Clause 1 — Free provision of personal care at home

Bill Presented — Sustainable Energy (Local Action) bill – in the House of Commons at 3:48 pm on 12th January 2010.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 3:48 pm, 12th January 2010

I beg to move amendment 9, page 1, line 7, leave out from 'in' to end of line 8 and insert-

'(i) extra care housing;

(ii) sheltered accommodation;

(iii) warden controlled accommodation;

(iv) care home without nursing;

(v) care home with nursing.'.

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The Chairman:

With this it will be convenient to discuss amendment 10, page 1, line 8, at end insert-

'(2A) After subsection (4) insert-

"(4A) In subsection (4) "care home"-

(a) in relation to England and Wales, has the same meaning as in the Care Standards Act 2000 (c. 14), and

(b) in relation to Northern Ireland, means a residential care home as defined by Article 10 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (S.I. 2003/431 (N.I. 9)) or a nursing home as defined by Article 11 of that Order."'.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

The background to this Bill is the fact that social care provision is currently means and needs-tested. The needs test places an individual in one of four categories-critical, substantial, moderate or low. The mean test assesses assets. If someone has more than £23,000, including property, they are liable for the full cost of their care. Those who have more than £14,000 are liable for some of the cost. After the assessment of needs, and if someone is below the means threshold, the council will agree a care plan with them. For those in the critical or substantial groups, that may include entry to residential care; otherwise, care will be provided in the domestic setting. Free personal care will be targeted at critical needs only through regulations to be passed on the back of this Bill.

I hope that that was a useful scene-setter, because we should be under no illusion about what is happening in the Chamber today. The Secretary of State has said, in relation to this group of amendments and the Bill-it is effectively a one-clause Bill, because its substantive operation is in only one clause-that he wants to make social care one of the top three election messages. He did not say "priorities"; he used the word "messages".

The Prime Minister announced the policy under discussion in his address to the Labour party conference, where it was cleared with only 20 minutes to spare. The policy goes utterly against the grain of the Government's Green Paper on social care, not least because it is being funded from general taxation. The impact assessment on costings covers only two and a half years, because the Government know that the expense will sky-rocket after that. It is perhaps some small consolation that the Government are behaving like a Government who may not be in office in the next Parliament.

Nothing attests to the politics of the measure more than the fact that we are discussing it in a Committee of the whole House-a procedure normally limited to excessively controversial legislation, particularly legislation that is in free-vote territory. The Government are rushing the Bill through to prevent the fullest possible scrutiny. We will do our utmost to get through all the groups of amendments today, but I fear that that will be at the expense of the necessary wider scrutiny of the underlying issues of the policy behind the Bill. Another small consolation is that the fiercest attacks-certainly if the record to date is correct-will come from the Government's own side when the Bill continues its pell-mell progress in the other place.

The Secretary of State has said that he wants to create an "unstoppable momentum" for reform of social care. This piecemeal measure, which affects around 270,000 people-not even 5 per cent. of social care users-has already put a spanner in the works of the Green Paper process, preventing the full publication of the costings, so Ministers claim. Making the Bill work will put a spanner in the whole process of reform which, I fear, is the social care legacy the Secretary of State is aiming to leave. That comes on top of the point of order that I just raised with Mr. Speaker, prior to you, Sir Alan, taking the Chair for the Committee of the whole House. The impact assessment was prepared in a way that has not stood the test of time-even in the weeks since the publication of the Bill.

Amendment 9 would prevent care from being provided free of charge for more than six weeks to someone in any of the named institutions. It is deliberately a probing amendment, so that we can get to the bottom of the matter in the glare of the fullest scrutiny on the Floor of the House. I confess that we have had only smoke and mirrors from the Government on the matter.

Amendment 10 simply defines a care home. The Northern Ireland proposal is not relevant, but why has the Minister gone for the convoluted phrase,

"the provision of personal care to a person living in accommodation that an establishment provides to the person together with the care" rather than using a statutory definition that is already in force?

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I am grateful to the hon. Gentleman for giving way at this early stage in his speech. Somebody living in "extra care" accommodation-one of the categories that his amendment would exclude-is by definition living in their own home and able to organise care services separately from the tenure of their own home. Even for the purposes of probing, what possible justification can there be for proposing to exclude "extra care"?

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am glad that the hon. Gentleman recognises that amendment 9 is a probing amendment. Quite genuinely, it probes the Government on the difficulty of their definition of home and the answer to the question what is a home. I hope he bears with me, because we will discuss the matter in some detail in relation to an amendment on transitional arrangements-I am sure he will immediately understand the connection between those and "extra care". The reason why "extra care" is particularly relevant is that the Government have chosen not to pick up the definition that already exists in statute, which was the point I was making when he helpfully intervened.

I cannot remember where the hon. Gentleman was in his ministerial career at the time of the Care Standards Act 2000; he might not at that stage have reached the Health team. Section 3 of the 2000 Act, passed by this Government, defines care homes thus:

"For the purposes of this Act, an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons."

They include:

"persons who are or have been ill...persons who have or have had a mental disorder...persons who are disabled or infirm...persons who are or have been dependent on alcohol or drugs."

However, an establishment is not a care home if it is

"a hospital...an independent clinic; or...a children's home...or if it is of a description excepted by regulations."

There is therefore already something in legislation that could have been helpfully used for the purposes of describing what is meant in the Bill by being in one's home or not in one's home. I hope that the hon. Gentleman will understand that the Government rightly need to be probed on that issue, because it will have a major effect on whether people qualify for the help that it is intended they should receive. Free personal care at home will be of significant interest to those who qualify for it and those who do not.

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Photo of Joan Humble Joan Humble Labour, Blackpool North and Fleetwood

Just to be helpful, I want to continue the discussion about extra care housing, which is referred to by amendment 9. The explanatory notes for the Bill specifically say that extra care housing qualifies under the new arrangements that the Government want to put in place. I am therefore bewildered that the hon. Gentleman should propose in his amendment to exclude extra care housing, because it can be the individual's home. I am listening with interest to his definition of residential care, but we also need to clarify what is meant by a person's own home, and the explanatory notes include a reference to extra care housing.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

Given the way in which the amendments have been selected and the Chairman's strictures at the outset of consideration, I am conscious that, to stay in order in our debate on amendment 9, I shall have to postpone a more detailed discussion about extra care until our debate about transitional arrangements, which is where it will feature most strongly. I hope that the hon. Lady will bear with me, because the issue warrants discussion. However, as she will recognise, amendment 9 is a genuinely probing attempt to elucidate from the Minister, we hope, how we can get a much clearer and, more importantly, more secure definition of those who are likely to be eligible. After all, that is what will matter most to the people whom we are talking about, who are the most in need and, often, the most vulnerable.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

Do not the two interventions that my hon. Friend has just taken illustrate a rather broader point than the narrow definitional point? The effect of his amendment 9 has been to draw the Committee's attention to those who are excluded from the category of people who benefit from the Prime Minister's election pledge. Should we not focus on why one group of people benefits from that pledge and why another does not? Those interventions illustrate the injustice of the new anomaly that, effectively, the Bill will create.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am extremely grateful to my right hon. Friend, whose expertise and experience in this area are matched by none in the House and few outside it. We know the provenance of the Government's proposals as set forth in the Bill-we know that it was a rushed job, with only a 20-minute clearance time between decision and announcement at the Labour party conference-but even putting that to one side, he is quite right that it is vital to consider who is to be included. That question warrants proper scrutiny, because the fact that some people will be included means, by whatever definition is used, that the rest are excluded, and that will cause potential injustice.

My right hon. Friend will find that that is so from our discussions on later amendments, although I am conscious of how difficult it will be to remain in order, because things are so tightly drawn, not least the selection of amendments. That has been extremely constrained by the deliberately tight drafting by the Government of the money resolution, to try to exclude discussion on the much wider processes promised in the Green Paper and suggested by others, who have made some extremely interesting and sensible proposals in considering the reform of the whole of social care, rather than one small aspect of it, relative to the overall demand. I suspect that my right hon. Friend's concerns will be most clearly addressed when we come to an important discussion on compliance-how we ensure retained compliance with the European convention on human rights and the ability of the Secretary of State to issue the certificate under the Human Rights Act 1998, as stated on the front of the Bill. I very much hope that my right hon. Friend will have the opportunity to look at that aspect when we reach that point.

Building on what my right hon. Friend has just helpfully mentioned, the Bill attempts to cut out residents of care homes from eligibility for free care. Last year, 50,000 people-yes, fortunate people, but also hard-working people who have done the right thing in investing, perhaps through a mortgage, in their own homes-had to sell their homes to pay for their long-term care, notwithstanding the fact that some sales did not occur until after people had died. That applied under a system that is available, but not often taken up, concerning whether people sell at the time they enter care or, indeed, when they leave it-under the home protection scheme or whatever.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet 4:00 pm, 12th January 2010

I want to ensure that the hon. Gentleman is not inadvertently misleading the Committee, as he has said-in his opening comments-that the means assessment for care includes people's savings and their property. That is not the case with this Bill, because it deals with people living in their own home, and the value of their own home is excluded from the means test in deciding eligibility for care. The value of one's home becomes a matter for the means test only when people are going to leave their own home and go into residential accommodation.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am grateful. The hon. Gentleman is quite right that the words we use in this place matter greatly, but I think that when he checks the record he will find that in my introductory remarks I used the word "assets" rather than saying "their own home"-quite deliberately, because of the distinction that he has rightly pointed out. The question of one's own home becomes relevant only at the time when one is being adjudged by proper assessment criteria as needing to leave that home in order to go permanently-or where it is expected to be permanent-into a residential care or other home setting. As we go through these definitional issues, it is important to recognise that these are real situations often involving vulnerable people in emergency situations.

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Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill

I have the feeling that we may have more time than the hon. Gentleman thinks; I cannot recall a clause being given a whole day for consideration, but we will make the most of the time we have. The hon. Gentleman is putting a quite serious amendment before the Committee, as it ranges from "extra care housing" all the way through to "care home without nursing" and "care home with nursing". If we were to endorse his amendment, what would be the implications, particularly financially, for local authorities?

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I hope that the right hon. Gentleman has been listening-well, he has obviously been listening, but I hope that he heard my saying that this was a probing amendment, so the Committee will not have the opportunity to endorse it. As I said, it is deliberately intended to probe the Government's intentions on who should be included, as well as who should be excluded, as my right hon. Friend Mr. Dorrell said. With great respect to the doubtless very thorough briefing prepared by Labour's backroom people, it would be helpful-particularly given that all the questions relate to the same issue-if it were recognised that tabling a probing amendment does not necessarily invite Members to pass it. The amendment was tabled as a probing amendment and it was designed to elucidate information from the Government. That is precisely the official Opposition's job.

I have already mentioned that the real debate on the issue will take place when we reach the amendment dealing with transitional arrangements, so I am keen not to get deflected by being forced to answer a question that really requires an answer from the Government. It is thus for me to ask the Minister whether he is happy with the drafting of provisions intended to cut out residents of care homes altogether. Are there no grey areas or any difficult marginal issues? Is the Bill drafted in such a way and is the money resolution so tightly drafted as to make it explicit that people who have done the right thing could none the less be automatically excluded because they own their own homes?

Is the Minister happy to put this issue on the backburner, since the Bill has thwarted the Green Paper's aim? The Minister has asserted outside the House that all this is consonant with the Green Paper process. On the contrary, it has thrown a spanner in the works of the process of examining social care as a whole. That means taking account of those who own their homes as well as those who do not, and those who have assets as well as those who have none. It means taking account of very different levels of care need, and of problems relating to the interrelationship between health and social care. Many Members have reflected their constituents' concerns in referring to efforts to persuade the NHS and social care providers to be a little more flexible at the margins in order to prevent the terrible difficulties that people experience in trying to gain access to appropriate care and support.

I wonder why the Minister could not at least consider-we invited him to do so on a number of occasions-presenting this Bill in tandem with a measure similar to our home protection scheme. It would have been fine for him to claim authorship for it if he had wished. That would have dealt with the difficulties confronted both by homes and by those receiving care in them, as well as by those receiving care in a different setting. Is the Minister satisfied that what I hope he will accept is the somewhat clunky drafting of subsection (2) is strong enough to prevent a legal challenge?

On Second Reading, we drew attention to the dangerous impact that the subsection could have on residential care supply. If people are given an incentive to invest in extra care at the expense of residential care, that could distort provision. There is also another issue of more immediate concern. I shall exaggerate it for the sake of the argument, but I hope the Minister will accept what I say in the spirit in which it is meant. The whole point of scrutinising legislation is to ensure that a Minister has no defence if he subsequently says that the consequences of that legislation were unintended. If at this point I describe the problems and mischief that the drafting allows, and if those problems and mischief indeed come to pass, it will be wholly legitimate for me to say, "No, Minister, I warned you, and it was therefore entirely intended for this to go wrong", and the Minister will have no defence.

When a care home owner wakes up on the day that the Bill is passed and seeks to outsource provision to a company that he or she wholly owns, will it still constitute care and accommodation provided by "one establishment"? What, in fact, is the legal definition of "establishment"? Can the Minister confirm the possibility of a loophole in the legislation? He has confirmed to me in a written answer that

"It is open to any residential care home to reshape their service".-[ Hansard, 8 December 2009; Vol. 502, c. 281W.]

Will he also tell us the potential cost of the exploitation of such a loophole to the taxpayer? What if 100 per cent. of those in care homes with critical care needs became eligible for free personal care? I would have hoped that if the Minister could not answer that question now he might write to me, but he has already said that he is not prepared even to do that.

The legislation was drafted in haste on the basis of a back-of-the-envelope impact assessment. The Minister has already confessed in writing that that impact assessment was wrong and needs to be corrected. It consists almost entirely of estimates. Given the mess that the Labour party has made of our public finances, it is more important than ever for the Committee to be informed of the potential liabilities of the taxpayer should there be loopholes in the Bill.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I can probably find common cause with Mr. O'Brien in certain respects. I understand his desire to probe the Government and secure greater clarity. As was observed by Mr. Dorrell, a former Secretary of State, it is plain that at some point the Government will have to go further. I see no moral justification for excluding a group of people with fairly serious care needs from Government help, whether they are in their own homes or in residential accommodation. At some point in the near future, we will require a personal care not at home Bill to address that need.

I might part company from the hon. Member for Eddisbury on this point: he and his party have proposed the idea of a home protection system, under which, for a fee, the totality of a person's residential costs will be met. I believe that that would create a strange precedent, because for the first time an individual in this country would not be responsible for providing their own board and lodging. It has always been a principle that we are all responsible for providing our own board and lodging. Even if we have to pay for it out of benefits, that is still taken into account. The Opposition's solution to the problem would go against that principle.

In probing the matter before us, the hon. Gentleman has set running some hares that perhaps need not be set running. I am particularly concerned about the fact that he is attempting to exclude extra care housing, because I believe that it is a model for the provision of care for older people in the future. Indeed, the huge majority of older people tell us they would aspire to such an arrangement were they to develop a care need because it means that they could live in their own accommodation.

If the hon. Gentleman looks at the Department of Health website, he will find a clear definition of extra care housing, not least in the guidance for a competition in which developers were invited to bid for an £80 million fund to build extra care accommodation. One of the key elements of the definition is that the individual lives in their own home. They might have bought their extra care accommodation or be living in it as a tenant, but they will have security of tenure; they will have self-contained facilities so that they can cook and have access to their own bathroom and sanitary facilities; they will have their own front door that they can close to the world if they so wish, and they will be able to arrange their care needs themselves.

The current system of means-testing people has the added advantage that, given that the accommodation will be the person's own home, the value of that home cannot be taken into account in the means test. The person might be looking to protect some of their savings, and that is a good way of preserving equity and passing it on to children-that might be important to them. I believe passionately, therefore, that extra care housing is a model that we need to promote. I believe that the Government have accepted that, and until we started debating the Personal Care at Home Bill and amendments to it, I always thought that the Opposition wanted to promote it as well. However, in the light of Second Reading and-on the face of it-amendment 9, I am now seriously worried about whether they understand the nature of extra care housing and its importance in the future.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

Is the hon. Gentleman not missing the point? We all agree that the desirable developments being debated represent the direction of travel that we should be encouraging. However, given the artificial divide in such services that the Government are creating, my hon. Friend Mr. O'Brien was seeking to establish on which side those listed in the amendment will fall.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I understand the purpose of the probing amendment, but I would be less worried had the shadow Secretary of State not shown on Second Reading what to my mind was a vague understanding of what extra care housing is all about. He seemed to misunderstand completely the function and nature of extra care accommodation. I became doubly worried when I read amendment 9 and saw that once again the Opposition were seeking to list it as one type of accommodation that should perhaps be excluded from free personal care.

I was reassured to hear the hon. Member for Eddisbury say that this is a probing amendment and that he did not intend to exclude extra care from the provisions. I look forward to engaging with him later in the debate about transitional arrangements when perhaps we can explore the matter a little more, and I encourage my hon. Friend the Minister, when he responds to the amendment, to provide the clarity that the Opposition are seeking about the types of accommodation in which one would be eligible, under the Bill, for free personal care, and to reaffirm the Government's support for extra care accommodation. If that is his response to the amendment, I hope that later in the day we might hear an acknowledgement from the Opposition that they also understand the importance of extra care, and that they, too, will support it in their future policy.

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health) 4:15 pm, 12th January 2010

Although I am pleased that we are having the Committee stage of a Bill on social care, I must begin by saying that the Liberal Democrats, too, have real concerns about the timing and process in respect of this Bill. The Bill has one clause and covers less than two sides of A4 paper. The way that it was announced was regrettable; it was announced not to the House, but to the Labour party conference. It is also only one piece of the jigsaw in terms of the great social care crisis. It was announced mid-Green Paper consultation and pre the White Paper that is supposed to be published in a few years, and came with a clearly inadequate impact assessment. Regardless of what the policy is, this is, as Lord Lipsey said,

"a very bad way to do policy".

Turning to the amendments, it is very important that we start with accurate definitions, not only of what is a care home, but of what we mean by personal care. I regret that the amendments that were selected do not include one that probes what we mean by personal care. An understanding of that definition is even more fundamental than what we mean by people living in their own homes, or care homes. I draw the House's attention to the detailed and interesting definition of personal care suggested by Help the Aged and Age Concern, and I regret that we will not get a chance to debate that.

We must also look at the experience in Scotland-at the situation that has developed there arising from a lack of clarity about what is meant by personal care. This Bill presented us with a great opportunity to look again at, and clarify, what we mean by personal care, but that opportunity has been missed.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

The definition of personal care is already very thoroughly covered in existing legislation, which is why it does not need to be in this legislation, and why the hon. Gentleman's criticism of the Chair for not choosing an amendment on that is rather unfair.

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

That is the hon. Gentleman's opinion, and he is-

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The Chairman:

Order. Dr. Ladyman should not presume a degree of censoriousness on the part of the Chair, which the occupant of the Chair had not leapt to make clear. So I think Greg Mulholland has got away with it.

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

I thank you for that, Sir Alan. Dr. Ladyman is entitled to his opinion, but Help the Aged and Age Concern are equally entitled to theirs, and I know who I would listen to first and foremost when discussing policy of this nature.

Turning to the two amendments of Mr. O'Brien, I share the concern that there is insufficient clarification of what is meant. Mr. Dorrell has put his finger on the key point: what is crucial to consider is who is excluded by the Bill. It touches only a tiny number of the people who are affected by the problems of the social care crisis, which has been getting worse for many years.

In terms of the amendments, however, I have some concerns about the definition offered. Concerns have rightly been expressed about what is meant by extra care housing, but we must also consider the meaning of "sheltered accommodation" and "warden controlled accommodation", which are mentioned in the list in amendment 9. What do we mean by "sheltered accommodation"? Is there an absolute definition of that? I suggest that there probably is not-there certainly is not from a legislative point of view. Is it not possible for someone to buy and own or, indeed, to rent what is clearly their own home in which they live but for it to be subject to some oversight from an organisation and thus fall under the category of "sheltered accommodation"? We are in danger of entering a minefield here, so we must be clear on this issue.

