Health and Care Bill

Lord Bichard Excerpts

2nd reading
Tuesday 7th December 2021 Lords Chamber

[Lord Bichard (CB)]

My Lords, I begin by welcoming, with others, the noble Lord, Lord Stevens, and congratulate him on his maiden speech. To use an analogy that I think he will understand, in my experience maiden speeches are like kidney stones: they are much better when you pass by them.

I too welcome the emphasis that the Bill belatedly places on collaboration, integration and partnerships, which is something that many of us have been seeking for a very long time and that I was personally associated with when leading the Total Place initiative more than a decade ago. We have been seeking this because none of the major issues that afflicts us can be resolved by a single public service—even one as large as the NHS. As your Lordships’ own Public Services Committee has stressed in its recent reports, better collaboration is critical to successfully addressing challenges such as obesity, diabetes and child safety. It is not just collaboration within the health service and between health and social care; it goes beyond that.

Let us be clear: we cannot legislate for collaboration, we cannot structure it into an organisation, we cannot impose it from the top down—as we have so often tried to do—and it does not happen with the flick of a switch. Ultimately, it depends upon the culture of the organisation. I have to say that, while so much about the NHS is positive, it has never in my experience been an exemplar of collaborative working, so turning the collaborative thrust of the Bill into reality will take a real effort. I hope that, as it progresses through the House, noble Lords will be able to make some amendments that make that more likely.

In other respects, I am afraid that I am less positive about the Bill as it stands simply because, as others have said, it seems to me to ignore so many of the health-related problems that we need to address urgently —whatever “urgently” now means. It does not, for example, tackle health inequalities, which have almost certainly worsened during the pandemic. The extent of these inequalities is a stain on our society—I am not exaggerating for effect—and others have mentioned Professor Michael Marmot, who has long sought to evidence this. Could we not at least incorporate this into the new triple aim, as the King’s Fund and others here today have suggested? We have heard a lot about levelling up, but, to be honest, it means nothing to me unless the health inequalities that we are experiencing are addressed.

While the Bill was described as a health and social care Bill, there is little of real substance about social care, and the proposed changes to the social care cap are regressive, as I think most people now accept. I shudder to think how my parents would have responded to these proposals. One of their proudest achievements was to own their own home, and they would have been devastated by the threat of losing that as a result of provisions like this. I agree with the noble Lord, Lord Lansley, that this should be taken out of the Bill.

There is also nothing in the Bill to suggest that the importance of prevention and early intervention has been recognised—the noble Lord, Lord Bradley, touched upon this. The truth is that we are spending ever greater public resources on crises and ever less on prevention, not least in the way that we seek to improve the life chances of vulnerable children, for which the NHS has a major responsibility.

The extensive new powers given to the Secretary of State to intervene in local service reconfigurations, as drafted at the moment, fly in the face of the stated intent to give local places and communities greater power over local priorities. Surely there needs to be at least some stronger requirement in the Bill for local communities to be involved before such interventions are made.

There is nothing in the Bill to suggest, to me at least, that there is a real strategy for tackling current chronic staff shortages—or, indeed, for ensuring that users have a real say in the way that services are designed. We hear a lot about patient-centred care—the only way that you can achieve it is if patients and users are involved in the design of the services in the first place.

Finally, could we not resolve one of the greatest practical barriers to collaboration: the failure to share data effectively? Whenever you mention data, people switch off. It is really important. Part 2 of the Bill begins to address data sharing between adult social care and health, but, for reasons that I simply do not understand, it does not address the same issue where children are concerned.

As your Lordships’ Public Services Committee identified in its recent report on vulnerable children, this is a serious practical problem. I know that it has been at the heart of many of the most tragic child abuse cases over the last 50 years. Perhaps the Minister can say in replying why we have not taken this opportunity to address that practical barrier and whether he would be sympathetic to amendments which did. It is something which the DHSC and the DfE need to do together, and I hope they will.

Social Care in England

Lord Bichard Excerpts

Thursday 14th October 2021 Lords Chamber

[Lord Bichard (CB)]

My Lords, I am proud to count myself as one of the usual suspects that the noble Baroness, Lady Pitkeathley, referred to earlier. In that capacity, I congratulate her on winning this debate and on a quite brilliant opening speech.

As we all know, social care has been in need of urgent reform for a decade or more. When history is written, I think it will be one of the greatest failings of Parliament that so little has been done. Resources have been inadequate. Too many providers are struggling to survive, too many users are dissatisfied with the service they receive, too many unpaid carers are, quite simply, exhausted, and too few people see social care as an attractive career option. For people suffering the consequences of these failings, arguments about who is to blame and promises of future improvements feel a world away from their lived reality. Their lives cannot be put on hold; they have to be lived now. They should be, and they deserve to be lived well.

Sadly, the long-awaited White Paper has still not materialised. There was yet another promise that it will be with us in three months; I have lost count of how many of those I have seen. The recently published Build Back Better fails to address the real problems, focusing almost entirely on how to fund the cap on costs. Any future plan and the White Paper itself need to deal with the really big issues comprehensively.

First, we still need to deal with resources, because, as others have said, the Health and Social Care Levy Bill does nothing to increase the capacity of the sector. It is regressive, and somehow even finds a way to increase the financial burden placed on providers and on care staff themselves. The Economic Affairs Committee of this House judged that £8 billion was needed to bring the sector back to where it was a decade ago, and many have suggested ways in which this could be found by reallocating public expenditure if there was no new money available. It needs to be done.

Any future plan needs to ensure, as others have said, that care services are better integrated, but as the noble Lord, Lord Lansley, said in Monday’s debate, that will not be done by great promises about further major institutional changes—reorganisations that often mean nothing in terms of improved services on the ground. A national care service and integrated care services will not provide immediate succour for people suffering as they are. They need us to address the real barriers to collaboration on the ground. People in residential homes do not want promises about new structures; they want free, convenient access to GP services, 24/7.

