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Personal Care at Home Bill – in the House of Lords at 3:38 pm on 17th March 2010.

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Clause 1 : Free provision of personal care at home

Amendment 1

Moved by Baroness Campbell of Surbiton

1: Clause 1, page 1, line 20, at end insert-

"( ) impose on local authorities duties relating to the portability of the free provision"

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench 3:39 pm, 17th March 2010

My Lords, the House will recall that, in Committee, I tabled a similar amendment calling for arrangements to be put in place to ensure that recipients of free personal care are guaranteed seamless support in the event of moving from one local authority to another. My concern has been to ensure that no one's human rights are compromised by avoidable interruptions or breaks in care-support funding. People with critical-plus needs are potentially in a very vulnerable situation when they move. They need to know that there will be no hiatus in their free personal care provision. Hiatuses are, unfortunately, all too common in the current system, and cause extreme stress and hardship.

I have witnessed situations when care funding has stopped for nearly six months, while a severely disabled person renegotiated a similar care package in his new local authority. This person was not only forced to make all his assistants redundant-they were due to move with him while he looked for new staff locally-but he was left with absolutely no money to pay for backup care in his new home. He managed to scrape by, by taking a loan out and praying that family and volunteers would just about cover the costs. He survived the journey but, due to the stress and disruptions to care on top of the anxiety we all go through when moving, others have not. Even a few weeks' delay or uncertainty can be dangerous for this group of people with personally challenging disabilities or illnesses.

This Bill attempts to create some of the foundations of a future national care service. One important feature of this modern service will be to provide universal consistency and portability of care. Therefore, it seems vital to me to seize this opportunity to test how we can deliver portability in practice. The noble Baroness, Lady Thornton, said in Committee that the Government would take this issue away with a view to making appropriate provision for transitional protection in regulations. I am very pleased to inform noble Lords that she has been true to her word. It feels like I and my colleagues from the Royal Association for Disability Rights-RADAR-have been locked in a room with officials for weeks, looking for the very best and clearest way to actualise the portability policy intent. This has been a complex and challenging task. Noble Lords will know that community care law is plentiful and tortuously complex.

I am pleased to say that we have emerged with what I think are clear and robust enforceable regulations and directives. I am very much indebted to the Minister for her passion and determination to find a workable solution, and to her officials who have worked with me in the true spirit of co-production, which is extremely hard to get right. We have been working on it for many years. I also acknowledge and thank Luke Clements, who gave me excellent legal advice, and RADAR for its usual high standard of support and knowledge. Finally, I am very grateful, as always, for the strong support this issue has received from all sides of the House. I know that the noble Baronesses, Lady Barker and Lady Williams, share my passion to extend this freedom of movement to the most disabled in our society.

My purpose in retabling this amendment is to ensure that the Government can set out on the record the fruits of our deliberations and the shape of future regulations. We must have it on the record. I shall say no more now because the Minister will doubtless give a full exposition in her response. I beg to move.

Photo of Baroness Barker Baroness Barker Spokesperson for Health 3:45 pm, 17th March 2010

My Lords, I am very happy to support the noble Baroness, Lady Campbell, on an issue which has been debated in this House many times. It is a shame that it has taken such a long time to come to a successful conclusion.

As the noble Baroness, Lady Campbell, suggested in her speech in Committee and today, one of the deepest concerns of people who move from one area to another is the time lapse between assessments. Often their needs are urgent and have not changed, but the process of assessment delays their receipt of care. I am grateful to the noble Baroness, Lady Thornton, for the letter that she sent the other day, in which she made it explicit that there will be a continuity of service pending an assessment by the receiving authority. It should not be incumbent on a receiving authority to carry out an assessment in all cases. Will the Minister clarify that I am right that under the provisions of the Bill and the regulations it will be possible for people to move and for it to be accepted that their needs remain the same? We would not want to put people through an unnecessary process of assessment, which would just waste everybody's time. That is the point of clarification that I wish to hear.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

The noble Baroness, Lady Campbell, has tabled this amendment, supported by the noble Baronesses, Lady Wilkins and Lady Barker, to discuss once again the important matter of portability of care. It is an issue on which she has long campaigned with great determination, and which she again described most eloquently.

Of course, we recognise the potential for disruption to patterns of care, which can be the reality for a disabled person who moves from one local authority to another. The issue is addressed in the forthcoming White Paper as one of the long-term challenges of the care system.

