Care Bill [HL]

Lord Warner Excerpts

Monday 29th July 2013 Lords Chamber

Moved by

[Lord Warner]

104ZBA: Before Clause 66, insert the following new Clause—
“Initial funding assessment
Before enactment of Part 1, the Secretary of State must ask the Office for Budget Responsibility to complete by the end of 2014 a review of the funding of adult social care that assesses—(a) the adequacy of current public funding of these services;(b) the proposals for funding the provisions in this Act; and(c) the implications of the Act and its funding for the NHS over the next five years.”

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[Lord Warner]

My Lords, the purpose of this amendment is to give us a chance to discuss the funding of social care and the Bill’s provisions before we complete Committee, particularly given the continuing concerns that social care is seriously underfunded and is not in a good position to take on the changes—good changes, I should emphasise—in the Bill. Those concerns have been around for a long time and formed a major part of the evidence presented to the Dilnot committee and the Joint Select Committee on the draft Bill. I declare an interest in that I was a member of both those bodies.

On the whole, most people support the basic architecture of the Dilnot report and the Law Commission’s proposals enshrined in the Bill. They simply do not believe that the funding is in place to implement effectively the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding. This is hardly surprising, because the Government’s social care funding strategy seems almost designed to confuse. Eric Pickles curries favour with the Chancellor by signing up to swingeing cuts to local authority grants, which inevitably reduces social care funding substantially. Health Secretaries—quite sensibly in my view—then start slipping cheques from the NHS to local government to mitigate, to some extent, the Pickles butchery. Welcome as these cheques may be—but probably not to NHS England—they usually have strings attached and do not make good the shrinking base budget of adult social care, which, I have to mention to my noble friends, has been taking place since before the coalition Government.

First, a little history: the problems of funding adult social care predate the coalition, as the Dilnot commission made clear on pages 14 and 15 of its report. It stated:

“We know that the funding of social care for older people has not kept pace with that of the NHS. In the 15 years from 1994-95 to 2009-10, real spending on adult social care increased by around 70% for older people while, over the same period, real spending in the NHS has risen by almost 110%”.

Before the coalition, pay and prices in social care rose more quickly than general inflation. There was—and continues to be—rising demand as the number of older people and younger adults with care needs increases. Social care budgets rose by about 1% a year in real terms in the three years to 2010, compared with 5% to 6% for the NHS. We in the Dilnot commission showed that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding would need to change. However—and this is bad news for the Benches opposite—it has not.

The funding shortfall that the coalition inherited, of approaching £1 billion, has got worse. The LGA has estimated that just to keep up with demographic demand adult social care needs real-terms annual increases of about £0.5 billion a year. To put right the deficit and stop it getting worse, adult social care should start the next financial year, 2014-15, with a base budget at least £2.5 billion higher in real terms than in 2010. The reality is somewhat different.

The latest survey that I have seen from the directors of adult social services states that by next April local councils will have stripped £2.7 billion out of their adult social care budgets since 2010. I have heard Health Ministers say that this is being done by efficiency savings—so that is all right then. In practice, it has been done by denying people services, imposing tougher eligibility criteria and cutting pay and payments to service providers, with their impact on quality. These cuts have been mitigated by transfers the Government are making from the NHS by the start of 2014-15. On the basis of parliamentary Answers given to me, these look to amount to £1.5 billion in total over three years.

To sum up: the Government have not made good from the NHS what they have taken out, and have not protected the base budget against rising demand and inflation—something that the Dilnot commission said was essential if its proposals were to be implemented. My estimate is that adult social care starts 2014-15 with an underfunded base budget of at least £3 billion—some 20% of its budget.

I now turn to whether things get better between April 2014 and 2016, when the main implementation of the Bill’s proposals starts. Before the 2013 spending review, a parliamentary Answer to me suggested that approaching £0.9 billion would be transferred from the NHS to social care in 2014-15. Page 34 of the Government’s Spending Round 2013, suggests that another £200 million would be provided to progress the new pool budget scheme. However local councils still have to make another lot of savings in 2014-15, so it is difficult to see these not wiping out at least half of the transferred NHS largesse.

However, to be fairly generous to the Government, the £3 billion base budget deficit could drop to £2.5 billion by the beginning of 2016, assuming that the Government make the transfers that they promised. It therefore seems to me that, however you cut the figures, there is a pretty big hole in the base budget for adult social care in the year in which the first tranche of the Bill’s reforms begin. I am of course happy for the Government to provide me with chapter and verse in writing on why my figures are wrong.