As the hon. Member for Eddisbury made clear, this is a probing amendment, so I just ask the Minister to give the Committee clarity. He must show that the Bill and the Government are clear about what is meant by people who are "at home" and need to receive this accommodation. They must make it clear that there is no possibility, in respect of sheltered accommodation, extra care housing or warden controlled accommodation, of people who are clearly living in their own home-in a way that any normal person would recognise-falling outside the remit of this Bill.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I congratulate my hon. Friend Mr. O'Brien on his amendment, and not because I think that he is seriously suggesting that it should be included in the Bill-he has made it explicitly clear that that is not his intention. He intends to focus the Committee's attention on the large group of people who are defined out of, or excluded from, the category of beneficiaries of the Prime Minister's pledge; as I said in my intervention, these are the people who are excluded from benefiting from the pledge.

Of course, across the House, we all acknowledge that this long-standing aspect of public policy has not been satisfactory. It was the former Prime Minister who, soon after the 1997 election, made it clear that payment for social care needed to be the subject of rigorous and profound examination. That is not the purpose of this amendment; it is an attempt to define clearly the large group of people who are excluded from benefiting from this Prime Minister's pledge, rather than focusing attention on the relatively small number who will benefit from it. The reason for focusing on the people who are excluded is to remind the Committee of the very much larger group of people who remain, as they have since 1997, suffering from a system of payment for social care that Members from across the House acknowledge to be inadequate.

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Photo of Norman Lamb Norman Lamb Shadow Secretary of State for Health, Liberal Democrat Spokesperson (Health)

The right hon. Gentleman is right to point out the large number of people who are excluded from this Bill, but this goes further than that, does it not? The imposition of the duty in respect of the small group of people who will be included within the terms of the provision could well adversely affect all those who are excluded, particularly those who are currently benefiting from care provided by local authorities on a discretionary basis-they could well see their care cut back.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

The hon. Gentleman is entirely right, because of course the cost of even this limited pledge is significant in public expenditure terms and the Government have made it crystal clear that no additional money will be provided to local authorities to allow them to meet the additional burdens that this pledge imposes on them. Thus, it must be assumed that somebody, somewhere else, who benefits from local government expenditure-as he says, it is likely to be other people who benefit from social service expenditure-will pay for this pledge from the Prime Minister.

As a result of the amendment tabled by my hon. Friend the Member for Eddisbury, I wish to focus on the implications of creating this distinction between the small group of people who will benefit because they receive "personal care at home" and the much larger group who will still have to pay for personal care under the old rules. What are the implications of creating that new distinction? I suggest that there are three such implications on which the Committee should focus.

The first is the short-term implication. A group of people who change their care arrangements according to their requirements will suddenly find themselves taking decisions based on a major cost implication that ought to be taken based on their care need. There will be two categories: those who are at home, who get all their personal care free; and those who are defined as out of the "at home" category, who will still have to pay for their personal care according to the old rules. It therefore matters hugely who is "at home" and who is not "at home", and the amendment tabled by my hon. Friend the Member for Eddisbury is an attempt to define precisely who is not "at home".

The former Minister, Dr. Ladyman, reacted to my hon. Friend's amendment by saying, "Oh, these people who receive extra care ought to benefit from the pledge." Perhaps they ought to benefit from the pledge, but if they do, the cost will go up immeasurably from the £500-odd million that the Government say that it will already cost. My hon. Friend is drawing attention to the fact that the much larger group of people who do not receive personal care "at home" will be the losers from this prime ministerial election pledge.

That is the first implication: where there is currently a logical development of care provision, in future there will be two categories and an anomaly created by the move from one category to the other. That is the first and immediate consequence. The second consequence, which is, in my view, much more malign, is that if this policy were to endure for any length of time, people would change their behaviour to ensure that they fell on the right side of the line to benefit from the pledge rather than on the wrong side of it.

Let me pose a few questions to the Committee. If personal care at home is free, but personal care delivered not at home is not free, is somebody allowed to move their home in order to ensure that their personal arrangements move from one side of the line to the other? Members of this House have learned over the past 12 months the dangers of moving their house from one place to another in order to qualify under rules under which one did not previously qualify. If we create a group of people for whom personal care is free and say that it is available only to those who are at home, we should not be surprised if people who receive personal care and do not qualify immediately change their arrangements in order to ensure that they qualify. The definition of what constitutes "at home"-of who is included and who is excluded-will be the subject of constant challenge as people change their arrangements to ensure that they qualify, although they originally did not.

I was reading the definition that the Government have offered of people who are excluded from the benefit of the pledge. Let me repeat it to the House. People are excluded if there is

"the provision of personal care to a person living in accommodation that an establishment provides to the person together with the care".

If I provide accommodation and personal care to my parents in my grannexe, will that be included or excluded? Is a grannexe where I or my family provide personal care to my elderly relative included or excluded? Is my grannexe an "establishment" according to the definition in this statute? It is unclear to me.

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Photo of Robert Syms Robert Syms Conservative, Poole

My right hon. Friend makes a very important point. He also raises the issue of whether the provision of personal care by a relative is likely to be acceptable, as it is in the Netherlands and some other countries within Europe, or not.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

Absolutely. If, as I profoundly hope given all the pressures on public expenditure, we are not going to get into the business of using taxpayer resources to pay relatives to give care, where will the dividing line be drawn, given that we are creating a very powerful incentive to people to change their behaviour?

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Photo of Norman Lamb Norman Lamb Shadow Secretary of State for Health, Liberal Democrat Spokesperson (Health)

The right hon. Gentleman makes a very good point about the danger of a partial solution changing behaviour and having perverse consequences, but does he not agree that the Conservative proposal carries the same risk in that the pledge relates only to providing for the cost, through insurance, of care in residential homes? That is also a partial solution that would influence people's decisions.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood 4:30 pm, 12th January 2010

The difference is that my party is committed to moving quickly to the development of a total solution. We have made it clear, and it has been clear in our thinking right back to my days as the Secretary of State, that we cannot do that by landing the bill, in either small or large stages, on the taxpayer. The Government also took that view until the summer; indeed, until a day in October the Government took the view that this was an unaffordable bill for the taxpayer. That conclusion must underlie sensible policy in this area, but it is under challenge as a result of the Prime Minister's pledge.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

May I take my right hon. Friend back to the difficulties that he rightly outlined about the definitional point and how things might change? Earlier, I gave an example about how an owner of accommodation might be able to change things by having two companies. I am reminded that on Second Reading Dr. Ladyman helpfully described as extra care accommodation a specific type of accommodation in which people might buy into a retirement village and be able to move around within it as tenants and leaseholders. It is precisely because such arrangements can be changed both by the owners and, as has been pointed out, by the tenants that we are having to raise these doubts through this probing amendment.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I am grateful to my hon. Friend for his comments, and I agree with him. What is clearly illustrated here is that any attempt to write into the statute book crude rules that create one category of free personal care and another of paid personal care will be fraught with difficulty, particularly when one is trying to do it at 20 minutes' notice, on the run, on the way to the podium at the Labour party conference. I agree with Lord Lipsey that that is one way not to make policy.

I have a final question to put to the Minister.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I shall look forward to putting my question to the Minister, but I shall give way one more time.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

The right hon. Gentleman is making some important points, but will he reconsider his statement that this is a crude way of achieving the objective? The measure simply removes the six-week limitation on free care from another piece of legislation that has been operating very successfully for some years. It is therefore anything but crude. The precedents and definitions have all been set, and all that the clause does is say that instead of the free care being limited to six weeks, it can be provided for much longer.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

With respect, I think that the hon. Gentleman is being disingenuous. My recollection is that the six-week limitation was introduced specifically to prevent policy from migrating in this direction, while still allowing the discharge of patients from hospital when they should no longer be in there. It was introduced to facilitate orderly discharge out of the NHS, rather than as precursor to the development of free personal care in the social care sector.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I certainly was not trying to be disingenuous. The legislation that is being amended says that the Government can tell local authorities in certain circumstances to provide people's care for free in their own home for a period of six weeks. The measure simply takes the six-week limit away. The rules and precedents that define the system are already established, so this is actually quite a neat and elegant way of achieving the aim quickly.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I genuinely listen to what the hon. Gentleman has to say, and I recognise that he has knowledge in this area, but I think that he is wrong on this point. He says that the measure simply removes a bureaucratic rule, but doing so changes the nature of the rule on free personal care at home. The six-week rule was designed to facilitate the discharge of patients at the end of their NHS care in NHS hospitals. It was not designed as a means of funding social care for anything other than the shortest terms in that context.

I have spoken about people changing their behaviour and so forth, but they will not do that in anything other than the most convenient way to ensure that they qualify for the six-week limit. Social care can go on for years, or even decades in some cases, so all the points that I have made about changing behaviour and the pattern of provision apply in a way that they do not in the context of the six-week rule.

My final question to the Minister is very important. Under the direct payments legislation, individual beneficiaries of social care can convert their entitlement to social care into a direct payment, but will that apply to personal care provided in the context of this pledge? If so, that is another extremely powerful incentive for people to change their behaviour in order to qualify under the rules.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

The Minister says that of course it will, but I challenge the Government on that. If the direct payments legislation does apply to care provided on this basis, I simply do not believe that, beyond the first few months, the cost of the scheme could be limited to anywhere near the £530-odd million that the Government have estimated for the scheme as a whole.

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Photo of Robert Syms Robert Syms Conservative, Poole

I am generally in favour of one-clause Bills, and most of us have sat in Committees considering Bills of 200 or 300 clauses. Nevertheless, such a short Bill means that trying to find out its implications presents a problem, and that Opposition Front-Bench Members must show ingenuity in engendering a debate that allows information to be put on the record. That information is needed so that the people who provide and receive the care can learn a little more.

I agree with my right hon. Friend Mr. Dorrell. I listened to what Dr. Ladyman said, and he has participated in this debate for a long time, but the change in the six-week rule does make quite substantial differences to the overall pattern of care.

If Opposition Members are cynical about the proposal that may be because one of the first things that the Government did after 1997 was to set up a royal commission that recommended free personal care, but that got dropped. Now here we are at the fag end of a Parliament and we get this rushed Bill, with questionable costings, which will fall after the election, and big implications for many of our constituents. Although amendments 9 and 10 may not be perfect, they at least allow us the opportunity to raise important questions.

The Government themselves produced the Green Paper, and I thought that it was a good effort at looking at the whole system comprehensively. The Select Committee on Health is looking at personal care, so it is a pity that we are rushing ahead with this option without taking a comprehensive look at things. When one rushes ahead one creates cliff edges and biases in a system that benefit some and exclude others. As I think the hon. Gentleman said, the implication is that, subject to the funding arrangements, we will have to add another bit to the Bill to make it more comprehensive in the future. Definitions are very important, and I am still not sure that we have got to the bottom of that argument.

Costings are also very important, and the Government are using the "magic pot of gold" argument that I have heard time and time again. The efficiency savings that they propose will be made at the expense of local government, which is going to have a difficult time over the next few years. Amendments 9 and 10 give us the opportunity to say a few words about that.

When the Minister responds, I hope that he can answer some of the very important questions that have been raised and give some reassurance that the Government have thought through the Bill's implications rather more comprehensively than seems to be the case at first glance. However, I fear that perverse incentives are now going to be built into the system. If local authorities have to provide more money but do not have the budget to do so, my concern is that they will deal with the changes by spreading what they have rather more thinly. That could mean that although 380,000 people will benefit from the legislation, if the funding is not sufficiently robust, they will not benefit to the extent expected.

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Photo of Norman Lamb Norman Lamb Shadow Secretary of State for Health, Liberal Democrat Spokesperson (Health)

May I pursue briefly the point raised by Mr. Dorrell with regard to direct payments? The Minister, from a sedentary position, said that of course the Bill provided for the support to be given by way of a direct payment, but when we sought to table an amendment to clarify that, we were told that it was outside the money resolution, and that that was not what the Bill provided for, because it provided for care at home.

If that is the case, the Bill will pursue policy in a very different direction from that which the Government have followed up till now, and the outcome will be the perverse situation that someone receiving care under means-tested arrangements will be encouraged to receive their care by way of a direct payment, giving them maximum flexibility in how they chose to spend that money, whereas someone receiving care as an entitlement by virtue of the Bill will be entitled only to receive care imposed on them, in a sense, by the local authority.

It is self-evidently important for the Minister to clarify whether the Bill provides for the provision of support by way of a direct payment. If it does not, it is clear that an amendment needs to be tabled by the Government if it is beyond the scope of Opposition parties to do so.

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Photo of Lee Scott Lee Scott Conservative, Ilford North

May I emphasise, as other hon. Members have done, that it is vital that whatever pressures are put on local government, it is given the full funding by central Government to pay for the measures, and that that funding is not expected to come from existing budgets, or it will not be viable and will not happen?

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

I am pleased to be taking the Bill through its Committee stage on the Floor of the House. In addressing the amendments, I should like to place my remarks in a slightly wider context.

Greg Mulholland said that the Bill was very small, but I can tell him that it will have a very big impact. As the Minister of State with responsibility for care services, I am hugely proud to take the Bill through its Committee stage and Third Reading this evening. The Bill will provide support and relief to some 400,000 older people with the greatest personal care needs in their own home-people with advancing conditions such as Parkinson's, dementia and motor neurone disease-and 280,000 people who require high levels of intimate personal care on a day-to-day basis at home will now get those services free.

As has been remarked, many of those people have faced the burden of paying large amounts of their own money-they do not lose their own homes; my hon. Friend Dr. Ladyman rightly corrected Mr. O'Brien on that-for care as their conditions deteriorate. The Bill will remove that millstone.

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Photo of Norman Lamb Norman Lamb Shadow Secretary of State for Health, Liberal Democrat Spokesperson (Health)

Is it not the case, though, that a significant proportion of those people whom the Minister identifies as benefiting already benefit by way of the means-tested system, that the net number will be significantly smaller than the number that he cites, and that, as the Government's own impact analysis demonstrates, the wealthiest group of pensioners will benefit most?

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

I do not want to stray from the amendments, but the hon. Gentleman is right to say that a number of people who will benefit for the first time are self-funders, and a number of people who pass the means test and qualify for free personal care will have that free personal care safeguarded as a result of the Bill. That is particularly important, given the uncertainties of the future.

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Photo of Simon Burns Simon Burns Opposition Whip (Commons)

I am grateful to the Minister for giving way. On a point of information, if the Bill were to become law and came into effect on 6 April, would people who are currently self-funding their care qualify, or would only new patients with medical conditions developing who required help be covered by the Act, as it would then be?

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

First, it is social care, not medical care, that is being provided. The hon. Gentleman's phraseology suggested that he was talking about medical care, and I want to make it clear that this is about personal care for people whose need is most critical and who need help with toileting, and so on. This is about intimate personal care.

A number of guidelines and regulations are out for consultation, and they will need to be enacted when the Bill receives Royal Assent. People will qualify from 1 October this year. The process by which that will happen will also be the subject of guidance, to ensure a smooth transition as people who are currently in their own home and who qualify under the appropriate criteria start to qualify for free personal care. The provisions apply not only to new entrants; people who are currently living in their own home and paying for personal care because they failed the means test will now start to get their care for free. A further 130,000 will receive free reablement or rehabilitation to help them to recover their independence after a fall, a bereavement or a serious illness. I will say more about that when we discuss the later amendments.

The Bill is based on the simple principle that we must do everything that we can to help people to live as well as they can and for as long as they can in their own home. That is what people tell us they want. This Government policy has been shared by both parties, at least since 1998 when the Griffiths report was produced. Indeed, Mr. Dorrell, when he was Secretary of State, supported the view that we should give as much support as possible to people in their own home, because that is what they want. I have listened to his remarks and those of his Front-Bench colleagues today, and I hope that that position has not changed. I hope that all parties in the House will support and respect the wishes of people-young adults as well as older people-to live in their own home.

Amendment 9 would amend section 15(4)(b) of the Community Care (Delayed Discharges etc.) Act 2003 so as specifically to list a number of settings in relation to which a six-week restriction on the ability of regulations to require provision of personal care for free would remain. The hon. Member for Eddisbury described it as a probing amendment, and I understand that, although I think that Labour Members listened quite carefully to ensure that that was the case and that the Conservatives' position had not changed.

The list in amendment 9 is entirely inappropriate, as it includes some settings that are more appropriately described in the way that clause 1(2) describes them, and some settings that we would describe as falling within the notion of living at home-such as extra care housing, sheltered accommodation and warden-controlled accommodation, all of which are listed in the amendment.

My hon. Friend the Member for South Thanet spoke from his experience as a Minister in this Department, and from his own professional experience, when he described the importance of extra care housing. I very much share his view. I listened carefully to the concern expressed by the hon. Gentleman that there might be game-playing among care home owners trying to change the status of their homes- [ Interruption. ] That was indeed mentioned on Second Reading; if I said this on Second Reading, I am certainly happy to put it on the record again.

It is for the Care Quality Commission to register care homes and extra care housing. Only care homes that genuinely change the nature of the care they provide to create extra care housing would be registered as such. As my hon. Friend said, we do not need to write all that into the Bill, because we have a regulator to ensure that the kind of behaviour described by the hon. Gentleman would not happen. The right hon. Member for Charnwood gave the example of granny annexes. People living in such accommodation would also qualify for free personal care because they are not in residential care accommodation.

The Bill does not list all types of accommodation. Its provisions are straightforward. Apart from the one circumstance of adult placements-we will discuss an amendment on that later-we have excluded anybody in a residential care home from qualifying for free personal care. Everybody else is included by default because they are not excluded. That is how the Bill is designed. It is an elegant way-my hon. Friend described it as such-of achieving the policy goal that we want to achieve, which is to provide for and help people with the greatest possible needs who are living in their own homes.

The right hon. Gentleman suggested that we have identified one group but ignored everybody else. The problem with his approach is that it would be a case of saying that we should either do everything or do nothing-that we should not introduce this extremely important measure to help people in the most need in their own homes. Why did we introduce a carers strategy? Why did we introduce a dementia strategy? Why did we introduce a strategy on valuing people with learning difficulties? We did those things because we are building on, improving and raising the quality of care step by step.

Mr. Syms indicated, as he did on Second Reading, that he favours the Green Paper. I am delighted that I have a convert from the Conservative party. Indeed, many of his colleagues praised quite lavishly the Green Paper, which is being considered with a view to transforming the whole system. I am proud to be the Minister of State standing at this Dispatch Box leading on the proposal to create a national care service-how good can it get?-but that does not mean that I am going to stand still while I am waiting for that to happen; I want change now, as well. Step by step, the building blocks towards creating a national care service are being put in place, and this measure is a key part of that.

Amendment 10, as an alternative to the approach that we are taking, would insert a definition of "care home" into the Bill. We regard that as unnecessary. The description that the Bill uses in amending section 15(4)(b) of the Community Care (Delayed Discharges etc.) Act 2003 is

"accommodation that an establishment provides to the person together with the care".

We do not propose to change that. The hon. Member for Eddisbury proposes in his probing amendment that we should use the definition in the Care Standards Act 2000, but that is not right in this context because it includes some exemptions and exceptions and therefore would not accurately reflect the range of settings that we want to exclude from free personal care. We think that our approach is the right way forward.

In response to Norman Lamb, yes, direct payments would be a method of providing such free personal care if someone chose to go down that road. This is an important point about the very nature of the transformation of the care system. Increasingly, we want people to have more choice and more control over their care budgets, and direct payments are one way of doing that. Personal budgets, which are a development of that approach, are being rolled out across the country, with more than 100,000 individuals now receiving their care in that way, giving them choice and control. This is free care for the people in the most need. If they choose to have it through a direct payment or as a personal budget, that is absolutely the right thing to do. It will be up to local authorities to develop and implement this approach-that is what our extra £500 million for the transforming social care budget is all about. Some authorities are getting there quicker than others. I hope that the measure will provide an incentive for some of those authorities to start to develop their services in a way that we, and I hope the whole House, would like them to offer in taking forward their care provision.

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Photo of Norman Lamb Norman Lamb Shadow Secretary of State for Health, Liberal Democrat Spokesperson (Health) 4:45 pm, 12th January 2010

I am grateful to the Minister for clarifying that narrow point. However, should there not be an entitlement for the person to receive the help by way of a direct payment instead of leaving it up to the local authority to decide?

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

We will discuss issues to do with local authority discretion under subsequent amendments, so I will deal with that question then.

I think that I have answered all hon. Members' questions. I have explained why the Bill is framed as it is and why amendments 9 and 10 are inappropriate and unnecessary. I therefore ask the hon. Member for Eddisbury to withdraw the amendment.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

The debate has been extremely helpful and constructive in bringing out precisely what the amendments were intended to probe and elucidate. It has been acknowledged that where the dividing line falls is an issue to consider, and that we need greater clarification. It is possible that as the Bill progresses through its next stages in the other place, their lordships may wish to take up some of our questions to get that clarification, but we have had a good exploration of the matter.