Again as others have said, we have to confront the crisis of the workforce far more convincingly than Build Back Better does. Social care should be seen as the noblest of professions, not as a last resort for a career. Could we encourage former clients—care leavers, for example—to use their lived experience and join the profession? Could we extend initiatives such as Teach First and Frontline? Do we know enough about why and when people leave so that we can target our workforce planning? How can we improve and make training and development more attractive to the workforce? Nothing will change or improve without a committed, skilled and valued workforce.

Something that has not been mentioned today is that we need to sort out the benefits system. At the moment, you can apply for attendance allowance, higher-level attendance allowance, domiciliary care, residential care or continuing healthcare. Some of these are administered by the DWP, some by local authorities and some by the NHS. Some are means tested and some are not. Continuing healthcare seems to vary widely in the way it is administered across the country. This is a confusing mess. It costs money, but it brings huge stress to people when they are at their most vulnerable.

We could support providers better. Education leaders have been able to access information and support online for a decade or more, but social care providers are left to their own devices, struggling to balance the books, cope with increased regulation and cater for clients with increasingly complex conditions. Why do we not establish an innovation and improvement fund to give them some support in the immediate future? Are we using digital technology as well as we could, not just to help providers but to help more people to stay independent? I do not think we are.

What is the strategy for unpaid carers, so often and rightly mentioned today—13 million of them, saving the Exchequer nearly £200 billion a year? The Secretary of State highlighted the importance of these at conference, but they cannot be taken for granted, so where is the strategy to support them?

Finally, how can we give users and their families a greater say in the way that services are provided? The time should have gone when well-intentioned central bureaucrats decide how services should be shaped and delivered. We need more influence from lived experience.

Fixing social care is about fixing all those issues, not just putting a cap on care costs. I hope the Minister can reassure us on two things today: first, that we will finally see the White Paper by Christmas, and, secondly, that it will cover this comprehensive range of issues.

Queen’s Speech

Lord Bichard Excerpts

Thursday 9th January 2020 Lords Chamber

[Lord Bichard (CB)]

My Lords, it is a new year with a new Government and there is new energy with new ideas and new policies, and even, we are told, some money. There is a sense of anticipation and, in the words of the Prime Minister, the dawning of a new golden age. What could possibly go wrong? Quite a lot could go wrong because, on past evidence, Governments in this country have found it very difficult to deliver projects, improved services, policies, targets or promises. We have become a nation that is good on ideas, ambitions and aspirations, but rather weak on achievement. As chair of the National Audit Office, I see countless examples of that week by week.

Take a look at some of our recent reports. Take a look at Crossrail, which is over budget and still not there. Take a look at HS2. Take a look at the starter home target of 200,000 houses, which delivered, well, none at all, actually. If you have time, take a look at the Great Western Railway modernisation or perhaps the decommissioning of our nuclear submarines. That has been a policy commitment since 1990, which so far has led to no vessels at all being decommissioned and untold riches being spent on stockpiling disused submarines. We now have more submarines in storage than in operation.

You can add to those recent failures universal credit, countless failed IT projects and, as many noble Lords have said in the debate, social care—or the lack of it. We are wasting billions of pounds when resources are tight and at the same time failing to deliver policies, many of which would help some of the most disadvantaged people in our society. So I often ask myself: why does this happen and what could we do to improve the current situation?

We at the National Audit Office are not actually interested in being mortuary attendants; we would actually quite like to improve public services. So I make a few suggestions to a new Government who may be in listening mode. For a start, we could make clear, from the very top of government, that delivering outcomes successfully matters just as much as endless policy commitments. We could be careful to ensure that policies and targets are stretching but achievable rather than designed primarily to grab the headlines and capture short-term political advantage. We could limit legislation so that the programme for any Session of Parliament is realistic and manageable. We could do more to ensure that civil servants are equipped with the skills to deliver services and projects effectively. We could, for example, insist on officials being required to spend a reasonable amount of time in operational or project management posts before entering the Civil Service, because it was clear to me all those years ago when I was a civil servant that policy development mattered and was recognised much more than delivery, and I fear that that is still the case.

We could hold people, civil servants as well as Ministers, more accountable for failures and stop the recycling of incompetence. We could ensure that competent Ministers stay in post for longer than the current average of around 15 months and that civil servants are not constantly churned to benefit their careers at the expense of results. We could devolve more power closer to communities, because large centralised bureaucracies rarely deliver successfully, and, frankly, in recent times local government and the voluntary sector have shown themselves to be more competent, agile and trustworthy than large central government departments and agencies. We could do a lot more to learn the lessons of failure and from our mistakes rather than seek to explain away the inexplicable or defend the indefensible. Finally, we could better understand and exploit the potential of digital technology to transform health, social care and many other essential services.

There are many reasons why the reputations of both Westminster and Whitehall are at such a low ebb, but in part it is because people have lost trust in their ability to deliver improvements, not least in public services. Addressing that has to be a priority for this new Government, and success will not be achieved by yet more promises to do better or to try harder, or indeed by just throwing money at the problem. That is why I for one have welcomed the signals from No. 10 that the Prime Minister is supporting radical changes in the way we govern, even if I may not have used exactly the same words, but that support and interest needs to be sustained in the face of many other pressures. However, all revolutions have to start somewhere and maybe this one should start with the Government saying very clearly, “We will promise only what we can deliver, but we will deliver what we promise.” Or to put it another way, “Let us promise a little less and deliver a lot more.”

Adult Social Care in England

Lord Bichard Excerpts

Tuesday 10th October 2017 Lords Chamber

[Lord O'Shaughnessy]

I am sorry to disappoint the noble Baroness but I am not able to give her any more details on the timing of the consultation.

[Lord Bichard (CB)]

Will the Minister reassure the House that the long-delayed Green Paper will address not just resources but some of the other points that have already been raised, and maybe one or two others? For example, how do we recruit, retain and motivate a high-quality workforce? How do we provide urgent support for many small providers, which are struggling to survive, let alone improve the quality of the service? How do we make use of the digital potential that exists, which is currently not being realised? How do we get a real integration of health and social care services around the client? Will he reassure the House that these issues will be addressed explicitly?

