficient accommodation for patients who are rehabilitating and no longer require a hospital bed but still have needs. Further, as part of this duty, the Secretary of State must ensure that any spare land owned by the NHS is considered for this use.

In Scandinavia, patient accommodation of this nature has been part of the state health system since the late 1980s. Having patients stay in these facilities, which are designed to cater for people still needing some medical care, has delivered considerable savings to the public health system. The savings from these facilities is significant. In the previous group, much of our discussion—as always—was about the cost of our health and care system to the taxpayer, and to those who need care. This amendment, as well as delivering better rehabilitation and care for someone recovering from being in hospital, also delivers a significant saving. As I pointed out in Committee, NHS trusts are currently spending money putting up patients in hotels, with rooms costing as much as £275 a night. One London hospital has spent over £1 million on hotel rooms in the last three years. The cost of someone staying in a hospital bed for longer than they need is even greater than that. This is something that I would very much like to take up further with the Government.

Over the last few years, I have been working with a chartered architect who has identified various sites where this could happen throughout England. One is not terribly far from here. This is a real opportunity and I hope the Government will take it to include this as part of the Bill.

[Lord Kamall (Con)]

My Lords, I start by thanking noble Lords who have spoken in this debate. In the end, this turned out to be an eclectic mix of amendments. Given that, I hope I can get the right balance between giving noble Lords comprehensive enough responses, while bearing in mind the more basic need of a dinner break for some noble Lords who have been in this debate today. I will be as brief and as comprehensive as I can be.

I turn first to Amendment 144B. We should be clear that the CQC is not intended to be an investigative body for an individual seeking redress. Other statutory bodies already exist to investigate individual cases and complaints, including the NHS complaints system. If complainants remain unsatisfied, they can raise their complaint with the independent Parliamentary and Health Service Ombudsman. Where the risk is serious or life-threatening, the CQC can act on a single concern and take regulatory action. Similarly, complaints about adult social care services should be made first to providers. They can also be made to the local authority, if the local authority is commissioning the care. Thereafter, complaints can be made to the Local Government and Social Care Ombudsman. Providers must investigate all complaints thoroughly and take necessary action where failures have been identified. The CQC monitors health and social care providers’ complaints processes and can compel providers to provide a summary of complaints received and their responses. Failure to do so within 28 days is considered a breach of the regulation and could lead to prosecution of the provider.

On Amendment 147A, I hope to assure the noble Lord that work is already in place for a framework for assuring the quality of people working in social care. Registered managers are already assessed by the CQC, to confirm their fitness to be registered. Nurses are regulated by the Nursing and Midwifery Council and social workers by Social Work England. Any person delivering personal care must have a DBS check. If, in the future, it was decided that adult social care workers in England should be subject to statutory regulation, the power to do so already exists in Section 60 of the Health Act 1999.

I turn now to the amendments in my name. I start by thanking the noble Baroness, Lady Merron, for raising this issue with the House, and thank all those noble Lords, including the noble Baroness, Lady Finlay, who have raised concerns about the need for regulation of this ever-evolving industry. As I hope noble Lords will now acknowledge, the Government are committed to improving the safety of non-surgical cosmetic procedures by establishing a licensing system. This will support the introduction of consistent standards that individuals carrying out such cosmetic procedures will have to meet, as well as hygiene and safety standards for premises. The definitions in the amendment are intended to cover the broad range of cosmetic procedures which, if improperly performed, have the potential to cause serious injury and harm. The subsequent regulations will set out in detail the treatments to be covered by the licensing system, and the detailed conditions and training requirements individuals would have to meet. The purpose of this amendment is not to ban procedures or stifle innovation, but rather to ensure that consumers who choose to undergo a cosmetic procedure can be confident that the treatment they receive is safe and of a high standard. The Government will work with stakeholders, including noble Lords, to put in place a licensing regime that works for both consumers and providers, protecting those who choose to receive cosmetic procedures without placing unnecessary restrictions on legitimate businesses.

The noble Baroness, Lady Finlay, asked me a number of questions, so I will try to answer them. I begin with radiofrequency. Given the broad range of skin-tightening procedures, proposed new subsection (2)(e) provides scope to encompass a variety of treatments which involve a wide range of application techniques, including radiofrequency and ultrasound devices. The aim of the licensing scheme is to protect the public from the risk of harm. To achieve this, the regulations will specify the standards of training required. The proposed new clause will also allow regulations to make provisions about the duration, renewal, variation, suspension or revocation of licences.

The range of non-surgical cosmetic procedures available to consumers is vast. Therefore, drawing up the regulations will require detailed consultation with a range of stakeholders. This will include a number of partners, such as the cosmetics industry and local authorities. We will try to do this as quickly as possible, while ensuring that the list is as comprehensive as possible. We will try to get that balance. For these reasons, I hope I can ask noble Lords to support these amendments and I ask the noble Baroness to consider not moving her amendment.