As I said, these are probing amendments. I am glad that Dr. Ladyman felt reassured by the way in which I dealt with his concerns about whether there is mutual understanding on extra care communities and the home settings to which they relate. However, at one point he asserted that there was a principle that people do not get free board and lodging, as though that were somehow not to be challenged. That is not true either in a hospital setting or in many other settings. We need to be careful about announcing principles as though they were inviolate, when I am not sure that they stand a true examination.

As was reflected in the comments of my right hon. Friend Mr. Dorrell and others, it is important to recognise that despite some of the discussion that has taken place, we must not look at the matter as though it were simply about removing a six-week time limit and not changing any other circumstances. The hon. Gentleman gave the game away when he talked about certain circumstances, because circumstances have changed. The 2003 Act, which the Bill is intended to amend, addressed a different mischief that needed remedying-inappropriate bed blocking in hospital settings. This Bill is not about that; it is about doing something to support people in their own homes. It is not about removing people from one setting but about what they get in another, so the circumstances have changed. It was helpful that the Minister made that clear, but the way in which the matter was discussed at other times was not particularly appropriate. We need to be very careful, because the clause does not provide for some kind of simple removal of an element of a Venn diagram. It is definitional, because it deals with who can qualify. We even heard the Minister try to explain the understandably complicated matter of how on 1 October, if the Bill receives Royal Assent, the system will include both people who currently receive some care support, who may have to pay for it or may get it free, and others with different transitional arrangements. Later amendments will cover that matter.

This discussion has helped set us off towards a greater understanding of the complications of how the Bill is drafted and the concept that lies behind it. More importantly, it has helped to ensure that we get as much clarity on the record as we possibly can. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I beg to move amendment 11, page 1, line 10, after 'apply', insert-

'(a) '.

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The Chairman:

With this it will be convenient to discuss amendment 12, page 1, line 13, at end insert-

'(b) to such other arrangements for the provision of personal care as the Secretary of State may, by regulations, specify.'.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

Amendments 11 and 12 are intended to allow secondary legislation to stop the six-week restriction on free personal care. Amendment 12 is the operative amendment, upon which the Committee may wish to express its opinion depending on what the Government say. I flag up the fact that although it is not the lead amendment, it will be the appropriate one on which to divide if there is to be a Division.

It is somewhat disingenuous of the Minister to suggest that the provision in question is the direction of travel of the Green Paper. It is in fact a fully taxpayer-funded option, which was previously rejected by the Government in explicit terms, not least by the Secretary of State and the present Minister, because the working population of this country is shrinking as a proportion of the total population. That has been discussed and is widely recognised both in this place and by many experts and advisers outside. I refer the Minister to the Secretary of State's reply when he was keenly questioned by Members of his own party below the Gangway. He resisted their calls for taxpayer-funded options for social care, saying that it would not be

"fair across the generations to ask the working age population to pay" for care. He continued by saying that

"it would not be honest or straightforward to give the impression that we can fully fund a care system entirely from general taxation."-[ Hansard, 29 October 2009; Vol. 498, c. 479-81.]

We agree, and that is part of the challenge in the Green Paper that we are all considering. However, this Bill proposes, for the class of people outlined in it, to provide an option for care fully funded by taxation. That is inconsonant, to put it one way, with the direction of the travel in the Green Paper, although some might call it disingenuous.

The Minister confessed, in a parliamentary answer:

"It is very important not to conflate the funding for a national care service with the funding for the Government's Personal Care at Home Bill. The Green Paper"- unlike this Bill-

"is about building a sustainable system for the future".-[ Hansard, 5 January 2010; Vol. 503, c. 277W.]

We all agree with that, but does it mean that the Minister is suggesting that this Bill is not sustainable for the future? Does he in fact agree with the point made by my right hon. Friend Mr. Dorrell in the debate on the previous group of amendments that the Bill is a step along a path that may be distinguishable in legal terms, but will certainly be superseded in policy and legislative terms. That is a genuine question, and it is why we have included enabling powers in amendment 12.

The Minister has also said in a parliamentary answer that the measure in the Bill

"was not considered in the Green Paper"- that is a confession-

"because it is a step towards that National Care Service. The Green Paper puts forward fundamental proposals".-[ Hansard, 9 December 2009; Vol. 502, c. 497W.]

If this is not a fundamental proposal, does that mean that the Government plan it only as an interim measure?

The best way for the Government to make earnest on their pledge that this Bill is a step towards the full reform of social care would be to make this Bill more enabling in terms of additional policy options. One of those could be our asset protection scheme, which would involve the option of paying £8,000 at age 65 by those who have sufficient assets. Those who do not have such assets would continue to be protected, and those who did not take up the option would be in no worse position than they are today. Those who did take up the option would be entitled to residential care for life, should it be necessary. Who is to say that similar schemes could not work alongside the Government's measure in domiciliary care? We are not precious about the scheme, and it would provide an opportunity to widen the Bill and bring in a much more comprehensive approach that would genuinely be consonant with the Green Paper, which was welcomed-and urged on the Government-by both sides of the House.

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Photo of Robert Syms Robert Syms Conservative, Poole 5:00 pm, 12th January 2010

My hon. Friend makes an important point, but one of the problems with providing free personal care is that it tends to undermine the argument for a private insurance option, which may have to be one of a range of options if we are to look after people in old age.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

My hon. Friend makes an important observation. I do not wish to underestimate the importance of this issue. We all accept that we face a serious challenge on this issue, and the question is how we measure up as policy makers and legislators. The issues include access, fairness, quality and appropriateness of care, both in the home and in a residential setting. It also involves major social issues such as the intergenerational responsibilities that we all have as members of the working age population for those who are beyond earning age or who have never had the capacity to earn or look after themselves because of some form of difficulty or care need.

My hon. Friend is entirely right to set the Bill in the context of the Green Paper process. We are challenging the fact that it does not sit well with that process, which the Government have already defined. Whether or not we end up with the social insurance model for all aspects of care need-he mentioned that, but I note he did not necessarily advocate it-is part of the discussion and the consultation. I fully accept that the Government have been conducting a consultation and I look forward to their assessment, which will inform us of the context of today's discussion, including on amendments 11 and 12.

We feel strongly that amendment 12-the operative amendment-gives an opportunity to air the questions that my hon. Friend asks in the context of the Green Paper process, which is vital. As the Government know, that process has been widely welcomed, even if it has come late and been postponed. It follows a series of other Green Papers and consultations, but is none the less a step in the right direction. The concern is that the Bill does not feel as if it is consonant with the process.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I support the idea behind the hon. Gentleman's statement that what we ultimately need is a comprehensive model for providing social care, and I have made it clear in my remarks on the Bill that more finance from people themselves is going to be necessary if we are to have that. However, will he confirm whether amendment 12 is a probing amendment? My understanding is that the proposal would give the Secretary of State power to introduce such new arrangements by diktat, without ever having to come back to the House for a proper debate or to discuss a new Bill in future. That seems to me to be an awful lot of power over an awful lot of expenditure to put in the hands of a Secretary of State, even one who is as good as our current Secretary of State.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

Aside from the enjoyable little tail to that question, which I am absolutely sure deserves a job, I have not confirmed whether amendment 12 is a probing amendment, because I genuinely wanted to test the opinion of the Committee. I am not suggesting that I will therefore press it to a Division; rather, I am seeking to test whether there is an opinion in the Committee that the way the Bill has been introduced fits well with the overall direction of travel. I dare say that there could have been a touch of irony in a debate on amendment 12-if Hansard can record irony-because it might have revealed whether the hon. Gentleman was confident that a Labour Secretary of State would be exercising the powers, or whether he thought there would be a Conservative Secretary of State. However, I would not presume to take such powers on behalf of my hon. Friend Mr. Lansley if the electorate decided that he should be Secretary of State.

The amendment seeks to test whether the Committee thinks it appropriate that we should be discussing the matter in a wider context. Greg Mulholland, who speaks for the Liberal Democrats, twice mentioned that the extreme tightness of the drafting in the money resolution, which is deliberate on the part of the Government-but that is how it is-has clearly made the selection of the amendments particularly tight and challenging. Amendment 12 has given us the opportunity to at least have a sense of getting that discussion moving. We will decide whether the Committee needs to give it a better airing once we have had our discussion.

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Photo of Norman Lamb Norman Lamb Shadow Secretary of State for Health, Liberal Democrat Spokesperson (Health)

To pursue the point raised by Dr. Ladyman, does Mr. O'Brien accept that amendment 12 could allow the Secretary of State, whichever party wins the election, to implement wide-ranging reform, without this House having any opportunity to debate it properly? Does he accept that that would be inappropriate, and that there should be primary legislation in the new Parliament to implement fundamental reform?

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

The hon. Gentleman fully accepts, I think, that although the Secretary of State, in his current role, has made it clear that, as part of a legacy, or whatever he wishes to claim for it, he seeks an unstoppable momentum beyond the next election, our concern is that, strangely enough, the Bill is in danger of not creating that momentum. Indeed, it could do the opposite, because it is not consonant with the whole approach to the reform of social care that we hope the Green Paper process, which so many of us have bought into, will achieve.

I fully accept that, ultimately, there is only one way forward, which is for the country, through its elected representatives across the House, to seek a genuinely broad consensus. We will never satisfy either those who think there should be a fully taxpayer-funded option or those who think we should have a complete free-for-all in the private market. The solution lies somewhere between the two. We have had that discussion with Government Members. We know that a number of them would not go along with what has been proposed, so reaching that point will be a tough challenge. That is why amendment 11 is important in clarifying the intent. However, I will wait to see how the Committee feels about the issue before I make a decision on whether to press the amendment to a vote, because I take seriously the idea that we need the best and most solid consensus that we can achieve.

One thing that I should say-I see that the Minister is in discussion at the moment-is that it would be helpful in building that consensus if there were a genuine willingness on the part of the Government to start some discussions and to invite in those of us who wish to build that consensus. However, while we remain only in discussion across the Dispatch Box, which is necessarily a somewhat scrutinising and adversarial approach, we diminish our chance of achieving consensus. However, that is perhaps the nature of the run-up to the election, with the tribalism now being displayed.

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Photo of Robert Syms Robert Syms Conservative, Poole

I would like to bring my hon. Friend back to amendment 12, which is excellent. I thought that its drafting was intended to engender a debate not about what the Government are doing in the Bill, but about what they are doing in guidance and consultation. We do not know whether there will be statutory instruments or whether they will use the positive or negative procedure. A lot of the detail will be discussed in consultation and decided after the Bill has been passed. We will therefore not know the shape of the Bill until we see what comes forward. Is that not one of the arguments against rushing the Bill? Should we not have the consultation and then the Bill, rather than the Bill and then the consultation?

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

My hon. Friend makes an outstandingly good point, and that is precisely why we have been so concerned about the rushed nature of the Bill. We know its provenance: we know how its timing came about and how it must have been a hell of a sweat, in a certain room at a certain hotel, in a certain month-September-with a certain Prime Minister. That said, we should pause and ensure that we do not lose the many gains that we have made in this debate over many years, as my right hon. Friend the Member for Charnwood has observed. It is vital that we should see the Bill in that context.

The whole point of amendment 12 is precisely as my hon. Friend Mr. Syms described. It is not just the whole context of the Green Paper that is important; there will, of course, be a vital need for guidelines. Indeed, in his response to the first group of amendments, the Minister talked about the need for guidelines and so forth. However, the timetable for those guidelines seems to be out of sync. It is my great hope-I will no doubt repeat this later in our proceedings this afternoon-that the Government will take seriously the point that there is a certain technical obligation on them, as well as a moral obligation, to ensure that they get the consultation and guidelines processed, reported and acted upon, with conclusions recommended as a result of that broad, wide-reaching and consensual consultation, before the issue is considered in the other place. Without that, there is a grave danger that the Bill will be rushed through both Houses without the benefit of accessing that broader church of opinion, which Government Members have been as keen as I have to ensure is accessed.

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Photo of Laura Moffatt Laura Moffatt Labour, Crawley

I am listening carefully to the hon. Gentleman, but is he not trying to have it both ways? I would love to move directly to a national care service, as I hope many who have taken an interest in the Bill would too. However, I respect and understand the need for us to think carefully about the financial implications. Is he not giving the impression, particularly with amendment 12, of an open book for what could be achieved? By tabling that amendment, is he not giving the impression that something more could be delivered, when he knows that we are all under serious financial constraints?

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I do not think for a second that anyone in the House seeking to develop or implement policy responsibly or anyone who has any kind of sense of the reality of the world in which we live would suggest that anything should be proposed on behalf of our constituents without full funding behind it. That is why leaving it totally to the discretion of the Secretary of State would be entirely out of order. It is drafted in the way it is because the Secretary of State would not be expected to propose anything without coming along not only with an impact assessment-hopefully a considerably better quality one than we have suffered from with this Bill-but with a funding base to justify it.

To the extent that Laura Moffatt is suggesting a carte blanche, I do not believe that any legislation could come along on that basis. It is appropriate to ensure in Committee that we can have the wider contextual debate that we all seek. I know from previous discussions that the hon. Lady has been keen to see such a debate on the Green Paper, but we are concerned about the limitations of the very process that the Bill is imposing on us.

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Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill 5:15 pm, 12th January 2010

The hon. Gentleman has been extremely generous in giving way. His point in response to my hon. Friend Laura Moffatt is one of the most critical to bear in mind this afternoon as we Government Members probe amendments tabled by Opposition Members. The question of funding is particularly important, so has the hon. Gentleman consulted the shadow Chancellor and his senior Front-Bench colleagues? If so, will he tell us about the funding implications and who will bear the cost?

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am grateful to the right hon. Gentleman, partly because what he suggests is relatively flattering. Luckily, however, I am enough of a realist to recognise that, nice as it may feel, it is not the same as being in government when the Opposition's probing or other amendments are probed in turn by Government Members. I can assure the right hon. Gentleman that there have, of course, been extensive internal discussions, as he would expect, within my party-as I dare say there have been within his party-on how to grapple with this particular issue.

Those in charge of funding must be included. Why? Because, as I said before, there is probably no more predictable issue for the political generation coming down the track than this one. We know it is there; we all know it is pretty insuperable, but we have got to find a solution. None are more challenged than this generation of politicians in this House-either this side of the general election or after it when some may be re-elected-in facing up to this particular challenge. The right hon. Gentleman is rightly probing me on why I tabled certain amendments, but I am very conscious that we have had a series of discussions and open inquiries, not least the one led by my right hon. Friend the Member for Charnwood shortly after my right hon. Friend Mr. Cameron became the leader of the Conservative party. They looked into these very issues, so my right hon. Friend the Member for Charnwood has been able to advise us accordingly. That has led, in turn, to many discussions among and across many shadow departmental briefs.

I hope that that gives the right hon. Gentleman the reassurance that he sought-that this matter is being taken extremely seriously, as the issue betokens. If our generation ducks this one, we will be in grave danger. My plea to the Minister is, as I have said repeatedly from the Front Bench, that there could be a way to gain a better and more consensual approach, given that we are all in this together. At the moment, this has fallen somewhat flat, as the Minister has not formally invited me or Liberal Democrat Front-Bench Members to have a consensual chat about these matters. I would be very happy to participate in that, even if it were completely off the record, not least because there is a precedent-this relates partly to the amendment-for something along these lines in respect of pensions. There has been a greater degree of consensus on how to find a way forward on that subject, which was also a challenge for us and will be for those coming down the track. It is important to place that on the record in the light of the quite proper rejoinder of Mr. Clarke, who wanted to probe my amendment; whether or not it is a probing amendment has yet to be decided.

It is important to bear in mind the fact that the Bill amends the Community Care (Delayed Discharges etc.) Act 2003, whose purpose was to deal with what could have been described in legal terms as the mischief of bed blocking. Section 15 removed the limit at which care could be provided free of charge. I assume, although it may not be the case, that even if someone joined the social insurance risk pool mentioned by my hon. Friend the Member for Poole-the Government's Green Paper partnership option, for instance, is still very much under consideration-that would not count as a charge, in which case the Bill could make such a model possible. Given that Tony Blair promised reform 12 years ago, would it not be best for us to produce a consensus to make full reform of social care possible through the Bill? The amendment was intended to give us a genuine opportunity to consider that question.

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Several hon. Members:

rose -

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The Chairman:

Order. Before I call the next speaker, let me point out that although there are clearly serious matters at the heart of this debate, I have allowed some tolerance of the wider conceptual debate. However, I am not sure that we would be best served by the inclusion of a wider conceptual debate on every group of amendments, and I shall be paying attention in that regard.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I think there is some common ground between Mr. O'Brien and me. I agree that this measure must, at some point in the future, be swept into a more comprehensive and consensual package. I also believe that that comprehensive package must include some sort of asset protection scheme for those who go into residential accommodation, although I do not favour the scheme suggested by the Conservatives.

The hon. Gentleman said that the Bill had been dreamt up by the Prime Minister at short notice and cleared in time for a conference speech. I do not know whether that is true, but I do know that the Conservatives' response in the shape of their proposed asset protection plan was dreamt up in the seven days following the Prime Minister's speech, in time for their own party conference.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am happy to put on record that some of us had been working on the scheme for about three years. We were very glad to note that there just happened to be decent timing for its announcement.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I believe the hon. Gentleman; millions wouldn't.

As I have said, there is some common ground between us. I agree that we need to sweep this measure into a more comprehensive package. However, the hon. Gentleman's proposed way of doing that is completely irresponsible. It is not just that the Secretary of State would be given power to introduce a complete social care system by diktat. If the hon. Gentleman looks at the 2003 Act, he will see that regulations which, by implication, he would allow the Secretary of State to draw up would not even be subject to an affirmative vote in Committee. They would be subject to a negative prayer. So not only would the Secretary of State be able to introduce a system costing tens of billions of pounds every year without debate on the Floor of the House; he might not even have to take part in a debate in Committee if the Opposition did not spot his proposal and pray against it.

I assume that the hon. Gentleman had a gleam in his eye when he said that he did not know whether amendment 12 was a probing amendment, and that he is, in fact, probing. I hope that my hon. Friend the Minister will respond by saying that he agrees with me that this package should ultimately be part of a much more comprehensive reform.

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

I do not think that anyone could disagree with what has been said by Dr. Ladyman and, indeed, Mr. O'Brien about the need for a consensus. All along, much of the concern about the Bill has been that it is a partial solution which will help only a small number of people. We can, however, disagree on whether that would be a good step forward or unhelpful. There are different views on that.

On amendment 12, however, I too listened to the hon. Member for Eddisbury, and I do not think that any of us could have disagreed with the vast majority of the sentiments that he expressed, in his usual eloquent, if rather lengthy, way. Nevertheless, we should consider his speech in the context of the amendment. It reads:

"to such other arrangements for the provision of personal care as the Secretary of State may, by regulations, specify."

I cannot see how that relates to the sentiments in his speech.

The concern of Liberal Democrat Members is that the Bill is a partial solution and not part of the existing consensus. The Bill came in the middle of the consultation on the Green Paper, and I even wonder whether those involved in the consultation and in drafting the Green Paper had any idea that a Bill was coming when it was announced out of the blue by the Prime Minister. The Bill came in through the side door, but the hon. Gentleman's amendment would give the Secretary of State the opportunity to bring in anything via the back door. That would be even more regrettable and take us further away from achieving a cross-party consensus, which is precisely what we need if we are serious about moving the debate forward. If the hon. Gentleman presses amendment 12 to a vote, therefore, we will not support it.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I congratulate my hon. Friend Mr. O'Brien on being the first Minister of the next Conservative Government to propose a Henry VIII clause, seeking powers to create law by order on a wide range of subjects. He will, of course, be the first of many. Indeed, I suspect that he will propose many other such order-making powers in the months and years ahead. I have no doubt that Dr. Ladyman, like me, has proposed similar order-making powers in the past. Were he to read in detail some of the statutes that he has recommended to the House, he would see that they contain such powers.

Oppositions normally resist Henry VIII powers, rather than propose them, so I inquire of myself why my hon. Friend should have proposed such a wide-ranging order-making power. I have to say that I can see why he has done it. As the hon. Members for South Thanet and for Leeds, North-West (Greg Mulholland) recognised, my hon. Friend is in some sense responding to the challenge offered by the Minister, who, in response to the previous set of amendments, stressed that the Government consider the personal care at home policy an incremental change in the evolution of policy on social care delivery. That is, I think, the best gloss that can be put on the policy, and I congratulate the Minister on doing it.