[Lord O'Shaughnessy]

The consultation is looking primarily at the funding situation but in doing so it will have to consider the shape of the market and making sure that the whole system is put on a sustainable basis for the future, which obviously will involve looking at some of the issues the noble Lord has highlighted.

Social Care

Lord Bichard Excerpts

Thursday 1st December 2016 Lords Chamber

[Lord Bichard (CB)]

My Lords, I draw attention to my interests as set out in the register. I thank the noble Baroness, Lady Pitkeathley, for giving us this opportunity to discuss a desperately important issue and I congratulate the noble Baroness, Lady Cavendish, on a maiden speech that was well-informed, challenging and constructive. I would have expected nothing else; I know that she will be a real asset to the House. She is a very welcome new member of the usual suspects club.

There is no one who can deny that social care is in crisis: significant increases in those needing support, both young and old; too many providers failing; too many commissioners feeling disempowered by a lack of resource; too few people seeing social care as an attractive career option; and clients who are not “just about managing” but struggling to survive. We cannot leave it like this; we need to change. I want to throw a few ideas into this debate about how we might change.

I am not someone who believes that resources are ever the complete answer, but I could not start without saying that the social care sector has suffered disproportionately from recent cuts. Some urgent investment is needed now, as well as a long-term resource plan. That is what we argued in the Barker commission report a year or so ago and the situation has deteriorated further since then. It is possible to do it and, as we said in that report, to look again at the priorities for investment and to change them. That is what we need to do.

But, as I say, this is not just about money. I have been struck increasingly by the number of users who tell me that they do not get what they need in the form that they want and can access, because they were never involved in how the services were designed, shaped and prioritised. That needs to change. Frankly, to provide services in a time of austerity which people do not feel are a priority is an affront to our society. We could perhaps start by involving them in the way that we deliver care support. The current arrangements involving attendance allowance—lower and higher levels—domiciliary and residential care and continuing healthcare are confused, wasteful and distressing for many clients. We have reorganised much else in the benefits system but not this confused and stress-laden mess. We could, and we should, if we wanted to.

People will only receive whole-person care if we, the bureaucrats—in my case, a former bureaucrat—and politicians learn to work better across organisational boundaries. The rhetoric of integration has taken root. Yes, we do need one budget and integration, but the user’s experience is often that nothing much has changed as a result of these words. That is because we have not started looking from the point of view of the client. We have convinced ourselves that bringing two large bureaucracies together will inevitably lead to better services and less waste, but it will not. Two large bureaucracies brought together can be even more inaccessible and wasteful.

No one has mentioned today the possibility of the digital dividend. There are some fantastic examples already out there. They are not rocket science, but the problem is that although there are great examples, they are not uniform—they could be, and should be by now.

Do we not need to do something more to help providers, many of whom have either failed or are on the brink of failure? The CQC has shown that providers who need to improve find it extremely difficult to do so. They do not know where to go or where to get the money. Is this not one of those occasions where the Government could just offer some assistance? We used to have something called Business Link, which helped small and medium-sized enterprises. Are we not now in a crisis where we should have something similar for providers in this sector?

We have a crisis in the workforce. This should be the noblest of professions and yet most people would rather stack shelves in the supermarket than work in this profession. It is possible to change this. I chair the Social Care Institute for Excellence and we are doing some really interesting work with JP Morgan in east London, trying to involve people who have been in the system to come and work in the system. We need government to be giving more support to those sorts of schemes.

As someone said a moment ago, we need to look at how we can better involve the community. We have got into a state of mind of thinking that we have to live in a centralised, state-based, dependent culture. That is not the case; social care requires communities to be involved, but somehow we have lost the knack of realising that potential and helping some of the charitable groups in our communities to be involved.

I do not see at the moment that there is a strategy for social care. There needs to be one—the sustainability and transformation plans are not providing it. I ask the Minister: why can we not have a five-year plan for social care to sit alongside the five-year NHS review?

Residential Care: Cost Cap

Lord Bichard Excerpts

Thursday 10th December 2015 Lords Chamber

[Lord Bichard (CB)]

My Lords, I declare an interest as chair of the Social Care Institute for Excellence and as a vice-president of the Local Government Association. I want to begin, as others did, by thanking the noble Baroness, Lady Wheeler, for giving us the opportunity to have this debate. It is not only timely; many of us probably feel that it is long overdue.

I hope my new-found friend on these Benches, the noble Lord, Lord Filkin, will not be upset if I say I shall try to avoid using words such as “crises”, “disasters” and “catastrophes”, though it will not be easy on this occasion. For many of us, the condition of the care sector in this country is one of the most pressing and serious issues facing us at the moment. It has increasingly serious consequences, especially for older people with limited means. As other noble Lords have said, this is a people issue. My worry, quite simply, is that the Government appear not yet to have a convincing strategy for resolving the issue.

Others, not least the noble Baroness, Lady Brinton, have referred to the perfect storm facing the sector. The living wage—necessary though it is to raise the status of care workers—will impact on the economics of care provision. Those now in residential care tend to have multiple, complex conditions which require intensive support. The huge reductions in local authority budgets cut the number of those in receipt of adult social care by 28% between 2008-09 and 2013-14 and forced local authorities to drive down the price they were able to pay providers. What is not yet fully grasped by the great British public is that those who can afford to pay are now subsidising those who cannot. Self-funders are now paying an average premium of 40% for their care.

For all the rhetoric, the vanguards, the pioneers and the ring-fenced budgets, there is still insufficient integration of health and social care around the client. The noble Baroness, Lady Brinton, gave the example of legs. I think she will also remember the example of an assisted bath; is it a social care assisted bath, or is it a health assisted bath? How did we get into this situation?

