NHS: Children’s Congenital Heart Services
Lord Hunt of Kings Heath Excerpts(13 years ago)
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Lord Hunt of Kings Heath
My Lords, I refer the House to my health interests as set out in the register of interests. In the mantra of the market in the health service, which the noble Earl and his party are so wedded to, can he tell me when the Competition Commission can be expected to intervene in this issue, given that under the market mantra the decision to reduce the number of children’s heart centres reduces choice?
Earl Howe
My Lords, before I answer that, perhaps I may be so bold as to offer the noble Lord my congratulations on his silver wedding anniversary. I recognise why he has asked that question. It is too early to prejudge the final outcome of NHS England’s review, and I should stress that there is no preconceived result in its head. What I can say is that NHS England will need to engage with all key stakeholders throughout this review, including around any competition considerations.
Care Bill [HL]
Lord Hunt of Kings Heath Excerpts(13 years ago)
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Lord Hunt of Kings Heath
My Lords, the Opposition strongly support the intention behind deferred payments. I hope therefore that the Minister will be able to give a serious response to my noble friend Lord Lipsey, because the issues before us are how the scheme is going to operate, the complexity that is necessarily involved and the ability of local authorities to do the right thing. Around all those matters, there remain some question marks.
While I would not necessarily support my noble friend on the specification of the interest rate, there are questions to be answered about how the Minister thinks the scheme will operate among the many local authorities which will be charged with discharging the scheme. For instance, on the question asked by the noble Baroness, Lady Barker, we could see large differences emerge between different local authorities. That would be unfortunate, and I would be interested to hear from the Minister what work his department has done in trying to model how it thinks local authorities will operate the deferred payment scheme.
The argument for a model deferred payment scheme is pretty persuasive. Even if local authorities are to have discretion—I do not disagree with that—in operating their own scheme, surely the production by the Minister’s department of a model scheme would ensure greater consistency and save local authorities a great deal of work in having to work out the details of their own scheme. Given all their other responsibilities, as much support as possible should be given to local authorities. A model payment scheme would be very useful.
I have two points to make on my noble friend’s Amendment 92ZZY. First, it is very specific on the loans being made available for the purchase of point-of-need insurance policies secured against an adult’s legal or beneficial interest in their home. That raises the whole issue of the insurance market. I again ask the Minister to reassure the House that he is confident that the insurance industry is prepared to come to market with suitable products. I know that he commented on this last week, but there remains some doubt about whether insurance companies really wish to operate in this market. Given that the whole thesis of Dilnot is that capping cost would lead to the development of an insurance market, this is something that we need to debate fully and be reassured on.
On Amendment 92ZZZ and the commencement date, I agree with my noble friends Lord Lipsey and Lord Warner about the complexity of what local authorities are being asked to do. We of course need to consider delay, but I do not understand why a different date has been chosen for the deferred payment scheme in contrast to other parts of the Dilnot implementation. It does not seem to make sense and, I would have thought, would be very confusing for people involved.
That brings me back to the second part of Amendment 92ZZY, which is the issue of regulated independent financial advice being made available to a person considering taking out a deferred payment. Surely the Minister will have been convinced by now that the financial consequences of decisions made by people in relation to the provisions in this Bill will be momentous. I would have hoped that by now he would recognise that the assurance that can be given through independent financial advice would be an important safeguard. Unless we have that, I fear that many people will have to make very difficult decisions, involving potentially large sums of money, without the necessary advice. That would detract from the generally consensual way in which we need to go forward. I hope that the Minister will perhaps have some good news for us on that front.
Lord Campbell-Savours
My Lords, I intervene briefly to ask the Minister a rather pedantic question. Subsections in Clause 35 all use the word “may”. There is no actual requirement for the Government to introduce regulations and therefore for local authorities to be placed in a position whereby they can charge. Why has it been left open, rather than using the word “shall”? If we could take the wording as meaning “shall”, can we assume that each further instance of the word “may”—that is to say:
“The regulations may specify costs … The regulations may require or permit adequate security…The authority may not charge interest under regulations…The regulations may make other provisions”—
is part of a whole package? Or, if “may” does mean “may”, might only individual parts of this clause be introduced, as opposed to the whole clause? For example, subsection (2) states that:
“The regulations may specify costs which are, or which are not, to be regarded as administrative costs for the purposes of subsection (1)(b)”.
If that particular part of the clause were not implemented, it would leave local authorities open to decide for themselves what the administrative costs could be. Whatever internal reasons they may have—and my noble friend Lord Lipsey referred earlier to the reluctance of local authorities—should local authorities have that ability to be flexible? I am seeking to establish whether, if this is all going to happen and we should read “shall” for “may”, all the subsections of Clause 35 will be implemented and that isolated subsections will not be introduced in the regulations. That might create difficulties that we are not foreseeing during the passage of the Bill.
Lord Hunt of Kings Heath
My Lords, the noble Earl has said, and I am sure it is welcome, that the Government intend to set a maximum interest rate to be charged by local authorities. Does he agree that, since it is a crucial part of a deferred payment scheme, setting a rate nationally is consistent with a much more uniform approach? That is why I would have thought my noble friend’s amendment would be a sensible way forward. It is not being mandatory and does not go as far as my noble friend Lord Warner, but simply asks for a model scheme to be introduced.
Earl Howe
We are absolutely on side with the suggestion that there needs to be a uniform approach to the essentials of this scheme. That includes a national maximum interest rate. I suggest to the noble Lord, Lord Warner, that we do not need a national body running an all-singing, all-dancing, nationally mandated deferred payment scheme. We want to build on the good work already going on out there. The noble Lord made a fair point that only a minority of local authorities currently operate deferred payment schemes. Of those that do, many provide us with a very good basis on which to build and share knowledge with other local authorities. That can start now before the regulations are drawn up. We can and will start work with local authorities to ensure that they are gearing themselves up in the right way to approach this task.
Baroness Wilkins
My Lords, I strongly support the amendments of the noble Baroness, Lady Campbell, and the noble Lord, Lord Low. The noble Baroness has been very keen in pursuing these issues for the past five years and her tenacity has been outstanding. I am sure we all recognise that. She has argued comprehensively and excellently for these amendments. We all know that there is huge stress in moving home and, if you are a person in need of care, that stress is beyond words. As the noble Baroness said, it is a monumental risk. I hope that the Committee will wholeheartedly support these amendments.
Lord Hunt of Kings Heath
My Lords, I, too, congratulate the noble Baroness, Lady Campbell, on her amendments and on her persuasive advocacy in this area. We debated the issue of equivalent services at Second Reading and the noble Earl said in his response that he felt that when people move from one local authority to another their circumstances are, in many cases, likely to change and that after a move it would not always be appropriate for them to have services equivalent to those that they had before. However, the noble Baroness has answered this point—her amendment has moved on—and she is not asking for an equivalence of services but an equivalence of outcome. That is a very important difference that noble Lords ought to mark. It is a persuasive case. Of course it is not possible to say that a new local authority must provide exactly the same services in the same way, but it must be right to strive to ensure that the outcome for the person who has moved is the same. I have a great deal of sympathy with her amendments and support those which are designed to ensure a smooth transition.
The noble Lord, Lord Low, made an interesting contribution in relation to ordinary residence and the number of disputes that currently arise in relation to it. As he said, Clause 38 and its associated regulations are welcome. However, he is surely right to seek to ensure that the regulations give absolute clarity and I would welcome the Minister’s reassurance on that.
I welcome the intervention of the noble Lord, Lord Wigley. He should not feel inhibited from intervening in Bills which he thinks apply only to England. His experience is welcome and I hope that he will continue to take part in our debates at future stages of the Bill. I have always found cross-border issues complex. No doubt the Minister will now move many amendments to deal with the issue. However, the substantive point is that, as the four countries of the UK seem to be going their separate ways in relation to health and social care, it is important that we ensure that people moving to and from different parts of the UK are able to do so without a gap in services. In that sense, I welcome the noble Lord’s intervention.
My Amendment 92ZZADA is concerned with the circumstances of carers in relation to a move from one authority to another. Essentially, the amendment requires the second local authority to provide a written explanation where the cost to the second authority of meeting the carer’s eligible needs is different from the first. That explanation should be provided to the carer, the adult needing care and any other person to whom the carer asks the authority to provide an explanation. I am seeking to mirror for the carer the requirement contained in Clause 36(10) to explain the difference in the cost of meeting the eligible needs of an adult when they move from one authority to another.