As became clear during discussion of earlier amendments and debates on the Bill, however, in reality the policy will, if executed, create in the short term a series of clear anomalies. My hon. Friend is therefore seeking a power on behalf of the Secretary of State to create a safety valve allowing precisely the kind of incremental development of policy that the Minister said was the Government's intention. It is important to be clear why my hon. Friend's proposed safety valve will be so important so quickly, and to understand that we must recognise that we are dealing with a set of services for which demand is growing rapidly.

Ironically, the Government are creating a set of unintended consequences. They are saying that those living at home will receive tax-funded care, whereas those living in residential care will continue to rely on co-payment provision. I simply invite the Committee to consider which of those two funding packages is most likely to be able to respond to the very fast growing demand for these services in the years ahead. Is it the delivery of care at home, which relies on the ability of the Exchequer to pay for it, or the delivery of care in a residential context, which relies on a co-payment formula, requiring the care user to make a contribution?

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Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill 5:30 pm, 12th January 2010

I am listening very carefully to the debate, and my mind keeps going back to any number of discussions we have had in the past on community care, such as about the Griffiths report. A consensus developed then, part of which was that many people would be encouraged to live independently in their own homes while being properly supported through proper funding. When, therefore, has the change come in? I ask that because community care has not been mentioned at all this afternoon. Are we going back on that position, or do we accept that many people will reserve the right to live in their homes and should be given support to do so?

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

Like the right hon. Gentleman, I have a long memory on these subjects, and I agree with him that the debate on community care was motivated in large measure by a desire to provide-as the Minister rightly said-a proper package of care to encourage and enable people to live at home in the community rather than in residential contexts. That is what I was referring to when I said that the House should recognise that the statutory formula that the Government are now recommending to the House has a very sharp unintended consequence. We all agree that supporting people to live at home is what we want; everyone agrees that that is the better way of delivering care, and the right direction of travel, but it is that care package that is being cash-limited.

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

The right hon. Gentleman says that everybody agrees that providing free personal care for people in their own home so that they can live independently is the right direction of travel. Why then does his party's Front-Bench team propose a scheme of home protection that acts as a perverse incentive to encourage people to go into residential care?

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

With respect to the Minister, I did not say that we are in favour of a direction of travel that provides free personal care to people living at home; it is important that I make that clear. What I said was that we favour a direction of travel that encourages people, on a realistic funding basis, to live at home. That point has been made by the Minister and several others in the course of this debate. We want a funding basis for social care that encourages people to live at home.

The Government, however, are saying, "If you live at home, the taxpayer will pay." That is great, except that it means that the formula for the delivery of social care that we all favour is the one that is cash-limited. Ministers may not agree with this, but the hon. Member for South Thanet has said again today-and I whole-heartedly agree with him-that the formula for the successful delivery of social care that meets the underlying demand at a quality level that we would want to deliver has to involve a form of co-payment. That element of flexibility has to be in the scheme if in the years immediately ahead we are to be able to deliver the quality of social care that we want at affordable cost.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I reaffirm again that I agree that a form of co-payment has to be made. I regret that we have had to come down this road so quickly, because it has not been possible to get consensus on the form of co-payment. If the Conservative party had at any point during the Green Paper discussions suggested that it would consider some form of compulsory co-payment as well as the voluntary co-payment schemes in the Green Paper, there might have been a basis for discussion, but the Conservative party said it would only consider supporting voluntary schemes. On that basis, there can be very little likelihood of arriving at a consensus.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

As I have said, I have great respect for the hon. Gentleman in this area, but I do not understand the logic of what he just said. He says that he believes, as I do, that the successful delivery of social care requires co-payment, and he then says that agreement could not be reached with the Conservative party. I do not know what discussions took place between the Front-Bench teams, but I know that irrespective of whether those discussions were successful, he is using that as an excuse to justify a formula for the delivery of social care at home that does not rely on co-payment at all. It contains no element of co-payment; it is fully taxpayer-funded, and that is what makes this model unsustainable.

I make the point again, because it is important, that this approach creates a completely perverse incentive. The hon. Gentleman and I agree that providing the necessary flexibility for a realistic funding package for social care must involve co-payment. In the Government's view of the world-if this Bill is passed-where does co-payment apply in the social care context? The answer is only in a residential care context. In other words, the Government are setting up a formula that will restrain the ability of people to live at home, because the taxpayer will not be able to afford it, and that will, at the margin, shift people into residential care, because that is the basis on which the funding formula will work.

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Photo of Norman Lamb Norman Lamb Shadow Secretary of State for Health, Liberal Democrat Spokesperson (Health)

Does the right hon. Gentleman agree that this approach provides not only a perverse incentive, as he describes, but a central unfairness, in that someone who has critical needs and who is at home gets their care paid for fully but someone who, through no fault of their own, has to be cared for in a care home does not? That is unfair.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I agree completely with the hon. Gentleman, and I sought to focus on that point in our debate on the earlier group of amendments. By creating this distinction between personal care delivered at home and personal care delivered in the residential context, we will create a cliff edge. As one group will be cash-limited, because the Treasury is extremely cash-constrained and likely to become more so, and the other group will be less cash-limited, we will create a completely perverse incentive in the direction of the residential context, not the care-at-home context.

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Photo of Lee Scott Lee Scott Conservative, Ilford North

The Select Committee on Health, on which I am honoured to serve, is examining this area and taking evidence. The crux of the matter is that its suggestions might be of use to this debate, might provide a way forward for the entire Bill and might answer some of the questions that my right hon. Friend has rightly raised. Does he agree that its suggestions could provide some of the answers to these problems that we are debating?

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I agree entirely with my hon. Friend that all the work of the Health Committee and, indeed, of those who are formulating responses to the Government's Green Paper on social care policy development-presumably, that was one of the things that prompted that Committee to engage in its inquiry-is being pre-empted by this proposal. This measure is extremely good news and I understand why the Minister thinks it is popular among those who will benefit from the care that will be provided free. He said in his response to the earlier debate that we cannot wait until we can create a perfect world before moving forward, and I agree with that. However, when a Government move forward on an incremental basis, the Minister has an obligation to recognise the consequences of the incremental stages, step by step. That is the basis of the charge that I set at the Government's door; it is not that this proposal is undesirable for the people who will benefit from it-of course it is desirable for them-but it will create a series of perverse consequences and perverse incentives, several of which have been mentioned in this debate. I suspect that the Minister and his officials have probably thought those through and thought, "Oh goodness, how do we put a gloss on this?" However, nobody in No. 10 has properly thought them through.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I wish to clarify again for the right hon. Gentleman the point I was trying to make. Because the Conservative party has drawn a series of red lines that it is not prepared to discuss, according to all its public statements, it was clear to the Government that a consensus could not be arrived at in anything like the near term. A group of people with very serious needs-people with Parkinson's disease and Alzheimer's being the primary ones-are struggling at the moment, so as it was clear that we were not going to get agreement on the comprehensive package and the methods of co-payment to fund it, on which he and I agree, this Bill was necessary in the short term to address their short-term needs,.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I invite the hon. Gentleman simply to consider the point that I have just made: what will be the consequences of each incremental step that he is inviting us to take? If he agrees with me that the consequence of this policy formulation is to create an incentive in favour of residential care rather than care at home, for the reasons that I have set out, and if he agrees that in the long run we must provide a funding base for social care that includes co-payment, all I will say to him is that if, perchance, there were a Labour Government after the election-I profoundly hope that there is not-and if he were a Minister in it, I would look forward to hearing him make a speech from the Dispatch Box that explained to the House why it was a good idea to have free personal care ahead of the election whereas after the election that would evolve into a system of payment through co-funding for personal care delivered at home. That is the policy that I believe that he supported until the Prime Minister made his statement at the Labour party conference, and I believe that any incoming Labour Government would have to revert to it after the election-perhaps even before October 2010.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am most grateful to my right hon. Friend for giving way before he moves on from his quite proper riposte to and, to some extent, rebuttal of the statement made by Dr. Ladyman. In his earlier intervention, the hon. Gentleman justified the necessity of introducing the Bill, notwithstanding his adherence-quite rightly-along with the rest of us to the process of the Green Paper, suggesting that it was somehow impossible to obtain consensus and that it was all the Conservatives' fault. He prayed in aid the idea that there was no consensus because we Conservatives were not prepared to sign up to compulsory contributions. That has been a concern for us, and we have certainly found a way forward with voluntary contributions. However, the Government have not said that they are in favour of compulsory contributions either. On the contrary, they have said that there is a Green Paper process and that they have not come to any kind of conclusion. It is impossible for the hon. Gentleman to assert that any consensual discussions have collapsed when there have not been any such discussions. Moreover, the reason that he prayed in aid was not even proposed by his Government.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I agree with my hon. Friend and repeat the point that I made in my earlier response. It is odd to say, "The Conservatives would not agree with us on a voluntary co-payment basis, so we are going to go to a fully tax-funded model." I simply do not understand-

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I shall give way to the hon. Gentleman one more time, but I think that I have given him enough lives on this subject.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I have been very grateful. I want to put a point to the right hon. Gentleman on which I think we can both agree. Yesterday, the Liberal Democrats were 100 per cent. in favour of free personal care for everybody and today they appear to be totally opposed to free personal care for anybody.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

It is worth inviting the House to work out how long it is since Northern Rock or the Lehman Brothers collapse, and how long it has taken the penny to drop in the Liberal Democrat mind that the world has changed. Anyway, it is nice to see that the Liberal Democrats are back in sight, probably, of the land of reality. They are not there yet, but they are working their passage back. We look forward to welcoming them there again at some point in the future.

I have talked about the need to put a safety valve into the system, which is why I believe that my hon. Friend the Member for Eddisbury took the unusual step for an Opposition spokesman of proposing a Henry VIII clause. We have already touched on one other element to which I want to return, because it is important. It relates to the earlier amendment tabled by my hon. Friend. In response to the definitions of which residential units would qualify for free personal care and which would not, the Government were at pains to say that extra care housing constituted "home" but that a care home without nursing did not constitute "home". One does not have to be a great expert in this area to work out that if there is one category of "extra care housing" and another of "care home without nursing", they will fall on different sides of the dividing line. The Secretary of State will need a regulation-making power, and what is more he will need to use it on a weekly basis, roughly, to keep the definitions of those two categories separate in a way that would maintain the viability of the policy.

My hon. Friend the Member for Eddisbury has tabled the amendment in recognition of the fact that the Government are creating a policy context that will be fraught with anomalies and difficulty. The only way that it could possibly work would be if Ministers had the power to change the law virtually on a weekly basis-I use the phrase again-to prevent pressure from building in a way that would make the system unsustainable. That is particularly true given the Government estimate that the policy will cost £537 million. My hon. Friend Mr. Scott has already made the point that half of that cost would be unloaded on local authorities with no additional money being provided to them. I have talked to local authority leaders of my acquaintance about this issue. To believe that they will have sitting around in the next few years the kind of money that will be needed to meet the additional burden that the Government have imposed on them, and that they will not need additional resources, is simply to live in Liberal Democrat land.

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Photo of Robert Syms Robert Syms Conservative, Poole 5:45 pm, 12th January 2010

I have no great disagreement with amendment 11. I have thought about it, asked a few friends about it and I am perfectly happy with it.

I think that amendment 12, which is a Henry VIII clause, is well drafted. I am not sure whether we fully understand the implications of the Bill. We have heard from the Minister that there will be a sort of big bang approach and that by this October all care will be free. We have also heard about the financial arrangements for local authorities, and I am not sure how robust they will be. I suspect that there might well be arguments, case law and disagreements on this issue, so it would be quite useful to have the ability to amend the legislation-even by regulation, whether by negative or positive procedures-as we do not know how this story will unfold.

My right hon. Friend Mr. Dorrell has set out some of the difficulties regarding definition, and, at some point, the House might need to introduce regulations to make the system more workable. If we create a cliff edge by saying that care is paid for for those who stay at home but not for those who go into a care home, which means that some in the latter category might have to sell their home, we will be creating a pretty big incentive for families to try to keep people out of care homes. Given that the nature of the debate will change, we need a Henry VIII clause, and amendment 12 provides that perfectly well.

In terms of public policy, I would be more confident about the way that things will unfold if I had more confidence in the financial arrangements. I referred earlier to the potential £250 million to be found from savings. When we get to October, real money coming into local authorities will suddenly disappear; they will still have to fund the cost of care, but they might not have the resources to do so.

We have not discussed whether there might be a case for transitional arrangements, or whether there will be enough people to provide services to people in their own homes. Amendment 12 is therefore important, because it would enable the Secretary of State to return to the House with legislation covering new circumstances arising from the changes to home care introduced by this Bill that we cannot predict or fully understand at present.

As was mentioned earlier, the Health Committee is to produce a report in due course that may inform the public debate. If amendment 12 is adopted, that report may result in further changes.

The Government are consulting and may have to provide guidance. Will that guidance be presented through a statutory instrument, or will it have no statutory basis? We need to hear how the Minister intends to proceed. It would be useful if, when he sums up the debate, he takes the opportunity to set out what consultations and guidance the Government are undertaking. When does he expect the results to be reported? We need to be fully aware of the shape of things to come.

Amendment 12 is useful, although I agree that Oppositions do not usually propose Henry VIII clauses. However, events may unfold in ways that we do not expect and, as I pray and hope, we may well form the Government after the next election.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

In the light of the contributions made by my hon. Friend and others, and in advance of the Minister's remarks in reply, it might be helpful for me to confirm that this is, in fact, a probing amendment and not one that will be forced to a Division. I believe that the amendment has led to an extremely helpful discussion, and I hope that what I have just said has changed the tenor of the debate on this particular group of amendments.

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Photo of Robert Syms Robert Syms Conservative, Poole

That is useful information, although I may call the vote myself.

I think that amendment 12 is useful, not least because it gives the Minister the opportunity to set out what the Government are going to do in a little more detail, and because it looks forward from where we are today to the big bang approach in October. It is very important that more information is put into the public domain. The scheme's shape and funding must be made clear to local authorities. Its success or failure will not rest on whether Whitehall pulls a lever, but on lots of hard-working people in local authorities around the country being able to support and implement it in the way that the Government intend.

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

We have had an interesting debate on this amendment. My hon. Friend Dr. Ladyman described it as an "open ended carte blanche free hand to redesign the whole of the personal care system by diktat"-what a temptation that possibility offers! It is very strong, but unfortunately I am unable to support this probing amendment.

A number of important points were made in the debate. In moving the amendment, Mr. O'Brien once again challenged the extent to which the Bill and its proposals for free personal care for people at home with the greatest care needs were congruent with the Government's thinking on developing a national care service. I am absolutely convinced that it is a step along that path, as I said in the debate on the previous series of amendment. I set out then everything that we had done over the past 12 or 18 months to develop and improve this country's social care system, and I think that this proposal is simply another feature of that.

The amendment would allow a future Conservative Government to introduce changes to the care system, but the remarks made by the hon. Member for Eddisbury let the cat out of the bag. From what Mr. Dorrell said, it is clear that the Conservatives see what the Government are trying to do as a perverse incentive and an anomaly. I cannot think why the right hon. Gentleman would want to put out a leaflet with his name on it in my constituency, saying that providing free personal care was an anomaly, and perverse.

I shall have to check Hansard to make sure that I wrote this down correctly, but the hon. Member for Eddisbury said, "We do not want to encourage a policy of free personal care for people in their own home. This is not the direction of travel of Conservative policy." It is interesting that the amendment has flushed out what I think is the true intent behind the Conservative position on these matters.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

The Green Paper stated that free personal care was an unaffordable option. Is that still the Government's position?

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

We are, of course, seeking to develop our proposals for the creation of a national care service. We are building on the best practice that I know goes on up and down the country. That includes things such as greater integration of the health and social care systems or, as we discussed earlier, making sure that people get direct payments, because we believe that personal budgets give people more choice in and control over their care.

In developing our thinking for the future White Paper, we are looking at all the options, just as we did with the Green Paper consultation. We will also look at ways to take those options forward.

It is true that there are problems with funding the whole of the care system in full through the tax paid by people of a younger age. I have made that point before in this House: the hon. Member for Eddisbury has repeated my remarks, and I am happy to repeat them again in this debate.

There has been a demographic change in our population. Where there used to be four people of working age to one elderly person, over the next few years that will become only two. It will simply not be sustainable to maintain a system of care provision by taxing those people, but we will bring forward our solution to that problem when we set out our proposals for a national care service.

In the meantime, I am not prepared to stand by and see people in their own homes with the highest level of care needs-and people at the critical level need help with four activities of daily living-having to run down their savings and drawing on the help of loved ones to pay for the support that they need.

That is why the Bill is important, and I am disappointed that the Opposition do not seem to support what it proposes. I am also disappointed that the Liberal Democrats have decided to drop their pledge to provide free personal care for older people.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I am very grateful to the Minister for giving way. I asked him a very simple question, and I listened to his reply extremely carefully. It was a long reply, but I think that it can be accurately summarised. It is that the Government still believe that free personal care for everyone is unaffordable.

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

We will have to have that debate when we bring forward our proposals for a national care service. The questions will be to do with how we take those proposals forward, and what is a fair, affordable and simple system for providing better care for people, both in their own homes and in residential institutions as well. That is a debate that we will initiate in the near future, and I am looking forward to having it.

The right hon. Member for Charnwood said that our proposals were anomalous and acted as a perverse incentive, but when I challenged him he was unable to defend the home protection scheme that the hon. Member for Eddisbury proposed. That proposal is a private insurance scheme which, to protect a person's home-hence its name-covers only residential care. The costs are paid up front, although people need to have £8,000 to be able to afford it. It is optional-in other words, not everyone will take part in it-and partial. I have no doubt that it will exclude people with any underlying health condition, as they would not be able to get such insurance for the price £8,000.

The hon. Member for Eddisbury is going to struggle to sell his home protection scheme, because it would merely provide a small amount of support for a minority group of wealthy people. If he thinks that that will win him the next general election, he has another think coming.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I wish that the Minister would not assume anything about other people's policies without having studied them. The proposal does not make any exclusions for underlying conditions. All that has been subject to proper actuarial pricing.

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

That is even more intriguing. We are seeing the policy crumble as the hon. Gentleman speaks.

There has been talk of consensus, although the hon. Member for Eddisbury has spoken about how he has not been involved in any such discussion. However, it is a little tricky to try and build consensus when the Opposition decide to run an underhand and irresponsible campaign on their website suggesting that the Government are intending to cut attendance allowance and disability living allowance for older people. That is simply not true, yet the Opposition continue to run their campaign. It is a form of politics that generates anxiety, uncertainty and fear among older people, and does not fit with the party's claim to be compassionate and progressive. If they carry on with such scaremongering, the Opposition will build no consensus with Labour.

If amendment 12 is a probing amendment, I do not understand the impact that it might have on particular groups. I have made it clear that the intention underlying the Bill is that people with the highest care needs should be supported to live at home. I want to make it clear that we think it is important that adults who are part of an adult placement scheme do not miss out on this opportunity, so it is important to make it explicit, even if we do not do so with a broad set of regulations that Mr. Syms would welcome, that for the purpose of the Bill, adults on an adult placement scheme, who are often adults with learning disabilities who live with another family, are to be considered as living at home.

In our opinion that is the only situation that is required to be excepted from the six-week restriction on the free provision of personal care in accommodation where care is provided as an integral part of that accommodation. In other situations, it should be clear that people are living either in accommodation where care is provided as an integral part of that accommodation and are not eligible, or are living at home and may qualify for free personal care. So to give the Secretary of State further regulation-making powers, as described in amendments 11 and 12, although attractive, is unnecessary. I therefore ask the hon. Member for Eddisbury to withdraw his amendment.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 6:00 pm, 12th January 2010

The debate has been useful and necessary to help elucidate what we are all trying to achieve-a much more holistic approach to the reform of social care. I confirm that, as I made clear in an intervention, the amendment was a probing amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I beg to move amendment 13, page 1, line 17, leave out

'(including the exercise of a discretion)'.

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Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this we may take the following: amendment 16, page 1, line 20, at end insert-

'(c) exempt a local authority from providing personal care free of charge to a person eligible for or in receipt of continuing care.'.

