Care Bill [HL]

Lord Warner Excerpts

Wednesday 9th October 2013 Lords Chamber

[Baroness Barker (LD)]

My Lords, I apologise for not being in my place for the start of this debate. As noble Lords will know, on these occasions such amendments are often tabled by myself and the noble Lord, Lord Hunt of Kings Heath. We do so because we support the right of Christian Scientists to have their beliefs respected, in particular their right to refuse treatment. That said, when we discussed this matter in Committee, while at that point the Minister was as sympathetic as always, he failed to draw a distinction that is important to people of faith, which is that between the use of the words “emotional” and “spiritual”. People of faith believe that matters which are spiritual are of a different order from those matters which are emotional. I have a degree of sympathy with their view. However, I also have a degree of sympathy with the Minister, who does not wish to put things into legislation that are unnecessary. I hope that he will, in this case, perhaps be a bit more sympathetic to the arguments that are being put forward.

The noble and right reverend Lord, Lord Harries of Pentregarth, is right that as a society not only are we becoming much more diverse, but in our everyday life we understand the importance of faith and spiritual matters to other people. For example, we would not for a moment think it acceptable to present somebody with a diet that was not reflective of their cultural and religious beliefs. In our modern day health and social care services we are increasingly adept at recognising people’s differences and accommodating them. All told, this is a small amendment which costs nothing but means an awful lot. I hope that the Government will be able to take it on.

[Lord Warner (Lab)]

My Lords, as the chairman of the All-Party Group on Humanism, I am not sure that I should actually be following the previous speakers. However, Amendment 5 in this group is in my name and I want to be nice to the Minister instead of telling him off. The Minister has listened to the concerns that we expressed in Committee about applying the requirement to pursue the obligation on local authorities in Clause 1 to the Secretary of State in his actions, particularly regulations and guidance, to promote well-being.

I congratulate the Minister on listening to those concerns and tabling government Amendment 138, which effectively meets the concerns that we have. I suspect that my co-signatories, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Greengross, would say that the Minister’s amendment may not be quite as elegant as ours, but we are not going to have a competition about aesthetics; he has met the point and I thank him very much for what he has done.

[Lord Mackay of Clashfern (Con)]

I warmly support that. I am happy with the parliamentary counsel’s draft, which is what the Government are going to move, and we have to understand that some lawyers are better than others at making drafts.

So far as the amendment of the noble Baroness, Lady Barker, is concerned, I hope that the Government will pay considerable attention to what has been said about it.

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[Lord Cormack]

If this is explicit for the National Health Service, why can local authorities not be treated in precisely the same way?

[Lord Warner]

I am trying to help the Minister. If he does agree to provide the assurances sought by noble Lords to look again, could he see whether if he moved in the direction they suggest, he would be discriminating against humanists?

[Earl Howe]

I can do no other than to look at this again, but I want to reassure my noble friends that their concerns are groundless because of the way that this clause has deliberately been framed. It is framed in terms of high-level principles. It is not designed to exclude any form of well-being whatever. It is designed to look at the person holistically and to ensure that no aspect of well-being is overlooked. I shall of course have a fresh look at this question, but I ask my noble friends, and the noble and right reverend Lord, Lord Harries of Pentregarth, to understand that this clause has been framed in a particular way quite deliberately, not to exclude any form of well-being but to encapsulate all forms of well-being.

In other words, the provisions allow consideration of this and indeed many other matters where relevant. I hope that with these assurances the noble Lord will feel able to withdraw his amendment, and indeed to support the amendments which I have tabled.

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[Lord Hunt of Kings Heath]

My Lords, I support the noble Lord, Lord Best, in relation to Amendments 15 and 23. Obviously, we welcome the government amendments to which the noble Earl, Lord Howe, will speak shortly, but it seems that the amendments tabled by the noble Lord, Lord Best, point to areas where the government amendments do not really meet the needs. Amendment 15, on making available information about housing adaptations and on specialist and accessible housing as a key requirement of a local authority’s information service, was a clear recommendation of the Joint Committee. The noble Baroness has just illustrated why making such information available is so important. It could be very helpful in terms of avoiding the need for people to receive long-term care. We should not underestimate the challenge people face when simply trying to find their way through the system. We find it complex, so how much more difficult must it be for those with little experience of the care sector and the housing system? I believe that Amendment 23 is critical to the success of the Government’s own housing amendment. It would ensure a three-way integration that would be an explicit part of a local authority’s duty to promote efficient and effective local markets for meeting care and support. It would particularly ensure that it has regard to the importance of adults’ access to suitable living accommodation.