Perhaps I may probe the Minister about what would happen in a scenario where a carer receiving local authority support moves to a new local authority area but the person receiving care does not. Does the Bill cover this situation? Would a review of the support plan of the carer and the care plan of the person being cared for be triggered? Essentially, on the issue of portability, I want to ensure that the circumstances relating to carers are as well understood as they are to the person making the move. If the Minister cannot specifically respond to that point, perhaps she will write to me between now and Report stage.
Care Bill [HL]
Lord Hunt of Kings Heath Excerpts(13 years ago)
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Lord Mackay of Clashfern
My Lords, when this issue was discussed previously I had the feeling that Monitor had at least some claim to having the kind of expertise which goes some distance in this area whereas, as far as I could understand it, CQC did not seem to. I entirely agree with the noble Lord, Lord Warner, that what either of them has at the moment is probably unequal to the task of seeking out exactly what is going on and seeing how great the risks are. It is pretty obvious that to understand the risks in these financial transactions is a very difficult task. We have seen examples, not particularly in this area but in others, where serious risks have emerged which were not suspected until very close to the time of their emergence.
I also agree with the view that one great factor in the care regime is the number of local authorities that are to be involved. Some degree of understanding at least the variation across these 152 authorities is essential. During the workings of the Joint Committee, I was impressed by the skill of some of the local authority representatives we had before us but they were in quite a particular position in relation to their work. I am not sure that their knowledge, expertise and feel for the situation necessarily goes right across the sector. I do not at all decry the valuable work that local authorities do but the variety of tasks assigned to them is very great and the care situation must be among the most difficult of their responsibilities.
Lord Hunt of Kings Heath
My Lords, this is an important debate and the collapse of Southern Cross has brought it home to us how the risk of financial failure is likely to be a continuing problem in this sector. That is why it is important to understand whether the regulatory regime that the Government are proposing will be robust enough and whether it will have access to the kind of information that will enable the regulator to take a view on the viability of those companies which seek to do business in this area.
We are going back partly to our earlier debates when we discussed the new failure regime. At that time, I referred to the Department of Health factsheet that we were given, which said that the new failure regime will give regulators clear roles in tackling failure. However, I do not think that is actually so in practice. According to the department, the Care Quality Commission will focus on exposing problems and requiring action while Monitor and the NHS Trust Development Authority, which deal with non-foundation trusts, will focus on intervening if a poorly performing provider is unable to resolve the situation by working with commissioners. As we have heard today, the CQC retains enforcement powers for social care, general practice and independent sector providers. This whole picture is very confusing and in his Mid Staffordshire inquiry Robert Francis made it clear that regulatory complexity can contribute to system failings.
I am still unclear about the interrelationship between Monitor, CQC and the NHS Trust Development Authority so as to know whether they are going to work together to ensure that problems are acted on. I am still unclear whether when Monitor and the NHS Trust Development Authority are asked to intervene as a result of the CQC’s concern about findings in relation to safety and quality, they simply carry out the instructions of the CQC or have to go through the same process to satisfy themselves as public bodies with specific statutory duties—certainly in the case of Monitor—whether they share the concern about quality or simply take the CQC’s word on trust. As the actions of these regulators are likely to be tested in the courts, one way or another, clarity at this stage would be very welcome indeed.
My noble friend makes the case that, because of its expertise and experience, Monitor would be a better bet for looking at financial issues to do with care providers. It is very difficult to understand why bits of the system have been dealt with differently and the CQC is considered acceptable in relation to private care providers for adult social care and so on but not for NHS foundation trusts. The Government have brought a rather curious mish-mash to your Lordships’ House.
On my noble friend’s second amendment, I share his view and am not sure that NHS England is the right body to have a duty to scrutinise the commissioning plans of local authorities. However, I very much agree with my noble friend that it is very important that there is a method of checking on the performance of local authorities in their commissioning of adult social care services. My noble friend mentioned Winterbourne View as an example of where a number of local authorities placed clients but having placed them paid no attention to their experience. That was a salutary warning about the problems of local authority commissioning.
I wonder whether the CQC ought to be the body which undertakes that responsibility. Clause 5 sets out that the local authority is responsible for promoting diversity and quality in provision of services. The local authority clearly has responsibility for ensuring that there are sustainable providers in the market. I also refer my noble friend to Clause 80 which sets out the CQC’s responsibilities in performance assessment and performance ratings. My noble friend will see that under Clause 80(2) the proposed new Clause 46(3) of the Health and Social Care Act 2008 sets out that:
“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social service provided or commissioned by the authorities as may be prescribed”.
My reading is that the CQC is given powers to do what my noble friend wants. The question—we debated this when we debated Clause 5—is the extent to which the Government are so going to prescribe. I would like to hear from the noble Earl, if possible, that the Government have reflected on our earlier debate and have come to the view that it would be a very good thing to prescribe that all local authorities should have their commissioning performance reviewed by the CQC as a matter of priority.
My noble friend raised the question of Winterbourne View. We debated the problem of the contracts local authorities have set with private providers where they are contracting staff on very low rates of pay. These are the same providers which in some cases are giving 15-minute periods of service, with staff on zero-hour contracts and often having to pay the cost of their travel. I do not believe that those are the right circumstances in which a quality service could be given. That is why I believe that the CQC should prioritise the commissioning responsibilities of local authorities. If it did, it would answer the question posed by my noble friend.
Earl Howe
My Lords, I begin with an observation that I hope is incontrovertible: it is unacceptable for care users to be left without the services that they need, particularly where the interruption of those services, or the worry that this might happen, could badly affect their well-being and place unacceptable stress on them and their families, friends and carers. As the noble Lord, Lord Hunt, rightly observed, the collapse of Southern Cross in the autumn of 2012 highlighted the importance of this principle. Although no one was ultimately left without the services they needed, many people suffered from a considerable amount of stress and anxiety as a result of worries over whether the services that they, their friend or their relative relied on would stop being provided. At the time, there were no formal mechanisms for the Government to ensure that that was the case.
The Government are therefore introducing, through the Bill, a new system of financial oversight of the 50 to 60 providers of care and support that are the most difficult to replace. The system will provide local authorities with early warning that one of those providers is likely to fail or could fail, and will support authorities to ensure that, if a provider does fail, the continuity of care is maintained. The Care Quality Commission will assess the financial sustainability of all providers that are part of the regime, ensure that providers are taking adequate steps to tackle any risks to the sustainability of their business and support local authorities to tackle the risk of individuals suffering gaps in the services that they rely on when providers fail.
I sympathise with the arguments set out by the noble Lord, Lord Patel of Bradford, in favour of this function being undertaken by Monitor. He should be under no misapprehension: the decision about which regulator should undertake this role was a finely balanced one. This would have been a new role for either regulator. For the CQC, although its existing powers extended to some financial issues, it had not in practice used them significantly. For Monitor, this would have been an extension into a new market and type of provider with which it had had no previous experience. In the end, we came to the view that the CQC was the most appropriate body to perform this market oversight function, for three key reasons. First, this approach ensures that there will be a single regulator for care and support providers. The financial performance of a provider, whether exceptionally good or exceptionally poor, can be a leading indicator of serious quality failures. The CQC will be able to integrate quality and financial information and assess both together.
Secondly, the CQC is better placed to implement this regime because of the existing working relationships that it already has with providers through its current role. This should also contribute to minimising the regulatory burden on providers by ensuring that they have to work with and provide information to only one regulator rather than two. Thirdly, the CQC already has established working relationships with local authority commissioners. The main objective of this regime is to support local authorities in managing the failure of a difficult-to-replace provider. The CQC’s existing relationships will be invaluable in assisting it in performing this function effectively.
The noble Lord, Lord Hunt, questioned that rationale and pointed particularly to the advantages of Monitor undertaking the role, not least because of its current functions. I am the first to accept that Monitor has existing expertise in financial regulation, but it does not have experience in the care and support services market. The nature of Monitor’s licensing regime differs from this market oversight role in two key ways.
Lord Hunt of Kings Heath
Is the Minister satisfied that the CQC will be able to have access to sufficient information about the ownership of these companies? To pick up the point made by my noble friend, ultimately, when a home is at risk of going down, there is a danger that the interests of shareholders are put before the interests of the residents. Clearly, issues to do with ownership become very important there.