Amendment 41, page 2, line 9, at end insert-

'(5A) After subsection (4E) insert-

"(4F) The Secretary of State may by regulations authorise a local authority to make transitional arrangements for a person moving from or to accommodation that an establishment provides to the person together with the care."'.

New clause 5- Portability of care packages -

'The Secretary of State shall make regulations to introduce a standardised assessment process to ensure portability of care packages between authorities.'.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I confirm that amendments 13 and 16 are probing amendments, the former about what the discretion in the Bill might entail, and the latter about how the policy will work in respect of continuing care funding. It is vital to obtain clarification from the Government on both issues. I hope the Minister will be able to tell me and the rest of the Committee what discretion is referred to in proposed new subsection (4B)(a).

On amendment 16, in the last quarter almost 45,000 people across England were in receipt of continuing care-a number that is likely only to increase. It represents about 10 per cent. of the total number of NHS beds in the country. What proportion of those would qualify as FACS critical? FACS is shorthand for the fair access to care services guidelines published in 2003 to provide councils with a framework for setting their eligibility criteria for adult social care, and thus to lead to fairer and more consistent eligibility decisions across the country.

The guidelines are being revised in the light of the Commission for Social Care Inspection report entitled "Cutting the Cake Fairly" and give the criteria for low, moderate, substantial and critical categories. The Bill deals only with those with critical assessed need. I assume that many of those in receipt of continuing care would qualify as FACS critical. If that assumption is right, will not the policy of free personal care seem to primary care trusts the perfect opportunity to offload people back on to local authorities? That is important, particularly as we face such tightened fiscal and financial conditions in the coming months and years. Whether the Minister or any of us likes it or not, there will be temptations for anybody in charge of a budget to see where they can offload their responsibilities.

Will the Minister also clarify whether the Coughlan judgment in the Court of Appeal in July 1999 makes the NHS specifically, or the state in general, liable for the funding of care, so long as it is free? The continuing care funding question points to a wider question of how the policy will work across the health and social care divide. Could the free personal care fund be rolled up into a joint budget?

Given that we are talking about the crossover between NHS and social care, will the Minister give some clarity to the noise that we have been hearing in the Health Service Journal about the Secretary of State's plans to hand social care over to the NHS in toto, in order-in the words of an "unnamed source"-to

"rip the heart out of Tory councils"?

He seems to have retracted from that position, I am glad to say, but is now saying:

"I'd feel very comfortable with primary care trusts increasingly merging functions with adult services."

The Minister hinted at something along those lines in response to the previous group of amendments. That is nothing new. Its progress has been hindered so far only by the Government's constant reorganisation, as we have argued, of the institutions within our NHS. I am glad to see that the Secretary of State said last Thursday in his evidence to the Health Committee:

"I am an integrationist on health and social care."

I look forward to the Minister's progress reports on that.

Amendment 41 addresses transitional arrangements. I promised Dr. Ladyman that we would return to that. Has the Minister thought about how transition might work, particularly as people will be moving from free care to care for which they are charged? Transition also raises the question of what happens if someone ceases to have critical care need. The Minister has confirmed in written answers to my parliamentary questions:

"Councils are under a duty to regularly assess"- let us leave aside the split infinitive-

"an individual's needs", and that if no longer critical,

"they would no longer be eligible for free personal care."-[ Hansard, 8 December 2009; Vol. 502, c. 295W.]

We are not talking about individuals who might get a bit better. We are talking primarily, I suspect, about the councils that might get a bit tighter. That is the worry. Has the Minister thought through both the pressure on individuals and the administrative problems for councils that will arise? I hope that in his response he will take the opportunity to spell out the details on the record.

New clause 5 was tabled by the Liberal Democrats. We look forward to hearing about the portability of their policy positions, given yesterday's announcement. In the light of their wish to reject their pledge of free personal care, how do they regard the funding of portability against standardised assessment needs? That is the issue presented in the new clause that will have to be addressed, not least because Mr. Clegg, as I understand it from yesterday's announcement, either downgraded or scrapped the £2 billion unfunded care guarantee that the Liberal Democrats announced when he became the leader of his party.

Leaving aside the various policy position changes, the serious point about new clause 5 is the postcode lottery that continues to exist across the country. Up till now, the Government were happy to say that that was the price of localism. There is a discomfiture that we are all caused by the tension between wanting to give local decision-making autonomy and ensuring that that does not result in unfairness, in the form of postcode lottery provision.

Last week the Secretary of State said that there were "limits to localism". Is he planning to abolish councils, or their powers in the process, as part of his way forward? It can be very disconcerting for people when the funding that they receive from one local authority is not matched by funding from a new authority that they move to. Can the Minister assure the Committee that anyone assessed as critical by one authority will be assessed as critical by all other authorities? As I pose the question, I think that the difficulty is apparent.

I am sure that the Minister has studied our proposals for common standards of assessment of need, which would be very helpful. If he wished to adopt that policy, we would be more than happy to let him do so. The case for new clause 5 will be presented by the Liberal Democrats. I urge the Committee to support all the other amendments.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

I am rather sad to hear Mr. O'Brien saying that this is a probing amendment, because I am quite attracted to the idea of removing discretion from local authorities in this matter. I also have a certain sympathy with the Liberal Democrats' new clause. If we are going to create a national care service, we shall have to create a common way of assessing people's needs and a common set of criteria against which to assess them, as was made clear in the Green Paper.

One aspect of this that none of the Front Benchers has tackled-the elephant in the room, perhaps-is that we will get genuine portability only if there is agreement on a standard level of funding. In other words, someone's condition would need to be assessed in the same way wherever they were, and they would then need to be funded at the same level wherever they were. That would take an awful lot of discretion away from local authorities.

This is going to be a difficult matter to tackle, but it must be tackled when we come to the White Paper. Although I do not believe that it is appropriate to address these matters in the Bill, I would like to hear my hon. Friend the Minister say that he understands that we are going to have to work to resolve them. I would like to suggest to him that, as well as having standard assessment criteria for people wherever they live, we might take the step, which I suggested on Second Reading, of making it compulsory for social care to be delivered from an adult care trust, in which the local authority and the local NHS are made to pool their resources and work together to deliver that level of care. That would go a long way towards resolving the tension between localism and the need to have a standard package of care everywhere. It would also help to bring NHS resources into focus in regard to delivering this care.

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Photo of Laura Moffatt Laura Moffatt Labour, Crawley

Does my hon. Friend envisage such a trust working in the way in which some of the very good, effective children's trusts are beginning to do? In them, people from different organisations and parts of the caring professions are really working together for the sake of the child. Does he believe that that would work in an adult trust?

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

Yes, absolutely. There are already good examples around the country of older people's trusts being set up. Torbay is a good example.

I had a conversation today with the Royal College of Nursing, which is concerned about how our community nurses will be involved in these provisions. I know that that subject is close to the heart of my hon. Friend, as she is a former nurse. If such adult care trusts were set up, community nurses would have a role in monitoring the care provided for people, either in their own homes or elsewhere. Those nurses would become more involved in the delivery of care, as well as in providing access to the resources of the national health service. They would be providing their skills alongside those of social workers from the local authority.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I agree with quite a lot of what the hon. Gentleman says about the benefits that can come from integrated trusts. Such trusts can ensure that an integrated service is delivered to an individual service user. Does he agree, however, that we should guard against believing that that is the only model that works? There are others that work equally well elsewhere in the country. Does he also acknowledge the danger of believing that, if something works well somewhere, all the problems will be solved if a Minister simply signs a piece of paper and insists that it should be done like that everywhere? Surely to goodness, the history of the past 30 years must demonstrate that that approach does not work.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet 6:15 pm, 12th January 2010

The right hon. Gentleman is right: we should have an open mind on what the right model is going to be as we move forward in these discussions. Whatever model or models we choose will have certain characteristics in common, however. One will have to be that the local NHS and the local social care services work closely together and that they have access to and flexibility over each other's funds. We must not minimise the difficulty of achieving that, however. I have said many times on the Floor of the House and in other forums that the only significant area of local government funding that is not ring-fenced for spending in a particular way is the money that the Government give to local authorities for adult social care. If we were to ring-fence that funding, we would take away a great deal of the localism, as we like to call it. We are going to have to address that issue as well, if we want to tackle this problem.

That is beyond the scope of the Bill, and of the amendment, however, and I believe that you would leap up and bring me to a halt if I went down that road, Mrs. Heal. I shall simply say that I am tempted by some elements of the amendments in this group. They deal with matters that we are going to have to face up to in the near future. I do not think that they are appropriate for this Bill, but if we reject them today, we must not reject them for ever.

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

I wish to speak briefly to new clause 5, which proposes:

"The Secretary of State shall make regulations to introduce a standardised assessment process to ensure portability of care packages between authorities."

That really is as simple as it sounds, but it is fundamentally important. I am seeking the Minister's reassurance that the proposal will be taken seriously, and perhaps looked at in the Lords. If that can happen, I will not press it to a vote. If not, I would be minded to do so.

The purpose of the policy behind the Bill is very simple. I have said that it offers only a partial solution, but it does guarantee free personal care for those with critical needs who live in their own home. In that case, surely someone who has been deemed to qualify under the terms of the policy should not be penalised if they move. People move to be closer to members of their family, for example. This applies often, but not exclusively, to older people, who move in order to get care from family members or to gain emotional support and greater contact.

I am sure that hon. Members have heard of many cases of people moving to a different area and having to jump through hoop after hoop, simply to receive the same level of care that they had been receiving before. It is bureaucratic nonsense, as well as a real injustice, when people with real needs are prevented from accessing the kind of care that they had been used to, simply because they have changed their postcode. It would be quite wrong for people to face that threat, as they might if the new clause were not introduced. Again, I ask the Minister to reassure me that that will not be the case. People could become marooned in a local authority area, afraid to move closer to their family or some other support network because they would have to go through yet another assessment process.

There are also costs associated with such reassessments. One can understand why a local authority might want to assess every new person moving into its area, but it does not make sense to do so if the assessment processes are as robust as they should be. A local authority should be able to accept the assessment or reablement process that has already shown that a person qualifies for free personal care at home. I firmly believe that we are talking about a very important element of the Bill, and I am concerned that this measure may be a flaw in making it work and a restriction on its potential positive impacts. I urge the Minister at least to reassure me and the Committee that that will be taken very seriously when the Bill goes to the Lords.

I am disappointed that the Conservatives, rather bafflingly, have chosen not to support the new clause, because it would not involve costs but in fact reduce costs at local authority level. If a local authority insisted on going through an unnecessary assessment process merely because it wanted to keep its own costs down, that would not make sense. Mr. O'Brien chose instead to make rather spurious party political points, which had the whiff of hypocrisy about them given the criticism that the Minister and the Government have received to the effect that this is simply about electioneering. Let us at least be a little sensible when we are talking about such serious matters.

I do not wish to push the new clause to a vote. However, can the Minister reassure me that it very much reflects part of the Government's thinking and that the measures in the Bill will not be undermined but will work in the way that he has told us they will?

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Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill

This has been an interesting debate. I want, if I may, to focus on the aspects that have dealt with the role of local authorities, with particular reference to amendments 13 and 16.

If Mr. O'Brien had the same objectives as my hon. Friend Dr. Ladyman, I might even be convinced myself by the argument on continuing care, but I have to say, in all candour, that I am not. What we have established here today, perhaps not for the first time, is the existence of a big difference between the Conservatives and Labour in terms of how Governments work with local authorities. I cannot envisage a situation in which, in the absence of joint planning between local authorities and the NHS, we can deliver the kind of personal care that we have all agreed on.

In relation to amendments 13 and 16, I am afraid that I must be even more ungenerous to the hon. Member for Eddisbury. Amendment 13 seeks to limit the discretion of local authorities in setting the eligibility criteria for free care. The Conservatives frequently condemn direction from Whitehall and extol the virtues of localism and local control, yet they then table amendments that would remove local freedom. I am not at all persuaded by that approach. I think that this is an essential argument about what sort of democracy we want to live in. Given that day after day, week after week, we meet councillors, directors of social services and others who have to implement our decisions, we should be a bit clearer than these amendments suggest about the very important role that local authorities play.

Amendment 16 seeks to exempt local authorities from providing free personal care for those in a state of continuing care. If we spell that out, it means, in effect, extended care for a person over 18 to meet physical and mental health needs that have arisen as a result of disability, accident or illness. The amendment is difficult to understand if we take the view that we are to have a relationship between central Government and those responsible for delivery. I have never accepted that local authorities should see themselves as enablers rather than providers, which the hon. Member for Eddisbury hinted at. There will always be a case for both things on the part of central Government and on the part of local government, and that should be recognised.

The amendment would exempt a section of the most vulnerable people from receiving free personal care at home because they are in receipt of continuing NHS care. I ask this question: why? I have not heard a convincing argument for it. If highly vulnerable people were to be treated in this way, significant costs to pay for care at home would arise. They should be entitled to the same support as everyone else in that group. The fact that they are receiving additional care from other sources such as the NHS should not take away the relevance of addressing their problem, having proper assessments, having a greater degree of advocacy than we have managed to discuss today, and delivering to those who need the personal care that I believe is so essential.

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Photo of Paul Murphy Paul Murphy Labour, Torfaen

I want briefly to follow my right hon. Friend Mr. Clarke by speaking to new clause 5, for which I have some sympathy, in relation to the portability of care packages.

I should like to talk about the extent of the Bill in so far as local authorities are concerned. Presumably, we are referring to English local authorities, not to Welsh ones, although the Bill extends to England and to Wales. I am slightly troubled about the view that the national care service that we are rightly discussing will be universal throughout the United Kingdom. I would not dream of talking about Scotland; however, in terms of the Bill's application to Wales, I am not yet convinced that there has been sufficient dialogue between Welsh local authorities and the Welsh Assembly Government about how this might operate. I believe that the Welsh Assembly Government would be very agreeable to the principles of this excellent Bill, and indeed some of its details. I hope that my hon. Friend the Minister can give me an assurance that proper discussions are taking place between Welsh local authorities, the Minister for Health and Social Services in the Welsh Assembly and, indeed, the Welsh Local Government Association about the parts of the Bill that impinge on the duties and activities of English local authorities.

In relation to the portability of care packages between English local authorities, there is a tremendous amount of movement across the English-Welsh border. Many people would find themselves in the same position as if they were to move from Derbyshire to Lancashire, as opposed to going back and forth into Wales from Gloucestershire or Merseyside. There are genuine cross-border issues, but also a worry that while benefits are UK-wide, the detail of local authority involvement in this package is for England only.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am most grateful to the right hon. Gentleman for allowing me to intervene. He is making a very important point that is, to some degree, covered in amendment 28; if we are fortunate enough to reach it, he might want to take the opportunity to explore this a bit further. I endorse some of what he says, speaking as the representative of a constituency with a Welsh border, where there are many incidents involving people travelling across the River Dee to access some form of health service, continuing care, social care or acute services. That is causing a pretty big nightmare for all those of us concerned.

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Photo of Paul Murphy Paul Murphy Labour, Torfaen

Yes, indeed. Over the past few years, in my ministerial capacity, I have been able to try to resolve some of those issues, although it is not easy.

I ask my hon. Friend the Minister for an assurance that there is proper dialogue and discussion between the Welsh Assembly Government and Welsh local authorities with regard to these issues.

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

Members have raised a range of issues, and I shall try to deal with them all. Amendment 13 would limit the functions that may be imposed on a local authority through regulations by removing reference to their

"including the exercise of a discretion".

That could severely reduce local authorities' ability to manage the costs of care. They are best placed to judge what is appropriate in their own situation, depending on their clients and the availability of their services. It is right that functions imposed on local authorities relating to eligibility for free provision should include the exercise of discretion, so that they can effectively manage the provision of free personal care in their local area.

The Bill will enable the Secretary of State to make regulations in specific circumstances, constrained by their having to relate to the provision of free personal care in certain settings. I draw Members' attention to the current consultation document on various regulations and guidance. I shall come to that in relation to new clause 5 in a moment. We need to include in the Bill the power to ensure that local authorities can properly be given a discretion, which will be specified in regulations. I urge the Committee not to support amendment 13, because we need to enable the Secretary of State to issue appropriate regulations.

Amendment 16 would enable regulations to exempt local authorities from providing free personal care to those eligible for or in receipt of continuing care. Continuing care means care provided over an extended period to a person aged 18 or over to meet physical or mental health needs that have arisen as a result of disability, accident or illness. An individual who needs continuing care may require services from NHS bodies and/or local authorities, and local authorities should also be able to provide free personal care to such people if they qualify for it. Where personal care is provided at home as part of a package of continuing care that it falls to the local authority to provide, there is no reason why the local authority should not be required to provide it free in the same way as personal care that is not provided as part of a package of continuing care. If an individual is entitled to services as part of NHS continuing health care, their package of care will be provided solely by the NHS and not by the local authority.

It is important that NHS continuing care and free personal care are recognised as different ways of delivering health and social care. In all cases in which it appears to a primary care trust that there may be a need for NHS continuing health care, the PCT has a duty to take reasonable steps to ensure that an assessment of eligibility is carried out. I hope that that directly addresses the concern of Mr. O'Brien.

On the Coughlan case, the position was confirmed in directions issued by the Secretary of State after the judgment. If a person is assessed for physical and mental health services under continuing care, that package should be provided solely by the NHS when the primary need is health-related. I hope that that clarifies the relationship between the two sets of funding.

Amendment 41 would provide the Government with regulation-making powers to authorise local authority transitional arrangements when a person moves to or from care home accommodation. Extending free personal care to care homes to cover transitional arrangements is outside the policy proposals that inform the Bill, which is about personal care at home, not care in a care home. Extending the policy as the amendment suggests would also substantially increase the costs of providing free personal care beyond the agreed financial envelope. For that reason, we cannot support it.

The hon. Gentleman talked in passing about a slightly different issue of transition-people who qualify for free care in their own home but whose situation improves to the extent that they may no longer need it. We believe that it would be unreasonable to continue to provide it. People are regularly assessed as their needs change, and that would apply in the circumstances that he described.

New clause 5 would place a duty on the Secretary of State to make regulations to introduce a standardised assessment process for free personal care, so that a centrally standardised process could ensure that care packages were portable between different local authorities. I hope that I can reassure Greg Mulholland and others who expressed support for the idea. We believe that to make free personal care fair and simple to understand, it will be necessary to develop a standardised assessment tool to assist councils in applying the eligibility criteria fairly, which I believe is exactly what the new clause is designed to achieve. We have already suggested that in our consultation document on regulations and guidance. I draw the hon. Gentleman's attention to page 16, which describes our intention to develop a standardised assessment tool for that purpose. That will be set out in regulations and guidance that will accompany the Bill, and we will begin commissioning for such a tool very shortly, so we do not believe it is appropriate to include that level of detail in primary legislation.

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health) 6:30 pm, 12th January 2010

That certainly goes some way towards reassuring me, but will the Minister be specific? Once an individual has gone through the standard assessment process in one area, will it not need to be done in another area? That is the key question.

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

It will be a standardised assessment tool described in regulations and guidance. There will still need to be local application of it, but the tool itself will be standardised in the way that I believe the new clause describes. That is what we are consulting on now through the consultation document. I hope that that reassures the hon. Gentleman that we understand the need that he describes.

That is a slightly different point from the one about the fair access to care criteria, which the hon. Member for Eddisbury mentioned. We have just completed consultation on fair access guidance, because there was concern that the level of local interpretation was such that unacceptable differences between areas were being created. New guidance, based on the consultation that we have put out, will be issued in March and will reduce the level of interpretation-I would describe it as misinterpretation-that was allowing for those differences. The combination of the revised guidance and the new standardised assessment tool will achieve the outcomes that he and the hon. Member for Leeds, North-West seek.

My hon. Friend Dr. Ladyman took the opportunity provided by the new clause to make a point about the integration of health and social care, and Mr. Dorrell echoed that. It is true that we are seeing different styles and different approaches to that integration in different parts of the country, and the right hon. Gentleman was right to suggest that there is more than one approach. He made some very good points about that. My hon. Friend made a strong bid for a particular model and described its characteristics, and I will take it as a contribution to our thinking about a national care service. It is not a matter for today, but we will have to address the dilemmas about ring-fencing and so on as we go forward.

