Care Bill [HL]
Lord Hunt of Kings Heath Excerpts(12 years, 3 months ago)
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“( ) Before section 65F of that Act insert—
“65ZFZF Trust special administration: measures required before powers take effect
No power under this Act for the administrator to recommend taking action in relation to another NHS foundation trust or an NHS trust, or for any such action to be taken, shall be exercised until—(a) at least 5 years have passed after the passing of the Care Act 2013;(b) the Secretary of State has reported to both Houses of Parliament on the case for the operation of such a power; and(c) an order made by statutory instrument giving effect to the recommendations of such report has been laid before and approved by a resolution of both Houses of Parliament.””
Lord Hunt of Kings Heath (Lab)
My Lords, I beg to move my Amendment 168B as an amendment to Amendment 168A moved by the noble Earl, Lord Howe.
We have just heard the noble Earl suggest that his amendment makes small changes and is a clarification of the existing law. However, it is my contention that the amendment is nothing short of a major change in policy on the reconfiguration of NHS services. Your Lordships are being asked to agree to it even though the case, or one of the cases, on which it is based—that of Lewisham hospital—is subject to an imminent Court of Appeal hearing. If it is accepted by the House, it is my view that NHS hospitals will be at risk of having services shut down without their agreement, without extensive consultation and without agreement from commissioners.
The changes made to the special administration regime by the government amendment would also extenuate the problems caused by having a different failure regime for NHS trusts compared with NHS foundation trusts—a point that my noble friend Lord Warner has consistently made.
Finally, to be effective, the changes could be construed as meaning that, for the first time, the Secretary of State has the power to issue directions to require the boards of solvent and successful clinical commissioning groups and NHS foundation trusts to take steps that they do not wish to take.
I see this not as a clarification of the law but as a major policy change that is at odds with the approach taken by the Secretary of State in the 2012 Act, when he repeatedly put his faith in local commissioning by local doctors. I make it clear that I am not opposed to changes in services: I support the major reconfiguration of services where clinical evidence supports it. Indeed, I should like to see much faster progress. When I and my noble friend Lord Warner argued this during the passage of the Health and Social Care Bill, the Government ploughed on with their extensive and fragmentary changes. The Government have belatedly come to realise that the structure they imposed is actually a barrier to progress—hence the amendment. It is also clear that, given the dire financial straits of many NHS organisations, the special administration process is likely to be used on an increasing basis. My concern is that giving so much power to trust special administrators is the wrong way to go about it. Indeed, evidence from Lewisham and Staffordshire suggests that it will often provoke widespread opposition and slow down progress.
As the noble Earl has said, the key change that the Government want to make is to ensure that the Secretary of State can act on recommendations that affect other NHS trusts, NHS foundation trusts or other providers and commissioners outwith the trust to which a special administrator has been appointed. How this would happen has been graphically illustrated in the case of Lewisham. The South London Healthcare NHS Trust was a badly performing trust with an accumulated deficit of £196 million. Consequently, a trust special administrator was appointed. In his draft report of 24 October 2012, he recommended that University Hospital Lewisham should no longer provide emergency care for critically ill patients who did not need to be admitted to hospital and that it should lose its obstetrics-led maternity unit.
The Secretary of State made some changes to those recommendations but Lewisham hospital would still have seen some significant downgrading in its services. This approach had no support locally and was blatantly unfair to the people of Lewisham. As Mr Justice Silber said when the Lewisham case came to the High Court:
“There are few issues which prompt such vociferous protest as attempts to reduce the services at a hospital which is highly regarded and which is much used by those who live in its neighbourhood”.
In the High Court, Lewisham Council and the campaign group argued that Lewisham hospital was not in the NHS trust over which the trust special administrator had been appointed and that the Secretary of State could make recommendations and decisions only in relation to the three hospitals in the South London Healthcare NHS Trust but not in relation to hospitals outside the trust area. The judge subsequently found in favour of Lewisham Council and concluded that the trust special administrator and the Secretary of State were not entitled to make recommendations and decide to reduce services at Lewisham because it was not a hospital over which the administrator had been appointed. It was situated in a totally different trust.
The appeal of the Lewisham decision by the Government will be held shortly. I find it remarkable that without hearing the outcome of the case they are seeking to amend the law in such a hasty way. The noble Earl said in his letter to us that the trust special administrator regime is,
“one way in which decisive action can be taken to deal with NHS trusts or NHS foundation trusts that are unsustainable in their current form”.
I agree, but surely not at the expense of well run trusts. Of course there need to be changes in the local health economy beyond just the trust that is failing; a trust does not fail in isolation but is part of a complex, interconnected system—change one bit and you impact on the other bits. However, the legislation was intended to deal with a simple case in which a trust had failed and was then broken up, with its assets being transferred or sold off. My contention is that this type of approach is not suited to major reconfiguration processes and should not be a back-door way to achieve unpopular changes.
I should also say that the government amendment seems to introduce a major anomaly around commissioning. A clinical commissioning group that commissions services from a failing NHS foundation trust is entitled to define and protect essential NHS services, but a clinical commissioning group that commissions services from a successful NHS trust can now see local services removed, even if that clinical commissioning group considers those services to be essential.
Further, the scheme proposed by the amendment appears to be legally ineffective. Neither a clinical commissioning group nor a foundation trust is subject to the direction-making powers of the Secretary of State—both are independent corporate bodies with boards which are responsible for making their own decisions. It is unclear to me how the boards of the clinical commissioning group and a foundation trust are supposed to be legally required to carry through any decision which is made within a special administration process relating to another body.
Nor is it clear what happens if the commissioners do not wish to commission services against the model that the special administrator has proposed. That is the case in Mid Staffordshire, where the special administrator’s proposals have not found favour with either the public or the clinical commissioning group. There appears to be no limit to how far recommendations might stretch to be “necessary” and “consequent”. It is clear that one trust could have many commissioners, and changes in services could impact upon many other trusts. The special administrator is being given a free hand to cast his net as widely as he wishes.
In conclusion, there are serious defects in the special administration process which the noble Earl’s amendment does little to resolve; indeed, it brings further anomalies and inconsistencies. However, my key concern about the amendment is that it removes the requirement to go through a properly defined and structured reconfiguration process, with extensive consultation with the local community. From all that we have learnt about successful reconfigurations, we know that they need to take a special form of open and honest leadership, a patient process of engagement and consultation, and proper consideration of the wider impact. The Government really should think again about this and my amendment gives them the opportunity to do so.
Baroness Warnock (CB)
My Lords, I have hesitated to speak before about the Lewisham situation, partly because I believe that some changes are needed in hospital provision over the whole country but mainly because, as a resident in the borough of Lewisham, I might be thought to be so biased that my opinions would carry no weight. However, the situation has radically changed with the introduction of the noble Earl’s amendment.
It is completely intolerable that the law should be changed and overturned in this hasty way, regardless of the fact that everybody admits that there is no fault to be found with the Lewisham hospital administration. It is an admirable hospital and its extensive and thorough accident and emergency section is particularly valued by a large number of people, for whom Lewisham is a centre to which they can get easily by various forms of transport, let alone by ambulance.
The contention that it would make little difference to the residents of Lewisham if this comprehensive A&E department were closed was risible. The tests to see how long on average it would take to get there were carried out at dead of night, and in various ways there was a great deal of false suggestion in the administrator’s conclusions. Above all, the clinical commissioners were by no means convinced and were not in agreement with the proposals.
The reason for speaking so strongly in favour of the amendment moved by the noble Lord, Lord Hunt, is that things have now moved far beyond Lewisham. I am speaking not only about the Lewisham situation; the proposals are perfectly general—the powers proposed for the Secretary of State could be used anywhere in the country.
What we have now is a radical change of power and, as other noble Lords have said, all hospitals are now under threat of closure, whether or not they are successful or administered with financial prudence, as Lewisham has been. It seems to me that this is an absolutely arbitrary overturning of what was found in court. Therefore, I beg noble Lords to think of this amendment in that light and not just to be concerned with the two particular trusts but with hospital provision all over the country.
Earl Howe
My Lords, the matters we have debated today are of great significance. Of course—and I need to make this clear—we do not want to see any NHS trust or foundation trust fail, but equally we cannot shirk the responsibility to take action if and when that happens. In our taxpayer-funded health system, every pound counts and every pound should be put to best use, providing high-quality, effective care. Failed organisations squander resources. I do not want to be derogatory about them in other ways, but they usually take for themselves an unfair proportion of resources in relation to the local health economy more widely. Failed organisations, if nothing is done, have to be propped up by government bail-outs. That cannot be right, particularly at a time when resources are as constrained as they are now. We need an effective regime for tackling these issues.
The House has agreed with this on two previous occasions, passing legislation in 2009, during the time of the previous Government, and again in 2012 to provide failure regimes for trusts and foundation trusts respectively. We thought that those regimes would be effective, but experience now shows that they need clarification. The noble Lord, Lord Hunt, suggested that this amendment represented a major change of policy and the noble Baroness, Lady Warnock, characterised it as an arbitrary overturning of the decision of the court in the south London case. The Government’s policy has been consistent. It is entirely unchanged. It is self-evidently not a change of policy. Had it been so, the recommendations made by the trust special administrator in south London would have been ones that we would have questioned as legally dubious in the department. On the contrary, we believe that the administrator’s recommendations fell squarely within the wording of the 2009 Act, which, as I mentioned earlier, used the phrase, “in relation to”. That was the phrase around which the judge’s ruling revolved, and it was a different interpretation of that phrase that the judge took.
The noble Lord, Lord Hunt, is very knowledgeable about the heath service, but I am afraid that on this matter he is wrong. His amendment would render the failure regime quite useless. Five years is too long for a failed hospital and the patients it serves to wait for an effective remedy, to say nothing of the cost to the public purse. One of the provisions that the noble Lord has tabled would require the Secretary of State to justify making the power operational after the end of the five-year period, but is that not the debate we should have now? In any event, the effect of accepting his amendment would lead to an incoherent muddle. Either the House believes that a trust special administrator must be able to take the action necessary to resolve serious and prolonged problems at a trust or it does not. A long wait and a report will make no difference to the issues of substance. I urge the House to be decisive on this rather than doing what is effectively kicking a can down the road.
I know that fears have been expressed that the clause we are inserting would enable the Government to make free with every hospital around the country. That is not so. In fact, I submit to your Lordships that that suggestion is scaremongering. The powers could have been used for a long time if it were the Government’s intention to close down every hospital or lots of hospitals. The regime was designed by the party opposite, lest we forget, to deal with the specific circumstances of a trust in failure. It enables an external expert to be appointed as administrator to take a fresh look at the situation and, working with the trust and its commissioners, to develop recommendations for the future.
One needs also—I say this particularly to the noble Lord, Lord Warner—to recognise that trust special administration is only ever invoked when the normal processes for agreeing a reconfiguration have hit the buffers. In normal circumstances commissioners and providers in a locality get together and very often agree about the way services should be reconfigured to make them clinically and financially sustainable. In the case of south London and in the case of Mid Staffordshire that process has been going on for a long time. It is only because we reached an intractable position that administrators were appointed in those instances.
We have heard today that some aspects of our amendment provoke strong feelings, particularly the clarification—and it is a clarification—that a trust special administrator can make recommendations that include other providers where those recommendations are necessary for, and consequential on, his core recommendations. I bring noble Lords’ attention to those key words. Of course I recognise those views, but I do not share them. The clarification is vital for the failure regimes to be effective. It may be possible for the solution to the problems faced by a failed organisation to be found within the boundaries of that organisation, but it may not. Indeed, it is quite likely that it will not be. The health service is formed of a complex network of interdependent providers, all influencing one another. It is plain that making changes to one has a knock-on effect elsewhere. The amendment is a reflection of that reality.
I have a degree of sympathy with those who have argued that the effect of this could be unfair on the successful provider impacted by the failure of a neighbour. Such a step would, of course, be taken reluctantly. But I argue that it must be possible to take such a step if, and when, that is the only way of resolving the problem. The amendment would not apply retrospectively. The date of the court hearing in the south London case is therefore not relevant.
The rest of my amendment makes minor changes and I hope that they will be acceptable to the House. I hope more strongly that the amendment as a whole will find favour. It could be, as some noble Lords have suggested, that additional things need to be done. We do not believe that to be the case but I have heard the arguments put by a number of noble Lords that the amendment might need additions at some time in future. Our minds are open to that. But I beg noble Lords not to lose this opportunity of passing my amendment, as it matters a very great deal, not just in local areas but in the health service as a whole, in the interests of equity and fairness, which, after all, underpin the whole NHS. I believe that noble Lords should reject the amendment proposed by the noble Lord, Lord Hunt.
These are going to be rare cases and they are always difficult. The problems by their very nature are intractable and serious. We must fix them and have mechanisms to do that in order to put services back on a sustainable footing. Otherwise, I respectfully submit, we ourselves will have failed. I beg to move.
Lord Hunt of Kings Heath
My Lords, I am grateful to the Minister and other noble Lords who have spoken in what has been an excellent debate. My feeling about the debate is that the House has conclusively come to a view that further discussion needs to take place on the matter. I will come back to that in a moment.
I agree with the noble Earl that failed organisations squander millions of pounds. He is absolutely right to say that the need for them to be propped up by others has a deleterious effect on the NHS as a whole. We know that at least 20 NHS trusts or foundation trusts are in severe financial difficulty at the moment. It is likely that that number will grow in future. That is why there is considerable doubt that the special administration provisions will apply to only a very small number of cases. There is every possibility that, over the next two or three years, it will have to be used in many cases. That is why I am concerned that the provisions that the noble Earl is asking us to agree to today will be used to lead to configuration of services in which the interests of the failing trust will be put at the heart of the process rather than interests of the health service as a whole in a given area. That is the crux of the issue and that is why Lewisham is so important. It is a very good hospital—it was minding its own business—and then, suddenly, a special administrator came along and said that to solve the problem of the trust that it was dealing with it would have to reduce Lewisham hospital services. That is the crux of the argument and why we are concerned about the provisions being put forward by the noble Earl today.