The CQC has warned that a third of care providers require improvement, while the five largest providers have warned of significant failure in the next two years. These are the facts that have shaped the current reality. It is a reality highlighted recently by the latest survey carried out by LaingBuisson which shows that, for the first time since 1990, in the six months to March, more older people’s care beds have closed than have opened, with a net loss of 3,000 places. Every loss—every one of those 3,000 places—increased pressure on a beleaguered NHS. As the noble Lord, Lord Filkin, pointed out, those are the same facts that, this week, led the chief executive of Care England, Martin Green—a man who I know does not overstate his case—to advise care providers to start thinking clearly about how they manage their exit from publicly funded services. Already, three of the largest providers have signalled their intention to exit publicly funded home care. Meanwhile, in the last week, I have met local authority chief executives who are looking seriously at whether they need to re-enter the provider market to protect places.

This is, by any means, a serious situation, but is there a way out of it? Last year, I sat on the King’s Fund commission—which has been referred to by several other noble Lords—looking at the future of health and social care. We concluded that the current arrangements were no longer fit for purpose and that there needed to be a single budget for health and social care, with a single commissioner. After all, as the Chancellor said in his Statement in the last couple of weeks, the NHS cannot function effectively without good social care. They are interdependent. We also recommended a commitment to spend 11% to 12% of GDP on health and social care by 2025 and suggested what we felt were very practical ways for how this could be resourced, not least by rebalancing resources between the poorer and better-off pensioners. Again, others have referred to this but we felt clearly that there needed to be further investment in the social care sector. I, too, might ask: what has happened to the Dilnot money?

Last month, we revisited our recommendations a year later and reluctantly concluded that things had got worse, not better, and that there was still no coherent strategy to address the problem—not least, the need to stabilise the care support sector. Since we published that follow-up, it is true that the Government have responded by allowing local authorities to levy a precept of 2% to fund social care but, as many others have said, that is nothing like the sum needed to make good recent losses. The poorer authorities with the greatest need will of course not benefit most from that proposal. Again, the need for a convincing, comprehensive strategy is even more urgent.

I said that I would not overstate the case, and I will not. I will merely read the concluding paragraph of the King’s Fund commission’s most recent report. If we take no action, the future looks like this:

“More people in need receiving no support at all. Fewer people receiving publicly funded social care. Care home providers closing in the face of rising demand … companies that provide care in people’s own homes leaving the publicly funded market. Individuals and families who are unlucky enough to need high levels of care continuing to face enormous, and uncapped, bills. Staff shortages leading to a rise in abuse and neglect as good people”—

and they are good people, who are no longer able—

“to deliver good care. And further pressure applied to the NHS that in turn is likely to lead to declining standards of patient care”.

That, surely, is a future that none of us would wish for, but it is a future that is upon us.

Ageing: Public Services and Demographic Change Committee Report

Lord Bichard Excerpts

Thursday 17th October 2013 Lords Chamber

[Lord Bichard (CB)]

My Lords, I congratulate the noble Lord, Lord Filkin, on the way in which he has led the work of this committee, which has been quite exceptional. I also want to congratulate the noble Lord, Lord Livingston, on a quite outstanding maiden speech. I cannot share the noble Lord’s passion for Glasgow Celtic but I agreed with every other word. The greatest compliment that I can pay is that the noble Lord would have made a quite exceptional member of this Select Committee. I look forward to hearing more from him in the future.

The Select Committee inquiry was not just about ageing but about our public services and how well equipped they are to cope with the major social challenges that we face. I am afraid that I came to the conclusion that they are not well equipped: not because they do not have the resources—although clearly there are problems at the moment—but because somehow we have still not been able to design, build and shape our public services around citizens and clients. Whatever the rhetoric and whatever the good intentions, our focus has continued to be on the providers and their convenience rather than on the needs of clients and citizens.

The evidence for that is very clear. For many years, we have encouraged different agencies to develop plans and objectives in isolation. We have set separate targets for each of them, which have sometimes been in conflict. We have developed different and sometimes contradictory regimes. We have failed to provide support for users seeking to find a way through this increasingly complex system. We have failed to encourage and incentivise collaboration between different agencies.

That has been the case especially in Whitehall, where departments have fought, mostly successfully, to maintain their independence, sometimes reinforcing their empires by building their own inspection and regulation regimes which have made it very difficult, sometimes impossible, for local agencies to work together for the benefit of clients. In addition, we have designed measures of success which have had more to do with bureaucracy and budgets than the needs of clients. We have responded to problems by reorganising structures, not redesigning services. Perhaps most of all, we have consistently failed to involve clients in the design of our public services.

The work of the Select Committee exposed four consequences of these fault lines. First, the failure of departments to work together means that there is still no coherent strategy for ageing in this country, because to have one would need housing through the DCLG and finance through the Treasury, and for health, social care, planning, education and DWP to get together meaningfully to produce a coherent strategy. They have not done it.

Secondly, the fragmentation of the system means that it copes particularly badly with people who have complex problems. Most older people now have what is known as comorbidity—they have complex problems. I am afraid to say that they often find themselves having to go to different providers or agencies to deal with each of their conditions.

The third consequence is that when those on the front line trying to provide joined-up care have succeeded it has been in spite of the system that we have designed and not because of it—they told us that very clearly. Fourthly and worst of all, vulnerable old people, often with long-standing and debilitating conditions, find their final days consumed with stress and bureaucracy. I was hearing yesterday of an old lady—let us call her Mrs Jones—who was in hospital when she was given the news that she was reaching the end of her life. Mrs Jones wanted to end her life, like most people do, at home. The hospital staff, to their credit, wanted to support her in that ambition. In order to realise that single, simple wish required the involvement of 23 different teams, the completion of 25 assessment forms and the convening of two separate funding panels. It took three agonising months and she finally got home two weeks before she died.

I have been speaking about the need for designing around clients and collaboration in our public services for many years. Many people think that you are talking about something dry: the reorganisation of Whitehall or whatever. But you are not. You are talking about the implications for Mrs Jones and the countless people like her for whom this system does not work.

The Minister, who I know shares many of these thoughts, will point to many very good initiatives which are under way. The integration pioneer programme is fantastic and, similarly, much in the care plan. I applaud that; I wish him well with it. But we need even more. We need a crusade to ensure that in future we never design public services for the benefit of providers; we design them for the benefit of clients.