I turn briefly to the questions that my right hon. Friend Mr. Murphy asked about the applicability of the Bill. I can assure him that we have conversations at official and ministerial level about that, although I would distinguish between the current Green Paper and White Paper developments and the Bill. The provisions in the Bill are only for England, and provisions in relation to Wales will simply give the Welsh Assembly Government the powers to take forward the proposals that we are making, should they wish to do so. We will get to amendment 28 later, but I wish to put it on record now that good practice is exchanged. I understand that the Welsh Assembly Government are consulting on their own Green Paper, and we need to ensure that we collaborate and co-operate across the nations to get the best possible outcome for all involved. We must also deal with the problems that the hon. Member for Eddisbury mentioned of people living very close to the border on either side.

I hope that I have answered all the questions that I was asked and, given my replies, I ask hon. Members not to press their amendments.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

This has been a useful group of amendments for extracting some helpful information-not least that we should have the result on the FACS problem that I mentioned by March. My question on new clause 5 had nothing to do with any lack of support for it, but concerned our anxiety about the lack of a copper-bottomed assurance that there was no cost differential. That underlines the importance of the Government noting the concern that, as this Bill is rushed through, we do not have even the draft guidance and regulations that will accompany it. That makes a big difference, because it would aid interpretation.

I hope that Mr. Clarke will give the same weight to my words as he does to those of Dr. Ladyman. I am sure that, given the values that the right hon. Gentleman seeks to espouse, he would not seek to discriminate as to our credibility just because we travel under different political colours. We used the same language, and the important point to note is that the questions that we asked about transitional and continuing care are difficult and have not gone away despite the Minister's fair stab at answering them. We will have to return to those issues, as they involve relationships with local authorities and whether they have the autonomy to deliver the high quality services that we all want while at the same time ensuring fairness and predictability. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I beg to move amendment 15, page 1, line 20, at end insert-

'(4BA) Any local authority not in receipt of funds from central government equivalent to the full cost of providing personal care to people living at home shall not be obliged to provide such care.'.

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The First Deputy Chairman:

With this it will be convenient to discuss amendment 48, page 2, line 4, at end insert-

'(4DA) The Secretary of State may by regulations restrict the cost to local authorities of providing personal care to people living at home.'.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

The purpose of amendment 15 is to probe again the £250 million efficiency savings on which this Bill depends. Can the Minister tell the Committee how he has calculated that figure? We worry that, as the impact assessment suggests, he has just plucked that figure out of the air.

Amendment 48 would give the Secretary of State flexibility to limit the cost to local authorities. The question is who is exposed if the Government have got their calculations wrong? Would it be the Treasury or local authorities? Should the Exchequer-the national taxpayer-bear the costs of any mistakes or should it be local taxpayers or even the recipients of care services?

The Local Government Association, in its briefing on the Bill, expressed its concern that the Government are not confident about the accuracy of their cost estimates. Many councils have already planned their savings and budgets for the year that the policy will start-2010-11. Councillor Ken Thornber, the leader of Hampshire county council-with West Sussex and Kent, it is one of the Conservative-controlled councils giving a good lead on social care-has said that his council would have to find between £5 million and £10 million above present projections.

This morning, I received a letter from the chair of the Learning Disability Coalition, Anthea Cox, which stated:

"We remain extremely concerned at what the implications for local authorities will be in terms of finding £250 million a year from efficiency savings. We are most anxious that these savings do not mean cuts in services for other needy people. It makes no sense to direct extra funding towards people who have their own significant resources as increasing the numbers of people who will become eligible for personal care funding at the highest level of need will reduce the funding available for those with substantial levels of need. There is considerable anxiety where the cuts may be made and the impression that care is being rationed for people with moderate needs. If an outcome of the Bill is further pressure on social care budgets this could well lead to further rationing."

The blunt truth is that if these savings cannot be found from the efficiencies somewhat loftily urged by the Government-but with no specific plan for achieving a penny piece of them-they will have to come from cuts or increases in charges. The biggest concern is that increases in charges will fall on those with substantial, moderate or low care needs. I asked the Minister in a written question whether charges are likely to be raised. He replied:

"Setting charges for social care is a matter for local authorities."-[ Hansard, 10 December 2009; Vol. 502, c. 553W.]

That does not provide much clarification.

There are equally serious questions about the £420 million central funding. Thus far, the Minister has confirmed that he will cut £50 million from public health campaigns, £60 million from management consultancy, £20 million from administrations costs-that is easy to say, but I wonder whether it will be his administration-and £62 million from research into cancer, dementia and other debilitating diseases. That is worrying given his recent claim that he is seeking to match our promise to increase research into dementia because of demographic changes and the profile of disease occurrence. Those savings add up to only £192 million, so I ask the Minister where the rest will come from.

Can the Minister explain why the summary of the impact assessment says that the annual enforcement cost of the policy is not applicable, but in a written answer to me on 14 December 2009 he said that it is estimated to be £27 million? How did he make that estimate? Are the illustrative grant allocations weighted, or are they simply produced according to the probable numbers in receipt of care at the critical level? How will the formula work?

What will the Government do to upskill and, if necessary, grow the work force to meet the demands of this measure to bring care to an extra 100,000 people? That is not strictly a local authority cost, but it will be a local cost. The Royal College of Nursing is

"very concerned about the impact that these reforms will have on the nursing workforce."

It claims:

"These changes will affect the workloads of health visitors, community nurses and specialist nurses-professionals who are already overstretched. The community nurse workforce, in particular, is ageing, with many due to retire in the next 10 years. With only 10 months until these measures come into force the RCN is concerned that there may simply not be sufficient numbers of properly trained social care and nursing staff to deliver the commitment to free personal care in the Bill."

Does the Minister plan the substantial investment in community nursing that will be necessary if these changes are to be successful? Has he found a source for the funding required?

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health) 6:45 pm, 12th January 2010

In many ways these amendments go to the heart of the Bill and its core problems. The Prime Minister announced the policy at the Labour party conference-we all have our views on why it was announced at that time and in that way. The Government announced the shiny, new policy and then said that they would fund only part of it, with the rest of the cost falling on local authorities that are already obliged to find huge efficiency savings-3 per cent. this year, rising to 4 per cent. next year. That is unacceptable, especially given how this policy was introduced. It is supposed to be implemented from October this year, but most councils have already set their budgets for 2010-11. All the savings that they have identified have already been earmarked.

The impact assessment has been roundly criticised, but the phrase that strikes most fear into those concerned about this area of policy is "inherent uncertainty", which is used about the costs of the implementation of this Bill. Simply to proceed on that basis, and to give an open-ended commitment to local authorities, which is precisely what the Bill will do, is entirely unacceptable. If the Government want to press forward with that policy, they are entitled to do so and to justify that. However, surely they should at least restrict the total contribution that must be made by local authorities, so that they can budget sensibly, as the Government rightly suggest they must.

There are other implications. The UK Home Care Association has raised concerns that the measure will put downward pressure on prices paid to independent sector providers, which provide 81 per cent. of publically funded home care, and that home care will be seen as a low-cost option compared with residential care. There is a danger that we would see a further deterioration in wages in the home care sector as a result of local authority pressure. There is already a huge turnover of staff in the care home sector-the rate is nearly a quarter. That is not good for the kind of care for older people that we would like.

The message from the home care sector-this is from UKHCA's very good briefing-is simply that

"there are no more pips to squeak" out of it to meet that kind of shortfall. If Mr. O'Brien pressed amendment 48 to a Division, the Liberal Democrats would support him. We all accept that we are in a difficult time of recession, but should the Government say, "We expect that large contribution of £250 million from local authorities, but we are not going to expect more"? Simply put, it seems that the sums in the impact assessment cannot be relied on, and therefore, if the measure goes through, local authorities can expect it to cost them significantly more than the Government's estimate.

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

Amendment 15 would effectively exclude local authorities from the duty to provide free personal care to people living at home on the ground of a lack of central funds. That cannot be acceptable. Local authorities have a duty to meet the eligible needs of their clients. They may take their available funds into account when deciding the level of resources allocated to social care for adults, but they may not refuse to meet a person's eligible needs on financial grounds.

It is true that, currently, councils may charge for non-residential services. When doing so, they should employ a means test to help them determine the charges to be recovered. However, it is right that the provision of personal care to those with the highest needs living at home, which will enable them to continue living at home, should be exempt from such charges. It is also right that local councils play their part in the provision of personal care to those living at home with very high needs as a way of supporting their local communities. I hope that alongside the measures in the Bill, councils continue to develop their universally available preventive services for those in their local communities. Such services offer local authorities the chance to invest in prevention and reablement now to prevent higher care costs in future.

I draw Members' attention to "Use of Resources in Adult Social Care", a comprehensive assessment of the ways that local councils make best use of those resources, which the Department published in October 2009. It enables a comparison between councils on their performance regarding how they go about using their resources. Councils can look at a number of examples of excellent practice, and find ways to deliver higher quality services at a lower cost. I highly recommend the document. Indeed, hon. Members might want to sit down and discuss it with their local authorities to ensure that the best practice we see in certain parts of the country is repeated in others, and indeed across the whole country.

An integral part of the Bill is the proposed offer of reablement. That is a package of intensive support measures to help somebody to become more independent and to continue to live in their own home. As the document to which I referred and others tell us, the development of reablement services is already under way in many areas. We are providing some £420 million of funding in the first year of implementation, to help councils both expand that best practice and meet the costs of providing free personal care to those who are eligible.

I should like to place on record my rebuttal of the work of fiction on Department of Health research funding that Mr. O'Brien repeated at the Dispatch Box a moment or two ago. Let me assure him and the Committee that cancer and dementia funding will not be affected in the way he described. We are providing more funding than ever for health research-a £1 billion budget is ring-fenced for research. We are committed to this: we are not cutting funding for cancer research to fund free personal care, as we have made clear. Indeed, our research budget has doubled since 1997.

Our social care proposals will be funded in part by making efficiency savings on Department budgets that are outside the ring-fenced NHS research and development budget. Those efficiencies will therefore not affect vital front-line projects in areas such as cancer and dementia. The research budget that funds the National Institute for Health Research and the Department's policy research programme will increase to more than £1 billion in 2010-2011. I hope I have put our position clearly on the record.

Amendment 48 would allow the Secretary of State to make regulations to put a cap on the amount of personal care that local authorities may be required to provide to people living at home. Although local authorities can use cost ceilings as a guide when deciding on the best and most cost effective way to meet a person's care needs, they have a duty to meet those needs regardless of costs, and they cannot use such cost ceilings rigidly. As such, the amendment would be inappropriate-it would enable the Secretary of State to make regulations that would impose a blanket requirement on local authorities to restrict their provision of vital personal care services to people living at home to a particular amount, which could result in unmet needs.

Let me be clear on the accusations about the impact assessment and the robustness of our figures. We have not underestimated any hourly rates for buying the care: we are using the figure of £15.75 per hour at 2011-12 prices, which is well within the expected costs. In addition, we have not underestimated the number of hours of care needed, as some have alleged: we have used the average number of hours based on Personal Social Services Research Unit modelling for people with highest needs-that is to fund the personal care element of an individual, not all the services for those who meet the criteria. We are now consulting on three possible approaches to a distribution formula, which will make allocations as fair as possible. Some authorities might have higher costs, but others, where there are fewer people, will fund their own care locally. We propose to review the workings and the costings of the scheme within the first 18 to 24 months.

I know that things have been said by other organisations and I am pleased to have had the opportunity to put on the record here in the Chamber our view that our costings and funding assessments are robust. I therefore ask the hon. Member for Eddisbury to withdraw the amendment.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am very glad that the Minister felt able to seek to rebut the criticisms of his calculations and workings, not least on the impact assessment, by simply stating them at the Dispatch Box. That is precisely what I was able to do about the various highly spurious fictions and assertions that he used to criticise the Conservatives' home protection scheme. We are equal now that we have corrected one another.

Clearly, the amendments were probing. I am sorry that Greg Mulholland feels that we should press amendment 48 to a Division, and I am grateful that he indicated that he would have supported us had we done so, but there is a risk that that would be irresponsible, because the cost implications of the amendment are unclear, and we must all operate under very severe constraints in the current conditions.

Most importantly was the Minister's placing on record the absence of a diminution of funds for research. That statement will be looked at carefully by a number of organisations that have been in touch with us about such matters. He will be aware that that has been an issue. It is important that people should have the confidence of knowing that we can match our research effort, and the sustainability of that effort, to the profile of disease and demographics that we can see coming down the track, rather than looking at things on a purely historical basis. We fully support the increase in the efforts being made, which we advocated well in advance of the Government's decision to increase the funding for, and the emphasis on, dementia research for instance. The costings discussion has been helpful. On that basis, I can confirm that our amendments were probing amendments, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health) 7:00 pm, 12th January 2010

I beg to move amendment 31, page 1, line 20, at end insert-

'(4BA) The Secretary of State shall report annually to Parliament the compatibility of any new regulations and guidance relating to the provision of personal care to a person living at home with the European Convention on Human Rights.'.

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The First Deputy Chairman:

With this it will be convenient to discuss the following: amendment 27, page 2, line 16, at end insert-

'(6A) The Secretary of State shall report annually to Parliament-

(a) the costs of delivering personal care at home in that year;

(b) the estimated costs of delivering personal care at home in future years.'.

Amendment 45, page 2, line 16, at end insert-

'(6A) The Secretary of State shall report annually to Parliament-

(a) the number of people receiving personal care at home under the terms of the Act in that year in every local authority area in England;

(b) the cost of providing personal care at home under the terms of the Act in that year in every local authority area in England.'.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

Amendments 31 and 27 stand in my name, while the Liberal Democrats spokesman, Greg Mulholland, will no doubt speak to his amendment 45.

This is an important group of amendments, and the Minister will understand why. Amendment 31 seeks for a report to be presented to Parliament on the human rights compatibility of the Bill, reflecting the apparently shaky legal ground that the Government are on. Amendment 27 seeks a similar report into costs. To some degree, my anxiety to press that amendment to a vote might have been ameliorated by the Minister's most recent comments, in his response to the previous group of amendments, about the fact that there would be a review of the costs, including the members' costs and so forth, at quite a fine-grained level over, I think he said, 18 months or two years. That is obviously important in ensuring fairness in the system, as well as the clarity that will be needed.

That said, uniquely, the impact assessment looks at costs for only two and a half years, so if we did not have a review within 18 months or two years, we would get pretty short shrift. The impact assessments that this Government have produced with Bills have habitually looked at costs over a 10-year period, so to get only two and a half years on a policy area covering such obviously long-term projections as this one does seems mighty unusual, if not a touch opportunistic. The costings are therefore somewhat shaky to say the least. I was therefore pleased that the Minister was able to set out at least some clarifications, corrections and admissions of error in his letter to the shadow Health Secretary, my hon. Friend Mr. Lansley, on 8 January.

Amendment 45, standing in the name of the Liberal Democrats, seeks a report on the numbers. It is amazing to find out that the Government have very little of the hard data on which their policy is based.

On amendment 31, the Bill comes with a lengthy justification, by comparison with other Bills, of its rectitude in the face of the Human Rights Act 1998. Its length should alert the Committee to the Government's nimble footwork in the face of their own legislation. The Government's problem is that the Human Rights Act prevents discrimination on the basis of residence. The Secretary of State and the Minister's argument is that such discrimination is allowed in certain cases and that the Government have the latitude to discriminate in that way. So much for us all being equal under the law. It was that very discrimination that my right hon. Friend Mr. Dorrell sought to highlight in one of his earliest contributions today. I therefore hope that he will have the opportunity that he was looking for to discuss the issue in our debate on this group of amendments.

I am pleased that the Joint Committee on Human Rights is looking into the matter. I hope that that process will be concluded before the Bill goes to the other place, because it really needs to be. Through you, Mrs. Heal, I hope that some urgings might be made in the right direction, in order to speed up the Joint Committee's work, because of the speed with which we are considering the Bill in this House-I dare say that the Government will wish to push for the same in the other place-and because there is already an absence of the accompanying guidelines and regulations, either in draft form or actually published, that are so important for the Bill. The fact that we do not have the Joint Committee's report in advance, as is normally expected, makes us worried that an attempt could be being made-I put it no more strongly than that-at a sleight of hand.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

My hon. Friend has had the benefit of reading some papers that I have not read. Did I hear him right? Was he really saying that although there is a general prohibition on discrimination on the grounds of residence in the European convention on human rights, the Government's position is that it does not apply to Governments and that Governments are allowed to exercise such a discretion on the grounds of residence that others are not allowed to exercise?

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I will expand slightly on that point as I proceed, because it is a bit fine-grained and quite technical. However, in essence, his concern is confirmed, I am sad to say, in that there is effectively a get-out in such circumstances, by and behalf of Governments. That is highly challengeable, and therefore causes me concern; hence our amendment, which would require a report. The Committee would welcome that, given the importance that the whole House attaches to what appears on the front of Bills, namely a certificate, as required under the Human Rights Act, from the Secretary of State in presenting a Bill on First Reading to assure the House that it is compliant with the European convention on human rights. This Bill carries such a certificate, from the current Secretary of State.

Given the numerous legal loopholes in the Bill, the Committee will be interested to know that, according to the Minister in a parliamentary answer to me:

"No external legal advice was sought on this matter."-[ Hansard, 8 December 2009; Vol. 502, c. 293W.]

We know that the Government are concerned, and not just because of the extraordinary length and somewhat defensive nature of the note in the explanatory memorandum, to which my right hon. Friend might find it helpful to refer. That concern is now being picked up elsewhere, not least by a commission by which the Government have set great store-indeed, they brought it into existence precisely to look into such questions. The Equality and Human Rights Commission has expressed concern that

"this proposal appears to cut across the options set out in the Government's Social Care Green Paper."

The commission also says:

"Care must be taken to avoid creating negative trade-offs for other people still with considerable needs trying to access care at home. For instance, if the proposal actually further reduces the sums available to help those with less critical needs, but who could benefit substantially, including helping them to retain work or remain socially active, it may just serve to increase those whose needs more rapidly become critical."

The Equality and Human Rights Commission said that in its briefing that arrived only at lunchtime today. I hope that that is regarded as useful information for the Committee to consider.

I hope that the Minister will take this opportunity to confirm that the strength of any defence in a court of law would depend on the purpose of the Bill. In the compliance statement, the purpose of the Bill is about

"enabling, supporting and encouraging more people to avoid or delay entering residential accommodation".

The Government claim that that is a "legitimate aim" for the purposes of the European convention on human rights. However, according to the impact assessment, the purpose of the Bill is about

"Funding care to those in need at the time of their need," which is also what the Prime Minister said at his party conference. Is that a "legitimate aim" for the purposes of the Human Rights Act? The record will no doubt show the Minister's response, which will undoubtedly be prayed in aid by highly paid human rights lawyers. I dare say that he will have taken a lot of advice before making his prepared remarks.

The Government's defence is also that the proposal is a "proportionate" measure, which goes some way to answering my right hon. Friend's question. What is the legal status of that defence, given that the Bill has such a small benefit for costs-if any, as has been accepted-that, according to the impact assessment, it has little overall effect on public sector manpower and public expenditure, and that it helps no more than 5 per cent. of the so-called at-risk population?

The Committee will be interested to know that there is no statutory definition of the word "home", although it appears in a number of statutes, such as the Housing Act 1985. That was the Act that legislated for the right to buy, a right that has seen people gain property, as well as the social mobility attached to that, only to have to sell it to pay for their long-term care. Part of the problem that we are now facing is with precisely that generation. The 1985 Act speaks of a person's "only or principal home". There have been many cases concerning the definition of that phrase. I will not take up too much of the Committee's time, but hon. Members should be aware of the succession of cases on that issue, which include Crawley Borough Council v. Sawyer in 1988, Ujima Housing Association v. Ansah in 1998, Amoah v. Barking and Dagenham in 2001, which will be of interest, and Hammersmith and Fulham v. Clarke in 2001.

That is an important succession of cases, because many of them link home with the intention of the resident to occupy it rather than with the occupation itself-so intent appears to be what the law relies upon. What happens in law if an individual is able to define the care home in which they reside as their home? The money resolution, as we know, if not the legislation per se, would make provision for the funding of that person's care. By proving that a residential care home is their home, could an individual make themselves eligible for free personal care?

If the Minister does not have a ready answer, he can be fairly sure that the courts will seek to provide one in the due light of day if the Bill becomes an Act. I hope he will take this opportunity to guarantee that the Bill will not be open to legal challenge on human rights grounds. Is he confident enough to commit the Government to funding the full costs of any successful legal challenge on those grounds? Moreover, will he place the internal legal advice in the Library, given the germane points that have now been raised as a result of great concern, not least admitted by the fact that the explanatory memorandum has had to go to such lengths without the decisiveness of a conclusion that one would normally look for with such an important matter as supporting a Secretary of State's certificate on the front of a Bill?