Let me finish by turning briefly to the cavalry that the Government think is coming over the horizon—their proposal for a £3.8 billion pooled budget for 2015-16 to join up local health and social care services. Everyone in this House will welcome that pooled budget. I particularly welcome it as someone who was involved with the joint finance initiative of Barbara Castle, back in the mid-1970s. In some ways, we have not moved on very far. There is a considerable lack of clarity about this impressive-sounding figure. I therefore have some questions for the Minister.

First, can he say whether the total figure is dependent on the Department of Health making all the efficiency savings cited on page 34 of Spending Round 2013 and is safeguarded from any raiding to meet emergency demands by the NHS? Secondly, does the £2 billion that seems to be being promised to local councils for adult social care include the £335 million promised for the cap in 2015-16, as set out in paragraph 9 of the Government’s very recent document, Caring for Our Future: Consultation on Reforming What and How People Pay for Their Care and Support? Thirdly, will councils be paid the £2 billion at the beginning of the financial year, and how much of that will in practice be offset by the 2.3% reduction in local government spending in 2015-16, as set out in page 37 of the spending review document? This is typical of what we are seeing from the Government. Page 34 gives you some money and page 37 takes another lot away through another government department. It is a bit like the guys who practise conjuring with peas under egg cups. Finally, can the Minister confirm that £1 billion of the £3.8 billion will be paid only if local authorities can demonstrate outcomes? Therefore, in practice, the money may never reach the local level in 2015-16.

In conclusion, as a battle-hardened Whitehall warrior, I have to say that I suspect that the social care chunk of the £3.8 billion will look a lot smaller when we get to 2015-16. In principle, it is a bold and sensible initiative on which the Government are to be congratulated. However, it will not plug the gap in the base budget to which the Dilnot commission drew attention, and which has worsened since we reported. It is possible that the gap could be partially filled by the pooled budget proposal but a lot of question marks remain over how much of that budget will in practice help social care in 2015-16. I have to say to the Government that because of the funding inadequacies there is a real risk that people will be set up to fail with this new legislation. That is why the Government and, I hope, my own Front Bench should support an impartial review of the funding issues, as proposed in my amendment. I beg to move.

[Baroness Pitkeathley]

My Lords, I rise briefly to make two points, the first as a result of my membership of the Joint Committee. Every witness who came before us to give evidence said two things. The first was that this is an excellent Bill for which we have been waiting years. The second was that implementation will be impossible if no more money is put into the system. All our witnesses said that the current proposals for funding are totally inadequate. That is exactly what I feel in my role as a campaigner and spokesperson for carers—and this is my second point. The Bill is all that I could have dreamed of in terms of rights and recognition for carers but will come to nothing if all that results are fewer services that are harder to access, with more pressure being put on carers to do the caring. I am seeing that now in carers’ groups and organisations. They were elated when the Bill was published: now morale is plummeting for fear of what the reality may be.

I join the noble Lord, Lord Warner, in asking the Minister for chapter and verse in his call for a review. We all want the Bill to succeed but we cannot, as responsible legislators, ignore this important issue.

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[Earl Howe]

I will come back to the noble Baroness on that question.

I take the point of the noble Lord, Lord Hunt. It could clearly be a source of resentment on the part of a self-funder if they find out through the transparency of the arrangements that we are putting in place that they are paying more than the cost of somebody else’s care. I can tell the noble Lord that we have given thought to that. It has been discussed with the LGA. I would be happy to flesh out the substance of our discussions, but we want to avoid a situation that gives rise to that kind of resentment.

The noble Baroness, Lady Wilkins, asked what plans the Government have to make sure that service users and carers are able to contribute fully to the consultation on funding reform. We intend to arrange a series of consultation events around the country to engage with those who use services, their carers and their families. We will also work with stakeholders to make the best use of their networks and local groups to make sure that we consult as widely as possible.

The noble Baroness, Lady Bakewell, asked a particular question around what she termed the “postcode lottery”, and, of course, I understand the force of that phrase. She asked whether the funding of the Bill adequately addresses the disparity of care and support across the country. The short answer is that the Care Bill provides for national eligibility criteria. That, of itself, will provide greater transparency and consistency for people across the country. I do not think that we will ever completely get away from variation in what local authorities are prepared to consider adequately meets the needs of individuals and we will see some independence of decision-making, whatever we do. However, I firmly believe that the Bill brings us much closer to greater consistency and fairness.