We know that many local authorities are doing this without any prompting from the noble Lord, Lord Shipley, or my noble friend Lord Beecham. I recently came across the housing for an age-friendly city programme. It seemed to be a really good illustration of how, if a recognition of the changing needs and support of older people is at your core, and you supply a range of care and support housing options as an alternative to residential care, it makes the essential connection between, for example, managing a long-term illness and living in the right accommodation, and the importance of extra care housing schemes that enable people to live independently for longer.

I also just came across a One Housing Group initiative in Islington. It is a scheme designed for 14 people who spend a maximum of 14 days in the centre as an alternative to acute NHS admissions. It has a drop-in centre and an emergency helpline, and this crisis recovery house helps 550 people a year. It keeps 87% out of hospital admissions. It was commissioned by the health service but it shows the interconnection between housing and health.

In responding to the noble Lord, Lord Best’s amendments, I hope that the Government might be prepared to reconsider this and come back at Third Reading with further amendments.

[Lord Warner]

My Lords, I am sorry that I missed the beginning of this debate but I was with the noble Baroness, Lady Masham, listening to Sir Bruce Keogh explaining how the mess around paediatric surgery was going to be sorted out.

I lend my support to Amendments 11 and 15. I remind the House that many years ago, in the good old days, housing and health were together in the same ministry; there was a united ministry covering both health and housing. We have lost something by that separation. I think that the NHS needs to be given a push on integration, so I very much like the amendment of my noble friend. Too often the NHS forgets that it could help itself by working more closely with other interests, and it would be a timely reminder in this piece of legislation to get that message across. As the noble Lord, Lord Best, has said, we have missed many opportunities over a long period of time, to bring housing into the party as the population has aged. All it has done is increase the burden on adult social care and the NHS. It would be a missed opportunity if we did not rectify some of that now.

[Earl Howe]

My Lords, I very much agree with noble Lords that housing, along with health, and care and support, should be considered as the three legs of the stool. In relation to housing we are clear about two things: first, many types of housing can be provided as a means of meeting or preventing care and support needs—for example, extra care housing. That is why accommodation is listed as a way of meeting needs in Clause 8.

Secondly, housing is a wider determinant of health; simply having a roof over your head can have an enormous impact on your health and well-being. To reflect this, the “suitability of living accommodation” is listed as part of well-being in Clause 1(2). I hope that those two points in particular will serve to reassure the noble Baroness, Lady Masham.

Amendment 12 clarifies that housing is a “health-related” service, and that both local authorities and the NHS are required to promote integration between care and support, health and housing. This makes the importance of housing explicit not only in the integration duty in this Bill but in the comparable duties on the NHS in the 2006 Act. I hope noble Lords will welcome that.

In Committee, noble Lords also expressed the view that we needed to clarify that local authorities are required to co-operate with providers of services, including providers of housing services. Amendment 28, again in my name, does just this. The non-exhaustive list of the types of “other persons” we expect local authorities to co-operate with would now include certain providers of health, care and support, and housing services. However, we cannot add these bodies as “relevant partners”, as public law is limited in the extent to which it can place duties on such private bodies.

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[Lord Warner]

My Lords, I will make a few remarks about three separate subjects that are covered in this group of amendments. First, I congratulate the noble Baroness, Lady Barker, on her tenacity on the subject of advocacy. I very much support what the Government are doing to try to respond to that, because it is a view that many of us across the House have had for some time. The Bill was deficient in terms of advocacy for those who need that kind of help and support.

I will make one remark in relation to my noble friend Lord Lipsey’s remarks, which we will go into a bit more under the next amendment. I remind the Government of the mis-selling of pensions and insurance in the financial services sector. They would do well to dwell on that before they eliminate the idea of some regulation. I see the argument that not all types of financial advice need a regulated financial adviser. However, some types of that advice need a regulated financial adviser. My peace offering to the Government is the following. If they thought a bit more about this, given what happened in the financial services sector, it may be possible to separate out the types of financial advice and deal with it in regulation, where we need both regulated and unregulated people. At the moment, the Government are being too broad-brush in ignoring some of the complexities, particularly around equity release and deferred payments, which may be equally as complex as any of the pensions and insurance issues that were being rather gaily sold by untrained people in the financial services sector.