Earl Howe
The noble Lord makes an extremely important point, and one that has not been lost on us. We recognise that ownership structures can be extremely complex and that true ownership can be hidden from normal view. It is one of the factors that we will have to build into our discussions with the CQC. I do not pretend that there is an easy answer because some businesses quite consciously and deliberately set themselves up to ensure that it is very difficult to probe the true state of their financial affairs and their true ownership. As and when I can come back to the noble Lord on where we are with that, I will be very happy to do so.
Lord Patel of Bradford
My Lords, I have put my name to Amendment 94 in the name of the noble Lord, Lord Patel. I do not think that I can add to the detailed and clear exposition that the noble Lord has provided. I know that the amendment is slightly lengthy, but it is also very logical and clear—I understood it very clearly, so that is a bonus. I welcome the intention behind Clauses 55 to 63, which enable parents and young people to request a child’s needs assessment. Clause 56, on requirement’s for a child’s need assessment, states:
“A child’s needs assessment must include an assessment of … (a) the outcomes that the child wishes to achieve in day-to-day life”.
What is the intention behind “outcomes”? What outcomes are we looking at?
Lord Hunt of Kings Heath
My Lords, it was remiss of me not to declare an interest during our debate today as president-elect of GS1, chair of a foundation trust and consultant trainer with Cumberlege Connections.
Perhaps I, too, may raise the connection of this Bill with the Children and Families Bill. As my noble friend Lord Warner said, with the Care Bill applying to adults from the age of 18 and the Children and Families Bill setting the framework for children and young people up to the age of 25, there is a clear overlap in their jurisdiction in the context of social care provision. Education, health and care plans under the Children and Families Bill also include an assessment of a child or young person’s social care needs, which means that young people between the ages of 18 and 25 may be eligible both for an EHC plan and an adult care and support plan. That seems to reinforce my noble friend Lord Warner’s comments.
My understanding—perhaps the Minister could confirm this—is that the Government are considering bringing forward amendments to the Children and Families Bill to make sure that the two link together. If that is so, the problem that we have is that the Children and Families Bill will not go into Grand Committee until we come back in October, whereas this Bill should have cleared the House by about the fourth week in October. It would be very disappointing if we, in debating this Bill, were not able to see the changes that the Government were going to make to the Children and Families Bill so that we could make sure from our perspective that the two hung together. Can the Minister assure us that, if the Government are contemplating some amendments, we could see them so that we could debate them within the context of this Bill?
Earl Howe
My Lords, I thank Members of the Committee, and especially the noble Lord, Lord Patel, for a debate which illustrates the significance of transition to young people and their families and the need to get the legal framework right for them.
As we have heard, these amendments cover a range of issues. In respect of Amendments 92D, 98 and 100, I have listened with interest to concerns about the absence of a requirement that transition assessment should take place at a particular age. We are in agreement that the timing of assessment is crucial, but this is essentially a question of approach.
The Care Bill proposes that two tests be used to ensure that assessment takes place at the right time for each young person or carer. We believe that this is preferable to rigid timescales which take no account of an individual’s needs or circumstances. First, a local authority may assess a young person, their carer or a young carer where it appears to the local authority that the child or carer is likely to have needs upon the child turning 18. This is to be used in conjunction with the second consideration, whether assessment would be of “significant benefit”. This recognises that a one-size-fits-all approach is not in the best interests of young people or their carers.
Amendments 92B and 92C would limit the group of young people who can benefit from transition planning to those who are already in receipt of services. We would not wish to impose any such restriction. Indeed, this restriction was removed following public consultation and pre-legislative scrutiny, because transition planning may equally benefit those who are not currently in receipt of services.
I have heard the concerns expressed that local authorities are not under a duty to assess in every case. This is indeed true, and for very good reason. Some young people will not have needs for care and support after the age of 18. It will not be appropriate, nor indeed will it be in a young person’s interests, to assess in every case.
I listened with interest to concerns about provision for carers of children. We need to be clear about this. Support should be available where it is needed. The question is the source and nature of that support. Clause 59 provides a power, rather than a duty, for local authorities to provide support because existing children’s legislation already includes provision for support to a child’s carer. Duplication of existing legislation may cause confusion and is unnecessary. This power is intended to enable support to be provided under adult legislation where a certain service is available only locally via that route.
I turn now to planning for transition and Amendments 92BA and 94. Provision for transition assessment is focused on the outcomes that the individual wants to achieve. I can reassure the noble Lord, Lord Patel, that such outcomes may include employment, education or housing. I also share the noble Lord’s expectation that, when a child has an education, health and care plan, any assessment under these clauses should take the EHC plan into account and the assessment should be integrated into that plan.
The Care Bill and the Children and Families Bill include provision that assessment can be joint, including joined-up assessments in relation to an EHC plan. These issues will be addressed by both the guidance supporting the Care Bill and the Department for Education’s SEN code of practice.
In respect of Amendment 94, I briefly add two further points. First, when a young person over the age of 18 has an EHC plan, and as such the care part of that plan is provided under this Bill, we would expect co-operation between adult and children’s services in relation to any review of the plan under Clause 6(5)(a) and (b). Such co-operation for those under 18 who are in transition is provided for by Clause 6(5)(c). This would include co-operation with the preparation, maintenance and review of the EHC plan as provided for by the Children and Families Bill, in respect of children. Guidance can ensure that this is clear.
Secondly, requiring a local authority to make arrangements to secure provision for children and young people with a transition plan would not be appropriate. Services to children cannot be provided under the Care Bill. Children’s legislation provides for this. Services to young people over the age of 18 would be provided, if necessary, under provisions earlier in Part 1.
In relation to Amendment 104ZA, I agree on the need to ensure continuity of care. However, we must avoid creating overlap or confusion with local authorities’ existing duties in relation to children, including rights to assessment and support under the Children Act 1989. For this reason, it would be preferable for the young person to request assessment as they see fit and for the local authority to initiate this conversation with the child. The request itself is not envisaged as a formal process. Indeed, for some young people the request will form part of a conversation the local authority initiates about transition to adulthood. Guidance can be used to make this point.
Young people and their families will need information in order that they can understand the adult care and support system and, crucially, that they are aware of their right to request assessment. Clause 4 requires local authorities to establish and maintain an accessible system for information and advice including information and advice about how to access the care and support that is available.
Through Amendments 95, 96 and 97, the noble Lord, Lord Patel, the noble Baroness, Lady Pitkeathley, and the noble Lord, Lord Patel of Bradford, have also expressed concern that there should be provision to support children with care needs to move between areas, without the fear of experiencing a gap in their care and support. I agree. Provision for people over the age of 18 already exists at Clauses 36 and 37 and provision for children with an Education Health and Care plan exists in the Children and Families Bill. If a young person under the age of 18 who has had an assessment under the provisions of Clauses 55 or 60 moves to a new area, the general duties of co-operation, in particular with other local authorities under Clause 6(6)(b), would also apply.
I should like to reassure the noble Baroness, Lady Pitkeathley, in relation to Amendments 93B, 100A and 104ZZA that consideration of “other matters”, a person’s own capabilities and the other support that may be available does not exclude the provision of more conventional care and support services where needed. Indeed, when the child becomes 18, if the individual’s needs are eligible, the local authority must meet them, in accordance with Clause 18, if the adult wants the authority to do so, and those requirements are not diminished by these three paragraphs. The intention is to recognise that, in order to make the right connections to the local community and the variety of support available, the local authority should consider how these matters, along with more formal care and support provision, could be of benefit in achieving the adult’s outcomes.
The noble Baroness suggested that carers might be pressurised by these provisions into providing care. It is certainly not our intention that pressure is put on carers. The clauses make it very clear that a carer must be willing and able to provide support and that the impact upon carers’ well-being must be considered.
She flagged up the concern that the new provisions in Clauses 56, 58 and 61 are departures from the draft Bill and asked why that was the case. The Bill as introduced includes greater clarification as to the nature of the assessment that should be carried out and what should be considered. It is largely for drafting reasons that we split the subsections relating to children, children’s carers and young carers into two subsections for each group.
