Lord Campbell-Savours
My Lords, I intervene briefly to ask the Minister a rather pedantic question. Subsections in Clause 35 all use the word “may”. There is no actual requirement for the Government to introduce regulations and therefore for local authorities to be placed in a position whereby they can charge. Why has it been left open, rather than using the word “shall”? If we could take the wording as meaning “shall”, can we assume that each further instance of the word “may”—that is to say:
“The regulations may specify costs … The regulations may require or permit adequate security…The authority may not charge interest under regulations…The regulations may make other provisions”—
is part of a whole package? Or, if “may” does mean “may”, might only individual parts of this clause be introduced, as opposed to the whole clause? For example, subsection (2) states that:
“The regulations may specify costs which are, or which are not, to be regarded as administrative costs for the purposes of subsection (1)(b)”.
If that particular part of the clause were not implemented, it would leave local authorities open to decide for themselves what the administrative costs could be. Whatever internal reasons they may have—and my noble friend Lord Lipsey referred earlier to the reluctance of local authorities—should local authorities have that ability to be flexible? I am seeking to establish whether, if this is all going to happen and we should read “shall” for “may”, all the subsections of Clause 35 will be implemented and that isolated subsections will not be introduced in the regulations. That might create difficulties that we are not foreseeing during the passage of the Bill.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
I am grateful to the noble Lord, Lord Lipsey, for his amendments. He has a unique perspective, having first put forward the idea of deferred payments—as he reminded us—when a member of the 1999 royal commission. The Government share his disappointment that deferred payments are patchy and inconsistent across the country. Many people going into care face difficult decisions as a result, and authorities lose money when they offer a deferred payment because they cannot charge interest.
We also share the noble Lord’s commitment to ensuring that deferred payments work better in the future. We agree with the Dilnot commission that deferred payments should become a full and universal offer across the country for people who have to sell their homes to pay for residential care. We intend the scheme to be cost neutral to local authorities, as the commission also recommended.
We are proud to introduce this universal scheme from April 2015. It will provide much needed peace of mind to the 40,000 people who sell their homes each year to pay for care. As well as offering time to make decisions and choices over what happens to their home —a point well made by the noble Lord, Lord Lipsey—it will open up new options, such as renting it out.
In his amendments, the noble Lord raises important questions about implementation. These concern the interest rate, the use of a deferred payment to purchase insurance, support for authorities to implement deferred payments and the timetable. Before turning directly to those amendments, it may be helpful if I briefly outline our plans.
Clauses 34 and 35 contain the necessary powers for us to introduce deferred payments. All authorities will offer deferred payments and it is our intention that people at risk of selling their home to pay for residential care will qualify. They will be able to defer reasonable residential care and accommodation fees, in the care home of their choice, for the whole of their lifetime. We are currently consulting on more detailed proposals on who will qualify and what fees they can defer, and are gathering more evidence on the costs and practical issues involved with offering deferred payments.
One practical issue that we are exploring in our consultation is the possibility of situations in which the authority cannot secure its debt through a legal charge on the property. This is why the Bill provides for other forms of security, including third-party guarantees. The noble Lord, Lord Lipsey, expressed doubts about this provision and wondered whether the proposals in the Bill may put people off taking out a deferred payment plan. Our guiding principle here is that we want as many people as possible to benefit from deferred payments, but it is equally important that local authorities are able to secure their debt.
Traditionally, deferred payments have been secured by registering with the Land Registry a legal charge on the person’s land, but this might not always be possible or offer sufficient security to allow the authority to recover its costs. Examples of this might include when a charge cannot be secured by registration with the Land Registry or where there is reasonable doubt about the person’s ability to afford the care home of their choice over the longer term, but we are consulting on whether there are situations in which offering a deferred payment is particularly challenging and, if so, on what a constructive way forward might be. That might include use of a different form of guarantee such as a solicitor’s agreement or the involvement of a third party. It is important that the Bill contains this flexibility so that when we design deferred payments to accommodate all situations that might arise, individuals’ preferences about the type of security that they wish to offer can be built in. I hope that this will persuade the noble Lord to withdraw his amendment, at least for the time being.
These issues will, in turn, inform how we set the interest rate, which has to strike an important balance. The rate must be enough to help authorities cover their lending costs but be affordable to people going into residential care who are at risk of selling their home. I understand the intention of Amendment 92ZZW to fix the interest rate at a predictable level but, as the noble Lord, Lord Lipsey, might have sensed—the noble Lord, Lord Warner, may have alerted him to this—I am concerned that setting the rate in the Bill before we have finalised other aspects of the scheme is premature. We will announce the proposed interest rate following the consultation and decisions on the wider design of the scheme. This will be set out in the regulations that we will consult upon in 2014. It will be a nationally set, maximum interest rate and local authorities will not therefore be able to charge excessive rates.
I have tabled government Amendment 92ZZAA, which would introduce a new clause allowing authorities to make alternative arrangements for people who would not wish to have a deferred payment because of their religious objection to paying interest. I am grateful to the Islamic Bank of Britain for its help on this amendment. We will work with the bank over the summer to produce detailed proposals, and ensure deferred payments are available to such people.