On top of the spending-round announcements, I believe that the Bill will have a positive effect on the NHS by strengthening joint working between health and care and support. For example, Clause 3 requires local authorities to exercise their functions with a view to ensuring integration between health and care. In addition, Clause 2 creates a clear legal duty on local authorities to ensure the provision of preventive services. We want a service that reduces dependency, as well as supporting those who already need care and support, rather than just waiting for people to reach a crisis point. By slowing and preventing the development of care needs, the onset of health conditions or the loss of independence, we believe that preventive care can increase quality of life for individuals, while having the potential to provide longer-term financial savings to the public purse. It is only with this greater focus on prevention and integration that both the NHS and care and support can respond to the financial pressures of an ageing population.

The noble Lord, Lord Lipsey, took us forward to 2025 and beyond and referred to the shortage of workers in the social care workforce predicted by the King’s Fund. Of course, we agree that reforming care and support to make it sustainable for the future will require more capacity and greater skills in the workforce. That is why we stated our ambition in the Caring for Our Future White Paper to double the number of apprenticeships in social care to 100,000 over five years. We are now working with stakeholders to make that ambition a reality.

The noble Baroness, Lady Campbell, speaking powerfully about the areas that she knows best, said that disabled people feel that they are losing their independence as a result of funding cuts, and, indeed, there is a fear that the country unwittingly may be breaching Article 13 of the UN Convention on the Rights of Disabled People. A local authority’s overriding duty under the Bill is to promote well-being. This includes control by individuals over their day-to-day lives, including the way in which care and support is provided. We are confident that the well-being principle captures the outcomes that affect an individual’s independence. We should always keep going back to that principle, not least in the context of the rights that people feel they have—and do have—under the UN convention.

In so far as I have not answered questions from noble Lords, I will, of course, follow up this debate in writing. For the time being, I hope that, for the reasons I have outlined, the noble Lord, Lord Warner, will agree to withdraw his amendment.

[Lord Warner]

My Lords, this has been a helpful debate and I am grateful to all noble Lords who have spoken in it—overwhelmingly, I should add, in support of my amendment. I take great confidence from that.

The noble Earl has made not a bad job of answering my four questions about the £3.8 billion. I am feeling generous and so will give him a B minus for his attempts. At least he has come clean that only half the money is new money, which is a helpful clarification, and that only half of the £1 billion of the rest will be paid up front, while the rest is dependent. Therefore, to some extent my point has been made that that £3.8 billion looks a little less glossy than when it was announced in terms of what new money people will get in 2015-16. I notice that the noble Earl did not answer my question about the base budget, which took up much of my speech. The bottom line in all this is that the base budget is very deficient. The local authorities which will take on these new roles are starting, essentially, from a deficit position.

The noble Earl is always one of the most plausible Ministers and has done a good job of explaining efficiencies and productivity. However, the people who gave evidence to the Joint Select Committee just do not believe that this has all been achieved through efficiencies. They are seeing cuts in services and tougher eligibility criteria. The interesting mini-debate we had about the difference in payments for publicly funded people in care homes and self-funders illustrates that local authorities have been cutting the rate for the job for those who they pay for. We will see more of that. Until we face up to this base budget issue, we will have a problem.

I do not doubt that the Government have done a pretty reasonable job of costing the new provisions in the Bill. However, it will be introduced on the basis that the underlying base budget is too low. No one has yet answered my question with very much confidence about the fact that we are talking about a base budget deficit, which is in the Dilnot report, and which in broad terms has risen two and a half times since this Government came to office. That is the nub of this issue.

The noble Earl also glided over with his usual elegance the issue of why the Government are so preoccupied with this rather strange way of giving money to local government. First you see the Department for Communities and Local Government take money away and then local authorities have to cut other services if they want to prop up social care. Then Health Ministers, almost in desperation and worried about the implications for the NHS of what is happening to social care, long before they were betting the farm on integrated care, are—perfectly understandably—starting to slide money across to prop up social care. That is what is going on. If I were a director of social services these days, I would find it rather difficult to plan my service response to a kind of resource allocation system based on that kind of approach. That is a real problem for central government, which is expecting local authorities to plan well for these new changes. It is a pretty messy way of giving money to people at the local level.