The noble Lord, Lord Warner, pointed out that, in his view, the Bill is framed as though young people are strangers to the local authority. The Bill makes provision both for those who are receiving children’s services and are known to social services and for those who are not currently receiving care and support. Clause 6 provides a duty to co-operate, including within the local authority. In particular, in relation to children transitioning to adulthood, there is a duty for those internal discussions to take place. The request mechanism in the Bill is not intended to be a formal or bureaucratic process, as I mentioned earlier.
The noble Lord, Lord Hunt, asked me to confirm whether the Government are considering bringing forward amendments on carers, and expressed his concern that the timing of the Children and Families Bill relative to this Bill is unfortunate. I can tell him that my noble friend Lord Nash, at Second Reading of the Children and Families Bill in your Lordships’ House, said:
“As my honourable friend the Minister for Children has said, we are considering how the legislation for young carers might be changed so that rights and responsibilities are clearer to young carers and practitioners alike. We will also look at how we can ensure that children’s legislation works with adults’ legislation to support the linking of assessments, as set out in the Care Bill, to enable whole-family approaches”.—[Official Report, 2/7/13; col. 1201-02.]
The Minister for Children and Families and the Minister for Care and Support have met the National Young Carers Coalition to discuss the key principles for taking this work forward over the summer, as well as how we can most effectively involve the NYCC during this period.
Finally, the government amendment in this group will ensure that the provision added to Clauses 58 and 61, following consultation and pre-legislative scrutiny, specifying that a needs assessment must include an assessment of the impact of the adult’s needs for care and support on their well-being, is also added to Clause 56.
We have had much discussion recently about the need to ensure that services are organised around the needs of individuals. I hope that I have been able to explain how this legislative framework for transition is focused on meeting that aspiration. I hope, too, that I have provided some reassurance about the approach we are taking to smooth the transition to adult care and support. I hope that the noble Lord, Lord Patel, will feel able to withdraw his amendment.
People with Learning Disabilities: Health Inequalities
Lord Hunt of Kings Heath Excerpts(13 years ago)
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Lord Hunt of Kings Heath
My Lords, I declare an interest as president of GS1, chair of a foundation trust and a consultant trainer with Cumberlege Connections.
It is a great pleasure to follow the noble Baroness, Lady Emerton, and to congratulate the noble Baroness, Lady Hollins, on her initiative in securing this debate. I applaud her efforts in again raising in your Lordships’ House the appalling health outcomes of so many people with learning disabilities. I shall not repeat what other noble Lords have said. The statistics are clear and there is a clear consensus that they are accurate, and the outcomes are very disturbing. We must recognise that this is now an issue that has been identified for at least six years; the evidence from Jonathan Michael’s report, Death by Indifference, which found that patients with a learning disability experienced delays in diagnosis and treatment, a lack of basic care and poor communication from health professionals, is now six years old. Clearly, the confidential inquiry findings have endorsed the original findings of the Jonathan Michael inquiry.
The noble Baroness, Lady Hollins, was a member of the inquiry team, which is significant. Sir Jonathan Michael is a very distinguished chief executive of an NHS trust. In some ways, it was even more persuasive coming from that quarter, when he found so many examples of indifferent healthcare for people with learning disabilities.
As noble Lords have said, when one thinks of our recent impassioned debates about health outcomes, the Keogh inquiry and the Mid Staffordshire inquiry, the number of premature deaths of people with learning disabilities is so shocking that it is disappointing that society as a whole, the media and the political world are not taking it as seriously as they ought. These debates are very important in alerting the public and the Government to the need for action to be taken.
The noble Baroness, Lady Browning, made some very good points about the need for annual health checks and screening and the substantial problems of diagnosis and communications. The noble Baroness, Lady Tyler, mentioned “do not resuscitate”, and it made me wonder whether the follow up to the Liverpool care pathway that will be taken forward in the light of the report by the noble Baroness, Lady Neuberger, will be an opportunity to look specifically at the needs of people with learning disabilities to ensure that they are captured within the new approach. I hope it is something that the Minister may be able to take on board.
The noble Baroness, Lady Tyler, spoke about the employment of specialist staff in hospital. My trust has recently employed two people to do that. If one looks at the recent seminar that the noble Baroness, Lady Hollins, chaired under the auspices of the BMA, it is noticeable that many of the recommendations coming from it are about communications; training staff to identify and understand the needs of intellectually disabled and mental health patients; changing the culture of the NHS from unfounded, ill informed judgments about mental health and intellectual disability patients; and ensuring those patients are subject to the same access standards as physical health patients. Given all the problems over the past few years, there is no doubt that specialist staff within hospitals have an important role to play.
Given all this, it is difficult to know why the Government seem to be dithering over establishing a national confidential inquiry. The noble Baroness, Lady Hollins, described the national confidential inquiry into perioperative deaths. Over the decades, it has done outstanding work in indentifying patterns of death that have led to improvements in services. The noble Baroness may recall Mr Brendan Devlin, one of the great pioneers of the ECEPOD, who never achieved the recognition that he ought to have received for his work; I suspect that at the time he was not popular with his colleagues in the profession. I remember talking to him and seeing the results of those inquiries and the reports that were issued. I hope that the Minister will be able to say something a little more positive about the Government’s intentions. The benefit of a permanent confidential inquiry is that year after year, in report after report, evidence will be brought forward and statistics will be made available. I am convinced that it is a very powerful way to drive up standards in future. The great risk is that if we do not have another inquiry, the issue will go away and will be forgotten in the health service. That is why one needs permanent machinery to enable it to be done.
If it is a question of finance—I have to be very cautious about what I say on funding issues—comparisons concerning the cost of a permanent national confidential inquiry into the deaths of people with learning disabilities could only be minimal in terms of the human cost to those people and their families of the premature deaths that are caused by the current problems in services.
When the appalling events at Winterbourne View came to light in the report—it is not so long ago that the Minister made a Statement to your Lordships’ House on this—a great deal of discussion concerned the role of commissioners. In the case of Winterbourne, once the commissioners had placed a person in the home there was virtually no contact. What is being done to enhance the role of commissioners? We have an opportunity to come back to this on Report in the Care Bill, in which there is a provision around the role of the CQC in regulating the commissioners of local authority services. I hope we might come back to debate whether we can give more power and ammunition to the CQC in this regard.
I have two final comments. My noble friend Lord Touhig raised an important issue about the role of general practitioners and some of the failings in our primary care medical services. The Minister knows now that the responsibility for contracting with GPs lies with NHS England. It would appear that NHS England also has a big role to play in ensuring a continuous and permanent confidential inquiry. Is the Minister satisfied that NHS England has the capacity to develop and drive policy in this area? Surely it is in its hands. It has the ability to fund and organise a national confidential inquiry. It also has the ability to ensure that the issues my noble friend raised about access to GP services are dealt with effectively in contracts with general practitioners. I hope there will be further opportunities to debate these important issues in the future and that the Minister might be prepared to take back the pressing question of a permanent confidential inquiry.
NHS: Foundation Trusts
Lord Hunt of Kings Heath Excerpts(13 years ago)
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Earl Howe
My Lords, I hope my noble friend will allow that that is a little wide of the Question on the Order Paper, which is about bringing trusts to foundation trust status. Nevertheless, I refer my noble friend to the Written Answer which was published in Hansard yesterday and which sets out the immediate steps we have taken to instruct all hospitals to review all patients currently on the Liverpool Care Pathway and to make sure that there is a named, responsible clinician for every patient at the end of life.
Lord Hunt of Kings Heath
My Lords, I refer noble Lords to my health interests in the register. Is the failure to publish the reconfiguration paper by Sir Ian Carruthers due to the intervention of the Competition Commission in proposed mergers and reconfiguration of services in the NHS? Is the noble Earl aware that it was reported in the other place this morning that the intervention of the Competition Commission in the Dorset merger will cost £6 million which should have been spent on patient services? When will the Government start to ensure that the foolish intervention by the Competition Commission which is not needed in the health service stops and money that could be spent on patient services is actually spent on them?
Earl Howe
My Lords, I am sure the noble Lord is aware that the provision for reviewing NHS mergers on competition grounds is not at all new. Responsibility for reviewing NHS mergers has moved from one independent body—the Co-operation and Competition Panel—to another, the OFT. This is a continuation of the approach that has been in place since 2009. In all these decisions what matters is what is in the interests of patients. The competition authorities will continue to review whether the potential benefits of a merger outweigh the potential costs to patients.