The noble and learned Lord, Lord Mackay, suggested that we should let the Government have their amendment today and it can then be dealt with in the other place. Of course, I always admire the other place’s assiduous attention to duty when scrutinising legislation, but the fact is that the other place is simply not geared up or able to do that. The noble Earl, Lord Howe, was rather rude about my amendment which was, of course, perfectly formed and correct in every way. Will the noble Earl, having listened to this debate, agree to pause and allow us to have further discussions—even between now and Third Reading in eight days’ time—to see whether it would be possible to come back with an amendment that is more suited to the circumstances he described? Is the noble Earl prepared to do that? If he were, I would welcome it.
Earl Howe
My Lords, I am more than willing to have discussions between now and Third Reading but I suggest to the House that it is necessary to pass the government amendment now and to look at whether we need to change that amendment at a future date. Our minds are open to that but, unless we pass the government amendment, we will have missed a historic opportunity to correct a vital lacuna in the law for the benefit of the NHS as a whole.
Lord Hunt of Kings Heath
My Lords, I am very grateful to the noble Earl. It would, however, be possible for him not to move his own amendment today, to allow for further discussions and to table a revised amendment at Third Reading. That is as far as I can go in offering the Opposition’s help in this matter.
Lord Hunt of Kings Heath
My Lords, in view of that, I wish to test the opinion of the House.
Baroness Pitkeathley
My Lords, I, too, am troubled by the seeming perversity of government Amendments 145, 146 and 149. The effect of the amendments seems to be to make it harder for the CQC to conduct investigations into local authority practices, particularly of commissioning. My understanding, from my hazy memory of when the CQC was set up, was that that was a particularly important function. Surely it has become more so, given the commitment to integration between services provided by the health service and those provided by local authorities. Was that not a key feature of establishing the CQC? The timing of this seems to be very odd—perverse, as the noble Lord, Lord Low, said—given the current huge concern about the way in which services are commissioned, the so-called 15-minute care visits, and so on.
Do the Government see a continuing role for the CQC in working with local authorities to improve the way that they commission services, or is this a retreat from the way the Government view the CQC? I was very involved in the discussions before the CQC’s relaunch, and understood that to be an important part of its function. The amendments appear to reduce the CQC’s power to help improve local authority commissioning and, because of that, its oversight of care quality. That is a great concern to us all, particularly when we are so concerned about the quality of the services which are commissioned.
Lord Hunt of Kings Heath
My Lords, first, I welcome the amendments in relation to CQC independence. I would like assurance that it does what it says on the tin. I assume that the CQC will be regarded as independent. Perhaps it will be making fewer visits to the Secretary of State than it does at the moment. If there are weekly meetings, as is suggested, between the Secretary of State, the CQC, Monitor and NHS England, it is very difficult to believe that it is going to be truly independent. The proof of the pudding will be in the eating; but it is very difficult to know why the Secretary of State needs to see the CQC on such a regular basis if it is really an independent organisation.
Like other noble Lords, I am puzzled why the periodic reviews of local authority performance in commissioning adult social services have been removed from the Bill. I am surprised at the current policy, which is that, as part of wider moves to devolve responsibility for improvement in the sector, local authority commissioning performance and assessment will be led by councils. Presumably that means that it is government policy that the performance of the commissioning function of local authorities in adult social care will be reviewed by local authorities.
With the greatest respect for the noble Earl, Lord Howe, he knows that I am a great admirer of local authorities; I have served on two. However, like the noble Lord who spoke so eloquently earlier about solar decisions being called in by DCLG—to which, no doubt, the noble Earl will have a detailed response—I would not have thought that the commissioning performance of local authorities was thought to be so excellent that they can be left to themselves to police their performance in future.
“Staffing numbers and skills mix
The Care Quality Commission shall, in carrying out its functions, have regard to any official guidance on staffing numbers and skills mix.”
Lord Hunt of Kings Heath
My Lords, we come to an important amendment that relates essentially to staff ratios and guidance. I refer back to the Francis report, which focused very much, among many other serious matters, on staffing ratios and appropriate staffing numbers employed by NHS trusts.
We know very well that given the financial strain currently on the health service there is a large concern about whether there are enough staff on the wards to give appropriate care. Much of the concern around the quality of nursing care and the quality of care by healthcare assistants has related to essential aspects of care, including feeding, caring and all those things associated with what we would regard as appropriate caring. Underlining those things has been a concern as to whether enough staff are employed on the wards.
The noble Earl will know that the Francis report recommended that NICE should benchmark issues around appropriate staffing levels. He will also know that since the Francis report came out we have had the Keogh report into 14 trusts with outline mortality rates. It is interesting that one of the important conclusions of the Keogh review was the need to look seriously at staffing numbers. There seems to be a direct relationship between outline mortality rates and staffing levels on the wards and in clinical areas. We have also had the Berwick review, which the Government established, looking more generally at staffing levels within the health service. The review identified staffing levels as being one of the most important areas on which to focus when it comes to reviewing quality of care.
My amendment relates to ensuring that in its responsibilities the CQC has sufficient focus on staffing levels. This is a very important matter at a time when the health service is being presented with an increase in the number of patients and an increase in technology and complexity at the same time as having to operate on a budget that is just above a level budget. Things are very difficult indeed in the health service. Roughly 70% of the budget of NHS organisations is spent on staffing and expenditure on nursing and healthcare assistants forms perhaps the most important element of the staffing budget. Therefore, in some way we need to protect staffing levels in such circumstances. My amendment suggests that this is a very important role for the CQC to play and I hope that the Minister will be sympathetic to it. I beg to move.
Baroness Gardner of Parkes
My Lords, I do not want to speak before whoever supports the noble Lord, Lord Hunt, in his amendment, so I will sit down and speak after the noble Baroness.
Earl Howe
The answer to that question is the rating system, which the chief inspectors are planning to bring in. Proposals for that will be announced very shortly. We attach great importance to that kind of transparency, not only in the NHS but in the care sector. On my noble friend’s question about whether all this would cover the care sector as well as the NHS, as he will know, the CQC issues sector-specific guidance on how to meet staffing registration requirements. Obviously NHS England would only provide guidance that relates to the NHS. As I already said, the Chief Inspector of, say, Adult Social Care would inspect regularly against CQC guidance. The plan is to consult in April 2014 on the CQC guidance on social care.
My noble friend spoke about an emerging consensus on a minimum level of staffing below which care is unsafe. I understand his point, but I am sure he will acknowledge—and did, implicitly, in his remarks—that staffing is not simply about crude numbers; it is not just about nurses. Healthcare assistants and other members of the team all have a key role to play. My noble friend Lady Gardner was absolutely right to point out that the skill mix is relevant in these circumstances. Patient safety experts agree that safe staffing levels should be set locally. It is not for Whitehall to set one-size-fits-all staffing rules. That is exactly why we have asked NICE and other nursing experts to review the evidence, to help organisations to make the right decisions on staff numbers at a local level and then, essentially, to govern themselves. I make it absolutely clear that we fully agree that safe staffing should apply in all settings and that point will be taken into account as we develop our plans.
I hope noble Lords are reassured that action is already being undertaken in a combination of ways, through Compassion in Practice, the CQC registration process, and, shortly, through the role of the Chief Inspector of Hospitals. That will ensure that providers are open and transparent about their staffing numbers and that they assess these staffing levels, not just on the day of an inspection but on a regular basis, using evidence-based tools, and by taking into account local factors that relate to local patient needs and outcomes. I therefore hope that noble Lords will be content to take stock of what I have said and will not press their amendments.
Lord Hunt of Kings Heath
My Lords, I am grateful to all noble Lords who have spoken. I will say at once that I very much support Amendment 159. I agree with my noble friend Lord Warner that the two amendments run in parallel very well indeed.
I know that the noble Baroness, Lady Gardner, thinks that my amendment may be a little too modest. Perhaps it is a start. I assume that the noble Baroness was not chair of the Royal Free when the “poaching” that she described took place. The point was well made.
The noble Earl, Lord Howe, has listed a number of ways in which we could be assured that staffing numbers and skill mix will be okay both in the NHS and the care sector. The fact is that, however much information is published and however much this might be part of the licensing regime of CQC, these organisations have been around for some time. There is consistent evidence that staffing levels are not sufficient. We have already had the Francis report, which said that NICE should undertake benchmarking on staffing levels. The Keogh report on the 14 hospital trusts said:
“The review teams found inadequate numbers of nursing staff in a number of ward areas, particularly out of hours—at night and at the weekend. This was compounded by an over-reliance on unregistered support staff and temporary staff”.
The Berwick report goes over the same ground. At the end of the day, I do not think there is enough beef in the system to ensure that we have adequate support staff. If NICE is going to carry out the benchmarking, which is a very good thing, we need to make sure that the regulator actually has some beef in terms of ensuring that we get adequate staff levels in clinical areas. I think that my Amendment 144 ensures that that will happen. I should like to test the opinion of the House.
Earl Howe
My Lords, I shall speak also to Amendments 152B to 152F. These are amendments to the clauses that establish a new offence and penalties where care providers provide certain false or misleading information. Together with the new duty of candour on providers that we considered last Wednesday, this measure is key to supporting openness and transparency among care providers.
We are making two substantive amendments. First, Amendment 152F extends the offence to directors and other senior individuals who consent to or connive in an offence committed by the care provider, as well as to cases where the negligence of senior individuals has led to the offence by the care provider. This amendment brings the offence into line with a number of other offences that are committed by organisations, such as Health and Safety at Work etc. Act offences and offences under the CQC legislation, where senior individuals are also liable for the offence. This will encourage directors and other senior individuals leading organisations to take greater ownership of the provision of information.
Secondly, since Committee, the Government have reflected on the penalties for this offence. The provision of accurate information is central to the safe functioning of the health and social care system as it provides the intelligence on which commissioners and regulators form judgments about the quality of care. Where that information is wrong, it can result in delays in taking action to protect patients and service users. Falsifying such information is a serious matter that can frustrate attempts to provide safe care for patients and service users. In the light of this, we believe that a custodial sentence is warranted in the most serious cases. I am therefore bringing forward Amendment 152E, which introduces a maximum penalty on indictment of two years’ imprisonment. I emphasise that the Government are not of the view that the custodial penalty will be used with any frequency. The aim of the offence is not to punish directors and other senior individuals but, rather, to drive improvement and performance.
The amendments also address a number of concerns that were raised in Committee. There was some debate about the scope of the false or misleading information offence. I should like to make it as clear as possible that the false or misleading information offence will apply only to the provision of publicly funded care. We will specify in regulations—a preliminary draft of which we have shared with noble Lords ahead of the debate—which information this will relate to, starting with information provided by hospitals. We are making a small number of amendments to clarify the scope of the offence. First, we are amending the definition of a care provider to make it clear that this does not include commissioners or regulators. We are also amending the wording so that the offence could apply to sole traders and all types of partnerships, such as GP practices, and to care providers who are funded by service users under direct payment arrangements. I beg to move.
Lord Hunt of Kings Heath
My Lords, I want to ask the noble Earl just one question. Why does it not apply to commissioners? We know from events that have happened in the past few years that in many cases commissioners have been responsible for issues by sins of omission or by not being completely open. It is a puzzle to me why all the emphasis is on providing and not on the way that commissioners actually operate. There is evidence, for instance, that the way some commissioners operate can have a direct impact on the quality of provision. We have already discussed this in relation to 15-minute visits. I am puzzled as to why so little attention is being paid to the way that commissioners themselves should operate.
Earl Howe
That is a perfectly reasonable question. The short answer is that, in determining the scope of this offence, our focus was and is on information that is closest to patient care, where inaccurate statements can allow poor and dangerous care to continue. That approach responds directly to the Francis report concerns about the manipulation of patient safety information. We believe, therefore, that the proposals are focused and proportionate. We are targeting this offence on the key patient safety and quality data that commissioners and regulators use to assess performance. We think that we have the balance right.
Lord Willis of Knaresborough
My Lords, I rise, somewhat gobsmacked, as they say in Yorkshire, at the launching by my noble friend of what has been a major breakthrough in the training of healthcare support workers. I notice that the noble Baroness, Lady Gibson, is nodding in approval as this is an area with which she too has been very closely concerned. I thank my noble friend for making that commitment. It makes most of my speech totally irrelevant but, nevertheless, I will add one or two bits just for good measure.
There is no doubt that there is an overwhelming case for appropriately training the 1.3 million healthcare support workers who do such a fantastic job in care homes and domiciliary settings, as well as in hospitals. This has been a national scandal so far. These people are a hugely valuable part of the workforce and it is important to recognise them as such.
I should like to ask some brief questions. Camilla Cavendish recommended that the certificate of fundamental care be a baseline on which there would be an advanced certificate. That would lead directly into nurse training so that there would be no glass ceiling for healthcare support workers, particularly since nursing has moved on to being an all-graduate profession. When the Minister responds, I hope that he will be able to say whether that is within the psyche. The idea of having student nurses working alongside healthcare support workers, particularly those training for the advanced level, is a good one, so that you know the skills mix that you are working with.
In Amendment 153, I railed at the word “may”. The amendment states:
“Regulations made under this section by virtue of subsection (3)(d) may in particular include provision for a specified person”.
Surely, the Minister could go one step further and say that, at Third Reading, it will become a “must” and not a “may”. The one thing we must not have—there are a lot of musts—is a situation where people can move away from this need to be able to make sure that within a short period the whole of our social, health and care workforce will be properly trained to a standard approved by the sector skills council and the Nursing and Midwifery Council. That is a major breakthrough.
My noble friend is right that there are some excellent training programmes. I have seen many of them. I remember one for healthcare support workers at John Radcliffe Hospital in Oxford within the hospital setting. I know that many care homes give superb training to their staff because that leads to good patient outcomes which sell the product. Has any thought gone into existing training being recognised so that people do not have to go through another hoop for the sake of getting their certificate? Perhaps Health Education England can do that with this. I hope other noble Lords will comment on our amendment.
Amendment 160 remains a thorny issue. A mandatory regulatory system for healthcare support workers has been on the table. Francis himself made it clear that this workforce should be regulated. Until now, my problem with that has been that there has been very little to regulate because if people are not trained to approved standards, how on earth do you have a regulatory system by which you can judge their competence? Now that we are getting one, I hope that the Minister will look again at regulation so that we get the complete package and, my goodness, this will be a Care Bill that we can really celebrate.