I will read very carefully what the noble Earl has said in this debate. I am not convinced that we do not need an impartial review. If it is not the OBR I will think of somebody else. I might try a few on the noble Earl during the Recess—the Institute for Fiscal Studies comes to mind. We need a hard look by somebody who is not party pris. If my own party wins the 2015 election, it will need that hard look as well. I will think about it further, but in the mean time, I beg leave to withdraw my amendment.

Amendment 104ZBA withdrawn.

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[Lord Beecham]

My Lords, I have a lot of sympathy with the case that my noble friend has put in establishing the structure that would permit appeals. However, there is one potential problem. I endorse what he says about the undesirability of requiring people ultimately to have recourse to judicial review, which is a lengthy and very expensive process. However, it is likely that people wishing to make an appeal to such a tribunal would need at least legal advice and, possibly, legal aid. I would imagine, as matters stand, that such a procedure would be out of scope of the legal aid system as it has been “reformed”—I put that word between inverted commas. Perhaps the Minister and my noble friend could indicate whether they think that it would be a sensible addition to the terms of the amendment, which would command a good deal of support across your Lordships’ House.

[Lord Warner]

My Lords, I briefly intervene from the perspective of a member of the Joint Select Committee, which proposed that there should be some kind of body. Much of our thinking was focused on the early days of these new arrangements. We thought it highly unlikely that there would not be a lot of disputes in the first few years of what would be a pretty major change to the arrangements. There are two sources of potential dispute—those by people who do not like the results of an assessment made about them, in some form or another, and some of the stuff that comes out of making markets. There is the issue of the rate for the job between local authorities and providers. We could see some of those areas also leading to disputes.

We had it in mind that some mechanism should at least be ready to go into action should this happen. It may be that, in the longer term, things will settle down and there will not be a great problem. However, even if the Minister is not prepared to accept my noble friend’s amendment and make statutory provision, the world would be reassured if the Government at least had a plan B so that we do not end up with judicial review if things do not go well. Rather, we end up with some kind of arbitration system which is low cost, speedy and can deal with some of the inevitable teething problems of a fairly major change to these systems.

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Moved by

[Lord Warner]

105P: After Clause 70, insert the following new Clause—
“End of life care
After consultation, the Secretary of State may make regulations providing for—(a) the right for an NHS patient to die at the place they regard as home or normal residence;(b) a terminally ill patient who, in the opinion of a registered practitioner, is likely to die within six months to be exempt from local authority charges for adult social care.”

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[Lord Warner]

My Lords, I move Amendment 105P in the name of myself, the noble Lord, Lord Patel, and the noble Baroness, Lady Greengross. I shall also be moving Amendment 105PA, in the name of the noble Lord, Lord Patel, as he cannot be here today and he has asked me to speak on his behalf.

The proposed clause, and its amendment, on end-of-life care would enable the Secretary of State, after consultation, to make regulations doing three things. First, it would provide NHS patients with a right to choose to die at the place they regard as home or normal residence; secondly, it would make exempt from adult social care charges a terminally ill patient with six months or less to live; and, thirdly, it would require local authorities to consider the needs of such persons for care and support as urgent. I postponed a Question for Short Debate, which could have been scheduled for tomorrow, so I hope that this magnanimous gesture will get me favourable treatment from the Minister.

Around 500,000 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 of us die in hospital. In his farewell report as national clinical director for cancer and end-of-life care, Professor Sir Mike Richards, now chief hospital inspector, reported that by April 2012, 42.4% of people were dying at home or in a care home. This is an improvement from 38% four years previously. On present trends, this means that it will be at least the end of the decade before half the deaths occur in a place of usual residence.

The improvement in the national figures conceals considerable regional variation. If you live in the south-west, with 48% of deaths occurring in a place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. There is even wider variation between local authority areas. The great majority of us want to die at home or in the place where we normally live, rather than in the impersonal environment of a hospital ward. Perversely, we end up not only dying in the place where we least want to be but dying in the most expensive place. Marie Curie research has shown that a week of palliative care in the community costs about £1,000, whereas a week of hospital, in-patient, specialist palliative care costs virtually £3,000. 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. Macmillan Cancer Support polling has shown that eight out of 10 health and social care professionals agreed that community-based, end-of-life care would save money. On top of that, an unusual position is that nine out of 10 MPs believe that their constituents should be able to die in the place of their choice. This produces remarkable cross-party consensus among MPs on this particular issue.