I take issue with the noble Baroness, Lady Meacher, on Amendment 21, drawing on my six years as a director of social services. In the 1980s, we set up a care management system where care managers did not have to be qualified social workers. These people were putting together packages of care after an in-service training course, which enabled them to deal with some very vulnerable people with quite complex needs. It is not necessary to have a social worker. Many local authority departments over the years have developed benefits advice services that run alongside their social work colleagues, which give financial benefits advice to vulnerable people who need to be helped to find their way around the social security system. I caution the Government against not going down that path. With all due respect to the professional advice that the noble Baroness, Lady Barker, has had, qualified social workers are not necessarily very good at giving some of the advice that we are talking about.

Even more to the point, we should not divert a scarce resource such as qualified social workers into this area of activity when we do not need to. I remind the noble Earl that we are seeing, in the children’s services, a 50% increase in the number of children coming into care in a four-year period. The real need for social work skills and resources is in some of those other areas of work that local authorities have to deal with. However modest the numbers may be—and this amendment does not limit them that much—we do not need to divert scarce social work resources into this area. They need to go into some of their higher priority work, particularly in the area of children.

[Lord Hunt of Kings Heath]

My Lords, we shall come to Amendment 20, in the name of my noble friend Lord Lipsey and that of other noble Lords, including me, in a moment. However, I want to ask the noble Earl about the point raised by the noble Baroness, Lady Barker, in relation to independent advocacy. The noble Baroness raised a pertinent point about what responsibility there is on a local authority to engage with the advocate. I hope that the noble Earl will provide the House with more information. Clearly, this is a step forward, which is to be welcomed, but one needs some assurance that the advocacy system will work effectively. It would be helpful to know what the noble Earl’s department thinks might be the appropriate response of a local authority where an advocate has come to the fore.

I have a great deal of sympathy with the amendment of the noble Baroness, Lady Greengross. It is one thing to provide information support grudgingly; another to be proactive in doing so. Perhaps the noble Earl would comment in particular on Clause 4, because there is a world of difference between Clause 4(1), in which a local authority must,

“establish and maintain a service for providing people in its area with information and advice”,

and Clause 4(2), which goes on to describe what type of advice. This does not assure us that a local authority will be effective in doing so. I should be grateful if the noble Earl would explain how this will be monitored. Will the Government have a role in reviewing the effectiveness of local authorities in providing that?

If one is resident in an area where the local authority does not seem to provide an effective information and advice service, what recourse does one have? I assume that there would be judicial review and the ombudsman, but those are heavy-handed approaches and it would be helpful to know whether the Government have thought through ways in which members of the public can draw attention to failures to provide effective information and advice in some local authority areas.

That might pick up on the amendment relating to the use of professionally qualified social workers. My noble friend Lord Warner, with a great deal of experience, has suggested that even in areas where there are complex needs, a qualified social worker need not necessarily provide this support. None the less, one wants some assurance that sufficient provision for support will be given. Again, it comes back to the issue of how we will monitor the performance of local authorities.

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[Lord Warner]

My Lords, I rise to support this amendment and, particularly, to talk about the first two prongs of it. I do this partly from my experience as a member of the Dilnot commission. I remind the House what that commission said on the subject of an awareness campaign. We made only 10 recommendations, one of which was a very strong one because we had been incredibly depressed by the evidence given about people’s understanding of the present system, let alone the new one. When you have 60% of the population thinking that social care is provided by the NHS, you have a bit of a problem explaining to people how the system operates. Since they have not even mastered the existing system, you have to make a really big effort to get across some of the messages about the changes to it.

You could argue that it is a bit like Africa: if you have never had a landline and go straight to mobile phones it might be easier to make the change. Many people will not carry a lot of baggage about the existing system, but we do need to work really hard on this issue. That is why we said:

“To encourage people to plan ahead for their later life we recommend that the Government invest in an awareness campaign”—

we used the word “invest” very deliberately—

“This should inform people of the new system and the importance of planning ahead. This campaign could be linked into the wider work to encourage pension savings”.

Those three sentences were worked over very carefully and we said exactly what we meant on those issues. We said them as strongly as that because we thought that, to some extent, the success or failure of the changes encompassed in the Bill depend on that awareness campaign. I have not seen the Minister’s reply, but I have a suspicion—because I know how health Ministers get briefed—that there will be something about how this is not appropriate stuff to put in the Bill. I can see that there is some strength in that argument but if we are not to put it in the Bill then the Minister has got to start to tell us, in detail, what the Government are going to do.