Lord Hunt of Kings Heath
My Lords, the noble Lord, Lord Willis, has just referred to my Amendment 160. It relates to the regulation of health and care support workers. I have long thought that the regulation of support workers is necessary, desirable and inevitable because they play such an important role in caring for so many people. I pay tribute to the noble Lord, Lord Willis, for the outstanding work he did for the RCN’s independent commission which has informed this debate about standards of care workers.
I very much welcome what the Minister said about the development of a certificate of fundamental care. My noble friend Lord Young reminded me that I ought to ask the Minister at what level that is going to be because anyone who understands these issues will know that the level of a certificate is very important.
I want to draw together Amendments 153, 158 and 160. Given that in future when employers wish to take on care workers they will expect a certificate of fundamental care, does the Minister not think it inevitable that there will be a list of people who have been awarded the certificate? Does he not also think it inevitable that once you have that list, if you then have a person with a certificate and they transgress and there is concern about the way they care for people, there will inevitability be a drive to ask how you get that certificate off them? I believe regulation is inevitable now. There is no way away from the fact that once you have a certificate like this, there will have to be a list or a register and people will have to be evaluated. I for one very much welcome what the Minister has announced because it is a very important step along the road of regulation.
Ageing: Public Services and Demographic Change Committee Report
Lord Hunt of Kings Heath Excerpts(12 years, 3 months ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, it is a great pleasure to wind up for the Opposition and to congratulate the noble Lords, Lord Livingston and Lord Borwick, on their excellent maiden speeches. I also congratulate my noble friend Lord Filkin and the members of his committee on producing such a good report. We have had a good debate and many issues have been raised, but for me one of the most important was mentioned by my noble friend Lord Hutton. He was surely right to point to the impact of defined contribution schemes on pensions and whether the well known shortcomings of those schemes really are going to be dealt with. The noble Lord, Lord Griffiths, talked about literacy in terms of the financial issues facing pensioners. We have been discussing in the Care Bill the whole issue of whether vulnerable older people are able to make the big decisions that often have to be taken on their finances without access to proper information and advice. The recent ABI report on annuities makes for sobering reading in relation to the differences between the best and the worst annuity schemes, and the seeming inability of very many people to understand that they can shop around when the time comes to make a decision.
We also heard about the cliff edge of retirement and the need for businesses to be flexible. The positive point which has come through that I would stress to the Minister is that it can be a key advantage to businesses if they are flexible with their workforce in terms of the contribution that older people can make to the working environment. My noble friend Lady Wilkins talked about housing and the need for a much more cohesive approach to meeting the housing needs of older people. I refer also, of course, to the pressures on our health and social care system.
Above all, the message has come through to the Government and indeed to the Opposition that there is the need for a vision. We are facing a tremendous challenge, and at this point none of us is confident that we know how to meet it. I hope to hear from the noble Earl, Lord Howe, that there will be a greater recognition on the part of the Government of the kind of challenge we face and the vision that is needed. Certainly the initial Government response to the report is what I would call a worthy one, where each department has put forward a number of points, but at the moment it does not read like a cohesive whole. That, I think, is what the clear message of this debate is all about. Certainly from the point of view of the Opposition, the Leader of my party is very well aware of these issues and we will be assessing how we can take the lessons of this report forward into the next election.
The noble Lord, Lord Bichard, raised a very important point when he talked about the failure of different government departments to work together. That leads to different performance and management processes at the local level and different regulatory systems. The result is that when people at the local level are planning and delivering services, there are often perverse incentives in the way of them working together. I would be grateful if the noble Earl could say a little about how the Government can encourage local organisations to work more together effectively by blowing away some of the bureaucracy that often gets in the way.
We have to talk about health and social care, as did my noble friend Lord Filkin. There are huge pressures in these areas. Now, in mid October, many hospitals are facing an A&E crisis. If we are facing a crisis in October, the winter is going to be bloody. It is very simple: primary care is inaccessible and therefore 24/7 A&E is often the only place where people can go. Discharge has become much more difficult, and so hospitals are getting fuller and fuller. At the same time, the pressures that have come, quite rightly, from the Francis report, the Berwick report and the Keogh report, have been particularly around the need for hospitals to increase their staff. But money has got much tighter and something is going to have to give. That is a serious issue which underpins what my noble friend Lord Warner said. We are marching towards a real crisis in health and social care, and at the moment, I do not think that any of us are confident that we really know the way through. Clearly, we have to integrate services and find answers to the funding issues. We must not only meet the demographic challenge but engage the huge technological advances, which can do much for older people but will cost more money, particularly in the short term.
The noble Lord, Lord Crisp, talked about the workforce in health and social care. How right he was. I would just say to him that the recent Royal College of Physicians’ report on the future hospital did not just look at new ways of running hospitals, reflecting that most people in hospital will be older, but said that we should move away from specialisation and that the way forward was for general physicians to treat the patient as a whole, with many comorbidities. It is really exciting that a royal college is leading that kind of movement. We need to work on that.
My noble friend Lord Filkin said that the committee was continuing, albeit unofficially. That is very welcome. The report has given us a huge wake-up call and the responsibility falls on all of us to respond as effectively as we can.
Business of the House
Lord Hunt of Kings Heath Excerpts(12 years, 4 months ago)
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Lord Hunt of Kings Heath (Lab)
My Lords, before we move on to Report, I would like to raise a point arising from an amendment to the Care Bill that the Government laid late last night—indeed, some might say “sneaked out 10 minutes before the start of the England-Poland game”. This matter will come to be decided by your Lordships on the last day of Report on Monday night.
Amendment 168A is not a technical or insubstantial amendment; it relates to the powers of special administrators in dealing with NHS trusts that are considered to have failed. It follows what happened in south London. Following the appointment of special administrators, proposals were made to downgrade Lewisham Hospital’s accident and emergency department, even though Lewisham is a well run and much supported hospital. This hospital was completely outside the remit of the special administrators. This led to court proceedings where the Government had to back off in relation to the changes to Lewisham Hospital.
This amendment would essentially permit what the Government wanted to happen with Lewisham Hospital, but which was stopped, to be able to happen in future. Whether or not the Government are right or wrong, this is a very important subject. It deserves full scrutiny in your Lordships’ House, not to be taken as last business on the last day of Report when the House has had no other opportunity of discussing this important matter. I ask the noble Earl, Lord Howe, to agree that this amendment be recommitted to a Committee of the House in order that it can receive full and appropriate scrutiny.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I do not propose to debate this amendment now, but I will refer the noble Lord’s request through the usual channels.
Care Bill [HL]
Lord Hunt of Kings Heath Excerpts(12 years, 4 months ago)
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Lord Wills
My Lords, I support Amendment 83. I should also apologise to the House for not being present in Committee on this Bill. However, as the noble and learned Lord, Lord Mackay, has already said, I do have form on this particular issue.
This amendment deals with what is a long-standing anomaly in the scope of the Human Rights Act, which was created originally by the YL case. As the noble and learned Lord, Lord Hope, has said, it is not for politicians to determine whether cases are rightly or wrongly decided. It was the considered view of the previous Government—and it remains my own view—that that case produced a result that was not compatible with the original intentions of Parliament in passing the Human Rights Act. With respect to the noble Lord, Lord Faulks, and to all the discussion we have just heard, the intent of the Human Rights Act was not only to provide specific remedies in the sort of case that the noble Lord, Lord Warner, has just described. Among other things, it was also to try to create a new culture in the delivery of public services—a culture of dignity and respect for the individual in relation to the state. It seems to me that this is precisely what this amendment sets out to do. As the noble Lord, Lord Low, said in introducing it, it seeks to extend, and to put beyond all doubt, the fundamental protections of the Human Rights Act to some of the most vulnerable members of our society. I support everything that has been said today in favour of this amendment; there have been very powerful speeches putting forward the argument far better than I can.
As we have heard, this anomaly is something that the previous Government wanted to address. We ran out of time before we could adopt the particular remedy that we thought was appropriate. It is an anomaly that your Lordships have debated before, but without finding a way of making progress. Today we have a real chance to make progress. It is significant that two of the proposers of the amendment—the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Lester—have in the past expressed concerns about previous attempts to deal with this particular issue. The fact that they are supporting this amendment suggests that their concerns have now been satisfied and that they do not feel that there are going to be unwelcome and perverse consequences from dealing with this issue in the way that this amendment proposes. For this reason, and for all the other reasons we have already heard, I hope your Lordships will take this opportunity to put this issue beyond doubt and extend these protections to some of the most vulnerable members of our society.
Lord Hunt of Kings Heath
My Lords, this has been a very important debate and I am sure we are grateful to the noble Lord, Lord Low, for the persuasive way in which he moved his amendment. There was a lack of certainty about the scope of the Human Rights Act, arising from the YL case which decided that a private care home providing residential care services under contract to a local authority was not performing a public function and its residents were therefore excluded from the protection of the Human Rights Act.
The noble Lord, Lord Skelmersdale, was right to remind us that we are on Report, but I wanted to reflect on a point made by the noble Lord, Lord Pannick, in Committee. To an extent, it is an answer to the noble Lord, Lord Faulks. What the noble Lord, Lord Pannick, said is that the vulnerability of the person receiving care and the risk of abuse is the reason why he thought the law should impose duties on the provider under the Human Rights Act. In all those circumstances, it should encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases.
In Committee, we heard from the then Minister, the noble Baroness, Lady Northover, who relied on two defences of the Government’s position. The first was—as the noble and learned Lord, Lord Hope, has reminded us—that those providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves bound by the duty. I am sure that we should all consider ourselves to be bound by many things, but the fact that we consider ourselves to be so does not mean that we are bound by them.
The Government’s second defence was that the Care Quality Commission as the regulator is subject to the Human Rights Act and that may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. It is a duty that falls on the CQC itself, and I remind the House that we are talking about thousands and thousands of providers of services. I do not think that it is a sufficient defence for people who are caught in a vulnerable situation. The noble Lord, Lord Faulks, expressed doubts about including a private function and he pointed to a number of safeguards that already exist, including Section 6 and the CQC, but the vulnerability of so many of the people who we are concerned about seems to express a need for greater statutory provision.
I also remind noble Lords that many of the people we are talking about will move in and out of private care and public care, and at some point under this legislation will actually be in receipt of public support as well as contributing to the cost of their care. We know that when the cap comes in, people will then be entitled to public support, but that does not cover the hotel costs which are estimated at around £12,000 a year. Many people will be in receipt of public support while also having some form of private contract and top-ups, which we have discussed. It would ensure that people had a relationship both in terms of public support and a personal relationship with their private providers. For all these reasons, the argument put by the noble Lord, Lord Low, is very persuasive indeed.
In Committee, the noble Baroness, Lady Northover, said that she thought that talks would be undertaken. I am not aware of those talks and certainly the Opposition have not been invited to them. I hope that the noble Earl will be able to report on what discussions have taken place. At this point, however, we should note the arguments that have been put and I have great sympathy with the noble Lord, Lord Low.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, noble Lords have spoken eloquently in support of these amendments and I appreciate the strength of feeling across the House. This is an important issue that is fundamentally concerned with the safeguarding of vulnerable people. While I always hesitate in the extreme to disagree with so many distinguished noble Lords, including noble and learned Lords, I have to say to the House emphatically that these amendments are neither necessary nor an appropriate way to achieve the objectives that are being sought.
As I said before on this issue, the Human Rights Act is about public functions; in other words, it is legislation that concerns the interface between the individual and the state. This philosophy underpins the European Convention on Human Rights and therefore also the Human Rights Act. The noble and learned Lord, Lord Hope of Craighead, to whom I listened with great attention, referred to the case of YL in response to my noble friend Lord Willis, and he urged that the judgment in that case should be accepted and that we should essentially move on. I respectfully agree with that, but I suggest that the key point in this context is what the previous Government did through the Health and Social Care Act 2008. The Act strengthened the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements that are in line with the relevant provisions of the European convention, and this applies to all providers of regulated activity, which includes personal care whether publicly or privately funded.
Earl Howe
My Lords, I am pleased that I have been able to table amendments that significantly strengthen these important provisions, and I am grateful to noble Lords for acknowledging that. Currently, assessment under the transition provisions has to be requested and I sympathise with the concern that in some instances, people who are unaware that they can request an assessment may lose out.
Amendments 84, 87, 89, 92, 94, 96, 98, 102, 103, 106, 108 and 113 remove the need to request the assessment. I have also tabled Amendments 85, 95, 99 and 104. They will replace provision that local authorities may assess a child, a child’s carer or a young carer when it appears to them that it will be of significant benefit to the individual to assess and where they are likely to have needs once they turn 18, with a duty that a local authority must assess in these circumstances.
Amendments 110 and 111 reflect an amendment to the young carer’s amendment to the Children and Families Bill. This is an example of the detailed work undertaken to ensure that the two Bills work together. I want to reassure my noble friend Lady Gardner in that context that we have done a great deal of work over the summer to make sure that that is indeed the case. Amendments 83A, 84A, 89A, 93A, 94A and 94B, tabled by the noble Lord, Lord Patel, and the noble Baroness, Lady Finlay, reflect concern that a local authority may leave it too late to carry out an assessment. I need to be very clear about this. The amendments I have tabled place a duty on local authorities that they must assess at the time where it appears to them that there is likely to be a need when the young person turns 18, and it is of significant benefit to that individual to assess at that time. My noble friend Lady Gardner was worried that the government amendments might not be sufficiently precise or prescriptive. The clauses are formulated in this way precisely so that assessments happen at the right time, whether that is before or after the age of 14, depending on the individual. The Bill approaches transition planning with a firm focus on assessing at the right time for the individual by the new duty to assess where it would be of significant benefit to the individual. I am not persuaded that the interests of young people are best served by prescribing when assessment should take place.
Lord Hunt of Kings Heath
I understand what the noble Earl is saying: it is difficult to prescribe in legislation. However, does he take the point that experience suggests that in the main assessments do not take place early enough, so when the young person is a little older it is often too late to put in the necessary arrangements? Behind the stricture of saying that it should be done at that age lies a real concern about how it works out in practice.