Lord Lipsey
My Lords, I wonder if the noble Earl could clarify what he said about equity release as an alternative to deferred payments. There seem to me to be two absolutely insuperable objects to that working. One is that you could not have both a deferred mortgage and an equity release on the same property. You cannot have two things secured. More importantly, you cannot get equity release on a house that is empty. The rules of the Equity Release Council—I am on its advisory board—do not permit that. That is not a possible solution to the problem which I put forward.
Earl Howe
I have received advice that, technically, that is not so, but I am more than happy to engage the noble Lord in discussion after this debate. It would largely depend on the availability of a deferred scheme, agreed to by a local authority. It would also largely depend on the quantum of the debt that was already in existence. Of course, setting aside this particular issue, there could be a property on which there was pre-existing debt of a considerable size. It would largely be for the local authority to judge in individual cases whether it was in a position to offer a deferred payment scheme, looking at the facts of the case. I do not think one can make generalised remarks about this. We think that technically it is possible for an equity release scheme to exist alongside a deferred payment loan. As I say, I am sure that the noble Lord, with his insight into the market, will be able to put us right if we have misread the situation.
Lord Warner
While we are on this topic, it seems to me that there is an issue for the Government to think about. What is the market rate for equity release, compared to the market rate for deferred payments? If you are not very careful, you could end up with a situation where one is incentivised over the other. I wonder what consideration the Government will give to that issue.
Earl Howe
We will, of course, give that consideration. I am just reflecting, in the light of the noble Lord’s comment, on whether deciding what arrangements suit the individual is a matter for the Government, or rather a matter of individual choice. If there were a difference in the interest rate, it would surely be up to the individual to decide whether they wished to avail of whatever facility was being offered to them. I do not see that it is necessary to go down the path that the noble Lord, Lord Lipsey, is suggesting, whereby a local authority should be the one and only provider of funding in that kind of situation, merely because the interest rate was perhaps more favourable than an insurance provider’s.
Deferred payments mean that people will not have to sell their home in their lifetime to pay for residential care; I do not think that any commercial product offers that. Equity release is not available to people currently in residential care. However, there is potential for equity release to help people with domiciliary care and other costs. We would welcome developments in that market but this is an evolving discussion with the industry.
In respect of Amendment 92ZZX, we will continue to work with the care sector to ensure that authorities are in the right position to offer deferred payments from April 2015. There will be a dedicated implementation effort led jointly by government and local authorities, learning from local areas with well established deferred payments schemes. This will help to achieve a consistent national approach that fits with existing local systems and structures. We have also announced £335 million of additional funding in 2015-16 to support local authorities to deliver funding reform, including the introduction of universal deferred payments.
Amendment 92ZZZ would delay implementation by one year, until 2016. Given the work already under way with the sector and the shared desire across both Houses to address the issue of care and support funding reform, it is surely only right that we implement this at a reasonable pace. My view—and I hope, on balance, that the Committee will agree—is that it would be unfair to persist with the current system for longer than is needed. The timetable we have set out has other advantages. The 2015 introduction means that deferred payments will be part of the new offer to self-funders coming into place that year, and the stronger engagement by authorities with self-funders will be excellent preparation for introducing the capped costs system in 2016.
The noble Lord, Lord Warner, expressed the fear that we would have 152 deferred payment schemes around the country. As we have discussed, some authorities already have established deferred payments schemes. We think it makes perfect sense to build on the good work that exists. It will also ensure that deferred payments integrate with wider care services. The point here is that authorities will be following criteria set out in national regulations. There will be a consistent approach to who qualifies and what fees they can defer, and a consistent policy around interest and charges.
There is, of course, work to be done by local authorities, but I suggest that what we are tasking them to do is not exactly alien territory to them. We are confident that local authorities have the skills to offer deferred payments. The requirements primarily involve financially assessing people and keeping a record of fees that people have deferred and the interest owed, which is all consistent with activities that authorities undertake as part of providing means-tested care and support. Many authorities already operate deferred payments very effectively. We will work with the sector to identify good practice, as I have mentioned.
In answer to my noble friend Lady Barker, in local authorities with established schemes 20% to 30% of self-funding care home residents take out deferred payment. The level of uptake in 2015 may be similar or it may be somewhat higher. Again, it is incumbent on us—and we recognise this—to work with the sector to identify good practice that others can learn from.
Earl Howe
Yes, it is intended to be an average estimate across local authorities.
The noble Lord, Lord Lipsey, was concerned that there might be an incentive to encourage people to go into care homes rather than receive care at home, which would be contrary to the direction of the policy. That is an understandable concern, but Clause 1 creates a new statutory principle that applies to all the functions under Part 1, including care and support and safeguarding and means that, whenever a local authority makes a decision about an adult, it must promote the adult’s well-being. That ensures that individual well-being is the driving force behind care and support so that local authorities focus on achieving the outcomes that matter to people.