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 family around them. That is more likely to be achieved if people have a statutory right to choose to die at home or in their place of normal residence. This would mean fewer people dying at hospital, thereby saving public money. That is likely to provide more than enough resources for terminally ill patients within six months of death to be exempt from local authority social care charges. Making local authorities give assessment priority to such patients is likely to have minimal extra costs and is much more a matter of humane and good professional practice.

I have no time to recite all the other arguments in favour of this approach in this amendment, as set out by Macmillan, Marie Curie and Help the Hospices, in the excellent briefing that they sent to Members of this House. None of this briefing or the amendment requires the Government to take action immediately. They can complete their pilots, do their own cost-benefit analysis and consult widely before bringing forward regulations. The amendment would put down a clear marker that Parliament wants government to move in the direction that most people want—towards the right to choose to die at home or their place of normal residence rather than in a hospital ward. I beg to move.

Amendment 105PA (to Amendment 105P)

Moved by

[Lord Warner]

105PA: After Clause 70, line 9, at end insert—
“Where an adult is terminally ill, a local authority must consider their needs for care and support as urgent.”

[Lord Warner]

I move this formally, on behalf of the noble Lord, Lord Patel, as I have already spoken to it.

[Baroness Jolly]

I support the two amendments in the names of the noble Lords, Lord Warner and Lord Patel, and the noble Baroness, Lady Greengross. The House is probably getting quite tired of hearing about the Joint Scrutiny Committee, but this is another area where we completely agreed, and our unanimous report recommended pretty much the contents of these amendments to the Government. Sadly, the Government indicated their willingness to fund end-of-life care, but have not put the amendments in the Bill. So it was a sort of “but not now and not yet” response. The response that came back from the Government to the report was:

“We note the Joint Committee’s endorsement of our position that free social care at end of life has ‘merit’ and note that they strongly endorse the case for its introduction at the earliest opportunity”.

That is the Government responding to the report, but nothing is reflected in the Bill before us.

Both the present system and the new system that we are debating for access to care are really longwinded, and a lot of people in this position, at end of life, do not need a longwinded system of access. The DS 1500 certificate, which indicates that you have a terminal illness, can take weeks to complete. We all know that NHS care is easier to access. However, it does not link up with social care in most cases. A terminally ill patient can get NHS care but it is really difficult to get social care. Bring on integration, really. This is not fair for somebody who needs and wants a dignified death—wherever it should be. As the noble Lord, Lord Warner, has said, most people want to die at home. Often, the inability to cope at home without any support and social care drives people to hospital. Therefore, they find themselves ending up in expensive hospital care in a setting that is just not their choice. The noble Lord, Lord Warner, has quoted some figures so I will quote a few more that support his case. The Nuffield Trust has researched this and a 10% reduction of hospital admissions for people at the end of life could result in savings of £52 million. According to Marie Curie figures, this would easily cover the costs of free care at home for all the people who would die within a year—with some to spare. This also leads into the debate of the noble Lord, Lord Warner, about moving funding from health to care. We are talking about £52 million that would be spent by people dying in hospital. We would save that £52 million if we were able to keep them where they wanted to be. The £32 million assessment by Marie Curie is more than easily covered.

We all die. Most of us will have care needs. Most of us would want to die at home. Funding adult social care at the end of life would go an awful long way to achieve this. I am therefore more than happy to support these two amendments.

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[Earl Howe]

My Lords, I thank the noble Lord, Lord Warner, for tabling these amendments which bring us to an important and sensitive set of issues. The Government have great sympathy with these concerns and I hope that I can reassure the Committee on them.

Amendment 105P would give the Secretary of State a power to introduce regulations for two specific but related issues—a right for NHS patients to die in the place that they regard as their home and an exemption from local authority charges for care and support for adults who are in the final six months of their lives. The Department of Health’s End of Life Care Strategy provides a blueprint for improving quality and choice in palliative and end-of-life care, and NHS England, which is now responsible for end-of-life care, is pressing on with its implementation, including aspects relating to the pathway to which the noble Baroness, Lady Emerton, referred.

We made a commitment in Liberating the NHS: Greater Choice and Control to move towards a national choice offer to support people’s preferences about how to have a good death. This is not an easy task and it cannot be done overnight. For example, commissioners need to be sure that the right services are available in the community to support people to be looked after at home. A lot of work is needed to make choice in end-of-life care a reality. We shall take all the evidence into account and review progress this year to see how close we are to being able to introduce a national offer on the choice to die at home. The noble Lord, Lord Warner, rightly pointed out that there are variations across the country as regards people’s ability to die in the place of their usual residence. I take that point completely. However, if we are to solve that disparity, it is important that we do not act prematurely. If an area is not ready to roll out a better system for palliative and end-of-life care, it will serve no one’s purposes, so we must take the necessary time to do this.