NHS: Keogh Review
Lord Hunt of Kings Heath Excerpts(13 years ago)
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Lord Hunt of Kings Heath
My Lords, before responding, I declare an interest as president-elect of GS1, chair of an NHS trust and a consultant trainer with Cumberlege Connections. First, I thank Sir Bruce Keogh and his team for this important review. I know Sir Bruce and have the utmost respect for him. His review presents a challenging but accurate picture of care standards and failings at the 14 trusts. As with both Francis reports, the Opposition accept the findings of this report in full.
At Health Questions earlier today in the other place, the Health Secretary claimed that this was a historical report, going back to 2005. However, it is not. These trusts were identified on the basis of mortality data for 2011 and 2012—this report is about this Government’s failings, happening on this Government’s watch. Anyone who supports the NHS must always be prepared to shine a spotlight on its failings so that it can face up to them and improve. However, in doing so, we must be fair to staff and to the NHS as a whole. In his report, Sir Bruce puts the failings at the 14 trusts in their proper context, by concluding that,
“mortality in all NHS hospitals has been falling over the last decade … by about 30%”.
He rightly reminds us of decades of neglect in the NHS in the 1980s and 1990s, when the noble Earl’s Government were in charge. Of the challenge facing the previous Government in their early days, he says:
“The key issue was not whether people were dying in our hospitals avoidably, but that they were dying whilst waiting for treatment”.
The noble Earl spoke about targets. The disgraceful record of his Government, with a target that they had in the patient’s charter of a maximum 18 months’ wait for treatment as an in-patient, was brought down by the targets that he decries to a maximum of 18 weeks. That is why we had targets.
In fact, the balanced picture in this report bears no resemblance to the Government’s leaking of the report over the weekend but it exposes one of the most cynical spin operations ever seen in this country. Nowhere in this report does a claim of 13,000 avoidable deaths appear. Indeed, Sir Bruce is absolutely clear. He says:
“However tempting it may be, it is clinically meaningless and academically reckless to use such statistical measures to quantify actual numbers of avoidable deaths”.
Yet that is precisely what this Government chose to do in advance of this report.
In the past few minutes, details have emerged of an e-mail that Sir Bruce Keogh has sent. He is clearly very angry about the report’s leak by the Government to the press, and specifically about the 13,000 lives allegedly lost. The noble Earl talked about accountability, so will his Secretary of State be accountable for the disgraceful actions that occurred over the weekend in his department? Will the Secretary of State consider his position? He should certainly do so.
On mortality rates, does the noble Earl recognise that Robert Francis himself said that,
“it is in my view misleading and a potential misuse of the figures to extrapolate from them a conclusion that any particular number, or range of numbers of deaths were caused or contributed to by inadequate care”?
Does he also accept the comment of the Liberal Democrat MP Andrew George that the leaks by the Tories on the Keogh report were obviously designed to mislead the media?
The result has been that these unfounded claims, spun out by the Government, will have alarmed people in the 14 areas affected. They have questioned the integrity of the staff working in those hospitals in difficult circumstances, all for their own self-serving political ends. This is unworthy of any responsible Government. On reading this review, the diversionary spin now makes sense as it is clear that those 14 hospitals have all shown signs of deterioration on this Government’s watch.
The noble Earl suggested that pressure had been put on the regulator to tone down criticisms. Does he accept the word of the noble Baroness, Lady Young, the former chair of CQC? She has written that CQC was not pressured by the previous Government to tone down its regulatory judgments or to hide quality failures.
Let me turn to staffing. One of the report’s central findings is that staffing is a major concern in all these trusts. The review states that,
“when the review teams visited the hospitals, they found frequent examples of inadequate numbers of nursing staff in some ward areas”.
The review team has already had to intervene in three areas on staffing to protect patient safety. Five of those trusts had warnings left in place by the previous Government. Does the noble Earl accept that it is shocking that they have been allowed to cut front-line staff to unsafe levels on his watch? The great sadness is that it appears that Ministers are in danger of forgetting the lessons of Stafford, where Robert Francis identified dangerous cuts to front-line staff as a primary cause of care failure.
Like Robert Francis, Sir Bruce makes recommendations on appropriate staffing levels. Can the noble Earl ignore this authoritative call any longer? What action is he going to take to ensure safe staffing levels in these 14 trusts and across the NHS? We accept that the loss of more than 4,000 nurses during the lifetime of this Government has now been laid bare as a monumental error. Will he intervene to stop those job cuts? Will he apologise for the fact that seven out of the 14 trusts investigated by Keogh have cut more than 1,000 nursing jobs since the election?
The noble Earl tells us that of the 11 trusts going into special measures, each hospital will be partnered with high-performing NHS organisations to provide mentorship and guidance in improving the quality and safety of care. That is to be welcomed but can he guarantee that this will not be deemed to be collusive action by the competition authorities?
I turn now to A&E performance, which is the barometer of the health service and the wider indicator of problems across the health and social care system. The report highlights major failings in A&E at many of the trusts. Of course, we know we have come through just about the worst winter we have had for a decade. At the end of last year, all 14 were in breach of the Government’s A&E target. Sir Bruce is clear that urgent action is needed to improve A&E, saying:
“We have established that one of the primary causes of high mortality in these 14 hospitals are found primarily in urgent and emergency care, and particularly in care for frail and elderly patients … all trusts were functioning at high levels of capacity in the urgent care pathway. This frequently led to challenges in A&E and, as a consequence, cancellations of operations due to bed shortages and difficulty meeting waiting time targets”.
Will the Government take immediate steps to work with the whole health economy to bring the 14 back up to national standards?
Even given the appalling way the Government have handled the Francis review, people will want solutions rather than politics so surely the right response is to accept the Francis recommendations in full, including the one on staffing levels. I can assure the noble Earl that if he were to do so the Opposition would work with him to ensure their swift passage through Parliament.
In conclusion, it is a sad fact that mistakes will be made in any walk of life, even in the National Health Service. The only real answer to all of these problems is for both sides of the House to recommit to full openness and transparency in the National Health Service. People who have been let down deserve nothing less.
Care Bill [HL]
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Lord Lipsey
My Lords, I rise to make two brief points. First, this argument is not really about eligibility criteria but about money. It would be highly desirable to extend eligibility to people with only moderate needs, but we will find it extremely hard simply to cater for people with substantial needs unless the pot of money is substantially expanded. That is the elephant in the room. In all the discussions here, we are describing a marvellous new system, but we have not yet said how it will be paid for.
Secondly, I think that eligibility criteria are, to a degree, a bit of a phantom. We know that there is variation between authorities across the country: some accept people with moderate needs and some accept them with substantial needs. Quite aside from that, there is overwhelming evidence of enormous variety not between local authorities but within local authorities depending on who is assessing you and their state of mind. I quote in support of this a report from the National Care Standards Commission in 2005-06 and an excellent report by the PSSRU last year which tells you what actually goes on when people are being assessed. You might have a social worker who is terribly sympathetic to the older or disabled people she is assessing, and her boss who is, no doubt, sympathetic but who knows what budget he has to meet each month. In those cases, you simply get a wrestling match.
Thirdly, and to me most worryingly, once the cap comes in, people and their families will have a huge economic interest in demonstrating that they have substantial needs because that is when the meter starts ticking for them getting help. The danger is that those with, in some cases, the biggest needs will not be very good at gaming the system. Somebody with autism may be told by their parents to seem as bad as possible so they can get the meter ticking. They are not going to be very skilled at that, but the mums and dads of articulate middle-class people will have a different set of instructions to go on. There will always be a tendency to exaggerate—play up to the full may be a better way of putting it—their needs to get them graded as substantial.
I make these points, not to draw any firm conclusion, not even on the question of whether those with moderate needs should be catered for, but to say that more fundamental thinking has to go into deciding how eligibility criteria should be set and operated. This has not yet been apparent, even in the Government’s improved scheme which is encapsulated in the Bill.
Lord Hunt of Kings Heath
My Lords, my Amendments 88R and 88S take us back to the amendments which I moved last week on eligibility criteria, inspired by the noble Baroness, Lady Campbell. Promoting individuals’ well-being, assessing their needs and those of carers, deciding on eligibility and the priority for needs to be met, developing them with an appropriate care and support plan, enabling the best use of a personal budget and/or direct payments and ensuring continuity of capacity during and after a move, such as a house move, are all processes or stages in which the active engagement of NHS professionals or services could have a positive effect on the outcome for individuals and carers.