Moreover, although local authorities will be able to charge interest they will not be able to make a profit on deferred payments, so there should not be perverse incentives. Even so, it is important that people who go into residential care should understand their financial options so they can decide what is best for them. Authorities will have a duty to establish and maintain a service to help people access independent financial advice. We are currently consulting on how this duty should operate in practice, including how it works for deferred payment.
The noble Lord raised an important point in relation to the details of the scheme. These are all things we want to look at as part of our consultation and in the work we are doing with the care sector on implementation of funding reform.
Lord Warner
I am sorry to interrupt the Minister, but he skipped past the whole issue of 152 schemes rather rapidly in his answers and brushed aside most questions. Have the Government actually considered a national scheme, which was one of my questions? Does the Minister realise that only a small number of local authorities are actually running deferred payment schemes? It is a very small proportion of the total. The overwhelming majority of them have no experience whatever of running a deferred payment scheme; very few of them are used to valuing assets. These are all new complexities, but the Government are not going to be producing their draft regulations until 2014, by the Minister’s own admission. This is a recipe for a total shambles.
Lord Hunt of Kings Heath
My Lords, the noble Earl has said, and I am sure it is welcome, that the Government intend to set a maximum interest rate to be charged by local authorities. Does he agree that, since it is a crucial part of a deferred payment scheme, setting a rate nationally is consistent with a much more uniform approach? That is why I would have thought my noble friend’s amendment would be a sensible way forward. It is not being mandatory and does not go as far as my noble friend Lord Warner, but simply asks for a model scheme to be introduced.
Earl Howe
We are absolutely on side with the suggestion that there needs to be a uniform approach to the essentials of this scheme. That includes a national maximum interest rate. I suggest to the noble Lord, Lord Warner, that we do not need a national body running an all-singing, all-dancing, nationally mandated deferred payment scheme. We want to build on the good work already going on out there. The noble Lord made a fair point that only a minority of local authorities currently operate deferred payment schemes. Of those that do, many provide us with a very good basis on which to build and share knowledge with other local authorities. That can start now before the regulations are drawn up. We can and will start work with local authorities to ensure that they are gearing themselves up in the right way to approach this task.
Earl Howe
We fully expect a range of views about how to implement the proposals that we have set out in the consultation document. However, what we do not anticipate is wholesale objections to the very idea of the proposals, because by and large they are widely accepted as being the right ones. We need to ensure that they are capable of being implemented in a practical way.
Lord Campbell-Savours
I am sorry to press the Minister, but the point is that some local authorities—let us say Westminster, Maidenhead and Windsor or Wandsworth—may want to raise the charges for administrative costs while other authorities might be more sensible and reasonable about what those costs are. There has to be national uniformity in that area, and we should be given assurances today that there will not be flexibility, which would invite differential administrative costs between local authorities and trouble for many people.
Earl Howe
I can reassure the noble Lord that we are aiming to have uniformity. Merely because one local authority may present us with some rather maverick objections, I do not think that I could possibly envisage us capitulating to that kind of pressure. We want to see a system where people, wherever they live in the country, can rely on some clearly set-out rules and can thereby have peace of mind if they take out a deferred payment scheme. I hope and sincerely believe that the noble Lord’s fears will prove groundless, but I am happy to clarify as much of that as I can, given that we have only just gone out to consultation, in the letter.
Lord Deben
I wonder why the particular councils which were chosen by the noble Lord are all among the best councils in Britain, which would certainly behave in the most generous way.
Earl Howe
My noble friend is, of course, completely right. They are model councils of their kind. It is rather fanciful to present them as possible examples of councils that might wish to do badly by their residents.
This is a major reform that we have committed to introduce in this Parliament. While I am the first to agree that that in itself should not drive the timetable, we think that the timetable is achievable. We are consulting to get the details right and working with the care sector to ensure that implementation goes as planned. The noble Lord raised some important points. I am sure that he knows me well enough to accept that this is not the last occasion when I shall look at the points that he has raised. I shall do so further. For the time being, I hope that I have responded to his satisfaction, at least on some of the amendments, and that he will feel able to withdraw the amendment.
Lord Lipsey
My Lords, I genuinely thank the Minister for that response. I do not want to be the least bit churlish about these amendments which, after all, finally put into practice an idea that came to me in the bath 14 years ago. It does not happen very often, but this time we are on the verge.
I warmly welcome the Minister’s assurance that there will be a national interest rate for deferred loans. That completely deals with the point raised by my amendment on interest rates and my point about Wonga rates of interest and is a tremendous breakthrough for this scheme, so I thank the Minister most warmly for that.
Moving to slightly more churlish mode, on whether we have 152 schemes or one, on balance, I buy the Minister’s arguments against having a separate national organisation imposing this or a compulsory national scheme, but that is not the proposal made in my amendment. My proposal was that the Government produce a model scheme that those who wished to could adopt. It might have some bits that could be added on or taken away as local options within the national scheme, but it would at least stop work being done 152 times over. As my noble friend Lord Warner pointed out, some people are working with this stuff for the first time because they have never brought in a deferred payment scheme. I ask the Minister, among the other things that he has kindly offered to consider, to have another look at that specially to see whether we can find some mileage in it.