Care Bill [HL]

Lord Bichard Excerpts

Wednesday 3rd July 2013 Lords Chamber

I think we all appreciate the hazards of going boldly forward without real clarity on whether councils can afford to meet both their existing and their new commitments for social care. This amendment provides the opportunity for greater clarity as we set out to consider the details of Part 1. I conclude by asking the Minister the following questions. Have the Government fully assessed the likely costs of the nation’s adult social care for the years ahead? If so, do they accept that there is an alarming growing gap between resources and demands? Do the Government consider that their new funding plans are adequate both to cover the extra costs of implementing the Care Bill’s measures and to fill the funding gap already looming so dangerously, and, indeed, that funding allocations will reflect different costs and population pressures in different parts of the country? In relation to the existing funding gap and to any inadequacies discovered in the financing of the extra spending in this Bill, what contingency plans are in place if actual costs prove more than expected to prevent the already hazardous position becoming quite untenable? Until these questions are answered satisfactorily, it seems wise to hold back on implementation of Part 1 of the Bill. Accordingly, I beg to move Amendment 77B.

[Lord Bichard]

My Lords, I rise briefly to support this amendment as a mere vice-president of the Local Government Association. Very few Members of this House were here a week or so ago when the noble Lord, Lord Bates, sponsored a debate on the increasing complexity of legislation and, indeed, the increasing volume of legislation. It is a shame that more noble Lords were not there. In that debate, the noble Lord referred to a recent report from the Office of the Parliamentary Counsel, which pointed out that when the Queen came to the Throne in 1952, after 740 years of legislation we had 26 volumes of Halsbury’s Statutes; we now have 74 volumes. In 1952, the average Bill was 22 pages long; it is now 122 pages long. In 1952, there were 29 statutory instruments; last year there were 3,328. This is an astonishing increase even on 2008, when there were just 1,325. On that last statistic, I can bear witness as a member of the Secondary Legislation Scrutiny Committee. Indeed, my postman particularly asked me if I could do something about the volume of secondary legislation.

We have reached a point where we need to think seriously about the volume of legislation and its complexity, and whether we can carry on imposing new burdens and responsibilities, not least on local authorities. It would be fine if all this additional legislation was actually removing some of the red tape and bureaucracy that previous legislation had provided, but we know that it is not doing so and that it does not do so. We need to do one of two things. Either we genuinely reduce the volume of legislation and the additional responsibilities that it places on all sorts of bodies, or, as the noble Lord, Lord Best, suggests, we have realistic costing of what these new responsibilities entail and ensure that resources are available. If we do not, we remain in a cycle of despair and decline where we expect others to deliver new responsibilities, which they are just not able to do. We also raise the expectations of clients and users, who believe that things will change, when in all honesty they probably will not. That, I think, is a cycle of despair and decline, and it is the reason why I support this amendment.

[Baroness Howarth of Breckland]

My Lords, I rise briefly, as yet another mere vice-president of the Local Government Association, to bring a slightly different dimension to this debate. The noble Lord, Lord Best, pointed out that local authorities are finding a variety of different ways of delivering services. I have been looking at some of those and listening to messages about them. One issue is that they are delivering cheaper services, which often means commissioning them from providers which will then deliver them at a different level of quality. I declare an interest as a provider in the charity Livability, which delivers services to the disabled, the elderly and some children from residential care.

We need to know whether we are prepared to open the debate. Have the Government as a whole given thought to discussing with the community at large what we really can and cannot afford for the future? The noble Lord, Lord Campbell-Savours, raised the issue of the numbers of inspections. When I was involved in inspections, one issue was that you could deliver as many inspections as you had funding for. Now you can use that funding in a variety of different ways to get better options but, at the end of the day, resources count and, unless we know how far the resources will go, it is pointless to try to descend into the abyss, as the noble Lord, Lord Bichard, said.

If we are going to take this forward, we have to know what level of quality people are prepared to accept. Then, when there are failures in organisations, people are not blamed, because the failure is not necessarily one of individuals or even of groups but of the corporate whole simply not having enough resources to work across the whole piece. Until we start that debate, we will not be able to intervene in discussions about criticisms of local authorities giving only 15-minute slots to people when they have only enough resources for 15-minute slots. In residential care, we are taking away some of the extra services because there is no more money them. We are reducing staffing in various institutions because there are simply not enough resources.

I am not denying that because of the deficit we have to look at funding; I think we do. However, we have to open up the debate. Otherwise, we raise expectations in the country of what we are entitled to. I sat in this Chamber until 11 o’clock last night discussing the Children and Families Bill, and we were having exactly the same discussion. We all want these wonderful things. I want things in this Bill, but somehow we have to decide on some priorities between them all. Whatever we say, we cannot go on expecting to get the same out of the same.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I shall speak also to my Amendments 78D and 88L. I am also supportive of Amendment 79, which very much follows the thinking behind my own Amendment 78. I also support Amendment 78ZA, in the names of the noble Lord, Lord Bichard, and the noble Baroness, Lady Tyler. I am sympathetic, too, to the amendments tabled by the noble Lord, Lord Black. I have also added my name to Amendments 78A and 78B in the name of the noble Baroness, Lady Barker. She will speak substantively to those amendments, which we have proposed in a number of Bills going back many years. They try to make sure that, when a regulator is dealing with a religious care home, regulations do not get in the way of the spiritual beliefs of the residents in that home.

Amendment 78 takes us to the very important well-being principle. In its consultation paper which led to the consolidation of the social care legislation that we see in this Bill, the Law Commission proposed that there should be tightly defined processes for determining the scope of adult social care. That follows on from the debate that we have just had. Replies to that consultation persuaded the Law Commission to define the purpose of adult social care as promoting or contributing to the well-being of the individual. That recommendation was accepted by the Government and is central to their new approach to adult social care.