In his response, the noble Earl said that he agreed and that the Care Bill already allowed for that kind of co-operation from the NHS through Clauses 1 and 3. He also pointed out that Clause 12(1)(f) sets out regulations where a local authority must consult with someone with expertise before undertaking an assessment. He went on to say:
“Regulations may also set out conditions around co-operation with the NHS, by specifying the circumstances in which the local authority must refer the adult concerned for an assessment of eligibility for NHS continuing healthcare”. —[Official Report, 3/7/13; col. 1272.]
That is helpful but I wonder if we should go further and place an explicit responsibility on the NHS so that we know it plays its part in full.
Amendment 88Q, tabled by the noble Baroness, Lady Grey-Thompson, and my Amendment 88T focus on the eligibility criteria in the draft regulations. We support national eligibility criteria. As the consultation paper says,
“the needs which are determined to be ‘eligible’ vary from one area to another”,
at the moment, with local authorities,
“able to set their own ‘eligibility threshold’ or ‘criteria’…This approach has led to perceived wide distances between areas and inconsistency in the offer made to local people, confusion and legal challenge. Because local authorities are able to vary the threshold over time, it also leads to the fear that people may lose their care and support if ‘eligible needs’ are reclassified locally”.
It is also very helpful to have the draft regulations available for debate and I have been able to discuss them with a number of stakeholders in the last few days. The noble Baroness is absolutely right that there is concern among many stakeholders about the level at which the criteria are set. This is reflected in the amendment in her name and those of the noble Lord, Lord Low, and my noble friend Lord Touhig. However, we must also take account of the points raised by my noble friends Lord Warner and Lord Lipsey because this is, in the end, an issue of funding. I hope that, when she winds up, the noble Baroness will address the issue of affordability. This may be a technical point, but this might be a matter of supply, since the Commons might well assert their own position in this regard. The noble Earl, Lord Howe, will, no doubt, advise us on that matter.
The guidance is very important and my noble friend Lord Warner said that it was a good first shot. I agree with him and it is certainly something to work on. However, could it warrant more parliamentary scrutiny than is normally given to regulations? We usually have a debate of about one hour; the conventions allow us to defeat a statutory instrument on very few occasions, and there is no opportunity to amend those regulations. We have benefited enormously from having a Joint Select Committee to advise us on the draft Bill: might it be right to have a similar process in relation to the regulations? I hope the noble Earl might be sympathetic to my Amendment 88T, which asks for a joint parliamentary committee process to look at the regulations before they are laid before Parliament.
Lord Hunt of Kings Heath
My Lords, I hesitate to come between my noble friends Lord Warner, Lord Lipsey and Lord Campbell-Savours, and indeed knowing what is good for me I am not intending to do so. I say to my noble friend Lord Campbell-Savours that I understand the point that he is making and I agree that Dilnot is not the answer to many of the really pressing problems that we are talking about.
I want to tempt the noble Earl to say a little bit more on two areas which have been referred to by noble Lords. The first is the complexity for local authorities of what they have to administer. The noble Earl has not really responded in detail on this matter so far. Indeed, it is noticeable that local authorities have not responded. We have received a huge amount of evidence, but not very much from local authorities and the local authority associations. This worries me. I understand why local authorities would be keen to play a prime part in the administration of this new system, but these are genuine concerns about whether there is capacity to make changes of this complexity happen. Nothing would be worse than the new system coming into being and collapsing almost on day one. At the moment, that is my view on what is going to happen. I do not know what the Government intend in terms of testing out the robustness of the system for when it is due to come in. I hope that at some point during our debate the noble Earl will be able to tell us.
Secondly, the next group of amendments deals with the public understanding the complexity of the system being considered, but it seems to me that this issue relates to the point about insurance raised by my noble friend Lord Lipsey. My understanding is that one benefit of full implementation of Dilnot—although I am not sure that the Government have gone down that path—would be that, if the public knew that their liabilities would be capped, there would be likely to be a ready insurance market. A number of us have looked with interest at the comments of the Association of British Insurers and other parts of the insurance industry. I have to say there does not at the moment seem to be much optimism about whether there is going to be a market and whether packages are going to be developed. This may come up in later amendments, but at some point I hope that the noble Earl will give a little more information about the Government’s view of the potential of the insurance market to develop products which the public can understand and will be willing to invest in.
Earl Howe
My Lords, as the noble Lord, Lord Lipsey, explained very clearly, these amendments would mean that the capped system counted time rather than costs. I agree that there are advantages to this approach. The Dilnot commission, in considering this option, said that using years instead of costs would be easier to administer and simpler to understand, and I appreciate those arguments. However, the commission also made the case that to adopt this approach would disadvantage those with more intensive care needs, who over a given period of time could spend significantly more on care than those with less intensive needs, so that what we might gain in simplicity we should lose in fairness. I am sure that we all want to see a fair care and support system giving the most support to those in the greatest need. Using time instead of costs would undermine that goal.
We are committed to using notional spend—in other words, the equivalent of what the local authority would pay to meet an adult’s eligible care needs. As with using time, it is in fact relatively simple to administer because it fits in with the current system of needs assessment. It also ensures that people with more intensive needs are not disadvantaged. That is why the Government agree with the Dilnot Commission, which said,
“the only suitable way of deciding when a person has reached the cap is to meter notional spend.”
The noble Lord, Lord Lipsey, pointed to the understandable fear that Dilnot will mean spending money on administration rather than on meeting people’s needs. I accept that times are challenging for councils, but we are committed to funding these reforms. Critically, we are also committed to co-producing the implementation of the reforms to minimise the bureaucracy that accompanies them and maximise the benefits that they bring. The noble Lord suggested that local authorities might not be ready to implement Dilnot in 2016, and the noble Lord, Lord Hunt, also asked about this, and whether we were intending to test the robustness of the system. We shall be coming to the issue of readiness in the next group, but I agree with the noble Lord, Lord Warner, that there is sufficient time to develop what he referred to as a taxi-meter system.
The noble Lord, Lord Campbell-Savours, took us to a point that he has made in this Chamber before about Dilnot, and his view that it is fundamentally unfair. I simply say to him that the vast majority of state support, under the Dilnot system, will be provided to the roughly 40% of older people with the lowest income and the lowest wealth. The cap, and the extended means test, provide the most reassurance to that particular group. Our view is that we need a system that protects people with the greatest lifetime care needs. It is not about protecting people with the greatest wealth.
To clarify the question that the noble Lord, Lord Warner, raised in the previous group of amendments about the guidance under Clause 71, this will indeed be statutory guidance, and it will look and feel like a code of practice. Importantly, it will have the same legal status. However, we do not think that guidance should be subject to parliamentary scrutiny every time it is updated, as with a code of practice Statutory guidance under this Bill will have the same status as the current guidance issued under Section 7 of the Local Authority Social Services Act 1970. I hope that this is helpful.
In a later group of amendments we will come to what local authorities think about the new system and indeed the whole area of financial services. However, I was reassured that the Local Government Association said that it fully supports and welcomes the inclusion of a cap on what an individual will pay. The Association of British Insurers has welcomed the announcement that we have made as a positive step forward in tackling the challenges of an ageing society. Arising out of that is a sector-led review that is working constructively with government to understand how the market will develop and create the right environments for products to succeed. That review will be completed over the summer.
I hope that with those comments the noble Lord, Lord Lipsey, will for now be content to withdraw his amendment. I hope that he found my comments, if not ones that he can agree with immediately, at least ones that he will put into the context of the Bill in, I hope, a manner that he will understand.
Lord Hunt of Kings Heath
My Lords, my Amendment 90ZA requires the Secretary of State to report to Parliament,
“in advance of this section coming into force with the Government’s assessment of the likely impact of the cap on care costs; and … annually once the section is in effect, with the Government’s assessment of the impact of the cap, in particular its distributional impact across the income spectrum”.
I echo some of the points already made. The operation of the cap ought to be, and continue to be, subject to ministerial oversight. The opportunity to report to Parliament and for us to have an annual debate should not be missed. This links into the amendment of my noble friend Lord Lipsey, Amendment 92ZZB, because it would enable a ministerial advisory group to feed into an annual report on how the scheme is being implemented and whether changes need to be made.