This is not merely a case of lawyers dancing on the head of a pin, which some might argue is the closest to angels they will ever get. Professor Malcolm Johnson of the university of Bath has said that for people with high needs-those requiring care for more than 30 hours a week and typically dementia patients-more complete, appropriate and cost-effective care can be delivered in a care home. That is backed up, according to the noble Lords Joffe and Lipsey in the other place, not least by the Personal Social Services Research Unit-known as PSSRU-and the London School of Economics, which is doing the costings for the Government's social care models.

In a response to me of 8 December, the Minister said that residential care would remain an "appropriate setting" in which to meet some people's care needs. If, because of financial concerns, the measure keeps people at home who really ought to be in residential care, it could be seriously detrimental to the mental and physical health of many frail people. That is why all the third parties are arrayed against piecemeal reform in this area. To some degree, there has been a certain circularity in the arguments over previous groups of amendments, not least in discussions with Dr. Ladyman.

Amendment 27 deals with costings. I repeat my rather lukewarm welcome, given the Minister's assertions at the end of the debate on the previous amendment grouping, but it is important to state from the outset and on the record that this care is not free. Someone must pay for it: in the short term that will be the beneficiaries of public health campaigns, and, it has been argued, the taxpayer and Cancer Research in the long term. We heard the rebuttals that the Minister sought to pray in aid at the end of the previous grouping, so we must take them as they were put forward, but someone somewhere has to pay. The proper phrase that should be used is "free of charge", but I dare say that that would spoil the slogan on the Prime Minister's already printed election leaflet.

As we have said, the Secretary of State has rejected taxpayer funding for social care reform, but the Prime Minister thinks it is a good idea. It is right to have some public services, like our NHS, that are free of charge, but we should never forget that they are not completely free. Indeed, it was the current Secretary of State himself who recommended that patients be given an indicative receipt for the cost of their care. I am sure that the Minister is more than well aware of the record of when the Secretary of State said just that when he was a Minister. The problem with Labour Members is that they continue to think of taxpayers' money as Government money. Increasingly, with their party facing financial as well as, one hopes, electoral bankruptcy, we should be concerned that they do not look to taxpayers' money as some form of re-election fund.

The Government have estimated the cost of the measure at £670 million a year. "Estimated" is the right word. Table 2 is dependent on figures drawn from the unpublished modelling for the Green Paper, and the full model remains unpublished. The model used to estimate the flows in and out of residential care has not been published. The model referred to in paragraphs 5.12, 5.13 and annex B of the impact assessment is still under development. This is also the model on which estimates of savings are predicated. According to paragraph 4.6, the costs of the whole policy are still being modelled and the assumptions are going to be tested through consultation with stakeholders, which runs until 23 February. We have already discussed that point about the timetabling.

The number of individuals who are FACS-critical critical is estimated from a secondary analysis of data from the English Longitudinal Study of Ageing-an analysis that has not yet been published. Little is known about the number of younger adults who fund their own home care. The figure of 110,000 should be "treated as an estimate", as I was told in a written answer.

The estimate of people for whom reablement is successful is based on the experience of a single local authority, West Berkshire. The Minister has told me in another written answer that the Department does not hold equivalent data for other councils. Perhaps he would like to spell out the reasons why the Government feel that West Berkshire is representative of Britain as a whole.

The estimate of home care spend in annex B of the impact assessment is an estimate plucked out of the air, for which the Minister has given no justification, while the estimate of the costs of reablement are also plucked out of the air. When I asked the Minister what the minimum and maximum costs of reablement were, he replied that he understood that there was a "wide variability" in "different councils" and that the "derivation" of a cost of £1,000 was "clearly stated" in annex B of the impact assessment. What does annex B say? It says:

"It has been estimated that reablement costs £1000 a person (roughly 30 hours of reablement at £30 an hour)", but we have no sources for where either of those figures referring to the number 30 came from, so we have to ask whether these have just been made up. The costings assume that only 10 per cent. of the people who currently go into residential care will instead stay in their home to receive free personal care. Is that really tenable-that faced with the choice of paying £25,000 a year in a care home, or free care in their own home, only one in 10 will take up the free option?

The Government have persistently refused to extrapolate their calculations beyond 2012, so we have had to do it ourselves. Using just a linear projection, the costs will double to about £1.2 billion a year by the end of the next decade. The excuse given to me in a parliamentary answers was:

"We cannot reasonably make these extrapolations because of the levels of uncertainty", including

"the unknown detail of any future national care service and the unknown future economic climate"-[ Hansard, 16 December 2009; Vol. 502, c. 1323W.]

The Minister also mentioned an uncertainty that aspects of people's behaviour would change as a result of the "introduction of these proposals", and that the policy would be reviewed after 12 to 18 months to "ensure" that there are "no perverse incentives". This is a funny way of doing policy: to set the hare running and if it all goes wrong, we will revisit it-a kind of microcosm of the last 12 years, one might suggest.

Such uncertainties are eye-watering. For example, if all the people with informal care switch, this adds £17 million to the cost. If the Government have underestimated the number of younger adults with needs by just 10,000 across the country, it adds £6 million. If care inflation rises faster than general inflation-at 4 per cent., for example-this would add £14 million. An arbitrary underestimate of the numbers of elderly people of just 1 per cent. adds an extra £5 million. The assumption that the relationship between care need and cost is linear-in annex A-turns out to be wrong. Again, a 1 per cent. deviation equals £6 million extra. If all these costs were realised, it would cost an extra £49 million a year. If the Bill provides a perverse incentive for care homes to redesign themselves as "extra care"-we have had some discussion about that-and that happened, it would add an extra £1 billion to the cost. Even if only 10 per cent. did so, it would still be another £100 million.

My estimates are, perhaps naturally, pretty conservative. The noble Lords Lipsey and Joffe, in their supplementary memorandum to the Green Paper, were highly critical of this measure, noting that the costs in Scotland inflated by 74 per cent.-that was equivalent to an extra £500 million in the first year. Leaving aside the potential costs of the measure, given that people will not receive transport, meals, cleaning, shopping, sitting services and so forth free of charge, will the Minister tell us the likely range of spend on such services for an individual receiving what the Government are now proclaiming as free care? On that basis, I support amendments 31 and 27, and point out that we may well wish to divide the Committee.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood 7:15 pm, 12th January 2010

I congratulate my hon. Friend Mr. O'Brien on tabling the amendments and again on the way in which he spoke to them. Both amendments are hugely important.

Amendment 31 deals with the European convention on human rights. My hon. Friend should be specifically congratulated on reminding the Committee that the modern world is increasingly one in which the untrammelled right of law-makers to make laws that seem like a good idea on their way to the party conference podium is qualified by a series of commitments that Governments have entered into over the years to ensure that the laws of this country comply with certain basic principles. For our present purpose, the principles are set out in the European convention on human rights. According to one of them-acknowledged in the explanatory notes-it is not consistent with the convention, and therefore with good law, to discriminate between individuals on the basis of where they live. First, the Government acknowledge that that is a principle of good law because it is in the convention, to which this country is a signatory. Secondly, the explanatory notes explicitly recognise that an individual in residential care

"might allege that they are being discriminated against in the protection of their rights under Article 14 ECHR".

This is not something dreamt up by my hon. Friend; it is something that the Government recognise as a potential weakness in the Bill.

What is the Government's defence? According to the explanatory notes,

"the Department's view is that the different treatment"-

Members should note that it is acknowledged to be different treatment-

"of people living at home is not discriminatory. This is because the policy underlying the different treatment pursues a legitimate aim in a proportionate way."

I do not follow those two sentences. The explanatory notes state that the Department's view is that the different treatment is not discriminatory, and then state that it is discriminatory, but that the discrimination is justified

"because the policy underlying the different treatment pursues a legitimate aim in a proportionate way."

Having acknowledged that the treatment is discriminatory, the Government then say that the discrimination, despite being contrary to the ECHR, is justified because in the Department's view, or more precisely the view of the Prime Minister-I do not believe for a moment that the policy had its origins in the Department-

"the different treatment pursues a legitimate aim in a proportionate way."

Let us consider what is the "legitimate aim", and whether it is, in truth, proportionate. According to paragraph 23 of the explanatory notes:

"The key aim...is to enable, support and encourage more people to avoid or delay entering residential accommodation."

That is set out as the objective of the policy. Let us now consider how effective, according to the impact assessment, that policy will be. According to the assessment, the Government believe that 2,000 of the 277,000 people affected will switch from residential care to care at home as a result of a policy whose purpose is

"to enable, support and encourage more people to avoid or delay entering residential accommodation."

The Government's proposition is that they want to delay people's entry into residential care. Their own assessment of the effectiveness of that policy is that it will stop 2,000 people entering residential care. The question for the Committee and, I suppose, ultimately for the European Court is whether the Department is right in saying that that is proportionate.

What the Department is doing is violating rights under article 14. The Government cannot argue that they are not violating those rights. Indeed, they have acknowledged that they are doing so, but claim that that is justified by the policy objective, which they describe as proportionate. When the policy objective is measured for its effectiveness, it is shown to involve 2,000 people. The rights of all the other people in residential care-there used to be roughly 500,000, and I would guess that the figure is still the same-are being violated. Those people are being discriminated against so that 2,000 people-according to the Government's own assessment-can be prevented from entering residential care.

I invite the Committee to reflect on whether the defence of the policy set out in the explanatory notes stands up. My hon. Friend has already given his assessment of the two pages in which the Government have set out their position, which might be described as "Methinks they do protest too much." The Government have acknowledged a violation of rights, and have justified it on the grounds of the delivery of a specific policy-the policy being that 2,000 people's care arrangements will be changed, but the rights of 500,000 will be violated so that those 2,000 can benefit from the Government's policy change.

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Photo of John Redwood John Redwood Conservative, Wokingham

Does my right hon. Friend believe there is a serious chance that the legislation will be struck down under the provision in the European convention?

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

My right hon. Friend and I are not the only ones who think that there is a serious argument to be answered. The Government clearly share that view. I invite him to assess exhibit A: the explanatory notes, in which the Government have devoted two pages of typescript to explaining why they are safe under this exposure.

Let me now deal with the second amendment. The two are linked. As I have already pointed out, in assessing the principle of proportionality we must first assess the 2,000 people against the 500,000. We must then assess the 2,000 against the £500 million that is being spent on meeting this policy objective. Is the Bill proportionate, given that it has assessed 500,000 people against 2,000? Is it proportionate when it is recognised that the public spending cost of the Prime Minister's commitment to achieving the change in care arrangements for 2,000 people is, according to the Government's own estimate, £500 million?

I do not believe that the Government have delivered their estimate of cost beyond the two-and-a-half year horizon. As my hon. Friend the Member for Eddisbury pointed out, if we look beyond that horizon, the £500 million will increase geometrically when the behavioural consequences of the measure are taken into account. According to Lord Lipsey's analysis of behavioural change and its financial consequences, the policy will result in a public spending cost well north of £1 billion. I invite the Committee to consider again whether that is a proportionate way in which to deliver the policy objective of enabling, supporting and encouraging

"more people to avoid or delay entering residential accommodation", given the Government's belief that 2,000 people will be affected.

Enlarging on the spending element, my hon. Friend was right to observe that apart from the principle of article 14 of the ECHR, there is the further question of affordability, value for money and the policy assessment of that £1 billion expenditure. We should bear in mind not just the general financial environment with which everyone is familiar, but the fact that the context of the Green Paper that the Government presented last July was correctly recognised to be the demand pressure, and therefore the spending pressure, that is already building in this sector, reflecting rising demand for social care, and rising expectations about the standard at which that care will be delivered to the next generation of elderly people.

That is why my hon. Friend is entirely right to ask for a proper statement of the Bill's financial consequences looking beyond the current two-and-a-half-year horizon. We should remember, of course, that the projection by Derek Wanless did not confine itself to two and a half years, but looked forward to 2020. If my memory serves me well, he envisaged the cost of social care rising from 1.2 to 2 per cent. of GDP over that period-in other words, a marginal, additional cost merely to maintain the current level of social care delivery of 0.8 per cent. of GDP. My hon. Friend will probably remember better than I the current size of GDP, but such a percentage must equate to about £20 billion-and merely to maintain the current delivery of social care.

Despite the words in the Green Paper and the weasel words of the Minister from the Dispatch Box when he tried to evade the point, the Government are encouraging people to believe that the underlying rising demand for social care cannot be met on the basis that it all be paid for by the taxpayer. The Government are now half promising, however, that the taxpayer will meet the bill, which will further constrain our ability to deliver on the rising amount and quality of care that we all want.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet 7:30 pm, 12th January 2010

I was not going to comment, but I will now because the right hon. Gentleman has gone into party political matters. Is it not a little strange for him to pray in aid Wanless and talk about the rising costs over 20 years of social care, given that the solution proposed by Wanless-a reform of attendance allowance -is the one policy that those on his Front Bench oppose?

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

Wanless proposed a variety of different funding mechanisms, but the truth is that neither major party has leapt to pick up the main Wanless proposal. We had a debate on that, prompted by the Government's Green Paper, to which I contributed. I said that the debate had come far too late and that we should have had it 10 years ago, as the Prime Minister at the time had promised. None of that, however, alters the fact that we are now committed down a policy line that half promises precisely the policy option that Wanless ruled out, that the Government ruled out, that Dr. Ladyman to his credit has again ruled out, that my party has ruled out and that even the Liberal Democrats have now ruled out-that it all be loaded on to the taxpayer. That is an unsustainable option. The Government have always recognised that it is unsustainable, but they are now half promising to take that route. No wonder they will not publish a projection that shows how much it will cost.

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

I shall try to keep my comments brief because I am conscious that time is running out, and I am keen to get through the rest of the amendments if possible.

I want to speak to Liberal Democrat amendment 45, but I will also comment on amendment 27. The amendments follow on succinctly from the last set of amendments and relate again to the concerns about the costs of the Bill and the fact that not only is there a real lack of faith in the costs set out in the impact assessment-many organisations have expressed that concern-but that there is a potential burden on local authorities. It would be sensible, therefore, to have in the Bill a method of reporting to Parliament on the costs.

It is a shame that we did not discuss that matter with Mr. O'Brien before, because the best amendment we could have tabled might have included subsection (a) and (b) of our amendment 45 and (b)-as subsection (c)-of his amendment 27. Having the estimated costs in future years is a good suggestion. It would also be incredibly sensible to have the annual reporting done according to every local authority area, given the burden placed on local authorities that we discussed earlier.

To get to that stage, it would also be incredibly helpful-I hope that the Minister accepts that this suggestion is intended to be helpful-to look at the number of people claiming free personal care at home under the terms of the Bill. That would be sensible because it would allow the Government to identify where there is a particular need and which local authorities in England have a larger proportion of people eligible-particularly a larger proportion of older people. Where there are certain demographics, and where local authorities will be particularly burdened, it would be helpful, for those local authorities and Parliament, to have such a report.

I do not know whether the hon. Gentleman intends to press amendments 31 or 27-or both-to a Division, but we would certainly support amendment 27. I think that our amendment is slightly clearer, but given that he gets the chance to press his, and we cannot press ours at this point, we would support him.

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

I shall address the issues presented through the amendments. First, let me be clear on amendment 31 concerning the European convention on human rights. The Bill has been deemed compatible with the ECHR. The memorandum, which is detailed and quite thorough, was criticised for being too long, but I think that doing it well and thoroughly means that we get it right. Guidance has been sent to the Chair of the Joint Committee on Human Rights, and I have the joint memorandum with me.

Hon. Members are right to draw attention to what I think is a well-argued case that the grounds for the different treatment of people living in their own home are clear. The key thrust of the policy behind the Bill

"is to enable, support and encourage more people to avoid or delay entering residential accommodation."

As such, the policy pursues a legitimate aim and one that goes back across different Governments. The policy will achieve that aim in a proportionate way because it is aimed at those with the highest need-the group of people most at risk of having to enter residential accommodation and who therefore have the most to gain from taking advantage of the provision of free personal care in their own homes. The Department's view is clear: the policy behind the Bill is not discriminatory. That is clearly laid out in the measures.

I might add that we are already seeking to ensure that any secondary legislation and guidance is compatible with the convention, and that the regulations that the Secretary of State will be empowered to make under the Bill and related guidance will be no different in that regard.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

Will the Minister confirm that the Government's own impact assessment states that the number of people who will switch from residential care-in other words, who reflect the achievement of the policy for which the derogation from the ECHR is effectively being sought-is 2,000?

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

The key thrust of the Bill

"is to enable, support and encourage more people to avoid or delay entering residential accommodation."

The right hon. Gentleman has rightly described one particular group of beneficiaries-those people who might switch. I understand that that is in the impact assessment. However, there is another much wider group of people whom we will help to avoid or delay entering residential accommodation.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

If that is the argument on which the Government will rely, why did they not set it out in the impact assessment?

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

I think that everything has been set out. I have set it out here. It has been set out in the memorandum sent by the Department of Health to the Joint Committee on Human Rights.

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Photo of Stephen Dorrell Stephen Dorrell Conservative, Charnwood

I am grateful to the Minister for his patience. That is exactly my point. It was not set out in the impact assessment, but was rushed out of the Box to give the Minister something to say. If that is the basis on which the Government are relying, why was it not in the impact assessment?

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

Nothing has been rushed out from the Box. One might argue that it could have been, but no doubt there was confidence in my abilities to answer these questions fully and thoroughly by referring directly to the statement that we put to the Joint Committee on Human Rights. I think I have put that matter to rest. Amendment 31 calls for an annual report on compatibility, but that is an unnecessary requirement because the Bill is compatible.

Amendments 27 and 45 would require the Secretary of State to report to Parliament annually on the costs of providing free personal care at home, the estimated costs of that in future years, and the number of people who receive personal care in each local area. Mr. O'Brien made a number of detailed points about the impact assessment. He repeated a number of the answers I had given to him via written questions, and he went on to make a series of interesting extrapolations, because the impact assessment is in place for only two and a half years. I want to reiterate a point I have made to him on the Floor of the House and in writing: the impact assessment covers only the period from October 2010 to the end of 2012-13. Estimating beyond that point is problematic because of the uncertainties involved. As I said in respect of previous amendments, the proposals in this Bill are a step towards having a fully integrated national care service, at which point a different set of assumptions will need to be applied, and therefore the hon. Gentleman's extrapolations will not apply.

I also want to emphasise to the Committee-the hon. Gentleman acknowledged this in moving the amendment-that we have committed to reviewing the implementation of free personal care within the first 12 to 18 months of the policy coming into force. After that review, it will be possible to reconsider the predicted costs of delivering free personal care and the conditions for eligibility, if necessary.

If the costings for the first year prove to be accurate, it would be an unnecessary burden on local authorities for them to have to produce data to enable the Secretary of State to report to Parliament annually on this matter. Such a report would require a greatly increased volume of data collection by local authorities, which I think both Government and Opposition are keen not to impose. There will obviously need to be some increase in the amount of data collected by councils in order that the delivery of free personal care can be accurately considered, and we are consulting on what data would be needed and how the extra data might best be collected so that the extra pressure on local authorities is minimised-an aspiration that I think both Government and Opposition would support.

On the basis of my responses, I ask the hon. Gentleman to withdraw his amendment.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

This is a very important group of amendments, because we have been discussing the preparedness of the Government-their having a thorough understanding of the technical detail in advance of laying this before the House. In respect of seeking a derogation from compliance, under the Human Rights Act 1998, to the European convention on human rights, the Government have yet to convince us. Therefore, we will seek to divide the Committee, not least because of all the arguments of reinforcement put forward by my right hon. Friend Mr. Dorrell, who is a former Secretary of State, and also because the Minister did not give a sufficiently robust answer on the cost-benefit question-on the argument about just 2,000 people benefiting from this, weighed against any increase in access.

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Photo of Tom Clarke Tom Clarke Labour, Coatbridge, Chryston and Bellshill

Only at the end of the debate was reference made to the cost of the bureaucratic set-up for local authorities. Has the hon. Gentleman consulted local authorities about the labyrinthine implications of contributing to an annual report? Would the money not be better spent on the needs we have identified?

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

As the Minister has said, additional data collection of some nature will have to be done. The scale of that will have to be measured against the need to make sure it is efficient. However, the blunt truth is that local authorities have been consulting us, and expressing their anxiety and concern about the drafting of the Bill.