I got no change on the time of introduction of the scheme, not perhaps greatly to my surprise, but I still believe in my guts that, as this process moves forward, it will become more and more apparent that it is not sensible to aim for 2015. I do not ask the Minister to comment on that now, but I give him an assurance that I—and I hope my Front Bench will do the same—will not accuse him of a U-turn if later on he finds that it is not sensible. A syndrome in government that comes up time and time again is that a Government announce a timetable and, when it is quite clear it cannot be met, go on fighting like made to preserve their original timetable. I shall not say the words “unified benefit”, but I easily could. This does not make any sense. We are all after the same thing here, and if the Minister decides—and I am sure that he will make a very good judgment on this—that it cannot sensibly be met, let him say so openly and we shall be welcoming, not critical.
My final point emerges partly from what we were just talking about: things on which the Government will possibly think again. The noble Earl very generously said that there are lots of things on which he will want to engage in discussions; at one stage he said, “at least not for the time being”, and has made many remarks of that kind. I will make a purely practical point. It is 22 July and the House will return to the Bill relatively early in October, although I do not know when, and many noble Lords are planning to be away for parts of that period. All of us want to resolve as many of these issues as we possibly can without the need for confrontation or debate in this House or, heaven forefend, Divisions, if they can be avoided. Therefore it is rather important that we all reflect on how we can set up a mechanism so that we can continue over this period to discuss the outstanding issues. I know that the Minister will reflect, but he and his officials may want to have discussions with some of us who are involved, so that by the time that we get to Report we will have made use of this Committee stage and found a way to move the House and the Bill forward without unnecessary rancour. With that, I beg leave to withdraw the amendment.
“Alternative financial arrangements
(1) Regulations may, in such cases or circumstances and subject to such conditions as may be specified, require or permit a local authority to enter into alternative financial arrangements of a specified description with an adult.
(2) “Alternative financial arrangements” means arrangements which in the Secretary of State’s opinion—
(a) equate in substance to a deferred payment agreement or an agreement of the kind mentioned in section 34(8), but(b) achieve a similar effect to an agreement of the kind in question without including provision for the payment of interest.(3) The regulations may make provision in connection with alternative financial arrangements to which they apply, including, in particular, provision of the kind that may (or must) be made in regulations under section 34 or 35 (apart from provision for the payment of interest).”
Baroness Northover
My Lords, adults with care and support needs may want to move home, just like anyone else, but co-ordination between local authorities can sometimes be variable and, as a result, we often hear that people are worried that they will face gaps in the care that they need. The Bill sets out to change that. Clauses 36 and 37 set out a new process to support people moving between areas in England with a guarantee that their needs will not go unmet during the transition.
I turn, first, to the amendments tabled by the noble Baroness, Lady Campbell, who has a long-standing interest in this issue. As the noble Baroness, Lady Wilkins, and the noble Lord, Lord Hunt, emphasised, the noble Baroness has fought on this issue for years and I thank her for her gratitude to the Government for taking action in this area, even if she has some residual concerns. I hope that I can reassure her and, should she wish to move, that she will be able to contemplate a move as feasible in a way that she never felt it was before.
Amendment 92ZZAB seeks to ensure that the adult remains informed during the process. It is important, as the noble Baroness, Lady Campbell, has made clear, that this is the case so that the adult can plan for their move. Clause 36(6) requires the second authority to carry out an assessment as soon as it has established the adult’s intention to move. This requires interaction with the adult from an early stage and thus provides the opportunity to inform them of progress. We intend to clarify this area in statutory guidance and I am sure that the noble Baroness will wish to feed into this.
Amendment 92ZZAC would require the second authority to have due regard to the care and support plan provided by the previous area and Amendments 92ZZAD and 92ZZAE seek to ensure that the focus is on securing equivalent outcomes as in that plan. I fully understand that the noble Baroness is not seeking equivalent services and that this is different from outcomes, a point emphasised also by the noble Lord, Lord Hunt. Of course, when a person moves it is possible that their needs for care and support may change; for example, if they move closer to their family. The noble Baroness is right to focus on outcomes and we recognise that in the Bill. For example, Clause 25(1)(d) would include all the matters identified by the person, including the outcomes they want to achieve. We very much sympathise with these points and indeed have already revised the provisions following consultation on the draft Bill. Clause 36(7) requires the second authority to have regard to the plan or plans provided.
A further change following consultation is the introduction of Clause 25(5), which requires that when preparing to meet an adult’s needs,
“the local authority must take all reasonable steps”,
to agree with the adult how it will do so. Together, these provisions allow adequate scope for the existing plan to be reflected, so far as is agreed and appropriate, in the way in which the second authority meets the person’s needs to achieve the outcomes that the noble Baroness speaks of. I hope that the noble Baroness, Lady Campbell, agrees that the changes we have introduced will ensure that the person will be fully involved in the development of their care and support plan, and as such, can ensure that this continues to meet the outcomes they want to achieve.