It is important to bear in mind the concern of my noble friend Lord Campbell-Savours that simply operating Dilnot will favour the better off at the expense of the worse off. We must keep an eye on how it impacts on the distributional spectrum in this regard. That is why I have the second part of my amendment.
Like other noble Lords, I agree with Amendment 89E in the name of the noble Lord, Lord Sharkey, and Amendment 90 in the name of the noble Baroness, Lady Greengross. I have learnt over the past few months how complex this issue is, and if noble Lords do not understand the full complexity of the scheme—and I gladly hold my hand up that I have yet to believe that I have full mastery of how it will operate—how can members of the public be expected to understand its full consequences?
In our debate on Clause 2, we discussed the responsibilities of local authorities in providing advice and we debated the need for independent financial advice to be made available. The consequences for a person making the wrong decision on funding could be catastrophic. It is therefore important that advice is readily available, and I agree with those noble Lords who think that it ought to be a national responsibility. Whether I would give it to the current Secretary of State, I am not quite so sure.
I remember how the Government spun this Bill in the Queen’s Speech and the Prime Minister giving the impression that no one would for ever more have to sell their home and that the £72,000 cap was the limit. However, as we have gone through the Bill has become quite clear that neither is the case. I agree with my noble friend Lord Campbell-Savours that the Government have not thought through the implications of what the noble Earl said last week about the issue of transparency.
The point is that most people have to spend more than £72,000 because self-funders do not pay local authority rates. In his sophisticated response last week, the noble Earl suggested that local authorities took advantage of procurement at scale, which is why they were able to get a rate lower than self-funders. That was a remarkable argument. Most people see this as a case where local authorities underpay and that if homes only existed under local authority rates many of them would not be viable. It is therefore not surprising that many homes are on a cliff edge of viability on the one hand and at risk of being put out of business because of CQC inspections on the other. There is no doubt that it is generally thought that self-funders subsidise the people in those homes who are paid for by the local authority.
However, most people do not know that. Only an inside circle is aware of the issue. However, come the new implementation, everyone will know—as the noble Earl said last week, it will be transparent—and people will not put up with it. That is why, first, it is essential that more thought is given to implementation. I am not sure whether my noble friend Lord Lipsey is right to want to delay it by a year, but I am sure that he is right to say to the Government that they need to look carefully at the practicalities of implementation.
Secondly, it is important that self-funders are in future fully aware of the consequences of any decisions they take. At the moment, I and many other noble Lords are not convinced that the public are aware. That is why it is so important that a duty is laid on Ministers to fund, and continue to fund, a national campaign of information and that we come back to our debates on Clause 2 in relation to independent advice being made available.
Thirdly, I hope that the noble Earl will readily accept the amendment of my noble friend Lord Lipsey about the need for a ministerial advisory committee, which could then enable the Secretary of State to report to Parliament annually in relation to the implementation of the Dilnot proposals.
The noble Earl will be aware that, in general—my noble friend Lord Campbell-Savours aside—the Care Bill enjoys support. However, there is a risk of our disagreeing on implementation. If he can reassure us on the readiness of local authorities, on the willingness to provide independent advice and on the willingness to establish some kind of independent mechanism to report on a regular basis, it would provide a great deal of comfort.
Earl Howe
My Lords, the clauses on the capped-costs system represent a significant step forward, ending decades of uncertainty, with the introduction of a clear system that fairly shares costs. For the first time, people will be protected from spiralling costs and will no longer have to fear that their home will be sold while they are in a care home. In response to Amendment 90ZA, I can confirm that we published an impact assessment of the reforms which includes the distributional impact by income.
The current system exposes those with little savings or modest housing wealth to the greatest risk of losing everything to pay for their care and support. We will enable people to keep more of their capital and still receive a contribution from the local authority towards their residential care costs. Under new regulations, those with capital assets of less than £118,000 will see the local authority pay a proportion of their residential care costs rather than only those with assets of under £23,250.
As I mentioned earlier, the vast majority of state support will be provided to the 40% of older people with the lowest income and wealth. The cap and extension to means-tested support provides the most reassurance to this group. This is about protecting people with the greatest lifetime care needs and not people with the greatest wealth. The reforms must be sustainable and affordable for the long term, which is why we have accepted the Dilnot commission’s recommendation that the level of the cap should be adjusted annually in line with inflation. It is an approach used in taxes, pensions and benefits, ensuring they remain equally fair year after year.
I turn to amendments 92ZZB, 92ZZC and 104ZC. The noble Lord, Lord Lipsey, shares our aim in drawing up the Care Bill of ensuring the system can respond to changing circumstances. However, that dynamism must be balanced with some certainty about the basis for changes. That is why Clause 16 requires annual adjustments to be made to the cap and to an adult’s accrued costs, so that they keep pace with inflation. Clause 66 provides some certainty that changes are likely to occur only as a result of the annual adjustment or five-yearly review. In reviewing the level of the cap and the means-test threshold, the Government will want to involve a range of experts in assessing how external factors such as demographic change and healthy life expectancy are affecting affordability and the benefits of the capped costs system. A standing independent committee is therefore unnecessary and could suggest that the system is subject to constant change—which may, perversely, result in fewer people planning and preparing on the basis of these reforms.
Amendments 90A, 90B and 90C would require the annual adjustment to be made in line with average care costs. The first point to make is that there is no nationally recognised measure for care costs inflation. Linking the annual adjustment to a care costs inflation measure that has no national benchmark would not give people, or the financial services industry, certainty or confidence in the system. It would of course be possible to develop such a measure, but we feel it is unnecessary, as a robust proxy already exists. Average earnings is one element of the measures used to determine the state pension and therefore represent changes in people’s ability to pay. Earnings is a national statistic certified as compliant with the code of practice for official statistics. In addition, care costs and average earnings are related since labour is a substantial proportion of the cost of care. The latest Laing & Buisson market survey states that,
“in the longer term, fees are inevitably driven by costs … the major cost item is payroll”.
Turning to Amendments 89E, 90 and 104ZD, which is where my noble friend Lord Sharkey began this debate, I fully agree that it is critical that people are made aware of the reforms and what they will mean. The Dilnot commission rightly recommended that there should be an exercise in raising awareness alongside implementation of the reforms. Many people do not realise that they may have to pay for their care and support, which acts as a significant barrier to effective planning and prevention. The Committee will be aware from the debate on Clause 4 that we know that easier access to good quality, trusted information and advice is a critical enabler. The Bill places a duty on local authorities to provide information and advice, including on the capped cost system.
I assure the noble Lord, Lord Campbell-Savours, that we have absolutely no intention to or interest in allowing spin to replace clear and balanced information for the public. In improving awareness and advice, national and local must work together. It will be in the interests of local authorities, the public, government and the financial services industry to make sure that people are aware of the reforms and have access to the right information and advice at the right time so that they can plan and prepare to meet their care and support needs. We will seek views in the forthcoming consultation on the design and technical implementation of the funding reforms, which will include addressing the best way to raise awareness of these reforms nationally and locally.
My noble friend Lord Sharkey made the good point that awareness and understanding of the Dilnot reforms has to be evaluated and measured over time. As with any other policy, we will seek to evaluate the effectiveness of this particular policy, but we believe that to require an annual report in the Bill would incur a potentially high and unnecessary cost. There are other ways of delivering the same aim.
Care Bill [HL]
Lord Hunt of Kings Heath Excerpts(13 years ago)
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Lord Warner
My Lords, I support the creative thinking of my noble friend. The truth of the matter is that we certainly did not have enough time to go into the kind of detail that he has done, which he has explained very clearly. I have to confess that we were not aware of the nursing allowance. Perhaps we should have been. If we had been, I think that we would have justified the scrapping of it by saying that that would be used to help to finance our mainstream proposals.
Also, we said in our report that we thought that the Government should look again at the personal expenses allowance. We thought that it was extremely mean. In a way, it has not kept pace with inflation over the years and it now seems a rather derisory amount. Therefore, anything that could be done to improve that without increasing the cost of public expenditure would seem to us a good idea.
I commend my noble friend for his creativity. I hope that the Government will take his amendment away and look at it seriously to see whether something can be done with it, because I think that it is an improvement on our recommendations.