Earl Howe
My Lords, I accept that that is a problem in many cases and it needs to be addressed. It should be addressed satisfactorily by the government amendments in combination with guidance, which I am about to refer to.
To prescribe the age thresholds proposed would run the risk of failing young people and their families by creating a system that is run according to the age of an individual, rather than according to what is best for the individual at a given time in their life. I remain absolutely committed to ensuring that the question of when to assess a child, carer or parent carer is further addressed in guidance. This will do justice to the broad range of needs and circumstances of young people and their families at the point of transition. Guidance will be developed with the involvement of stakeholders.
Lord Hunt of Kings Heath
My Lords, I support my noble friend. In our debates, both in Committee and on Report, we spent a considerable time talking about some of the complexity of the decisions that have to be made when it comes to the financial affairs of many people who require long-term care. In our debate on Clause 4, we talked about the need for regulated financial advice, because these issues are so complex. It is quite likely that people who are providing information to a local authority will make slip-ups. The kind of forms that have to be filled in can be very difficult. Clause 67(4) states:
“Where a person misrepresents or fails to disclose (whether fraudulently or otherwise)”.
That does seem a very wide definition of when a local authority can demand sums. My noble friend has come up with a compromise. He has tried to narrow the circumstances in which a local authority can require sums to be paid back to that authority.
I understand the concerns of the Government. They believe that completely to change this would lead to some perverse incentives in that people would deliberately give false information. My noble friend has met those concerns with his amendment because he has clearly drawn a distinction between fraudulent activity and claims, and slips and mistakes which are inevitably going to be made. Even at this late stage, it would be helpful if the noble Earl could reconsider this matter. I think my noble friend has put his finger on an important matter here. We are talking about very vulnerable people who will find the information required to be given to a local authority very complex. We need to make sure that we are as sympathetic as possible to those people.
Baroness Bakewell (Lab)
My Lords, I wish to address the one word “otherwise”. I come under that category of otherwise. Since arriving in the House—let me see now, when was it? I am getting quite old; I can put the wrong statistics down on pieces of paper. Yes, I think it was 2011. I have in the course of the time since then turned up at the House on the wrong day. I got it wrong—not deliberately, not fraudulently, but for “otherwise” reasons—because I am old. I forget to have my post redirected during the Recess and come back to a mountain of post which I have not been able to answer, all because I get the dates wrong. That is because I am old.
As people get older, life gets more threatening. The bureaucracy weighs down on us more and we are frightened of authority. That is why I choose to support my colleague in—which amendment is it? Yes, Amendment 120.
“Initial funding assessment
Before enactment of Part 1, the Secretary of State must ask the Office for Budget Responsibility to complete by the end of 2014 a review of the funding of adult social care that assesses—(a) the adequacy of current public funding of these services; (b) the proposals for funding the provisions in this Act;(c) the implications of the Act and its funding for the NHS over the next five years; and(d) in particular the short and long term costs of setting the eligibility criteria at the level set out in regulations.”
Lord Hunt of Kings Heath
My Lords, as I said on Monday, the principles which underpin this Bill are widely supported, although recent revelations around deferred payments have put a considerable damper on that. We have been concerned in our debates mostly with trying to improve the Bill. A major feature of discussions has been the capacity of local authorities to do what is required, including responsibilities around assessment, providing information, preventing needs for care and support, promotion of integration, provision of information and support, direct payments, promotion of diversity and quality in the provision of services, and dealing with provider failure. Another concern has been about the amount of resources that will be available to make the Bill effective—the more so when one considers the number of self-funders who will in the end receive support as a result of the introduction of the cap.
This is done in the context of a very tight funding situation for health and care generally. The Minister will be aware of reports from both the King’s Fund and the Nuffield Trust, and, more recently, from the NHS Confederation, which talked of the problems in healthcare and of there being basically no growth in real-terms funding in the next few years, together with a big increase in demand.
This is matched, and more so, by the additional costs which it is clear will fall to local authorities to meet the extra care responsibilities that they have been given. The Explanatory Notes to the Bill are rather disarming. They state:
“Most of the costs to the public sector associated with Part 1”—
which is what we are discussing—
“arise from introducing and funding a cap on care costs and from the proposed increase to the capital threshold. These are partly offset by consequential reduction in costs of attendance allowance and disability living allowance”.
The Minister cannot be in ignorance of the widespread concern among local authorities that, in essence, the Bill places many additional financial responsibilities on local authorities for which they have little confidence they will receive proper support from the Government. Let me give one example. We know that the settlement for 2013 provided £335 million so that councils can prepare for reforms in the system of social care funding, including the introduction of a cap, and a universal offer of deferred payment agreements from April 2015—this was in the guidance issued by CLG. That money was intended to cover assessment and reviews, capital investment in systems, capacity-building in individual councils, information and advice, and introduction of deferred payments from April 2015. However, my understanding from the Local Government Association is that that £335 million was not new money; indeed, it was top-sliced from the local government settlement. So the cost associated with funding reform should be seen as a new burden and funded as such. If that is only associated with the introduction—essentially with helping local authorities prepare for the provisions in this Bill—how much more will the additional funding responsibilities be when it is actually up and running?
There is widespread concern and doubt about local authorities’ capacity to set up the infrastructure to do the job, but the funding issue is even more important. That is why my Amendment 121 suggests that the Secretary of State asks the Office for Budget Responsibility to complete a review of the funding of social care that assesses the adequacy of current public funding of these services, the proposals for the funding of provisions in this Act, the implications of the Act and its funding for the NHS over the next five years and in particular the short- and long-term costs of setting the eligibility criteria at the level set out in the regulations.
The Office for Budget Responsibility has been established and we see many uses for it. This would be a very good way of getting an impartial view of the future costs resulting from the Care Bill and of the likely consequences for local authorities and the Bill’s funding. In the spirit of harmony and consensus which has prevailed over much of our discussions, I think it would be very good if the Government agreed to do this. It would provide us with a very good foundation and also help in taking forward the Bill and in terms of local authorities’ actual ability to implement the provisions. I beg to move.
Lord Warner
My Lords, I want to speak to Amendment 122 in my name. This requires the Secretary of State to publish a review of the working of Part 1 and its funding before Clause 15 is brought into operation.
I have tabled this amendment because of my continuing concern that the Government are sleepwalking into the introduction of the new arrangements in this Bill without adequate funding provision and they do not really appreciate the parlous state of adult social care funding. I think my noble friend was being rather generous in his remarks. The situation is very bad. I have a cutting about the Equality and Human Rights Commission’s report into home care, published last week, in which the commission made it clear that council cuts could be affecting the human rights of older people. This is a serious situation.
People are very supportive of the basic architecture of the Dilnot and the Law Commission’s proposals enshrined in this Bill, and are very supportive of the Government bringing this Bill forward, but they simply do not believe that the funding is in place effectively to implement the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding and I think this is hardly surprising because the Government’s social care funding strategy seems almost designed to confuse. We have Eric Pickles signing up to quite swingeing cuts to local authority grants which inevitably reduces social care funding substantially. We then see Health Secretaries having to scrabble around to slip NHS cheques to local government to mitigate some of the Pickles cuts. Of course I do not want to be ungenerous to Health Secretaries, and these cheques are better than nothing, but they do not make good the shrinking base budget of adult social care that has been taking place over many years.
People like to claim and use bits of the Dilnot commission’s report that they favour and fancy. I would like to draw attention to pages 14 and 15, where we said:
“We know that the funding of social care for older people has not kept pace with that of the NHS. In the 15 years from 1994-95 to 2009-10, real spending on adult social care increased by around 70% for older people while, over the same period, real spending in the NHS has risen by almost 110%”.
We showed in this report that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding was going to need to change. It has changed, but not quite as we had expected or intended.
Adult social care will start the next financial year with a base budget about £3 billion lower in real terms than in 2010. So the base budget for social care is underfunded. That is where we start from. Most of the discussion that has taken place about the implementation of the Bill takes no account of the base budget deficit from which we are starting. That deficit is due only to get worse because there is another set of proposals under the DCLG settlement in Spending Review 2013 for another 2.3% cut in the budgets of local councils, which can only take even more money out of the local government budget for adult social care.
I have no doubt that the noble Earl will say much the same thing as he did in Committee about the Government’s proposal for a £3.8 billion pooled budget for 2015-16 to join up health and social care services. I welcome that. Most people welcome that. However, as the Minister acknowledged in Committee, only half of that £3.8 billion is new money, and only half of the new money will be paid upfront to local authorities as they start to implement the proposals under the scheme. The assurance that that new money will be in place takes no account of the further reduction of 2.3% that I mentioned in the spending of local councils in 2015-16.
We have a situation where the base budget is highly deficient, further cuts are coming out of local government expenditure by councils, which can only have a further impact on that base budget in 2015-16, when the new legislation is due to be implemented, and we have no guarantee that the lion’s share of that £3.8 billion pooled budget will be in the hands of councils when they start to implement the scheme. That is not a situation to fuel people outside with confidence that they will have successful implementation of the legislation.
The Government can protest as much as they like but, at the end of the day, we need public documentation —preferably, I would say, by someone as independent as the OBR, but I would even settle for the Institute for Fiscal Studies. If I cannot have that, I would settle for legislation requiring the Secretary of State to put some of that information in the public arena and before Parliament before the Bill is put into full operation. People who are to implement it and the public need far more convincing than they have received so far that all will be well financially, to give people a reasonable chance to implement this highly desirable, on the whole, well constructed Bill, successfully when the time comes.
Lord Hunt of Kings Heath
My Lords, I am grateful to the Minister, although I am disappointed by his response. He argues that the cost and funding elements in the Bill have been subject to a robust, evidence-based approach and are reviewed regularly, and he prays in aid the spending reviews. However, there is often a distance from ministerial assurances about well-being and the reality on the ground floor, and I have to say to him that the experience up and down the country is of a health and social care system under huge pressure. The Bill brings more pressures and many local authorities do not see how they will be able to find resources in order to pay for the extra demands and responsibilities the Bill places upon them. That is the reality up and down the country.
The noble Earl does not like the referral to the Office for Budget Responsibility. This is a remarkable institution set up by the Government with a great fanfare; now they seem very reluctant to use it. That is a great pity. My noble friend suggests the Institute for Fiscal Studies, another organisation to which we might refer it.
It would have been of great benefit to all of us concerned to see some independent work that could be published and would inform the Bill’s implementation, but I fear the noble Earl is not going down that path. It is probably time to move on to another debate, so I beg leave to withdraw the amendment.
Care Bill [HL]
Lord Hunt of Kings Heath Excerpts(12 years, 4 months ago)
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Lord Hunt of Kings Heath
My Lords, the Opposition strongly support the thrust of the Francis report in its determination that the NHS be honest with patients who have been harmed. I very much echo the comments made by the noble Baroness, Lady Masham, in describing why we need an open culture. I welcome government Amendment 140. It is very important; we welcome the duty of candour being placed in the Bill. The amendment is less detailed than my own and will rely on regulations, as the noble Earl, Lord Howe, has said. The important thing is to get this in the Bill.
I have a couple of questions for the noble Earl. First, can he confirm that the regulations will be affirmative? Secondly, in considering the regulations, will he look at the issue of the threshold? For instance, the regulations might restrict the statutory duty of candour to cases that could be described as of severe harm or fatal; or it might go wider. In his report, Robert Francis used the word “serious”. Clearly, there is a distinction between severe harm and seriousness, but most patients and their relatives, or anyone involved in anything that could be described as a serious case, would wish the organisation in the health service to be as open as possible about what had happened.
These are not easy issues; but it is noticeable that the being open guidance is clear that cases of moderate harm and above must be disclosed. The NHS constitution does not put any limit on the level of harm that would be disclosed. I do not expect the noble Earl to respond to the detail of those questions tonight, but in drafting the regulations it would be reassuring to know, first, that consultation will take place with patient groups on the contents of those regulations before they are published and, secondly, that the question of the threshold by which the seriousness of the case would come within the regulations will be given very great consideration.
I should—at the end of the day rather than the start—declare my interest. I remind noble Lords of the interest I declared two days ago.
Baroness Barker
I have a quick follow-up to the question of the noble Lord, Lord Hunt of Kings Heath. Sir Robert Francis’s recommendations were clear that the duty of candour should apply where death or serious harm “may have been caused” or were believed or suspected to have been caused. That is an important distinction; it is not merely playing with words. When the Minister comes to respond, perhaps in writing, will he say whether that point will be covered in regulations?
Earl Howe
My Lords, I am sure that we are all aiming for the same effect and that there is little difference in the approach that we are taking. The amendment of the noble Lord, Lord Hunt, is drafted as a stand-alone duty: it would place a duty of candour on providers, but it would operate outside of the CQC registration system. As such, it is not clear who would enforce the duty of candour or what would be the consequences for a provider who did not observe the duty.
Introducing the duty as a requirement for registration with the CQC comes with a ready-made enforcement vehicle, including the power to prosecute providers who do not meet the duty. In Committee, we explained why this is our preferred approach. It would give the flexibility to develop the duty in consultation with service users and carers. I can indeed confirm that patient groups will be included. The duty itself will have the same legal power in secondary legislation as it would in primary legislation.
We are making real progress in taking this forward. In the summer, the CQC consulted on plans to introduce a duty of candour set through its registration requirements. The CQC is due to publish the findings from the consultation shortly. The department plans to consult on a draft regulation later in the autumn. I assure noble Lords that both I and my officials would be pleased to discuss the content of the draft duty of candour regulation with them in detail as we develop the final regulation. I confirm to the noble Lord, Lord Hunt, that these will be affirmative regulations.
On the threshold, both the Francis and the Berwick reports recommended that the statutory duty of candour for CQC-registered providers should apply in instances of death or serious injury/incident. There is a balance to be struck. We accept the Berwick report finding that an automatic duty of candour covering every single error could lead to defensive documentation and large bureaucratic overheads that would distract from care.