Amendment 92ZZADA, in the name of the noble Lord, Lord Hunt, proposes that we replicate Clause 36(10) for carers. I will explain why this is not required. Clause 36(10) has been inserted as a result of our proposals for funding reform, which we discussed earlier in Committee. It requires the second local authority to inform the person receiving care and support if the cost of their eligible needs is different from that provided by the first authority. This relates to the individual’s care account and it is right that the authority informs the person if the amount that counts towards their cap on care costs has changed. However, carers will not have a care account as they are not eligible for a cap on costs and there is therefore no need to require the second authority to inform them of any change in the cost of meeting their eligible needs.
Where a service user is moving to a new local authority in England and the carer is also intending to move with them, the continuity of care provisions will apply to the carer in the same way as they do to the service user. I hope that this reassures the noble Lord. Where the service user is not moving but the carer is moving home to another authority, these provisions will not apply. The carer is still providing care in the original authority and it will continue to be responsible for meeting their care needs.
Amendment 92ZZAF, in the name of the noble Baroness, Lady Campbell, would require the first authority to continue to meet any needs until it has satisfied itself that the second authority has met its duty in Clause 37(1). The noble Baroness explained why she felt this was important. The continuity duty in Clause 37(1) applies from the day of arrival in the new area. From that point, it is the new authority’s responsibility to meet the adult’s needs, and the first authority’s previous duties are discharged. There should not be a gap in these arrangements. In particular, the requirement on the second authority to assess the adult before they move is intended to ensure that the necessary preparation has been undertaken so that there is no delay. Therefore, this amendment should not be necessary. Moreover, there is a risk that such a provision could act as a disincentive on the second authority to meet its obligations in a timely manner, although I heard what the noble Baroness said in regard to that. We will develop statutory guidance to support local authorities in exercising these new duties. That guidance offers a further opportunity to clarify expectations and ensure that no gap occurs.
Amendments 92ZZAG and 107, in the name of the noble Lord, Lord Wigley, concern Schedule 1, which makes provision for cross-border residential placements. I thank the noble Lord for giving us the benefit of his knowledge of Wales and note his praiseworthy restraint with regard to English provisions, although I note that the noble Lord, Lord Hunt, did not share my view. Clearly, the noble Lord, Lord Wigley, has resolved the West Lothian question but I appreciate his offer to liaise with Welsh colleagues to ensure the greatest clarity. I will give him some further information that may be of assistance to him.
The Care Bill will make provision for cross-border residential care placements so that people can be placed in care homes in other parts of the United Kingdom. This will mean that if a local authority in England places someone in residential care in Northern Ireland, Scotland or Wales, that person will remain the responsibility of the English local authority. They will not acquire ordinary residence in their new location and will continue to benefit from the protection provided by the cap. For example, if people receiving domiciliary care move from England to Wales, or people in a care home move without being placed by their local authority, they will usually become ordinarily resident in the new area and the appropriate contribution they should make to the costs of their care will be determined by the arrangements in Wales. A person moving to another Administration and requiring domiciliary care will be reassessed under the system into which they are moving. The processes being proposed in England and Wales are different and we will work with colleagues in Wales to produce guidance to look at how continuity of care can work across borders.
Schedule 1 will end the untenable situation local authorities currently find themselves in when a person in their area who wishes to receive residential care in Wales, Scotland or Northern Ireland is unable to do so. The noble Lord’s amendments seek to delay commencement of Schedule 1 until a report is laid before Parliament outlining the issues connected with cross-border placements arising with the devolved Administrations. We believe that this would cause an unnecessary delay to enacting provisions that are long overdue.
However, we recognise the concerns about the practical challenges of cross-border working. I hope the noble Lord will be reassured that we are working with the devolved Administrations to create bespoke regulations to meet the diverse legislative and operational requirements of each Administration. The regulations will be subject to consultation and laid before Parliament. I expect the noble Lord to participate in those debates.
Lord Wigley
I do not want to delay proceedings. This is just a way of bringing focus on the issue. Can the Minister give any indication to the Committee as to whether the discussions and deliberations that have already taken place between her department and the National Assembly in Cardiff have gone well and that there is so far a meeting of minds, or are there issues over which there will be some clash? If there is a clash, how will it be resolved?
Baroness Northover
If need be, I will come back to the noble Lord with all the details because it is indeed a very complex area. There are a number of government amendments, as the noble Lord, Lord Hunt, pointed out, and these seek to address some of the issues that have arisen in trying to make sure that everything works as smoothly as possible. It would probably be most appropriate to write in detail to the noble Lord and for him to see and stress-test what is happening. I remind the noble Lord that these regulations will be subject to consultation and laid before Parliament.
I now move on to the government amendments that the noble Lord, Lord Hunt, referred to. Obviously, this is a complex area. Amendment 92ZZAFB is required to clarify the ordinary residence situation of a person who has an independent personal budget. The local authority where the person is ordinarily resident is responsible for preparing the person’s independent personal budget and keeping the care account. This amendment makes clear that if such a person is in residential care and moves to the area of a different local authority, they will be able to become ordinarily resident in that new area.