Clause 1 provides for a set of legal principles which govern how local authorities are to carry out their care and support functions for adults under the Bill. Subsection (1) establishes the overarching principle that local authorities must promote the well-being of the adult when carrying out functions under the Bill in relation to that adult. This duty applies both in relation to adults who use services and to carers. The well-being principle applies to local authorities when they exercise a function in the case of an adult. My understanding is that it is not intended to be directly enforceable as an individual right, but to carry legal weight where a local authority’s failure to follow the principle may be challenged through judicial review.

This issue was considered very carefully by the Joint Select Committee, which commented specifically on the role of the Secretary of State in relation to the well-being principle. It took the view that many of the details that will shape the way in which local authorities discharge their functions under the Bill are subject to regulations and guidance issued by the Secretary of State. We will, of course, come on to one example—that is, the regulations in relation to eligibility, which we will debate not, I suspect, tonight but on another day.

The Joint Select Committee referred to Section 1B(1) of the National Health Service Act 2006, which provides:

“In exercising functions in relation to the health service, the Secretary of State must have regard to the NHS Constitution”.

The Select Committee suggested that the Secretary of State should be obliged to have regard to the requirements of Clause 1 on well-being when exercising the functions under the draft Bill. In giving evidence to the Joint Select Committee, the Minister replied:

“We absolutely want the wellbeing principle to apply comprehensively”.

The Joint Select Committee comments:

“We welcome the importance that Ministers attach to the well-being principle. We recommend that the draft Bill should include a provision requiring the Secretary of State, when making regulations or issuing guidance, to have regard to the general duty of local authorities under clause 1”.

We debated this at Second Reading. The noble Earl, Lord Howe, said that,

“Clause 1 is intended to apply at an individual level, when a local authority makes a decision. This individual focus on the specific well-being and outcomes for that person is at the heart of the way that the Bill has been drafted. It is not intended to apply in a more general way”.—[Official Report, 21/5/13; col. 829.]

He went on to say that it would therefore not be appropriate for the Secretary of State to be subject to the same duty, as the Secretary of State does not make decisions at the individual level.

I think there is an element of Ministers almost washing their hands of what actually goes on at ground level in health and social care. We have already seen that in the Health and Social Care Act 2012, and we are seeing some elements of that here. Of course, the Bill places a responsibility on local authorities to promote well-being in the way they implement the provisions of the Bill locally. However, if the Secretary of State were to issue regulations without having regard to the promotion of well-being, there is a risk that those regulations or guidance will conflict with the well-being principle. That would place local authorities in an impossible situation. For instance, if the eligibility criteria issued in regulations by the Secretary of State do not take full account of all aspects of well-being in Clause 1, local authorities may find that people who need support to promote well-being as defined in Clause 1 fall outside the eligibility criteria. I will come on to debating the eligibility criteria, but there are some aspects of the eligibility criteria which would suggest that they do not meet the well-being principles in Clause 1. I hope the noble Earl will think very carefully about this. There is a broad consensus in your Lordships’ House and within the Select Committee dealing with the draft Bill that the Secretary of State, when issuing regulations and giving guidance to local authorities, ought to be operating under the same principle of well-being as those local authorities are. It seems to go straight back to the debate instituted by the noble Lord, Lord Best, in relation to the Government legislating but not giving the wherewithal to local authorities to actually carry out that legislation effectively.

I turn to Amendments 78D and 88L, which are concerned with ensuring that health needs are taken fully into account in decisions taken by the local authority. I fully acknowledge that I have been inspired to do this by the noble Baroness, Lady Campbell. The starting point here is that it is essential to look at this through the prism of person-centred integration. As a starting point, we need to look at ways to put the individual’s and carer’s need for integrated working in the Bill and outline a statutory framework for person-centred integration that will support and incentivise local moves towards more integrated working. There are clearly points of contact here with the scheme which the Minister’s honourable friend Mr Norman Lamb announced recently for local pilots on health and social care integration.

Promoting the individual’s well-being, assessing their needs and those of their carers, deciding on eligibility and the priority for needs to be met, developing them with an appropriate care and support plan, enabling the best use of a personal budget and/or direct payment, and ensuring continuity of capacity during and after a move such as a house move are all processes or stages in which active engagement of NHS professionals or services could have a positive effect on the outcomes for individuals and carers. Integrated approaches by social care and the NHS can inform decisions, expand options, widen choice, retain or restore capability, prevent or reverse deterioration, avoid admission to and accelerate discharge from more intensive support and enable more efficient, equitable and economic use of scarce resources.

These amendments, which aim to ensure that happens in relation to the whole well-being agenda, are entirely relevant to the eligibility criteria. I remind the noble Earl that Mr Lamb, in his foreword to the document that we have received, makes the observation that,

“there needs to be better integration between local authorities and the NHS to remove gaps and build services around the needs of people”.

The discussion document’s only reference is in one paragraph which says:

“The assessment process in the Bill … provides for joint assessments between local authorities and other bodies such as the NHS. Improved integration will ensure that the person does not have to undergo separate assessments and will support better care planning to meet the individual’s overall health and care needs, or to join up whole-family assessments which look at an adult needing care alongside those who care for them”.

Of course, that is welcome as far as it goes, but there is a risk that it depends on an ill-defined concept of better integration and may well fall short of a holistic approach to well-being, assessment, care and support planning, carer support and review. We will come to the draft regulations later. This has a significant bearing on assessments for health and social care integration. The intention is to scrap the present assessment system, based on judgments about degrees of risk to areas of individual capability and exclusion from participation in various aspects of ordinary living. The new model proposes to examine people’s ability to carry out various personal care tasks and undertake a selections of household tasks. The rationale offered is that the new system will be more objective and fairer in its application, but there are some concerns here. First, this is explicitly a deficit-model of assessment, requiring individuals, their carers, relatives and social workers to almost play up or exaggerate the things that they are unable to do in order to qualify for support. In many ways, that replicates the very bad approaches that we have seen in some welfare assessments. It is certainly bad for morale and distorts the overall framework for making decisions. In one sense, one can argue that it reverses efforts over the past 20 years to maximise independence, choice and control and build on the strengths, contributions and aspirations that people can have. I must say to the noble Earl that is has some very uncomfortable reminiscence of the new approach to disability benefits, whereby people are required to prove limitations under the inexpert and unsympathetic eye of ATOL assessors. I hope that is not the approach that is going to be taken in relation to the eligibility criteria. There will be very great concern if that is to be the case.