I hope that my amendment reassures noble Lords of our strong commitment to introducing a duty of candour and that they will feel able—
Lord Hunt of Kings Heath
Can I take it that, if that is the Government’s position, which will be set out in regulations, guidance to the providers of services regulated by the CQC would none the less make it clear that the principle of candour would apply to all such cases? I can see the distinction with regard to the seriousness of the incident in relation to the action that can be taken. The risk would be that a statutory duty of candour within the regulations might be taken the wrong way for cases which were not classified at such a serious level.
Earl Howe
I certainly take the noble Lord’s point. There is an issue of interpretation which we will want to clarify through guidance. That is what we intend to do. I look forward to discussing this with him and other interested noble Lords in due course. I hope that that will be sufficient to persuade the noble Lord, Lord Hunt, not to press his amendment when we get to it.
Tobacco Products Directive
Lord Hunt of Kings Heath Excerpts(12 years, 4 months ago)
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government, in the light of the recent vote in the European Parliament, what are their current intentions with regard to the proposed revision of the tobacco products directive.
Lord Hunt of Kings Heath (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I refer noble Lords to my health interests in the register.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, we are very pleased to see the move towards tougher action on tobacco, with Europe-wide controls banning flavoured cigarettes and the introduction of stricter rules on front-of-pack health warnings. However, we are disappointed that the Commission’s proposal to regulate nicotine-containing products, including e-cigarettes, as medicines was not supported by the European Parliament. We believe that these products need to be regulated as medicines and we will continue to argue for this during further negotiations.
Lord Hunt of Kings Heath
My Lords, I am grateful to the noble Earl, but is he particularly disappointed that it was Conservative MEPs who voted to weaken tobacco packaging warnings and blocked a ban on slim cigarettes, which are targeted at young women? Will the Government make amends by agreeing to amendments to the Children and Families Bill which would mandate the introduction of standardised packaging in this country?
Earl Howe
My Lords, the tobacco products directive, as the noble Lord will know, does not seek to introduce standardised packaging. As he will also know, the Government have decided to wait before making a final decision on that issue but we want member states to have the flexibility to make further progress on domestic tobacco control measures in certain key areas that go beyond the new directive. We have been helping to shape the final text of article 24 to achieve that objective.
Care Bill [HL]
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Lord Lipsey (Lab)
My Lords, I shall speak briefly to Amendment 55 on top-ups and comment, also briefly, on the proposal for a ministerial advisory committee.
I can be brief about top-ups but not because the issue is not important. Indeed, its substance is vital if the Government’s scheme for a cap is to work. We made good progress on the basis of the Minister’s remarks in Committee, and further progress was made in the Government’s consultation document, published on 17 July. I hope that he will indicate that things are still on the right track towards reaching final solutions in the near future.
I recapitulate the argument from Committee. You cannot at the moment top up your own care home fees. If you go into a care home, a third party—your son, daughter or friend—can top them up but you cannot put in your own money. That is important now, and the statutory bar is often got around or simply ignored. However, it will be a lot more important once the Dilnot scheme incorporated in the Bill takes effect.
Consider an old person who is living in a home in which the fees are £800 a week. Suppose that the limit to what the local authority will pay in fees is £500 a week. What happens when the person has spent up to the cap, at the local authority rate of course? It may be that a third party can give them the extra money to pay up, but suppose they are isolated and on their own. I am afraid that the answer is simple and stark. The individual would have to choose between only two alternatives. One is to accept the £500 a week from the local authority and move into a cheaper, perhaps worse, home, with all the disruption to that person’s life that that would involve. The other would be waive the local authority contribution and continue to pay the £800 themselves. That would mean that the cap had not done them a blind bit of good. The way round this is to permit individual top-ups, so £500 would come from the local authority, £300 from the individual. The noble Earl endorsed this in Committer when he said that,
“people should be able to use their savings to purchase more expensive care if they want to”.
He went on to say that revised arrangements to this effect would,
“be set out in regulations made under Clause 30(2) of the Bill”. —[Official Report, 16/7/13; col. 736.]
This is spelt out in paragraphs 263 to 266 of the consultative document, which also has pointers to some of the potential risks. I hope that this was with a view to solving those risks and not to coming along at a later stage and saying that they are insuperable. I ask the Minister to make a brief progress report to reassure the House that this bar on individual top-ups is going to be rescinded. Without it, the Dilnot scheme simply will not work.
I will now say a word on the ministerial advisory committee amendment in the name of my noble friend Lord Hunt of Kings Heath, who kindly adopted a proposal that I made in Committee. As the House knows, I have previous in this field, having been working on long-term care since I was on the royal commission in 1999. I also have a bit of previous on public policy in general because I started working for Tony Crosland when he was shadow Environment Minister in 1972. Of all the myriad subjects on which I have had to do reasonably serious work in this time, this is by far the most complicated. It involves a mix of financial and administrative problems with the most sensitive human considerations, particularly since it concerns people at a stage of their life when they are going into the second age of vulnerability due to age. Public and private are inextricably mixed in a way that complicates things. The whole cap is part of a private/public co-operation; therefore, it is crucial to align what both parts are doing.
The scale and range of the stakeholders involved is enormous. The Care and Support Alliance had more than 100 individual voluntary organisations which came together to promote a solution in this Bill. There are also a lot of nooks and crannies that are not obvious. I am going to come to one in a speech later this afternoon, a feature of this Bill which only became known to me on Friday which greatly changes the deferred payment scheme under the Bill. There are nooks and crannies that can be simply ignored. We had another one earlier in the Bill. It suddenly turned out that if somebody had an income close to the top for which they could claim means-tested support, they had better not claim it, because otherwise they would lose more than they gained through attendance allowance. So it is a hugely complicated field.
I am not a critic of the department on this, nor of its Ministers. They have wrestled bravely with this, helped of course by the superb Dilnot report—I am standing behind my noble friend Lord Warner, who was involved in that process—which helped hugely to clarify the intellectual framework. But there are complications as yet unfathomed. As the scheme goes forward I promise that there will be lots of unexpected and unintended effects. In particular, how people register they are getting care needs, how they are then assessed, and how it builds up towards a care cap will work out quite strangely. The Government will need the best possible advice on how to do it.
All I am suggesting, as my noble friend Lord Hunt will propose in his amendment, is that it would be well for us to set up right at the beginning a ministerial advisory committee that includes everyone—the voluntary groups, the financial services industry and those who regulate it, and government departments—that can keep on top of these things. As major problems are identified, the committee can report to the Minister on them. As I say, it is not a vote of no confidence in the Department of Health. Indeed, I hope that the department will welcome the proposal because it has shown itself to be willing to talk openly throughout this progress of this Bill. The Minister used a good phrase to describe it when discussing the regulations earlier—co-production. We will need co-production as much after the Bill and the regulations have gone through as before. An advisory committee would provide that.
Lord Hunt of Kings Heath (Lab)
My Lords, I welcome the noble Earl’s amendments. As we start another day on Report I should declare my interests as chair of a foundation trust, as a consultant trainer with Cumberlege Connections, and as president of GS1. The noble Earl said that the first group of amendments is designed to give more flexibility to local authorities so that they can make a contribution to a person who might normally be affected by the means test. That is entirely reasonable, but I wonder if he could tell us a little more about the consultation timetable from which this has clearly flowed.
I have also noted the amendments that will allow the local authority to charge the cost of care to those people who refuse to undergo a financial assessment. Again, this seems reasonable, but given the difficult circumstances in which that scenario might arise, does the noble Earl not consider that that lends support to those noble Lords who think that there ought to be appeals systems in place? When we come to appeals, I wonder whether the noble Earl might be a little more sympathetic to those amendments.
I want to lend my support to my noble friend Lord Lipsey in relation to top-ups. He argued persuasively in Committee to allow self-funders to top up if they reach the cap but wish to remain resident within a care setting where the costs are higher than the local authority is paying. That is a strong argument, and I, too, welcome the progress that has been made. However, like my noble friend, I hope that the noble Earl will be able to give us a further report on progress on this matter.
I come now to my Amendment 56, which has been very effectively trailed by my noble friend; in fact, it is difficult for me to do as much justice to the amendment as he has done. It requires the establishment of an independent ministerial advisory committee to keep under review the workings of the cap and the means-testing arrangements set out in Clause 17. It is fair to say that all noble Lords who have debated this Bill have welcomed its general intent and the principles that underpin it. The Dilnot commission marked a significant step forward in creating consensus on how people are to be protected from financial catastrophe if they have to fund their own care. We have debated in detail the Government’s response as set out in this Bill: the establishment and operation of the cap, the level of the cap, the continued financial risk to self-funders, the deferred payment scheme, the capacity of local authorities to accept the responsibilities being placed on them, and in particular, I would identify the responsibility for assessing thousands of self-funders who will come into contact with the local authority for the first time. We have discussed the advice to be made available to vulnerable people in a complex area and its interrelationship with the eligibility criteria.
No one, in welcoming the general thrust of the Bill, will believe that this is the last word. I am sure that the operation of the care packages set out in this Bill will need to be kept under frequent review by the Government and particularly by the noble Earl’s department. Oversight of the system would surely benefit from a bipartisan group of people from whom the Government could continue to take advice. My noble friend Lord Lipsey has gone back many years in relation to the debates in this area. Of course, he served on the 1999 Sutherland royal commission. In parallel we have had the Turner commission on pensions and we have seen the benefit of a bipartisan approach in relation to Dilnot.
We would all agree that the funding of long-term care requires stability as far as possible and, even more importantly, a long-term political consensus. As my noble friend Lord Lipsey said, this is a very complex, complicated set of arrangements. We would be best served by the establishment of an independent group that could advise Ministers on how the system was working and enable politicians from all sides to benefit from serious, impartial advice.
I know that the noble Earl has yet to be persuaded of the benefits of an advisory committee, but it would be an effective way to build on the consensus that I think has been created. I hope that even at this late stage, he might be sympathetic.
Lord Hunt of Kings Heath
My Lords, this is an important subject. Clause 34 provides for deferred payment agreements and loans. In such an agreement,
“the charges or loan advanced is repaid by the adult or from their estate at a later specified date, or on the happening of a specified event, such as the sale of property. The debt is normally secured against the person’s property to ensure repayment”.
I say at once that we welcome the support to be given to such a scheme. However, I hope that the noble Earl will be able to respond to my noble friend on the point that he raised. His essential argument is that the scheme as originally recommended has been severely restricted, as indicated in paragraph 150 of the consultation, whereby a person is eligible only if other assets are less than the £23,250 limit. Can the noble Earl confirm that figure? If so, can he estimate for the House how many people he thinks are likely to want to use the scheme? The 40,000 figure seems even more mythical if people’s other assets have to be reduced to such a level. We need to clear up that important point either today or, if the Minister is unable to do so, perhaps on Third Reading.
I wish to speak now to my Amendment 63. One worry which we discussed in Committee concerns how local authorities are to run these schemes, and that worry remains. My noble friend Lord Lipsey spoke in Committee of his concerns about the creation of administrative difficulties for local authorities because each local authority would have to design and implement its own scheme. There would be a risk not only that the amount of energy which each authority had to expend would be extremely wasteful but that some very poor quality schemes could be developed. My noble friend Lord Warner, when discussing the balance of arguments between a national scheme or local schemes, said:
“The worst of all worlds would be not to take hold of this issue and leave it to a marketplace of 152 different bodies”—
in other words, local authorities—
“without much guidance or assistance with compatibility of IT and issues of that kind”.—[Official Report, 22/7/13; col. 1065.]
In Committee the noble Earl seemed a bit reluctant to accept the need for national direction in this area. The fact is that only a minority of local authorities currently operate deferred payment schemes. The local authorities’ responsibilities that we have discussed in relation to the Bill are many and extensive, and I shall not go through the list again. There is no doubt whatever that there are worries about whether local authorities really have the capacity to implement the legislation as noble Lords require. Instead of these 152 local authorities having all to develop their own deferred payment schemes, surely there is a persuasive case for a model scheme to be drawn up based on the experience of local authorities which are already operating a scheme but which are in a minority at the moment.
I have little doubt that a model scheme would save money by reducing the work that an individual local authority would have to do. The scheme would be informed by best practice and individual decisions would still be left to individual local authorities because they would be given a model scheme to which they could make adjustments. I should have thought that that would help ensure that the use of deferred payments would be developed and expanded as effectively as possible. I very much hope that the noble Earl will be able to agree to this amendment.
Lord Warner
My Lords, I rise again as the keeper of the Dilnot tablets on the subject of deferred payments. If we had intended that access to a deferred payment scheme was to be limited to people with assets of less than £23,000, we would have said so in our report. That was not what we intended. I commend the report to the noble Lord, and I hope the House will forgive me if I just cite a few bits of it.
I refer the noble Lord to page 41 of our report. We said:
“Evidence submitted to the Commission suggests that the availability and use of deferred payment schemes is patchy”,
and we went on to explain that. The government consultation document suggests that it will continue to be pretty patchy as well because very few people are likely to come forward for this. We said—and this was a recommendation:
“At a minimum, the Commission recommends an extension to the current deferred payment scheme so that it is a full, universal offer across the country.”
That is what we said.
The Government have given the impression in various interviews—I have gone head to head with government spokesmen about this on a number of programmes—that they were going to support an extended deferred payment scheme and that it would be pretty much similar across the country. If you had a deferred payment scheme in Cumberland, it would look remarkably like a deferred payment scheme in Cornwall. It seems that we are getting into a position where none of this will be the case. It is pretty rough on the public if the Government and their spokesmen are giving the impression that they are implementing the Dilnot recommendations on deferred payment schemes when they are palpably not doing so under the present set of proposals as I understand them.
It is not too late for the sinner to repent—the consultation period is open until later this month. However, it is necessary to revisit this in terms of what government policy is on this particular issue, both in terms of access to a deferred payment scheme and on the issue of a model scheme. The two go hand in hand. It is no good having a model scheme if it is a model scheme for a handful of cases in different parts of the country. We need a model scheme that is actually available so that people who want to cope with the issue of how they fund their care can access a deferred payment scheme. It is always a risk when you are on a committee such as the Dilnot committee that, quietly and unobtrusively, the bureaucracies will nibble away at well intentioned recommendations. Some of us have had this experience ourselves, and some of us have done a bit of nibbling as well from time to time as civil servants, so we recognise nibbling when it is going on. We are in that position here.