The Government have had more than two years to think about this. We were made to produce a report very quickly indeed: within 12 months. It is now more than two years since it was produced and I should have thought we could expect a reasonably detailed plan from the Department of Health about how it is actually going to make the public aware. It would be nice if the Minister accepted the amendment, but if he is not going to, we need to know: where is the budgetary provision for the awareness campaign; what work has been done on the selection of people to help run the campaign; when it will start and how long it will go on for. How much are you going to pay for this? Do you accept the idea that all good awareness campaigns have some kind of follow-up arrangements? The noble Lord, Lord Sharkey, has suggested an annual survey and I would not disagree with that. As he rightly said, these surveys are, from my experience, relatively cheap to do. Given the sums of money we are talking about in the Bill, this would be a very modest thing to do and there is certainly no point in having an awareness campaign if you are not going to check up whether there has been any increase in awareness.

There is a raft of issues where we need to have some detail from the Government on what they have been doing on this recommendation for a couple of years. If we have not got a very convincing story, we have to consider putting this in the Bill, to generate some energy and action in this area.

I turn to the second prong, which we have already talked a little bit about under the previous group of amendments. I strongly support what my noble friend Lord Lipsey said, and I want to return to the issue of mis-selling. We have had some serious problems in this country about the way the public has been sold financial products and we ought to be able to learn from history over that. It is not any old Tom, Dick and Harry who can give sensible advice to people about complex financial issues. The noble Lord, Lord Deben, is right: many of these issues are complex and you need a simple system to get to the advice, but the advice is not always going to be simple.

Let me illustrate that with the sort of circumstances that families and older people may be faced with. It is fairly common that an older person is going to give up their house; their spouse has died and they will have to give up the house. The family might well want to have a conference about what they do with that house. There are several options: they could keep the house and rent it for income; they could go for equity release; they could go for deferred payments; or they could go for a point of care plan, as my noble friend said. Choosing the best thing to do from some of those options is not straightforward; it will require someone who knows their way around some of these issues and can give advice to people and their families on how to make a sensible, good decision that fits their particular circumstances. The Government have to give more consideration to this.

I accept that not every issue will be complicated and there could be some circumstances in which the financial advice does not need to be given by a regulated financial adviser. However, the Government now have to do the legwork on separating the sort of situations where regulated financial advice is needed from those where one can be more relaxed about it. If we do not give guidance of some standing and credibility to local authorities, we put them in an invidious position because they will be damned if they do and damned if they do not. They need some advice on the sorts of circumstances in which they, to discharge their obligations under the terms of this piece of legislation, can point people clearly in the direction of advice that is likely to be appropriate to that person’s circumstances.

Lastly, I wish to make a point to the noble Earl about the Secretary of State’s new obligation under government Amendment 138 to have regard to the local authority’s requirement in Clause 1 to promote well-being. The Secretary of State is now pretty much in the same position as that of the local authority when he is producing guidance and regulations. It is at least an arguable case that he would not be fulfilling that requirement unless he put in place some credible arrangements for sound financial advice being given to people and he helped the public to understand the details of the arrangements of the new scheme that the Government were implementing. I am not a lawyer, but it would be worth a punt by going to lawyers to argue that the Secretary of State would be in breach of his new obligations if he took a cavalier approach to financial advice and awareness of the new scheme.

[Lord Hunt of Kings Heath]

My Lords, I, too, support the amendment. I thank the noble Earl, Lord Howe, for giving us an assurance that this matter can be brought back at Third Reading, which is very helpful to our debate.

As several noble Lords have said, many people find dealing with financial products very complex indeed. They also find the system of social care funding to be complex. How much more complex will it be when the Dilnot provisions in the Bill are introduced? My noble friend made the point that many people misunderstand the current system. Many people think that social care is free at the point of use until they suddenly reach a situation where either they or their relatives are faced with catastrophic issues around long-term care. Even in relation to Dilnot, my noble friend Lord Lipsey pointed out in Committee that many people think there is this cap of £72,000 but, as we know, it is much more complex than that. The £72,000 cap is based on the fee that the local authority will pay for people who are not self-funded, but we know that self-funders, in essence, subsidise those who go into care that is in one way or another funded by the local authority because they meet the means-test requirements. Of course it is not free because there then have to be hotel costs, which Dilnot estimated to be about £12,000 a year. This matter is therefore very complex and many people find dealing with financial issues very difficult.