“( ) The reference in subsection (1) to this Part does not include a reference to section 28 (independent personal budget).”
“( ) Section 22 (prohibition on provision of health services) is to have effect—
(a) in its application to a case within sub-paragraph (1)—(i) as if the references in subsections (1) and (6) to the National Health Service Act 2006 included a reference to the National Health Service (Wales) Act 2006, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Local Health Board; (b) in its application to a case within sub-paragraph (3)—(i) as if the references in subsections (1) and (6) to the National Health Service Act included a reference to the National Health Service (Scotland) Act 1978, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health Board or Special Health Board;(c) in its application to a case within sub-paragraph (4)—(i) as if the references in subsections (1) and (6) to a service or facility provided under the National Health Service Act 2006 included a reference to health care provided under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health and Social Care trust.”
Baroness Northover
My Lords, I am very grateful to noble Lords for tabling amendments on such important issues. I am sure that noble Lords will agree that if we are to claim to be a civilised society, it is critical that we safeguard those people who are most vulnerable to abuse and neglect. In particular, the Bill places local authorities under a duty to make inquiries or cause inquiries to be made in suspected cases of abuse or neglect of adults with care and support needs who are unable to protect themselves because of those needs.
This is a very important moment—the first time any Government have placed adult safeguarding in primary legislation. I thank the noble Baroness, Lady Greengross, the noble Lord, Lord Touhig, and the noble Baroness, Lady Wheeler, for recognising this. It is in line with the recommendations of the Law Commission’s report on adult social care. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. It also requires local authorities to establish safeguarding adult boards, which will include key representatives of the NHS and police and any other persons considered appropriate.
Such boards will have three statutory duties. A board must publish strategic plans each financial year, following local consultation, which set out how it is to help and protect adults with care and support needs in its area who may be at risk of abuse or neglect. At the end of each financial year it must publish an annual report that sets out what it and its individual members have done to achieve and implement this objective. It must arrange for any safeguarding adult reviews of serious cases of abuse or neglect where there is a concern about how persons relevant to safeguarding worked together to protect the adult in question, so as to identify and apply any lessons learnt to future cases and prevent such incidents arising again.
Noble Lords have tabled a number of amendments that rightly press the Government on the robustness of the clauses. We believe that the points they make are covered by our proposals and I will try to outline why. I take this opportunity to say that although these clauses are the result of significant experience and consultation, we accept that we need to be flexible and adapt to experience of implementation. Our approach of covering much of the detail in statutory guidance allows this flexibility.
I turn to the first of the amendments that we are considering. Amendment 92ZZAH in the names of the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, seeks reassurance that adult safeguarding applies regardless of location. I am happy to confirm that this is the case. Clause 41 will require a local authority to make inquiries or cause them to be made where abuse and neglect are suspected in respect of an adult with care and support needs, regardless of the particular setting where the abuse or neglect is suspected to have occurred.
Amendments 92ZB and 92ZD are also tabled by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins. The first aims to ensure that the voice of the individual is heard in any safeguarding inquiry and that the individual is properly supported. We agree that these factors are of utmost importance, which is why those principles are enshrined in the Bill, beginning with Clause 1, on promoting individual well-being. If a person does not have capacity to take part in a safeguarding inquiry concerning them, the local authority should involve any person appointed to act on their behalf, or, where there is no such person, the local authority must itself act in the person’s best interests. We believe that statutory guidance is the best place to cover this in more detail, with practical examples to illustrate the point. As regards the second amendment, on defining abuse, we have taken the approach of relying on the natural meaning of “abuse” to keep the scope of the duty to make inquiries as wide and flexible as possible. The joint pre-legislative scrutiny committee itself stated:
“Abuse is an ordinary English word, capable of being understood without being defined. It might not however normally be thought of as including financial abuse, and it is right that”,
the clause,
“should put this beyond doubt. But to attempt an exhaustive definition always has the danger of omitting something which, as subsequent events make clear, should have been included”.
However, turning to Amendment 92ZA, I agree with the noble Baroness, Lady Barker, who tabled that amendment and who seeks assurance that a person should not be considered as suffering abuse or neglect if they have refused medical treatment. We agree with that, and there is no intention of doing so. That is an important principle of law and ethics.
In Amendment 92ZC, the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, are concerned with ensuring a more consistent, timely and transparent process for adult safeguarding. This is one of our central aims, which we will address this in statutory guidance. We want to pre-empt the risks arising from the overly bureaucratic safeguarding process that Professor Munro discovered in her review of children’s safeguarding. It is vital to focus on the outcomes that people want and how best to achieve them rather than overprescribing and focusing on processes.
I have a note that says that I wanted to add something at this point, but I cannot find the notes in question so I will turn to Amendment 92ZE, in the name of the noble Baroness, Lady Hollins. We agree that it is extremely important to ensure that inquiries are made into cases of suspected abuse or neglect regardless of the motivation behind the action, and that is what the Bill as drafted achieves. This important point links to Amendment 92ZFA, in the name of my noble friend Lady Byford. Her first amendment is about who can report abuse; in this case it focuses on financial abuse. The local authority must make inquiries in respect of safeguarding concerns, no matter how they come to its attention—whether it is from someone with power of attorney or anyone else. For the first time, local authorities will have such an express duty in statute.