It is down to the Minister to start some discussions about this issue, not to leave things to the marketplace, and not to give the public impression that there is going to be a widely available deferred payments scheme when, in fact, it is going to be available only to a fairly limited number of people.
“( ) The Secretary of State shall make available to all local authorities a model deferred payment scheme and all local authorities must follow this model unless they can show due cause not to.”
Lord Hunt of Kings Heath
My Lords, I share my noble friend’s concern about what we have heard tonight. From what the noble Earl said, in essence the mandated scheme will be a scheme in which the person’s assets will have to come down below £23,250 before a deferred payment arrangement must begin. The noble Earl went on to say that he wanted to encourage local authorities to use a power more widely. That local authority power is discretionary. The great fear must be that the mandatory scheme will in essence turn out to be the scheme that all local authorities will adopt. That is why I link that concern to Amendment 63 for a model scheme. In the circumstances it is absolutely essential. A mandated model scheme does not guarantee a universal scheme, but at least sets the framework for one. The House should consider it very carefully. I beg to move.
Lord Mackay of Clashfern
My Lords, I support these amendments requiring a system of adjudication able to deal with the whole raft of matters dealt with under the Care Bill, including the borderline with continuing healthcare. The local authorities—152 or something of that sort—will administer the care system. It is quite easy to see that the same problems may arise in different local authority areas. Having a respected system for dealing with these matters would simplify a good deal of this area. I therefore strongly urge the Government to have in place a system which would provide reasonably rapid adjudication of all these issues. The social security commissioners provide a kind of example. One possible solution would be to extend the jurisdiction of the social security commissioners to include this area. Social security arrangements are certainly different from the care arrangements, but there may be sufficient similarity to make that possible. Something along the lines of the social security commissioners would be necessary for dealing with this and bringing into effect a system which local authorities right across the country would respect when one local authority’s decision was dealt with by this adjudicating authority.
Lord Hunt of Kings Heath
My Lords, I have added my name to Amendment 76 of the noble Baroness, Lady Greengross. I also support Amendments 123 and 124. Leonard Cheshire Disability put it so well when it said that it was concerned that the Bill, in placing a number of important and complex duties on local authorities, will have a substantial impact on the lives of older and disabled people without providing appropriate routes for appeal against unjust or factually inaccurate decisions. It says that there is a compelling case for the Government to set up a system to resolve cases where there are disagreements between the local authority and the individual.
When we think of the various ways in which local authorities can impact on individuals who have come within the care system—support eligibility criteria, financial assessment, operation of the cap, charges, personal budgets and the boundary between NHS continuing care and means-tested social care—surely there have to be opportunities for a person to appeal against decisions of the local authority. In Committee, the noble Earl relied first on the current complaints system of local authorities and, secondly, he went on to point out that if a complainant was not satisfied with the response from the local authority, they were then able to refer the case to the Local Government Ombudsman.
However, a complaints system is not really what noble Lords are calling for. Anyone who has seen responses from local authorities to complaints will know that they tend to find in favour of themselves and rarely reopen a question of substance. Noble Lords want an opportunity for a person concerned to put their case and for that case to be considered by a group of people who may be said to be independent of the local authority. Like the noble and learned Lord, Lord Mackay, and my noble friend Lord Warner, I am keen on the tribunal approach which deals with social security cases; I have witnessed these cases. Although the noble Earl felt in Committee that these would be expensive, I believe that it is a cost-effective way of allowing people to put their case and for that matter to be decided. I am sure that in the long term it will be more expensive if there is no proper decision. I suspect that we will see lots of judicial reviews being initiated against local authorities. They do not and will not have a proper system for dealing with appeals.
The noble Earl said in Committee that the Government were consulting on processes for providing redress. Although he thought that the results of that review would be available before the Bill had concluded its passage through Parliament, I suspect that that will be too late for your Lordships’ consideration. I therefore hope that the noble Earl might be able to give us some comfort that he will in fact give further consideration to this. I hope that we might return to this point at Third Reading.
Earl Howe
My Lords, at the heart of these amendments is an important issue: the voice of older and disabled people. I hope that I can give some reassurance to the House.
Amendments 76, 123 and 124 would include in the Bill provisions for an appeal system that allows individuals to appeal against decisions of, first, the local authority relating to their needs for care and support and, secondly, the relevant NHS body relating to their eligibility for NHS continuing healthcare. Of course, those are quite separate matters.
On the amendments relating to local authority decisions on care and support, I will briefly run through the current, essentially complaints-based, arrangements. These arrangements were reformed via the 2009 regulations, which require local authorities to publish arrangements for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedures, which may of course result in varying user experiences. If, having raised a complaint with a local authority, a person is not satisfied with the response, they can refer the complaint to the Local Government Ombudsman. The ombudsman is independent of the local authority. It can investigate whether the decision-making process has been conducted appropriately and make a recommendation to the local authority.
As has been said, the Bill will result in many more people being brought into contact with their local authority, so it is appropriate that we are reviewing the current arrangements regarding appeals via a public consultation. If that is consistent with what the noble Lord, Lord Hunt, regards as the Government having a second look, I believe that we are doing so. Through the consultation we have heard from user representatives a concern voiced this evening by the noble Lord, Lord Warner: that current arrangements are not sufficient to withstand the additional pressures of the Bill reforms.
While our initial view is that it is likely that some changes are needed, we really need to wait for the consultation to close before making any judgments. I will be in a position to update noble Lords about that in December. Although I acknowledge that this is a work in progress, the Government are on the case. I hope, with that assurance, that the noble Baronesses and the noble Lords will therefore be content to withdraw Amendment 76 and not to move Amendment 123.
In response to the noble Baroness, Lady Meacher, who asked whether we would consider a formal tribunal, our current assumption is that a tribunal process would be likely to slow down the process of resolving complaints and would add significant costs which would, in turn, produce a further burden on the system. There is a range of approaches to resolving complaints and providing redress. It is advantageous to have a flexible system that works well and efficiently at a local level, in a manner that is proportionate to the type of complaint.
The noble Baroness also asked whether we might consider an independent panel rather than a tribunal, although I was not sure whether those two were the same thing in her mind. The funding reform consultation that covers this issue will close late in October. Following this review, should we decide to make a change we expect we could do so through secondary legislation. Of course, we are not ruling anything out in the consultation. If it transpires that we wish to make changes that require primary legislation we would ensure that proposals were brought forward at the earliest opportunity. However, if changes were desired—for example, to introduce a requirement whereby a decision was reviewed by an independent panel—in this case we would do that by amending existing regulations.
The noble Baroness asked whether I could assert that decisions in this area will not vary across the country and that there will not be errors. Of course, there is scope for errors to take place and for variation. I can say that we would want the following principles to underpin the mechanisms for redress and resolving complaints: clarity, local accountability, fairness and timeliness. Lastly, there should be an independent element. I hope that that is helpful as a guide at this stage.
Mental and Physical Health: Parity of Esteem
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Lord Hunt of Kings Heath (Lab)
My Lords, like other noble Lords, I very much welcome this very high quality debate. I pay tribute to my noble friend Lord Layard not just for the speech he made but for his outstanding work in this area.
Many noble Lords have articulated current inequalities in service provision and poor outcomes for so many people affected by mental illness. The statistics are striking. There is no question that people with serious mental illness have increased levels of morbidity and are at greater risk of premature death. A link between smoking and mental health is stark. For example, some 42% of all cigarettes smoked in England are smoked by people with a mental health condition, including alcohol and drug dependency, and up to 70% of people in mental health units smoke. It has been estimated that around 30% of those suffering from a long-term physical health condition simultaneously have a mental condition. This is equivalent to around 4.6 million people in England alone and about 46% of people with mental health problems. People with schizophrenia may die up to 25 years before the average. People with a mental illness are almost twice as likely to die from coronary heart disease as the general population, four times more likely to die from respiratory disease, and are at higher risk of being overweight or obese.
I agree with the noble Lord, Lord Adebowale, that these kinds of figures are shocking. In the context of parity of esteem, they suggest that we need, as the noble Lord described it, a whole-person care approach. For 65 years we have had an almost tripartite system of meeting one person’s need through not one service but three services—the mainstream NHS, mental health and social care. We have also had a different funding system between health and social care, often with perverse incentives towards getting an integrated approach. This cannot go on.
As we live longer and the demographics change, people’s needs become a complex blur of the physical, the mental and the social. Wherever people are in this disjointed system, some or all of one person’s needs are being unmet. Every noble Lord brought forward illustrations of where that need is not being met. We know, as some noble Lords have said, that in acute hospitals social and mental health needs can be neglected. It may explain why we have so many problems with older people in our hospitals, how their condition can go downhill, and how they can often get stuck in an acute hospital because discharge becomes so much more difficult. In mental health care settings, people can have their physical health overlooked, which in part explains why those with serious mental health problems die younger than the rest of the population.
I am convinced that we need to integrate services and budgets, but we also need to see immediate action on parity of esteem. I will put a number of questions to the noble Earl, Lord Howe, about how he considers the Government and the health service are going to ensure that parity of esteem is actually delivered.
First, what are the Government’s intentions about securing fast and fair access to mental health treatment? The noble Earl’s honourable friend the Care Services Minister has already acknowledged that it is unfair that waiting times for psychological therapies are not given the same importance as those for hospital treatment. The noble Lord, Lord Layard, mentioned this in his opening remarks. We know that long waits can do enormous damage, particularly for children and young people, as the noble Baroness, Lady Meacher, pointed out to us. Yet clinical commissioning groups are not required to secure treatment within a fixed timescale. There is a real question to the Government about whether NHS England will be asked to set out meaningful standards for access and waiting in order to place this on a par with other services.
The second question is about how the Government will ensure that mental health crisis care is given the same priority as other urgent care services. Recent reports have highlighted the paucity of mental health crisis care. Too many people in a mental health crisis end up in police custody. People with mental health problems also attend A&E at twice the average rate and 24/7 access to crisis resolution home treatment teams is still patchy. I understand, and the noble Earl will know, that NHS England is carrying out an urgent care review which follows on from the current problems within A&E. As part of that urgent care review, will mental health crisis care be treated on a par with other issues?
In the West Midlands, indeed in Birmingham, we have a system called RAID, which has been developed to ensure that there is consultant psychiatric presence within A&E departments. That has proven to be successful but has also highlighted that, unless there is a service or a facility to which a patient who has come into A&E and is diagnosed as having mental health problems can be referred, you are still left with the problem about what to do with this patient. If we are going to solve the urgent care crisis we have to bring in mental health services and mental health commissioning as equal partners.
I want to ask the Minister about funding. My noble friend Lord Bragg said that funding for mental health is too far down the list of priorities. The noble Earl will know that the recent national survey of investment in adult mental health care showed the first real-terms fall in a decade. This was especially pronounced in older people’s mental health care. Of course, we do not have a tariff for mental health services. What will the Government do about this? I have heard that the department has discontinued the national survey of investment in mental health services. Can the Minister confirm that? If it is true, I ask him to reconsider. Surely it is very important for us, if we are going to be able to indentify whether parity of esteem is actually implemented, that we have the facts to look at the funding relativities between different health services.
I ask the Minister for his response to my noble friend Lord Layard and the noble Lord, Lord Stone, about how we can extend parity to investment and research. In the health service the research budget is very skewed towards medical research. Clearly medical research is very important. We have had debates about the investment in nursing research but we have not focused very much on research in mental health services. The point has been put persuasively here that, given the scale of mental health illness in this country, to starve ourselves of a large mental health research capacity seems to be a real mistake. I hope that the noble Earl will be able to say something more about this.
My noble friend Lady Warwick, the noble Lord, Lord Carlile, and the noble Baroness, Lady O’Neill, talked very movingly about the issue of stigma. There are some wonderful examples of how people have sought bravely to cope with the issue of stigma and have been very successful. There is, however, an awful long way to go. I would be interested to know how the Government think they might encourage this in the future.
Clinical commissioning groups clearly have the main responsibility for commissioning mental health services in the future. Is the noble Earl satisfied that CCGs have the capacity and, if not, what are they going to do about ensuring that they are given access to people who can help them commission services effectively? The noble Lord, Lord Carlile, asked about primary care capacity in terms of both accessibility and the skills of primary care physicians and other staff. Again, perhaps the Minister could say something about that.
The question that my noble friend Lord Bragg raised about employment was very important. In the main, we have been talking about services but we know that the links between employment and good health are very strong and I wondered whether the Department of Health was working with other government departments to encourage employers to be much more progressive in the way that they treat mental illness.
Finally, I declare my interests as chair of a foundation trust, a consultant trainer with Cumberlege Connections and the president of GS1.
NHS: Health and Social Care Act 2012
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Lord Hunt of Kings Heath
To ask Her Majesty’s Government what assessment they have made of the cost to clinical commissioning groups and other parts of the National Health Service of tendering and legal fees in the commissioning of services under Part 3 of the Health and Social Care Act 2012.
Lord Hunt of Kings Heath (Lab)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and draw the House’s attention to my health interests in the register.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, Part 3 of the Act does not change the requirements on clinical commissioning groups when they tender health services. The rules are the same as under the Public Contract Regulations 2006, introduced by the previous Administration, and as set out in the rules for commissioners.
Lord Hunt of Kings Heath
My Lords, the noble Earl will recollect our debates on the Health and Social Care Act 2012, when repeated assurances were made by Ministers that clinical commissioning groups would not be forced to tender out services. However, all the evidence to NHS England and the advice which clinical commissioning groups are getting from their lawyers suggests that under Section 75 of the Act, they have to do so. Does the noble Earl agree that that is an awful waste of money and effort, and that all it is doing is fragmenting services?
Earl Howe
My Lords, commissioners do not have to use competitive tendering for all services. First, acute elective care—which represents the vast majority of NHS services—is not secured through competitive tendering at all, and that will continue to be the case. Secondly, a single-tender action may be justified on the basis that there is only one provider able to meet the clinical quality and safety standards that the commissioner requires. There will be guidance coming out on that, and draft guidance has already been published. Any confusion that exists among commissioners should be clarified by that means.