However, we wish to divide the House on amendment 31 on human rights convention compliance. The Government have not made a good enough case. It is very important that we test the opinion of the Committee, not least because all of us as legislators have a fundamental duty to get this specific aspect of the Bill right, and we want to give the many experts in the other place the opportunity to discuss it, and we also want them to see that all the arguments have been fully aired. The Government have such a weak case that we need to record our concern. That is why I shall press the amendment to a Division.

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Question put, That the amendment be made.

The Committee divided: Ayes 197, Noes 287.

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Division number 34 Bill Presented — Sustainable Energy (Local Action) bill — Clause 1 — Free provision of personal care at home

Aye: 197 MPs

No: 287 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

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Question accordingly negatived.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I beg to move amendment 17, page 1, line 21, leave out from beginning to end of line 2 on page 2.

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Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following: amendment 18, page 2, line 1, leave out 'undergoing' and insert 'undertaking to undergo'.

Amendment 19, page 2, line 1, leave out 'a' and insert 'at least one'.

Amendment 20, page 2, line 2, at end insert-

'(4CA) Any process under subsection (4C) may not be contingent on the activity of, or acquiring, a carer.'.

Amendment 21, page 2, line 2, at end insert-

'(4CA) The process under subsection (4C) shall be available to any person with care needs according to guidance issued under section 7(1) of the Local Authority Social Services Act 1970.'.

Amendment 43, page 2, line 4, at end insert-

'(4E) Provision by virtue of subsection (4B) may for the purposes of this section not require the recipient of care to undergo the process defined in subsection (4C) if, in the assessment of a registered medical practitioner, the life expectancy of the person is such that the process will be limited or no benefit, or detrimental to the health of the patient, or will not alter their care needs.

(4F) Provision by virtue of subsection (4B) may for the purposes of this section not require the recipient of care to undergo the process defined in subsection (4C) if, in the assessment of a registered practitioner, the process will be of limited or no benefit, or detrimental to the health of the patient, or will not alter their care needs.'.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

Amendment 17 would remove new subsection (4C) and amendment 18 would change the word "undergoing" to something that we think will improve matters. I shall have explained where the Committee's opinion may best be tested by the time I conclude my remarks.

The Committee will see that, once again, the Government are falling over themselves in the drafting of this clause. Bad drafting is of course indicative of bad legislation, and the circumlocutions in this provision are a mark of the Government's political motives, which we have already discussed. How would a lawyer define, for instance, a

"process designed to maximise the person's ability to live independently"?

Marriage would seem an obvious example of such a process, but I cannot imagine for a second that we will have local authorities mandating that. This is, of course, a legislative reference to reablement. I am not convinced, in truth, that reablement needs to be on the face of the Bill. It does not need legislation to make it work, of course, and surely that should be the test of access to the statute book.

More worryingly, the way that the Bill is drafted means that it does not allow a local authority to refuse to provide care until the reablement process has occurred. For example, let us say that Mrs. X has suspected critical needs. She applies for an assessment, which takes three weeks-that is not unusual. She is told that she needs reablement, specifically a stair lift and a walk-in bath, which might normally take a further month to purchase and install-let us hope so. It is January, and the council's budgets are tight, so it slows down the process in the knowledge that it does not have to start funding her until the reablement has, in the terms of the proposed new subsection, been undergone. Mrs. X has three months without the care that she needs. That is a legally enforceable event under the Bill as drafted, hence my criticism.

Will the Minister confirm whether the Bill would take precedence over section 47 of the National Health Service and Community Care Act 1990, notably subsection 1(b), which states that a local authority must make a decision as soon as an assessment is carried out, and subsection 5, which does not

"prevent a local authority from temporarily providing or arranging for the provision of community care services for any person without carrying out a prior assessment"?

The Minister has confirmed in answer to a parliamentary question that

"there are uncertainties about the long-term impact of re-ablement on the need for care, we cannot make an accurate forecast at this current time."-[ Hansard, 14 December 2009; Vol. 502, c. 764W.]

So much for evidence-based policy. Amendment 18 is the amendment that the Committee might want to see tested.

Amendment 19 asks how many rounds of reablement people will get. In a response to a parliamentary question, the Minister said:

"There are currently no proposals to restrict packages of re-ablement."

He went on to say, however:

"It will be for councils to determine who might benefit from this intervention and whether it is appropriate to repeat this at a later date."-[ Hansard, 8 December 2009; Vol. 502, c. 291W.]

Does that mean that the Government will fund reablement that goes outside the indicative grants to local authorities?

Amendment 20 would prevent reablement from including an informal carer. Will the Minister confirm that reablement will never include an obligation on a family member to take up informal caring responsibilities? Returning to the question of personal care, it seems that carers will continue to be taken into account in the assessment of whether someone has critical needs. The Government's estimate is that only 50 per cent. of carers for people with critical needs and only 5 per cent. of carers for people with moderate needs will give up that informal care when they see that if they do that, care will be provided free of charge. Do such small figures hold water when it comes to the points made by my right hon. Friend Mr. Dorrell earlier?

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet 8:00 pm, 12th January 2010

My reading of this amendment is slightly different to that of the hon. Gentleman. Will he help me? Proposed subsection (4C)-the bit of the clause that is removed-states that a local authority "may" make this measure conditional. It does not say that it has to do so. I read it as a mechanism by which a local authority may-if it feels that, by getting somebody to undergo an intensive period of support, that person might have a lower care need that would have to be funded by the state and the local authority, or if it feels that making the person accept certain technologies in their home and making them use them would ensure a lower cost of ongoing care-insist on the person having that level of support. In other words, it is a way of ensuring that somebody does not avoid doing something that would reduce the local authority's costs in the long term just because they are too lazy or too wilful to do it.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

The hon. Gentleman is obviously carefully thinking through the way in which this will operate, and I respect that. The difficulty is that this provision is the trigger mechanism. I am concerned that there should not be any chance for the trigger to be delayed by the actions of local authorities if they postpone the time at which reablement is, in the word proposed by the legislation-it is not my word at all-"undergone". I am seeking to ensure that local authorities cannot delay because of the words used in the legislation. That is what we are here for, after all. I want to replace "undergoing" with "undertaking to undergo" in order to make it clear that it should start at the point at which an assessment is incepted. I hope that our amendment makes that a lot clearer and a lot more certain. I hope that that helps the hon. Gentleman.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

The hon. Gentleman's aim is laudable, and I can understand it, but if a local authority were to delay providing support for somebody on the basis that it had not done something or made something available, surely no court would allow the local authority to get away with that. The ombudsman certainly would not.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

That might well be the case if the person for whom care and support was needed was the cause of the delay. I suspect that that would cause some of the support that would otherwise be given free of charge not to be available anyway, because the person would not be ready to accept that level of care. The issue is the provision of care and what starts the requirement, under law, to make that care, which will be free of charge, available. That is what we have been concerned about. There is an ambiguity, to say the least, and probably an uncertainty, in the way in which the legislation is drafted. I do not think that this amendment is hugely challenging or controversial. It is, I hope, trying to give the Government's intent a better chance of being borne out in how the wording leads to decision-making behaviour from the people who will interpret the Bill in an administrative or legal capacity rather than necessarily any behaviour from those who are looking to receive the care.

Amendment 21 is a probing amendment to ask the Minister to clarify who will be eligible for such care, and amendment 43, tabled by the Liberal Democrats, who will address the points that it raises, is on the question of palliative care. I am in sympathy with it and supportive of it. The regulatory impact assessment says that people receiving palliative care would be excluded from reablement. That seems quite harsh. As Help the Hospices has said,

"people can receive palliative care alongside curative treatment (it's certainly not an either/or) and people can also receive palliative care for prolonged periods of time (for some, such as younger people with life limiting conditions, such care can go on for many years)".

I shall ensure that the Liberal Democrats have the chance to develop that point, but I think that it is important that we recognise it. It is a powerful point and we are grateful that they have tabled that amendment.

The Minister stated in an answer to a parliamentary question on the number of cases in which people received palliative care that he had no idea what the median, mean and maximum life spans are for people receiving palliative care. I hope that he will be able to expand on the answer that he gave me on 7 December. That issue, in itself, will be of concern.

In conclusion, as I want to keep the introduction to these amendments relatively brief, I think that the technical way to do this will be formally to suggest that although I will be happy, with leave, to withdraw the lead amendment in this group, I hope to have the opportunity to push amendment 18 to a vote and to test the opinion of the Committee on it, unless we hear some staggering response from the Minister, which is not expected.

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The Second Deputy Chairman:

I am grateful to the hon. Gentleman for making that point, but we will return to it when we have finished the debate.

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The Second Deputy Chairman:

Order. Does the hon. Gentleman wish to contribute?

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The Second Deputy Chairman:

With the greatest of respect, I am not a mind reader. Hon. Members must rise in their seats if they wish to contribute.

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

Thank you, Sir Michael. I think that I was as confused as you were by the lack of anybody who wanted to discuss the amendment.

I want to speak briefly about amendment 18, which Mr. O'Brien wants to press to a vote. We would clearly all support the reablement process in principle, but it has to be done in a way that reassures people that it has not been done unnecessarily and that it is not going to be a burden to people. If it is pressed to a vote, we might need to support it, but we will wait to hear the Minister's comments.

Amendment 43 is designed to protect people for whom a medical professional thinks that reablement would not be appropriate. That group would include the terminally ill or anyone on whom the process might have a detrimental effect. The idea behind the amendment is that, although we support the idea of reablement, it must not be possible for a local authority to refuse someone free personal care at home on the ground that that person refuses to undergo a process of reablement if a qualified medical practitioner has said that the process could realistically do more harm than good. We have to acknowledge that, given the huge cost implications for local authorities, there is a possibility that they might seek to push people into undergoing reablement, or repeat reablement, and that they might threaten to withdraw services if an individual refuses to reply.

The amendment would give the option of an exemption for those people who, for good reason, feel unable to take part in the reablement process, particularly those who are in possession of a doctor's note or another form of recognised medical advice recommending that that would not be suitable. Making people go through that process could cause them great anxiety or even physical harm. We believe that the measure should be a vital part of the reablement process if we are to have confidence in it, and I reserve the right to push the amendment to a vote at the appropriate time if I do not hear a satisfactory response from the Minister.

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Photo of Stephen Ladyman Stephen Ladyman Labour, South Thanet

The hon. Gentleman's amendment gives the impression that any letter signed by a GP and giving the effect he has described would mean that a local authority could not insist on a reablement process going ahead. As we all have examples in our constituencies of GPs who are prepared to sign virtually anything that their patients ask them to sign, what right of appeal would a local authority have, under his amendment, to challenge such a situation and say that reablement would be an appropriate course of action?

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health)

That is a fair point; clearly, such a mechanism would need to be built in. There are sometimes concerns about the use of doctors' notes, but that issue needs to be addressed separately rather than being allowed to turn this idea on its head. We should not say that the exemption should not be there because of other concerns. We tabled the amendment to raise the principle for discussion. It is then for the Government to consider how best to build such an exemption into the system. I shall wait to hear the Minister's response.

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

This is an important group of amendments. The policy that underlies the measures in the Bill has two clear strands-free personal care for those with the highest needs who live in their own homes, and a package of intensive support or reablement to help people to remain at home for longer. Reablement services are offered by some councils, but it is important that local authorities across the country continue to develop and improve those preventive services. We know that with a six-week package of appropriate reablement measures many people would be able to reduce their dependency on care services and therefore live more independently. It will not always be appropriate for someone to undergo a period of intensive support, depending on their individual circumstances. That is why we think that local authorities should be given the discretion to make that judgment and to provide a reablement package as a precursor to arranging a package of personal care for the individual where that is thought to be necessary. I want to make it clear that, as my hon. Friend Dr. Ladyman rightly said, the measures give local authorities permission to choose to operate in that way.

On the worry that Mr. O'Brien described, and the example he gave, the immediate needs of individuals would be met while they were undergoing reablement. A more detailed assessment would then be undertaken once reablement was completed. The detailed work on the scheme would not be included in the Bill but would be a matter for guidance, drawing on professional expertise and the views of various stakeholders. Removing such an express power by accepting amendment 17 would, I fear, do nothing to encourage local authorities to develop further their reablement services. It would also fail to encourage investment in services that help people to improve their personal situation and help to prevent it from deteriorating and their care needs increasing. That is one crucial reason why I urge him to withdraw that amendment.

Amendment 18 would similarly fail to encourage individuals-I think this is the point that my hon. Friend the Member for South Thanet was making-to make the best use of the reablement services available to them. The amendment would mean that a local authority could make free personal care conditional not on an individual undergoing reablement, but merely on undertaking to do so. In other words-this is an important point, and my hon. Friend was right about this-individuals would not need actively to undertake reablement to receive free personal care, but would need merely to undertake to local authorities that they would do so. Therefore, that reablement might never take place.

Effective reablement relies upon sensible and effective decision making by local authorities, by people who need care services and by their care partners. Reablement packages need to be put in place and need to be undertaken to assist people in living their lives fully and in reducing their dependence. The amendment could result in a reduction in partnership working between the individuals who need care and their local authority. It could also result in authorities beginning to work up reablement packages that the relevant individuals have no intention of taking up. The amendment would not have the effects that we would wish to see of ensuring that people access and use reablement packages as a critical part of the whole system of improving care for people and, indeed, providing free care for the people with the highest greatests needs.

Amendment 19 would change the description of one of the potential eligibility criteria that may be set out in regulations. It would change the words

"a process designed to maximise the person's ability to live independently" to

"at least one process designed to maximise the person's ability to live independently".

That process, which is described in new subsection (4C), is more commonly referred to as reablement. Details of what might be included in a package of reablement will be laid out in regulations or in guidance. We intend for the process to be a single process, but it could involve a range of interventions and support such as home adaptations, the installation of telecare and sessions with an occupational therapist or physiotherapist. There is a risk that, if the amendment were accepted, local authorities could use the wording "at least one" to delay giving people the free personal care that they need indefinitely. Clearly, that is not the intention underlying the Bill.

The effective and appropriate use of reablement services can help individuals to reduce their dependency on care services and can increase their ability to live independently at home. However, where an individual still has high personal care needs following reablement, they should receive the support they need to meet those personal care needs. That is why we ask that amendment 19 be withdrawn.

Amendment 20 addresses the issue of carers. It would insert the wording:

"Any process under subsection (4C) may not be contingent on the activity of, or acquiring, a carer."

The amendment does not make clear the extent to which carer activity, which is what it describes, would be excluded. Would knowledge and expertise be excluded, or only direct help with day-to-day living? If the amendment seeks to exclude carer involvement when reablement packages are designed, that could lead to a reduction in partnership working, which we all agree is vital, between the local authority and the carer. That could result in a diminished outcome for the individual who uses the services. We all know that the role that carers play is absolutely vital, because they often have invaluable knowledge about the care requirements of the person for whom they are caring. Those requirements need to be taken into account when a reablement package is designed.

Even in a situation where carers would still be able to input their knowledge and expertise to design reablement packages, it would be difficult for them to be assured that that was being carried out appropriately if they were not involved in the reablement activity, where they wished to be.

Carers' involvement in reablement is crucial, when that is beneficial to the individual being cared for. They have an invaluable role in supporting the people for whom they care, and in working with local authorities and care providers.

I emphasise that the Bill does not seek to place additional burdens on carers, but neither does it seek to exclude them from working with councils to achieve the best outcomes for the people for whom they care. Therefore, we believe that it is important that local authorities continue to work with carers on behalf of those with the highest needs who are eligible for free personal care at home. Given my explanation of the clause, I ask the hon. Member for Eddisbury to withdraw the amendment.

Amendment 21 purports to extend the potential for local authorities to offer reablement to all those with care needs under the guidance issued under section 7 of the Local Authority Social Services Act 1970. The concern, apparently, is that the guidance should set out how the care is to be made available, and how needs are to be assessed. However, local authorities are already required to act under the general guidance of the Secretary of State in discharging their social services functions as set out in the 1970 Act. That includes guidance covering the principles of assessment and the commissioning of services.

The details of reablement services will be set out in guidance, but the services are designed to help people maximise their skills for living more independently. We all know that they are a valuable part of helping people to live at home for longer. Local authorities are free to offer reablement to anyone whom they feel may benefit. Amendment 21 potentially restricts local authorities' provision of reablement services only to those who have existing care needs. I think that that would go against the very important trend towards universal and preventive services.

Amendment 43 would prevent regulations from authorising local authorities to make reablement a condition of free personal care in certain circumstances, namely when a "registered medical practitioner" or other "registered practitioner" thinks that the process will be of

"limited or no benefit, or detrimental to the health of the patient, or will not alter their care needs."

I hope that Greg Mulholland, who speaks for the Liberal Democrats, agrees with me that local authorities are best placed to decide whether a package of reablement would be beneficial before an individual receives personal care support free of charge.

It is obviously important that local authorities do not force people to undertake a reablement package unnecessarily. We expect councils, when they are deciding whether reablement is appropriate, to consider in a sensitive fashion the overall benefit and impact of such a package, and to work with the patient's family, GP and others to assess that person's suitability for reablement. That may be particularly important when a person is undergoing palliative or end-of-life care.

I know that one of the concerns about the Bill is that reablement will not be available for those undergoing palliative care. I can assure the Committee that, where councils believe that reablement might benefit a person undergoing palliative care, they may offer it. However, if the person is unlikely to benefit, he or she should not be forced to undergo reablement merely to qualify for free personal care. All the detail of that will be covered in guidance.

Ultimately, local authorities assess people's care needs and their eligibility for care and support, so it is right that they should be able to make decisions about the services that might be appropriate, in conjunction with other relevant partners in care.

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Photo of Greg Mulholland Greg Mulholland Shadow Minister (Health) 8:15 pm, 12th January 2010

I thank the Minister for that explanation, in which he has made it clear that the Government's intention is that people should not be pressed into undergoing reablement. As long as that is the case, I shall not seek to divide the Committee on amendment 43.

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Photo of Phil Hope Phil Hope Minister of State (the East Midlands), Regional Affairs, Minister of State (the East Midlands), Department of Health

I am grateful to the hon. Gentleman for that response. I think that it is right that local authorities should be able to make decisions about which services are appropriate, but they must do so in conjunction with other relevant care partners.

I thank hon. Members for raising these issues to do with reablement. I have spoken at length because it is important that the whole Committee understands our intent and how the proposal will operate. All the details will be addressed more fully in the guidance accompanying the regulations, and I hope that what I have said will persuade the hon. Member for Eddisbury to withdraw his amendment.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am grateful to the Minister, who sought to address a number of issues that we raised in relation to this group of amendments. I note that on his amendment, the spokesman for the Liberal Democrats, Greg Mulholland expressed himself relatively satisfied with the Minister's approach.

I indicated earlier in my remarks that the amendment on which we should test the opinion of the Committee was not 17, which happens to lead the group.

I intend to press amendment 18 to a Division, but I will say whatever I have to say at the right moment, to make sure that that is clear.

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The Second Deputy Chairman:

Order. When the hon. Gentleman has completed his remarks, we will deal with the mechanics. He can trust the Chair to do that, I think.

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Photo of Stephen O'Brien Stephen O'Brien Shadow Minister (Health)

I am clear, Sir Michael, that I can, thankfully, trust the Chair to do just that.

It is important to ensure clarity because the reablement process is, as the Minister made clear, in the hands of and, in many ways, in the gift of the local authority, the providers. In the provision of wheelchairs, for example, people may fall between various providers. I am anxious about the trigger mechanism that gives people their expectation and their entitlement, at a time when they are very vulnerable and need the greatest possible certainty, together with their carers who, as the Minister rightly said, will continue to be part of the process.

It would be useful to register our concern that the word "undergoing" is not sufficiently clear in the present drafting, and press the amendment to a Division, not least so that anyone reading our proceedings with care in another place will be able to make sure that the trigger mechanism is properly analysed. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 18, page 2, line 1, leave out 'undergoing' and insert 'undertaking to undergo'.- (Mr. Stephen O'Brien.)

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Question put, That the amendment be made.

The Committee divided: Ayes 183, Noes 285.

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Division number 35 Bill Presented — Sustainable Energy (Local Action) bill — Clause 1 — Free provision of personal care at home

Aye: 183 MPs

No: 285 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

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Question accordingly negatived.

Clause 1 ordered to stand part of the Bill.

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