On the issue of palliative care funding, as the noble Lord is aware, in the Care and Support White Paper, published in July 2012, we stated:

“We think there is much merit in providing free health and social care in a fully integrated service at the end of life”.

This followed the report of the independent Palliative Care Funding Review in July 2011, after which the Government set up seven adult and one children’s palliative care funding pilots. The pilots are running for two years, with the aim of having a new funding system in place by 2015, a year sooner than the review proposed. From April 2013, we gave responsibility for this work to NHS England. We need to analyse the evidence from the pilots thoroughly before the details of the new funding system are finalised. Any changes to social care palliative care funding could be made by secondary legislation under Clause 14(1) in due course and will not require an amendment to the Bill.

My noble friend Lady Jolly referred to the cost savings in hospital admissions at the end of life and suggested that this might cover the cost of nursing care at home. This is a point made cogently by Marie Curie. The issue we need to bear in mind here is the readiness of the service to cope with sudden changes in services that an amendment would entail, so we still think that it is better to gather the evidence, as the pilots are now doing, and allow services to be properly planned for.

I turn to Amendment 105PA. The Bill allows local authorities to treat a person’s care and support needs as urgent, as set out in Clause 19(3). We believe that in end-of-life cases a person’s needs would be highly likely to be considered “urgent” and therefore should be fast-tracked so that needs are met as quickly as possible. We do not believe that the Bill should set out a list of urgent situations where a local authority can meet an adult’s needs without having yet carried out a needs or financial assessment, or made an eligibility determination. The problem is, as we have debated on many occasions in the past, that such a list could never be exhaustive and might suggest that only certain situations could be treated as urgent. Local authorities must have the flexibility to determine themselves which situations they consider to be urgent, depending on the facts of each individual case. The wording of Clause 19(3),

“which appear to it to be urgent”,

enables this. However, I can say that we intend to refer to end-of-life cases specifically in statutory guidance.

I can readily identify with the questions asked by the noble Baroness, Lady Pitkeathley, about carers and the need to support them after the death of the person they have been caring for and to make sure that they are informed about the stages at the end of life, the additional pressures that may be placed on them and the need to plan. The duty on a local authority to provide information and advice in Clause 4 very definitely includes information and advice relating to support for carers, including in these circumstances.

The noble Baroness, Lady Wheeler, asked about end-of-life care for BME groups in particular and the need to address the low use of palliative care services among those groups. She asked how we are addressing that. I shall write to the noble Baroness on that point, as I do not have information in front of me on whether the pilots are collecting those data specifically. However, I agree that it is a material issue. The noble Baroness also asked whether the palliative care funding pilots had been impacted by the transition to the new NHS system and whether we would meet the timescales. I can reassure her that the work of the pilots is on track.

I hope I have demonstrated that the Government are committed to offering patients the support to facilitate their dying at a place that they regard as their home, when the system is able to meet this commitment and where this is the person’s wish. I hope that the noble Lord, Lord Warner, will be sufficiently encouraged to withdraw his amendment.

[Lord Warner]

I am grateful to all noble Lords, across the Benches, who spoke in support of this amendment. I will, of course, consider carefully the noble Earl’s points in his constructive response. I will discuss them with my co-signatories and the voluntary sector. However, I want the noble Earl also to ponder something. The idea of giving people a right to die where they choose is one of the major social right breakthroughs. It is on a par with some of the other things that Parliament has spoken on and passed legislation about. In my view, it is more than about waiting for the bureaucracies to give their blessing that there is a state of readiness for this change to take place. This is an issue where the political parties and Parliament should show their willingness to press on as a top priority. I will certainly consider what the noble Earl has said, but I hope he will consider what I have said. We did not have everything ready when Parliament decided to ban smoking in public places and the workplace. It thought it was the right thing to do and it did it. This issue of people’s right to choose where to die is in the category where Parliament should say, “It is the right thing to do and we are going to get Governments to do it”.