Care Bill [HL]
Lord Hunt of Kings Heath Excerpts(12 years, 4 months ago)
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“( ) The Secretary of State in making regulations or issuing guidance under this Part must have regard to the general duty of local authorities, in exercising a function under this Part in the case of an individual, to promote that individual’s well-being.”
Lord Hunt of Kings Heath (Lab)
My Lords, as this is the start of Report, I declare my interests as chair of an NHS Foundation Trust, a consultant and trainer with Cumberlege Connections, and president of GS1 UK.
I am sure that the House would wish me to congratulate the noble Baroness, Lady Jolly, on her appointment to the Government and to the health team as a government Whip, and to thank the noble Baroness, Lady Northover, for her services.
The Bill places a responsibility on local authorities to promote well-being in the way in which they implement the provisions of the Bill locally. However, if the Secretary of State were to issue regulations without regard to the promotion of well-being, there is a risk that such regulations—or indeed guidance—could conflict with that well-being principle. That would put local authorities in an impossible position. This matter was the subject of considerable discussion and report by the joint scrutiny committee and we also discussed it in Committee. The Government have now responded to the points put by many noble Lords and I welcome the amendment moved by the noble Earl, Lord Howe. I also welcome Amendment 4, in the name of the noble Baroness, Lady Barker. I beg to move.
Lord Hamilton of Epsom (Con)
My Lords, I have added my name to the amendment in the name of the noble Baroness, Lady Barker, to add the words “and spiritual wellbeing”. This is an amendment that has been resisted in the past by my noble friend the Minister and I am somewhat confused as to why that should be. In 2002, the National Health Service was more than happy to add spiritual well-being as one of the conditions that should be applied to care that was given. I do not understand what has changed since. Has the NHS come to regret having these words in its remit? Does it find that spiritual wellbeing does not fit within the National Health Service today? Are people of faith who find that having an NHS that regards their spiritual well-being as important somehow more difficult to handle than atheists and people who have no faith at all? I should have almost thought that the reverse is true. When we come to what is euphemistically called end-of-life care, I should have thought that people of faith have something to look forward to, rather than atheists who, if they follow Richard Dawkins, are faced with a great black hole of oblivion. They might find that the end of life is rather more forbidding than do those who have faith.
I am very confused, therefore, as to why the Government find it necessary to resist this very minor and rather innocent amendment. It seems to merely add comfort to people of faith of all religions and could be inserted into this Bill without causing the Government any difficulty whatever.
Earl Howe
I can do no other than to look at this again, but I want to reassure my noble friends that their concerns are groundless because of the way that this clause has deliberately been framed. It is framed in terms of high-level principles. It is not designed to exclude any form of well-being whatever. It is designed to look at the person holistically and to ensure that no aspect of well-being is overlooked. I shall of course have a fresh look at this question, but I ask my noble friends, and the noble and right reverend Lord, Lord Harries of Pentregarth, to understand that this clause has been framed in a particular way quite deliberately, not to exclude any form of well-being but to encapsulate all forms of well-being.
In other words, the provisions allow consideration of this and indeed many other matters where relevant. I hope that with these assurances the noble Lord will feel able to withdraw his amendment, and indeed to support the amendments which I have tabled.
Lord Hunt of Kings Heath
The noble Baroness, Lady Barker, will respond to the point in relation to Amendment 4. Part of the confusion arises because the Department of Health seems to equate spiritual well-being with emotional well-being. I do not think that that would be generally held to be appropriate. Whether you have a faith or none, it does seem to me that by classifying spiritual belief within emotional well-being, the department has fallen into a pit of its own digging. I hope the noble Earl will indeed go back, and I assume that means this could be debated at Third Reading. Clearly noble Lords would wish to come back to it.
Whether this is for the noble Baroness, Lady Barker, or for the noble Earl, taking up the point raised by my noble friend Lord Warner, the chairman of the All-Party Humanist Group, my assumption would be that the duty on a local authority in relation to spiritual well-being would apply only when a person had a belief. Whether one defines humanism as spiritual I do not know—we are getting into deep waters here. I assume it is not intended that a person of no religion be required to be treated by the health service or local government as having a spiritual need.
We welcome Amendments 2, 3 and 138, and I beg leave to withdraw Amendment 1.
“( ) NHS bodies must exercise their functions—
(a) with a view to ensuring the integration of services for the purposes of enhancing the health and well-being of people, in keeping with the duty on Health and Wellbeing Boards enshrined in section 195 of the Health and Social Care Act 2012; and(b) without hindering the efforts of a local authority to fulfill its duty under subsection (1) above.”
Lord Hunt of Kings Heath
My Lords, in moving Amendment 11, I wish to speak also to Amendment 30. I also support the amendments in this group tabled by the noble Lord, Lord Best, but may respond to those later.
In Committee, we debated amendments promoting further integration of health and social care. As my noble friend Lady Wheeler said, we supported the view of the Association of Directors of Adult Social Services and the Local Government Association that the Bill should include a specific duty on NHS bodies equivalent to the duty on local authorities to integrate services and that this shared involvement should be enshrined in the Bill. Joint strategic needs assessments and joint health and well-being strategies should provide a strategic overview of how the health and well-being of local communities can be improved and health inequalities reduced. ADASS has long maintained that local health and well-being boards are pivotal in the delivery model in this respect and that the Bill must reflect this to bring about a wholly integrated accountable system that meets identified local needs and objectives.
The noble Earl, Lord Howe, said in Committee that he had no argument with the sentiments expressed by my noble friend and relied on Clauses 3 and 6 of the Bill and various other pieces of legislation, including Section 116 of the Local Government and Public Involvement in Health Act, which requires local authorities and clinical commissioning groups to have regard to the relevant joint strategic needs assessment and joint health and well-being strategy in exercising any of their functions, which would include their duty to co-operate and promote integration. The noble Earl also prayed in aid the prominence of health and well-being boards being strengthened through their role in signing off joint plans required as part of the £3.8 billion pooled fund between local authorities and the NHS to support joined-up and integrated working.
I certainly accept and understand those points but I would like us to go further. I argue that the measure should be much more explicit in the Bill in relation to the National Health Service’s duty of co-operation. We know that the current crisis in accident and emergency services which seems to be extending through the early autumn period is symptomatic of a health and social care system that is under huge pressure. If reductions in social care funding and support for the third sector mean that patients cannot be discharged from hospital that has a knock-on impact throughout the whole system. This Bill places major responsibilities on local authorities. Without the full co-operation of the National Health Service they will be very hard pressed to discharge those responsibilities.
The noble Earl is relying on this Bill and existing legislation but the fact is that so far this has not been sufficient. I refer him to a report published today by the University of Birmingham and Birmingham City Council entitled Turning the Welfare State Upside Down? The report says that our social care system is broken and increasingly unfit for purpose and that we need a big and bold response to tackle the crisis and ensure a decent and fair system for the future. The report is right to emphasise the need for close co-operation between social care and the NHS and to shape services around the needs of the individual. The problem is that the Government through their 2012 Act have created a disintegrated system instead of an integrated one and a system where fragmentation is rejoiced at and where the operation of a market is meant to drive a wedge between people who ought to be co-operating together.
I do not want to go back over this afternoon’s Oral Question, but clinical commissioning groups would have been surprised to hear the noble Earl suggest that it was entirely up to them whether or not services were put out to tender. They have been absolutely pressurised by NHS England to do that. NHS England is clearly under the direction of the Secretary of State: how could it not be when, according to government briefings over the last two weeks, the appointment of its chief executive is going to be the Prime Minister’s decision?
There is real concern that we have conjured up a very fragmented sector. As the noble Earl knows, we already have a system where physical health, mental health and social care have found it very difficult to integrate their services. As we have more older people with vulnerabilities and co-morbidities, the need for the systems to work together becomes ever more paramount.
Amendment 11 would put in the Bill an explicit requirement for the NHS, through the health and well-being boards, to play its full part in the integration of services. In Committee, the noble Earl was sympathetic to these sentiments but not to the amendment. I hope that, in the spirit of accepting wise words in this House, he will be prepared to be more sympathetic on this occasion. I beg to move.
Lord Best (CB)
My Lords, I rise to speak to the two amendments in my name and in the names of the noble Lord, Lord Hunt, and the noble Baronesses, Lady Eaton and Lady Barker. These amendments are carried forward from five which I tabled in Committee, all of which sought to give more prominence in the Bill to housing. I declare my interest as chairman of the Hanover Housing Association, which works exclusively for older people, and as president of the Local Government Association.
The overarching case for these amendments is that everyone's care needs are inseparably connected to the place where they live and where, for most older people, they spend all their time. The right accommodation can sustain our independence and well-being even if we face the illnesses or long-term conditions that afflict many of us in older age. The right accommodation can pre-empt and prevent the need for domiciliary and residential care and hugely reduce costs to the NHS and local authority social services. For younger adults with care needs, the right accommodation can enable a fulfilling life within the community, not hidden away in an institutional setting. The wrong accommodation can cause accidents and, indeed, mental health problems; keep people in hospital because their home will not have them back; and can force people into costly residential care.
This Bill is the chance to incorporate housing into the health and care equation so that these three interlinked dimensions can really work together. The noble Earl has worked hard over the recess to bring back improvements to the Bill. In relation to the housing issues, the noble Earl has noted that our concerns are shared by a number of Peers who feel that the Bill gives insufficient emphasis to the question of housing. He fully accepts the integral role of housing in helping meet care and support needs, and has told us that he sympathises with the arguments he has heard. I am very grateful to the noble Earl for the two amendments he has tabled to give greater prominence to the link between health, social care and housing. His response will be greatly welcomed by the Care and Support Alliance and, within that group, the National Housing Federation, which drafted the original amendments.
Government Amendment 28 to Clause 6 extends the duty of local authorities to co-operate with partners so that this duty will encompass housing associations—registered providers of social housing—which is a very significant step in absolutely the right direction. Government Amendment 12 to Clause 3 ensures that, in terms of the integration of services, housing will be classified as “health related” and will therefore be taken on board by clinical commissioning groups and the NHS Commissioning Board, NHS England. Both these changes are really positive and I congratulate the noble Earl for his farsightedness, once again, in improving the Bill in these two ways.
At the risk of appearing slightly churlish, however, perhaps I could press the noble Earl on the two issues that remain outstanding and are covered by the two amendments in my name, which have support from all parts of the House. In relation to advice, Amendment 15 to Clause 4 would ensure that people have access to good information on the options available to them in relation to housing requirements, spelling out both ways in which their current home could be made more suitable and the choices that they could make about a move to supported or retirement accommodation, such as assisted living and extra care housing.
Although the Bill ensures that advice on care services will be made available, the Joint Committee on the draft Bill strongly recommended that advice on housing options also be included. So far, this recommendation has not been taken on board. It is not an onerous extra requirement to include housing advice in the mix, particularly given that many local authorities already ensure that people get this advice. Indeed, the Local Government Association supports this amendment. The Minister pointed out in Committee that information and advice on specialist housing options should be included when housing information is supplied. This amendment adds the prompt for such housing advice also to be included when guidance is given on care matters.
A move to a more suitable place can be suggested for a younger adult with care requirements. Sources of support for helping an older person to downsize, perhaps in decluttering the attic or sorting out the garden shed, can be recommended. For those who stay put, there is often so much to be done of a practical nature in making life easier for an older person and reducing their dependency on paid carers or family carers. From replacing hard-to-turn taps with long-handle lever taps for someone with arthritic hands, or fitting firm banister rails to the stairs, right through to converting the bathroom to fit a walk-in shower or installing a stair lift, all such adaptations can delay or prevent the need for more intrusive and expensive care provision. With good advice, paying for those adaptations can be covered by disabled facilities grants or equity loans, just as advice for a younger adult with care needs can be given on how the costs of renting a more suitable home can be covered.
Last Friday, I had the great pleasure of visiting the brilliant Centre for Independent Living in Knowsley, jointly funded and staffed by the health, social care and housing services in this borough. The centre brings together all the key elements of a truly holistic service. The occupational therapists are there, as are the care and repair team who can organise reliable builders and advise on grants, the wheelchair and aids teams, and the handy persons who do small improvement jobs. All the different disciplines and specialisms come together in Knowsley’s centre. It helped some 5,700 people last year. About half were referred by GPs, and health needs are therefore often the trigger, but the solution may well be in meeting the individual’s requirements within their home or, indeed, in pursuing a housing solution elsewhere, such as a move to extra care. So when a local authority gets it right, as in Knowsley, it really can do a fantastic, joined-up health, care and housing job. Good advice that covers the housing dimensions is the start of this process.
Amendment 23, the second amendment in my name and those of the noble Lord, Lord Hunt, and the noble Baronesses, Lady Eaton and Lady Barker, would complete the picture. This amendment again does not add significantly to the burden of responsibilities for local authorities. It falls within the “have regard to”, not the “must”, part of Clause 5, but would mean that in seeking to manage the market for care provision, local authorities should have regard to the housing situation facing those with care needs in their area. It raises the profile of housing in this context so that the different parts of local government all take it into account in their policies and strategies.
The amendment would mean that those within local councils responsible for social care would concern themselves with housing requirements, no doubt by feeding the necessary information into the planning system to influence future housing provision. In devising their strategies, health and well-being boards would consider whether more and better housing should be a priority, whether more disabled facilities grants or support for home improvements could play a greater part in preventing the need for intensive personal care, or whether extending a handy person service would not pay for itself almost instantly. This amendment would mean integrating housing considerations into the shaping of care markets, as well as integrating care considerations into the shaping of housing markets. That would benefit everyone.
I congratulate the Minister on the two important government amendments which give added emphasis to housing. I hope that he is able to go further and take on board these relatively modest but entirely sensible additional changes to the Bill.
Baroness Masham of Ilton (CB)
My Lords, I apologise for having only just come into the Chamber, but I have been at an important meeting with representatives from a children’s heart unit. However, this Bill is also important, particularly these amendments. What the Minister gives us assurances about in this House does not always happen on the ground. The matter of housing provision for disabled people has caused aggro up and down the country. People are worried about it. If the Minister can be helpful today, that will do a lot of good.