My noble friend Lady Byford spoke about the problems that those with power of attorney may encounter. This is a very familiar concern. We know that the provisions of the Mental Capacity Act are implemented variably. This House currently has a committee undertaking post-legislative scrutiny of the Act. It will have views about the implementation of the Act, and the Office of the Public Guardian, which is in charge of registering and supervising powers of attorney, is establishing improvements in the training and oversight of those with power of attorney and of their deputies. The Court of Protection also has a critical role in protecting the affairs of those who lack capacity. I am sure that this matter will get further post-legislative scrutiny.
My noble friend Lord Hodgson supported my noble friend Lady Byford on the way in which people are charged for care. We agree that services vary and that the charges that are applied reflect the varying cost of providing care. It is important that people know what they will pay before agreeing to purchase a service, and what the charges do and do not cover. Clause 4 requires local authorities to make available information and advice relating to care and support services. Clause 5 requires local authorities to shape a diverse, high-quality and sustainable market that meets people’s needs.
The second amendment in the name of my noble friend Lady Byford, Amendment 92ZFB, raises the critical issue of protecting people from having to overpay for the care and support services they need. My noble friend is absolutely right that people should know in advance, and in writing, what will be included in the fees they pay, and what, if any, elements will be covered by others, including the council or NHS. That is why it is in the registration requirements of the Care Quality Commission. We can also include this, if necessary, in the guidance we produce.
I turn to other amendments tabled by the noble Baroness, Lady Hollins, and the noble Lord, Lord Rix. Amendments 92ZG and 92ZH are about ensuring that organisations take action and report it when they are found to be wanting in their adult safeguarding arrangements. We recognise this gap and have placed adult safeguarding reviews on a statutory footing for the first time. Paragraph 4 of Schedule 2 sets out detailed requirements for the annual reports of boards. In particular, the report must include the findings of all reviews and must set out what the board has done to achieve its objective. This would include implementation of those findings. The Bill places a duty on safeguarding adult boards to publish their annual reports. The report will be publicly available, and this will ensure transparency in the way that they work. I am sure that not drawing conclusions from those reports would face a challenge, given the train of events that I laid out. I hope that these points will reassure the noble Baroness.
Amendment 92A is very timely, given the appalling failures of care that we heard about recently. We absolutely agree with the noble Lord, Lord Touhig, and the noble Baroness, Lady Greengross, that providers that allow abuse and neglect to go unchecked should face serious consequences, including potential prosecution. This has not been the case to date. We agree that this is a problem. The Government believe that the best way to take this forward is through the introduction of fundamental standards in a revised set of requirements for registration with the Care Quality Commission. It was appalling to hear what the noble Lord, Lord Touhig, said. The Care Quality Commission has started consulting on those fundamental standards. The noble Lord asked about the timescale. We expect to consult on draft regulations in the autumn. The standards will ensure that the CQC will be able to take action against providers for unacceptable standards of care, including abuse and neglect.
Of course, we understand the concerns expressed by the noble Baroness, Lady Greengross, and the noble Lord, Lord Low, in Amendment 92AA, about protecting and promoting the human rights of those requiring care and support services, many of whom are very vulnerable to abuse and exploitation. We discussed this in detail recently in your Lordships’ House, on 13 March 2012, during the passage of the Health and Social Care Act 2012. The matter was debated extensively and voted on, and the Government won the vote with a substantial majority. We are not aware of anything having changed in the past nine months that would cause us to change our position.
Lord Warner
Perhaps I could suggest that the Minister should have another conversation with the noble and learned Lord, Lord Mackay. After the quotation to which she referred, the noble and learned Lord signed and agreed the Joint Committee’s report that made the recommendation. The Minister might like to have a discussion with him about whether he has changed his position.
Baroness Northover
That is a very interesting point. This is a very serious area. We want to make sure that the Human Rights Act applies in the way that we think it does, and in the way that the noble Lord’s Government brought in and thought that it did apply. I have a feeling that this is an issue that we will revisit. I remember the discussions last year on this between the noble Lord, Lord Low, my noble and learned friend Lord Mackay and others. I would not be at all surprised if there were further discussions.
The important point here is to protect people, to make sure that the law protects them and to do nothing that undermines the effect of the Human Rights Act in other areas. The Government’s position has been that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves to be bound by the duty imposed by Section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the convention rights. The CQC, as the regulator, is subject to the HRA, which may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. As noble Lords will know, the Ministry of Justice is concerned that every time you add a provision, you may inadvertently have an effect on the umbrella application of the Act.
The noble Lord, Lord Low, asked about the repeal of the National Assistance Act. I assure the noble Lord that there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation. He will also be able to set in context that change, in the light of the discussions we had earlier.