The noble Baroness, Lady Campbell, has many examples, which I hope she might be able to intervene and provide, of disabled people with high health and social care support needs, who are ready for discharge but languishing in costly high-dependency hospital units because clinical commissioning groups have almost ground to a halt due to decision-making, with arguments about who pays being one of the many reasons for this. It is absolutely essential to ensure that when we debate and take forward the well-being concept, which of course we welcome, not only do we have a situation where the Secretary of State is subject to those principles as well, but the health service plays its part in ensuring a wholly integrated approach. As we come to debate the eligibility criteria, that is going to be a very important factor for our consideration. I beg to move.

[Lord Bichard]

My Lords, I support the amendment and in particular speak to my own Amendment 78ZA, which seeks to place the concepts of dignity and respect on the face of the Bill at the outset. I should declare an interest as chairman of the Social Care Institute for Excellence.

A week or so ago I visited a residential home in Edgbaston, Birmingham, and I came away convinced that I could happily live there. I am not sure that they would want me but I was convinced that I could live there if they would have me. As I reflected on that visit I asked myself why I felt so positively, because I do not always feel that way about a visit. The accommodation was comfortable, clean and not overly institutionalised. The staff were skilled and well qualified. There was a rich programme of voluntary recreational activities and a great deal of interaction between the local community and the home. A special school was visiting on a regular basis and there was clearly a bond between the residents and the students at the special school.

All very impressive, but above all, I experienced a place where residents were treated with dignity and with respect by staff who seemed to understand that people’s greatest need at a time when they have to receive some support is not to lose their dignity. Those residents wanted, above all else, to retain their dignity, and so would I.

Care Bill [HL]

Lord Bichard Excerpts

Tuesday 21st May 2013 Lords Chamber

[Lord Bichard]

My Lords, I should declare an interest as chair of the Social Care Institute for Excellence—or SCIE, as it is known in non-media circles. The first chair of that organisation was the noble Baroness, Lady Campbell, so I am conscious that I have rather a lot to live up to, but I will do my best. I took on that role because I believe that social care is the most important social issue for the next decade or two. That means that this is one of the most important Bills to go through this House in this Session or, indeed, at any time. As others have said, the Bill has the potential to redefine the landscape of care and to offer a new deal to those in need of care, many of whom, let us not forget, are vulnerable and frail and face difficult and complex problems and decisions about their future. They have often contributed greatly to our society and their communities, and deserve to be properly supported and sustained when the need arises.

Again, there is much in the Bill to applaud and welcome: the greater emphasis on prevention, the cap on the cost of care, the responsibility to promote individual well-being, the emphasis placed upon integration and co-operation, and the new rights for carers. We can all applaud and welcome those provisions. However, in Committee we will naturally look at ways in which we can make the Bill even better. I want to suggest five measures that we may consider.

First of all, I should like to see an even stronger commitment to dignity at the beginning of the Bill. The recent events in mid-Staffordshire and in individual care homes must surely have taught us that whatever changes we make to organisational structures, technology, financial systems, buildings or even equipment, they count for little if personal dignity is not afforded absolute priority on the ground. It must be the bedrock upon which everything else rests. It can no longer be taken for granted or left unsaid. Clause 1(2) refers to dignity, but in passing. It does not feature strongly enough and is entirely lacking in other key provisions, such as in Clause 1(3). I should like the very first clause to state boldly that the general duty of all providers, not just local authorities, is not only to promote individual well-being but to ensure that individuals are treated with dignity at all times and in all settings.

In making my second point, I declare that I am a vice-president of the Local Government Association. There is a danger that Parliament—I use that term rather than “Government”, because we all have a responsibility in this—sees this Bill as an opportunity to make bold statements of good intent and then immediately to pass on the responsibility for achieving them to local government, with insufficient thought being given to the consequences.

Local government rightly has a key role to play in this, but we all know that it is bearing the brunt of budget cuts, and it would be irresponsible of us not to take account of the pressures facing local authorities as we debate the Bill. Others have already reminded this House of the reductions that local authorities are making: £2.68 billion in the last three years to social care funding, and another £800 million in 2013-14. Like many others, I can see no way in which the ambitions of the Bill can be achieved without some additional funding sooner rather than later. At the very least, in our discussions and in our debates we should carefully make explicit and take account of the practical implications of every clause and every proposal, so that we do not just make bold statements of intent.

My third point is that there is a danger that in making these proposals the Government do not examine closely enough how their own practice and their own behaviour can make it more difficult for all those on the front line to deliver the kind of integrated service we all want to see. It would be quite wrong for the Government merely to encourage others to go away and integrate without looking carefully at their own practice and their own behaviour. The King’s Fund—I am a member of its advisory board—says that in feedback from its work with local health and social care leaders, one reason for the lack of progress in developing integrated care is that some aspects of current policy, practice and regulation are acting as serious barriers to progress. The Government need to look at how Whitehall departments can be made to work together more effectively. They need to look at the impact that silo-based budgets, targets and regulation systems have on good practice on the ground, and they need to look at some of the big strategic issues, such as the interface between the NHS Commissioning Board and clinical commissioning groups. This needs to be addressed afresh.

At the moment, a great many good things are happening out there, but very often you are told, as we were recently in the Select Committee in this House, that they happen in spite of Whitehall and in spite of Westminster, not because of them. Maybe Clause 3 should refer again not just to local authorities exercising their functions with a view to ensuring integration but to Government. Let us not forget housing providers. Why do we feel comfortable imposing statutory responsibilities to co-operate on everyone except central government departments?

My fourth point relates to the importance of information and advice, and to the need for this to be properly independent from providers’ interest. Clause 4 refers to the need for financial advice to be independent, but we need to ensure that individuals are not vulnerable to other advice that might disadvantage them but benefit providers. Clearly, the Government have set their face, for the moment at least, against a legal right to advocacy, while acknowledging in the Explanatory Notes that advocacy might be necessary in some circumstances. I wonder whether this issue would benefit from one further look. Is it really not possible for us to come up with some affordable advocacy support for people who are, as I said earlier, facing such difficult decisions?