Lord Hunt of Kings Heath
My Lords, I, too, have a great deal of sympathy for the core of my noble friend’s proposal to change the means test to increase personal allowances to support people so that they have enough money for what he described as “small treats”. Like my noble friend Lord Warner, I should be interested in the noble Earl’s response to that point.
I also sympathise with my noble friend’s second proposal to help those with modest assets by making the means test less severe. It is clear to most of us that the benefits of Dilnot will go to the better off. I think that one must be sympathetic to my noble friend’s aim of trying to spread the benefits more widely. Of course, that comes with a cost, and my noble friend’s answer to that is the proposal to abolish the nursing care allowance or to phase it out. Perhaps the term is grandparenting; I am not sure of the phrase but the Lords reform proposals come to mind—the transition.
Whether that is the right approach must of course be subject to some debate, and I would certainly need some convincing about the phasing out of the nursing care allowance. However, I think that my noble friend has done us a service and I hope that we will have further discussions on it between now and Report.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, on one level I sympathise with the intention of the noble Lord, Lord Lipsey, to redistribute funding between health and care and support so as to increase the personal expenses allowance and local authority support for those in residential care. However, we need to face the reality of the current economic climate. One important aspect of our reforms is that the greatest support will go to those with the greatest need, and that is surely the policy aim that we need to keep most closely in mind in this context.
Currently, the NHS funds nursing homes to support the provision of registered nursing care. This reduces the burden on the NHS of having to provide NHS nurses in residential care homes. Removing this funding would risk increasing costs elsewhere in the NHS, but it would also breach a serious point of principle. If we were to stop people in residential care homes from being eligible for NHS-funded nursing care, it would undermine one of the founding principles of the NHS, which is that it should be a service free at the point of delivery. I am sure that noble Lords would agree that we would not like to see that.
I understand why the noble Lord seeks to increase the personal expenses allowance. If someone is contributing to the costs of their residential care from their net income, for example from their pension, the personal expenses allowance is the amount people can retain to spend as they wish. This is currently set, as he rightly said, at £23.90. The amendment would increase it to £32.75. When living at home, people pay for their food and heating from their income. It is right that people should continue to contribute towards these costs in residential care. The personal expenses allowance reflects the fact that for most people these costs represent a large proportion of their income, but it allows people to retain some of their income for other uses. The reality is that spending additional resources on the personal expenses allowance would reduce the resources available to provide support to those with the greatest needs.
I heard what the noble Lord, Lord Lipsey, said about the loss of the attendance allowance meaning that people would be worse off. Local authorities should support people to maximise their income. If a given individual would be better off receiving the attendance allowance, the local authority should support them to achieve this. We will bear this in mind as we draw up the regulations.
I turn now to Amendment 91, which relates to financial assessments. One of the problems the Dilnot recommendations attempt to tackle is the cliff edge between being a self-funder and being supported by the local authority. By extending the means test for people in residential care, we aim to avoid a situation where a small change in a person’s capital results in a large change in what they pay for care.
From 2016, the maximum tariff income for someone with £118,000 in assets will be £404 per week. If we reduced the rate at which people contribute toward their care costs from their assets to £1 per week for every £500 of assets, the contribution for someone with £118,000 in assets would become £202 per week. This means that an individual facing a typical care home fee would be over £200 per week better off if they had assets of £117,000 than if they had assets of £119,000. This would reintroduce the cliff edge that surely none of us wants to see.
I believe that our plans represent a fair balance between the individual and the state. People with care needs will receive additional support with care and support costs through the extended means test, safe in the knowledge that health services will remain free at the point of use and that they are protected by the cap from unlimited care costs. I hope the noble Lord will see that there is method in the Government’s proposals. While I totally understand much of his rationale, I think our proposals have a better balance. I hope that he will feel able to withdraw his amendment.
Lord Warner
My Lords, I intervene on this to talk very briefly about what the Dilnot commission said on this issue. I will quote just two sentences from page 22 of our final report, which are worth putting on the record. We said very clearly:
“The state-funded care element will be based on a local authority care package, but people will be free to top up from their own resources, should they wish. If someone moved to a different local authority, they would take with them a record of their contributions to date”.
That is a very clear statement of what our policy was. When we were taking evidence, there was not a lot given to us about the extent of top-ups.
If I fast forward to my time on the Joint Select Committee with other Members of this House, the issue of top-ups seemed to have changed quite significantly between the time when the commission reported, having considered all this, and the time that the Joint Select Committee was working on it. There were not good data, other than that many of us have been increasingly learning that the top-up levels have been quite considerable in some homes. There is clearly a problem with the cross-subsidising of people who are state funded from self-funders. The issue is now complex and I do not know how good the Government’s data are on the use of top-ups. We were clear that you could count towards the cap only what the state-funded element of that payment was, which would be determined by what the local authority would pay in its area for the care being provided. If we depart from that principle, we will end up in chaos—and probably end up with a much higher public expenditure bill.
There is an issue here that the Government need to think about, but in principle we should do nothing to stop people topping up if they and their family are prepared to provide for a higher level of care. The present rules were drawn up for a different time and on top-ups, the world has moved on. We need to get this straight before we finish this Bill.
Lord Hunt of Kings Heath
My Lords, I, too, would welcome a debate about top-ups and the Government’s present position and response to the Dilnot proposals, as enunciated by my noble friend Lord Warner. It would also be helpful if the noble Earl could give us a little thinking about how the Government expect this to work out in practice.
We start with the fact that a local authority has to have an assessment to add to the baseline to set the clock running, so as to get to the £72,000 cap. We have already discussed transparency and the problems arising where self-funders find that they have in fact been subsidising those people funded by the local authority. I would be particularly interested to know from the noble Earl what calculations have been undertaken by his department about the impact on self-funders when responsibility is taken over by the local authority once the cap has been reached. Has any work been done on the extent to which those self-funders will be forced to move home because the local authority will not fund them at the rate that they have been self-funding, while the home itself is requiring those people to move?
My noble friend Lord Lipsey referred to the general experience—we have seen it in the health service—that when very frail elderly people are forced to move from one care setting to another their life outcomes are very poor indeed. Clearly, it would be wholly unsatisfactory if, as a result of bringing in the £72,000 cap, we had the perverse incentive of forcing a lot of movements by frail, vulnerable people that would have a deleterious effect on their health and life outcomes.
That brings us to whether removing the top-up restriction would be an appropriate response. My noble friends have put forward a persuasive case. It is important that the Government should enable the House to come to a view on these matters, having made an assessment of how the introduction of state support for self-funders who have reached the cap is going to work in practice.
Health: Anorexia and Bulimia Nervosa
Lord Hunt of Kings Heath Excerpts(13 years ago)
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Earl Howe
My Lords, I am sure that this is an area that NICE will need to look at when it refreshes its guidance to the clinical community. The noble Countess is absolutely right to raise the issue. CFS/ME can often be misdiagnosed; it can be mistaken for other conditions without proper differential diagnosis having taken place. We know that there is more work to be done in this area. However, the range of programmes now available to GPs, some of which I have referred to, can be helpful in this area.
Lord Hunt of Kings Heath
My Lords, I refer noble Lords to my health interests in the register. Perhaps I can take the noble Earl back to my noble friend’s question. She mentioned “parity of esteem”, which of course the House legislated for in the 2012 health and social care legislation. Could he tell the House how the Government intend to ensure parity of esteem, particularly ensuring that mental health services are given their fair share of resources in the health service? How do the Government intend to take that forward?
Earl Howe
My Lords, I do not wish to duck the fact that this is a very difficult area to define. We all know that we want to achieve parity of esteem. It depends on ensuring not only that mental health services are given their fair share of the budget but that the right treatments are delivered to the right people, and that everyone in the country has access to appropriate treatments. We are currently firming up with NHS England what the right metrics are in order to judge whether they have met that aim. I will write to the noble Lord with the latest news on that front.
Health: Prescription Drugs
Lord Hunt of Kings Heath Excerpts(13 years ago)
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Lord Hunt of Kings Heath
My Lords, the noble Earl will be aware that in the past few years nurses have been given much more authority, once they have been properly trained and authorised, to prescribe medicines. Can he confirm that the measures he has talked about will apply to nurse prescribers as well as to doctors?