I point out that there are strong regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements which are compatible with the provisions of the European convention. This applies to all providers of regulated care to people who use care and support services, whether publicly or privately funded.
As to Amendment 92ZFE, we agree with the noble Baroness, Lady Greengross, that people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution where an offence has been committed. This should also be read in the light of the discussion on the Human Rights Act. The Bill does not seek to duplicate existing law. Civil law currently provides redress for cases of neglect, and criminal law prohibits assault, which would include much of what is sought in this amendment. We therefore believe that there are already adequate provisions in place to deal with such cases.
My noble friend Lady Barker spoke of the potential creation of a new offence of abuse and neglect of somebody who has capacity. There is legislation that protects those with capacity, and there are powers that local authorities and the police can use. These include the Anti-social Behaviour Act 2003 and the Crime and Disorder Act 1998, and the police also have wide powers to enter premises for specific purposes with or without a warrant. The inherent jurisdiction of the High Court ensures that there is no gap.
Where an adult lacks capacity, there is an existing offence of ill treatment or neglect by a person who has care of the adult or is authorised to act for the adult under the provisions of the Mental Capacity Act. In our view, this is a case where an offence is justified because of the evidence that such people are highly vulnerable to abuse, neglect and exploitation.
I turn to Amendment 92ZK, in the name of the noble Baroness, Lady Greengross. We all want local authorities to foster an open and honest culture in which employees feel able to express genuine concerns without fear of repercussions. However, we do not feel that this amendment is necessary. As I think we would all agree, the law on its own cannot change organisational culture. We need to work with and through local authorities to consider what barriers exist to the type of open and honest environment that we want to see. This is something that we have debated a great deal and there has been much emphasis on leadership. However, legislation can have an effective role in setting parameters and reinforcing expectations, which in turn impact on culture. In this regard, the Government have already confirmed their intention to introduce an explicit duty of candour on providers of health and care and support. This will be introduced as a CQC registration requirement and will mean that providers will have to ensure that staff and clinicians are open with patients and service users where there are failings in care.
I turn to the need to be able to gain access to a person suspected of experiencing abuse or neglect where that access is denied by a third party. The Government carried out a full consultation on a potential power of entry, very similar to the access order proposed by the noble Baroness, Lady Greengross, in Amendment 92ZFC. We received no compelling evidence to warrant such a power and, indeed, there was and remains considerable opposition to it from members of the public and some third-sector organisations. We have heard some of the concerns expressed by the noble Lord, Lord Patel, and the contrary view expressed by my noble friend Lady Barker and the noble Baroness, Lady Wheeler. We recognise that this is a sensitive and complex area of work, but we believe that understanding what positive work by skilled professionals can achieve and promoting that is a more desirable, effective and sustainable route to take. As with all the new duties and powers in the Bill, we will pay close attention to implementation and address any issues that arise.
Perhaps I may mention to the noble Baroness, Lady Wheeler, that, although the consultation has ended, we have continued to get written correspondence from both members of the public and third-sector organisations petitioning the Government not to introduce a power of entry. They are particularly concerned that such a power would be used as a quick fix that would neither resolve the problem nor improve good professional practice where the intention is to try to build trusting relationships. From what noble Lords have said, it is very clear that trying to get the balance right and focusing on the protection of the individual can be very challenging in such circumstances.
We understand the concerns that lie behind Amendment 92ZF, tabled by the noble Baroness, Lady Hollins. It is of course imperative that anyone—but especially those in the NHS and local authorities—who suspects abuse or neglect knows what action to take. Organisations should make their procedures clear and boards should widely publicise information on this issue.
Amendments 92ZFF and 92ZJ, tabled by the noble Baroness, Lady Greengross, emphasise the need for the involvement of social work-qualified staff in boards and reviews. We understand what the noble Baroness is saying. In Schedule 2, we make it clear that both the chairs and members of boards must have,
“the required skills and experience”.
We will elaborate on that in guidance and ensure that the importance of social work is recognised and supported. Guidance will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.
This has been a very important and wide-ranging group of amendments concerning a new step that we are taking to try to ensure that vulnerable adults are offered the best protection. We welcome noble Lords’ probing of the Government. We are all trying to secure the same outcome, and we need to be challenged on how best to achieve that. I hope that noble Lords will have taken on board our reasoning behind doing things as we are and that they will be reassured that we are indeed delivering through this Bill what they are seeking. I hope that they have been reassured that their concerns have been carefully considered and addressed and, on that basis, I hope that the noble Baroness will withdraw her amendment.
Baroness Hollins
My Lords, I thank the noble Baroness for her characteristically thoughtful comments in response to these amendments. I am reassured by many of the points that she has made, although one issue that I felt she did not fully address is the need to clarify thresholds for reporting abuse. I am also disappointed with her response to the amendment proposing a power of access, which I strongly support for its relevance to people with learning disabilities. Going by the feelings that have been expressed in the Committee, I think that a number of people would welcome an opportunity to discuss some of these matters a little further and perhaps to bring them back on Report. However, I beg leave to withdraw the amendment.