I may be wrong. The Government may bring forward these changes in good order. But I take a different view from the noble Earl about the issue of local variation. They need to put a marker in legislation to make jolly sure that those parts of the country actually deliver the goods on a similar timescale to everybody else. I do not think that we could rely on strong messages from NHS England necessarily to deliver that. In the meantime, I will consider carefully and I beg leave to withdraw my amendment.

Amendment 105PA (to Amendment 105P) withdrawn.

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Moved by

[Lord Warner]

105S: After Clause 72, insert the following new Clause—
“Employment practices
(1) Where the Secretary of State has evidence that employment and payment practices used by service providers of adult social care are not consistent with the well being requirements in section 1, he may, after consultation, direct the cessation of such practices by making regulations.
(2) Such regulations may provide for financial penalties in respect of continued use of prohibited practices.”

[Lord Warner]

My Lords I will not detain the House long on this amendment. It gives the Secretary of State a regulation-making power to ban employment practices in the care sector that are inconsistent with the well-being principle in the Bill and to impose financial penalties for continued use of prohibited practices.

We all know about the practice that has grown up in recent times of 15-minute home visits to frail and vulnerable people, where the care-giver is not paid for travel time and is pressurised to fit more visits into a day than is reasonable. Practices of this kind are an affront to the care sector and it is a disgrace that any public agency should have been willing to collude in it, whatever the financial pressures. It is bad for the recipient, bad for the care-giver and bad for the reputation of all the agencies involved. It is, however, the kind of practice that can creep into low-wage sectors where a workforce is vulnerable to poor employment practices. It is what I call the “Morecambe Bay cockle-pickers syndrome”.

The front page of the Guardian today has an example from another sector, with its story of Sports Direct’s zero-hours employment contracts for part-time workers. These contracts, which appear to go to 90% of the company’s 23,000 employees, mean staff do not know how many hours they will work from one week to the next, giving them no guarantee of regular work, as well as no sick pay or paid holiday. I would not want to take a bet that somewhere in the care sector there is not an equivalent to Sports Direct.

The care sector is inevitably likely to continue to have relatively low-paid jobs and be vulnerable to entry by unscrupulous employers. Those giving care need to be more fairly paid and better trained, and to become a more reliable workforce that is able to spend enough time with those needing care, without cutting corners in the care they give. Experience so far suggests that we cannot always rely on commissioners of care to do the right thing. They need a bit of buttressing.

My amendment gives a power to the Secretary of State to intervene when there is evidence to suggest that intervention is necessary, and provides the back-up of financial penalties should a bad employer prove obdurate. The presence of the new clause would also be a deterrent to bad behaviour. If we are serious about safeguarding the vulnerable, we need a provision of this kind in the Bill’s armoury. I beg to move.

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[Lord Warner]

Supplementary to that, my simple view of the world is that if the situation is so bad, the CQC ought to be able to deregister someone who persistently engages in these kinds of employment practices. Do the Government share that view?

[Earl Howe]

My Lords, I am the first to agree that these are very important issues. I cannot do justice to explaining where we are with them at the moment and I ask both noble Lords for their indulgence. I will write to both of them and provide more information on this subject.

I was referring to the role of the CQC, which has the power to act in response to any concerns and to take enforcement action where services are failing people. Failure to comply with the requirements is an offence and, under the Health and Social Care Act 2008, CQC has a wide range of enforcement powers that it can use if the provider is not compliant. These range from issuing a warning notice and fines through to cancelling a provider’s registration. The new Chief Inspector of Adult Social Care will be in post from October and will provide additional focus on quality issues in care and support.

I repeat my reassurance to the noble Lord, Lord Warner, that the Government fully agree with the intention behind the amendment—that employment standards and workforce issues are fundamental to quality care—but I hope I have demonstrated that there is a wide range of activity bearing down on poor practice and that the variety of existing law and other non-statutory approaches mean that further legislation is not required. I hope the noble Lord will feel reassured enough to withdraw the amendment on that basis.

[Lord Warner]

I am grateful to the noble Earl for his reassurances. However, like my noble friend Lord Hunt, I am still uneasy about the extent to which there is, if I may put it this way, a clunking fist that could be used to stop such practices in their tracks, possibly by the regulator.

It would be helpful if before Report we could meet, perhaps with David Behan or someone from the CQC, to satisfy ourselves that, possibly by using guidance and advice from the department to the CQC, enough priority will be given to this issue and systems will be put in place to take action swiftly when concerns are raised. However, in light of the possibility of further discussions, I beg leave to withdraw the amendment.

Amendment 105S withdrawn.