Finally, I would like to see us making greater efforts to make care and support provision more inclusive. At the moment, care homes, to take one example, sometimes stand apart from their communities, and too often communities seem content for that to happen. Such a situation would be completely unthinkable with schools. As a result, opportunities to improve residents’ quality of life are missed, and crucial opportunities to identify unacceptable practice are missed too. We cannot expect infrequent CQC inspections to be the only way to spot poor care, and I believe that David Behan, the chief executive of the CQC, agrees. More frequent visits from volunteers could make a big difference. It is quite clear that relatives of residents are often reluctant to complain, because justly or not they fear that this would be held against their loved ones. We need stronger external involvement, and we could help to achieve it by adding a duty in Clause 1(3) to take steps to ensure that care and support facilities are open, transparent and accessible to local communities. It is already good practice and we can see it happening in the best care and support facilities, but it needs to be uniform.

This Bill could be a defining moment in the history of care in this country. Care is an issue that should in large part rise above party politics. I look forward to this House doing what it does best: playing a key part in achieving the best possible legislative outcome, but ensuring most of all that those in need of care are treated fairly, and always with the greatest dignity and respect.

Health and Social Care Bill

Lord Bichard Excerpts

Tuesday 25th October 2011 Lords Chamber

[Lord Ribeiro]

At least the noble Lord recognises that it was something that happened, and that it was a market. It was deliberately introduced by the previous Government. Were it not for the fact that NHS consultants were excluded from working in that area, it achieved the objective it was designed to do, which was to reduce waiting list numbers. However, it was a market, so if we were to accept proposed subsection (2), we would effectively say that we must call an end to all forms of privatised healthcare provision that currently exist in the NHS. I think that noble Lords would agree that this would not be acceptable.

Proposed subsection (3) talks about restructuring and reorganisation. The noble Baroness, Lady Williams, addressed this very effectively when she said that we do not want to encapsulate the NHS in aspic, creating rigidity rather than flexibility. The previous time the House debated the health service, I made reference to the decision that had been made on Chase Farm. It had taken 17 years for it to be made. If we were to accept proposed new subsection (3), effectively every constituent of Chase Farm would have a very good legal reason to challenge why that reorganisation had taken place. While I am fully supportive of the idea in Amendment 52 of having the NHS constitution clearly laid out—we all agree with, understand and support it—I am not in agreement that the five principles as set out in Amendment 1 should be accepted in their present form. If it came to a vote, I would certainly oppose the amendment.

[Lord Bichard]

I have some sympathy with the suggestion that we should set out at the beginning of the Bill the values and principles on which the service is based. My difficulty is that I fear the amendment is not appropriate or adequate in its current form. Therefore, I will be unable to support it for reasons that other noble Lords have given, and for two others in particular.

First—and others may find this provocative—the NHS is still not driven often enough by the primacy of patient care. It is not, therefore, enough to say that the primacy of patient care will not be compromised by structural or financial reorganisations. We should surely be much more positively committed to the need to redesign services around patients, and I thought that that was one of the major purposes of the Bill. It is difficult to believe that in a modern world we can be content that people should stay in accident and emergency departments for four hours and longer. That is a question not just of resources but the way in which we design the service and the primacy we give to the patient. We cannot be comfortable that that is happening enough. I agree that we should not have more structural reorganisation, but that in itself is not enough. We should positively redesign our services.

The second reason why it is difficult to agree with this particular amendment is that if we are going to have a clear statement of values and principles, they should be clearly directed at the commissioning agent itself—the service—not to contractual providers. They should be built into contracts and specifications, and the service should ensure that these are taken seriously. I am afraid that the amendment seems to be muddled in that respect, and we cannot expect people performing functions to behave in a way that the commissioning agent is not specifying and requiring. Therefore, the values should be directed primarily at the commissioning agent.

I regret that I cannot support the amendment; I would like to see a clear statement of values early in the Bill, but this is not it.

[Baroness Barker]

My Lords, when I looked at the amendment that the noble Lord, Lord Hunt of Kings Heath, had put his name to, I was immediately taken back to the debates on the Mental Health Bill that many Members of the House worked on. I am sorry that the noble Lord is not in his place. I mention a phrase of his in that debate. I have some form as regards proposing that there be principles at the head of a Bill, just as he has a lot of form in resisting them. He and several of his colleagues spent a considerable amount of time resisting all attempts to have principles inserted into that Bill. When we were discussing that issue in 2007, the noble Lord, Lord Hunt, in reply to my noble friend Lord Carlile, said that,

“putting the principles in the Bill is not a constitutional problem, rather we are concerned about the practical impact of those principles”.—[Official Report, 8/1/07; col. 46.]

That for me is the problem with the amendment.

Various Members of the Committee have talked about the NHS Constitution. I am afraid that the consequence of selecting some parts of it may be that the noble Baroness, Lady Thornton, is unintentionally placing other parts of the NHS Constitution at a lower legal status. I want to defend the members of my party at their conference in Sheffield. When they voted on a resolution, they were not voting for legislation. They were passing some words in the form of a resolution. This section has been taken from a far bigger resolution. They were expressing their views, which were then taken forward into the Future Forum work. I would not condemn them for doing that. But I do not think that those words are now adequate to achieve what is intended.

A number of noble Lords have talked about openness and accountability, and the importance of the Nolan principles. Those are important. As we continue through this Committee stage, I want to look in great detail at how those principles are applied to the NHS Commissioning Board, and to clinical commissioning groups, because it is how those principles work in practice that is important.

For a number of reasons I cannot support this amendment. But I would think it unfair to characterise anybody who does not support it as resiling from these or any other principles. We do support many of them. We will return to many of them during further stages of this Bill, and I hope that we will make sure that some of them are passed into the legislation, but not this amendment in this form.