Lord Hunt of Kings Heath
My Lords, I support the noble Lord, Lord Best, in relation to Amendments 15 and 23. Obviously, we welcome the government amendments to which the noble Earl, Lord Howe, will speak shortly, but it seems that the amendments tabled by the noble Lord, Lord Best, point to areas where the government amendments do not really meet the needs. Amendment 15, on making available information about housing adaptations and on specialist and accessible housing as a key requirement of a local authority’s information service, was a clear recommendation of the Joint Committee. The noble Baroness has just illustrated why making such information available is so important. It could be very helpful in terms of avoiding the need for people to receive long-term care. We should not underestimate the challenge people face when simply trying to find their way through the system. We find it complex, so how much more difficult must it be for those with little experience of the care sector and the housing system? I believe that Amendment 23 is critical to the success of the Government’s own housing amendment. It would ensure a three-way integration that would be an explicit part of a local authority’s duty to promote efficient and effective local markets for meeting care and support. It would particularly ensure that it has regard to the importance of adults’ access to suitable living accommodation.
We know that many local authorities are doing this without any prompting from the noble Lord, Lord Shipley, or my noble friend Lord Beecham. I recently came across the housing for an age-friendly city programme. It seemed to be a really good illustration of how, if a recognition of the changing needs and support of older people is at your core, and you supply a range of care and support housing options as an alternative to residential care, it makes the essential connection between, for example, managing a long-term illness and living in the right accommodation, and the importance of extra care housing schemes that enable people to live independently for longer.
I also just came across a One Housing Group initiative in Islington. It is a scheme designed for 14 people who spend a maximum of 14 days in the centre as an alternative to acute NHS admissions. It has a drop-in centre and an emergency helpline, and this crisis recovery house helps 550 people a year. It keeps 87% out of hospital admissions. It was commissioned by the health service but it shows the interconnection between housing and health.
In responding to the noble Lord, Lord Best’s amendments, I hope that the Government might be prepared to reconsider this and come back at Third Reading with further amendments.
Lord Warner
My Lords, I am sorry that I missed the beginning of this debate but I was with the noble Baroness, Lady Masham, listening to Sir Bruce Keogh explaining how the mess around paediatric surgery was going to be sorted out.
I lend my support to Amendments 11 and 15. I remind the House that many years ago, in the good old days, housing and health were together in the same ministry; there was a united ministry covering both health and housing. We have lost something by that separation. I think that the NHS needs to be given a push on integration, so I very much like the amendment of my noble friend. Too often the NHS forgets that it could help itself by working more closely with other interests, and it would be a timely reminder in this piece of legislation to get that message across. As the noble Lord, Lord Best, has said, we have missed many opportunities over a long period of time, to bring housing into the party as the population has aged. All it has done is increase the burden on adult social care and the NHS. It would be a missed opportunity if we did not rectify some of that now.
Lord Hunt of Kings Heath
My Lords, it is good to know that after due consideration the noble Earl is satisfied with his own amendment. On the housing amendments, the noble Lord, Lord Best, will make up his own mind, but it struck me that he is relying on the difference between the local authority as the local housing authority and the local authority as the care authority. He is of course right to say that in county shire areas in some places it is a different function. However, there remains a concern, given that in relation to care and support we are talking about difficult circumstances, often with vulnerable people, over whether the appropriate advice and support will be given. No doubt the noble Lord, Lord Best, will reflect on that.
On my Amendment 11, on integration, the noble Earl relies on existing duties of co-operation on the NHS, and Clauses 3 and 6. Where I fundamentally disagree with him is on the impact of the 2012 Act. The noble Earl may not be aware of just how difficult it now is for the NHS to put a cohesive plan and programme together in every locality, because the current incentives do not encourage that integration. I know that he warns us against putting what he thinks is a superfluous clause in the Bill—but this Care Bill is vitally important. It revises social care legislation and adds the foundations of the implementation of the Dilnot commission. It would be very helpful if there were an explicit duty of co-operation on the National Health Service, because we will not bring about integrated care without the full support of the National Health Service. On due reflection, I would like to test the opinion of the House.
Lord Warner
My Lords, I will make a few remarks about three separate subjects that are covered in this group of amendments. First, I congratulate the noble Baroness, Lady Barker, on her tenacity on the subject of advocacy. I very much support what the Government are doing to try to respond to that, because it is a view that many of us across the House have had for some time. The Bill was deficient in terms of advocacy for those who need that kind of help and support.
I will make one remark in relation to my noble friend Lord Lipsey’s remarks, which we will go into a bit more under the next amendment. I remind the Government of the mis-selling of pensions and insurance in the financial services sector. They would do well to dwell on that before they eliminate the idea of some regulation. I see the argument that not all types of financial advice need a regulated financial adviser. However, some types of that advice need a regulated financial adviser. My peace offering to the Government is the following. If they thought a bit more about this, given what happened in the financial services sector, it may be possible to separate out the types of financial advice and deal with it in regulation, where we need both regulated and unregulated people. At the moment, the Government are being too broad-brush in ignoring some of the complexities, particularly around equity release and deferred payments, which may be equally as complex as any of the pensions and insurance issues that were being rather gaily sold by untrained people in the financial services sector.
I take issue with the noble Baroness, Lady Meacher, on Amendment 21, drawing on my six years as a director of social services. In the 1980s, we set up a care management system where care managers did not have to be qualified social workers. These people were putting together packages of care after an in-service training course, which enabled them to deal with some very vulnerable people with quite complex needs. It is not necessary to have a social worker. Many local authority departments over the years have developed benefits advice services that run alongside their social work colleagues, which give financial benefits advice to vulnerable people who need to be helped to find their way around the social security system. I caution the Government against not going down that path. With all due respect to the professional advice that the noble Baroness, Lady Barker, has had, qualified social workers are not necessarily very good at giving some of the advice that we are talking about.
Even more to the point, we should not divert a scarce resource such as qualified social workers into this area of activity when we do not need to. I remind the noble Earl that we are seeing, in the children’s services, a 50% increase in the number of children coming into care in a four-year period. The real need for social work skills and resources is in some of those other areas of work that local authorities have to deal with. However modest the numbers may be—and this amendment does not limit them that much—we do not need to divert scarce social work resources into this area. They need to go into some of their higher priority work, particularly in the area of children.
Lord Hunt of Kings Heath
My Lords, we shall come to Amendment 20, in the name of my noble friend Lord Lipsey and that of other noble Lords, including me, in a moment. However, I want to ask the noble Earl about the point raised by the noble Baroness, Lady Barker, in relation to independent advocacy. The noble Baroness raised a pertinent point about what responsibility there is on a local authority to engage with the advocate. I hope that the noble Earl will provide the House with more information. Clearly, this is a step forward, which is to be welcomed, but one needs some assurance that the advocacy system will work effectively. It would be helpful to know what the noble Earl’s department thinks might be the appropriate response of a local authority where an advocate has come to the fore.
I have a great deal of sympathy with the amendment of the noble Baroness, Lady Greengross. It is one thing to provide information support grudgingly; another to be proactive in doing so. Perhaps the noble Earl would comment in particular on Clause 4, because there is a world of difference between Clause 4(1), in which a local authority must,
“establish and maintain a service for providing people in its area with information and advice”,
and Clause 4(2), which goes on to describe what type of advice. This does not assure us that a local authority will be effective in doing so. I should be grateful if the noble Earl would explain how this will be monitored. Will the Government have a role in reviewing the effectiveness of local authorities in providing that?
If one is resident in an area where the local authority does not seem to provide an effective information and advice service, what recourse does one have? I assume that there would be judicial review and the ombudsman, but those are heavy-handed approaches and it would be helpful to know whether the Government have thought through ways in which members of the public can draw attention to failures to provide effective information and advice in some local authority areas.
That might pick up on the amendment relating to the use of professionally qualified social workers. My noble friend Lord Warner, with a great deal of experience, has suggested that even in areas where there are complex needs, a qualified social worker need not necessarily provide this support. None the less, one wants some assurance that sufficient provision for support will be given. Again, it comes back to the issue of how we will monitor the performance of local authorities.
Baroness Meacher
My Lords, perhaps as a point of information in response to the noble Lord, Lord Warner, I should clarify that my amendment does not suggest that qualified social workers should provide financial advice, for example. The important point about the role of these qualified social workers is that they are used to co-ordinating services for people and would be well aware of the need for financial and all sorts of other advice. Therefore, in relation to people with very complex needs, they are in a good position to make sure that all the bits of the jigsaw are actually provided. That was the objective behind the amendment.
Lord Warner
My Lords, I rise to support this amendment and, particularly, to talk about the first two prongs of it. I do this partly from my experience as a member of the Dilnot commission. I remind the House what that commission said on the subject of an awareness campaign. We made only 10 recommendations, one of which was a very strong one because we had been incredibly depressed by the evidence given about people’s understanding of the present system, let alone the new one. When you have 60% of the population thinking that social care is provided by the NHS, you have a bit of a problem explaining to people how the system operates. Since they have not even mastered the existing system, you have to make a really big effort to get across some of the messages about the changes to it.
You could argue that it is a bit like Africa: if you have never had a landline and go straight to mobile phones it might be easier to make the change. Many people will not carry a lot of baggage about the existing system, but we do need to work really hard on this issue. That is why we said:
“To encourage people to plan ahead for their later life we recommend that the Government invest in an awareness campaign”—
we used the word “invest” very deliberately—
“This should inform people of the new system and the importance of planning ahead. This campaign could be linked into the wider work to encourage pension savings”.
Those three sentences were worked over very carefully and we said exactly what we meant on those issues. We said them as strongly as that because we thought that, to some extent, the success or failure of the changes encompassed in the Bill depend on that awareness campaign. I have not seen the Minister’s reply, but I have a suspicion—because I know how health Ministers get briefed—that there will be something about how this is not appropriate stuff to put in the Bill. I can see that there is some strength in that argument but if we are not to put it in the Bill then the Minister has got to start to tell us, in detail, what the Government are going to do.
The Government have had more than two years to think about this. We were made to produce a report very quickly indeed: within 12 months. It is now more than two years since it was produced and I should have thought we could expect a reasonably detailed plan from the Department of Health about how it is actually going to make the public aware. It would be nice if the Minister accepted the amendment, but if he is not going to, we need to know: where is the budgetary provision for the awareness campaign; what work has been done on the selection of people to help run the campaign; when it will start and how long it will go on for. How much are you going to pay for this? Do you accept the idea that all good awareness campaigns have some kind of follow-up arrangements? The noble Lord, Lord Sharkey, has suggested an annual survey and I would not disagree with that. As he rightly said, these surveys are, from my experience, relatively cheap to do. Given the sums of money we are talking about in the Bill, this would be a very modest thing to do and there is certainly no point in having an awareness campaign if you are not going to check up whether there has been any increase in awareness.
There is a raft of issues where we need to have some detail from the Government on what they have been doing on this recommendation for a couple of years. If we have not got a very convincing story, we have to consider putting this in the Bill, to generate some energy and action in this area.
I turn to the second prong, which we have already talked a little bit about under the previous group of amendments. I strongly support what my noble friend Lord Lipsey said, and I want to return to the issue of mis-selling. We have had some serious problems in this country about the way the public has been sold financial products and we ought to be able to learn from history over that. It is not any old Tom, Dick and Harry who can give sensible advice to people about complex financial issues. The noble Lord, Lord Deben, is right: many of these issues are complex and you need a simple system to get to the advice, but the advice is not always going to be simple.
Let me illustrate that with the sort of circumstances that families and older people may be faced with. It is fairly common that an older person is going to give up their house; their spouse has died and they will have to give up the house. The family might well want to have a conference about what they do with that house. There are several options: they could keep the house and rent it for income; they could go for equity release; they could go for deferred payments; or they could go for a point of care plan, as my noble friend said. Choosing the best thing to do from some of those options is not straightforward; it will require someone who knows their way around some of these issues and can give advice to people and their families on how to make a sensible, good decision that fits their particular circumstances. The Government have to give more consideration to this.
I accept that not every issue will be complicated and there could be some circumstances in which the financial advice does not need to be given by a regulated financial adviser. However, the Government now have to do the legwork on separating the sort of situations where regulated financial advice is needed from those where one can be more relaxed about it. If we do not give guidance of some standing and credibility to local authorities, we put them in an invidious position because they will be damned if they do and damned if they do not. They need some advice on the sorts of circumstances in which they, to discharge their obligations under the terms of this piece of legislation, can point people clearly in the direction of advice that is likely to be appropriate to that person’s circumstances.
Lastly, I wish to make a point to the noble Earl about the Secretary of State’s new obligation under government Amendment 138 to have regard to the local authority’s requirement in Clause 1 to promote well-being. The Secretary of State is now pretty much in the same position as that of the local authority when he is producing guidance and regulations. It is at least an arguable case that he would not be fulfilling that requirement unless he put in place some credible arrangements for sound financial advice being given to people and he helped the public to understand the details of the arrangements of the new scheme that the Government were implementing. I am not a lawyer, but it would be worth a punt by going to lawyers to argue that the Secretary of State would be in breach of his new obligations if he took a cavalier approach to financial advice and awareness of the new scheme.
Lord Hunt of Kings Heath
My Lords, I, too, support the amendment. I thank the noble Earl, Lord Howe, for giving us an assurance that this matter can be brought back at Third Reading, which is very helpful to our debate.
As several noble Lords have said, many people find dealing with financial products very complex indeed. They also find the system of social care funding to be complex. How much more complex will it be when the Dilnot provisions in the Bill are introduced? My noble friend made the point that many people misunderstand the current system. Many people think that social care is free at the point of use until they suddenly reach a situation where either they or their relatives are faced with catastrophic issues around long-term care. Even in relation to Dilnot, my noble friend Lord Lipsey pointed out in Committee that many people think there is this cap of £72,000 but, as we know, it is much more complex than that. The £72,000 cap is based on the fee that the local authority will pay for people who are not self-funded, but we know that self-funders, in essence, subsidise those who go into care that is in one way or another funded by the local authority because they meet the means-test requirements. Of course it is not free because there then have to be hotel costs, which Dilnot estimated to be about £12,000 a year. This matter is therefore very complex and many people find dealing with financial issues very difficult.