Further to our confirmation in Committee that we would include provision to effect transitional protection in regulations, as the noble Baroness said, I am pleased to confirm that I believe that we can now achieve what has been long proposed: portability of the free personal care element of a package of community care services when someone moves from one authority to another for a transitional period.

In other words, where a person in receipt of free personal care moves from one authority to another, they must continue to be provided with the same package of free personal care as they had before their move, until the new authority has assessed their needs for community care services and decided what services to provide in the light of that assessment. They do not need to make that assessment; that is for them to decide.

That will be achieved through a combination of the regulations enabled by the Bill and the issuing of separate directions made under Section 7A of the Local Authority Social Services Act 1970. Just saying that shows that not just me but the noble Baroness, her advisers and our officials have been closeted together for the past few weeks to reach this solution.

The directions will impose a duty on both the authority providing the free personal care and the authority to which the person moves to co-operate to ensure that personal care of the same type and level provided by the first authority continues to be provided without interruption. That provision will continue until the new authority has carried out an assessment under Section 47(1) of the National Health Service and Community Care Act 1990 and decided what services need to be provided.

The regulations will provide that where a person in receipt of free personal care moves from one authority to another, and the new authority is providing them with personal care before an assessment of their eligibility for free provision is carried out, the new authority must provide the personal care free of charge until an assessment of eligibility for free care has been carried out.

I am very grateful to the noble Baroness and to her advisers at RADAR for all their hard work with us on the draft regulations and directions, and for giving us a further opportunity to demonstrate the move towards a future national care service. Subject to her satisfaction with our proposals, I would ask that the amendment be withdrawn.

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench

I thank the noble Baroness, Lady Thornton, for setting out so clearly the positive impact that this will have on the life chances of those with critical-plus needs. It has been a very interesting, long and challenging journey. The right of portability and clear directions on how it should be executed seamlessly must not be underestimated. Disabled and older people will be absolutely delighted with what has been achieved in this House today. It will give them more hope for the tricky times ahead. This is indeed the first step towards the fairer national care and support system that we are looking for. I believe that it has been taken very seriously. Therefore, I am delighted and beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by Lord Best

2: Clause 1, page 1, line 22, at end insert-

"( ) not be made before 1 April 2011"

Photo of Lord Best Lord Best Crossbench

My Lords, the amendment would postpone the start date for free care at home for those with high levels of care needs. I declare my interest as president of the Local Government Association. The amendment reflects the concerns of local authorities about the timetable for this measure.

The anxieties of the local authorities which are being asked to deliver the new arrangements are of two kinds. First, there is the worry that they cannot get arrangements to help 400,000 people in a new way up and running in the next few months. These months will include local, as well as national elections, with possible changes of local leadership and local policies, and which also cover the weeks of the summer holidays. Secondly, local authorities are concerned that their budgets have already been set for 2010-11 and cannot, at this stage, take the hit of an extra £125 million which they are expected to find by way of cuts in other areas. It may be much more than £125 million if, as the Association of Directors of Adult Social Services-ADASS-calculates, the government figures are a serious underestimate.

This is in no way a wrecking amendment. If it finds favour with your Lordships, the measures in the Bill would simply be implemented at a later date. At earlier stages, I have praised the positive aspects of this Bill, and I know it is supported by a number of charities with which I have connections. However, it is not sensible to proceed at a pace that local authorities believe is unfair and unreasonable. After all, central government depends on the hard work and good will of local authorities for the delivery of the Bill's provisions; alienating those who will have to make it work would be a bad start. Nobody wants this new initiative to be a shambles on 1 October, discrediting its principles and antagonising those it should help.

The Minister has been unfailingly courteous and willing to listen throughout the progress of this legislation, as demonstrated in her support for the excellent portability clause pressed so successfully by the noble Baroness, Lady Campbell. She has written to all Peers with an interest in the Bill to offer a concession on the timing of the programme for delivering free care. She has said that if there are delays in local authorities processing all the thousands of assessments for eligibility for free care, then those individuals whose claims are eventually agreed will have the costs of care backdated to the date on which they applied, even though they were not assessed for some time thereafter. This is indeed a helpful concession, and would alleviate some of the pressure when people start to apply for eligibility assessments.

I have asked the Local Government Association whether this concession would make a significant difference to the administrative burden it faces. The LGA has responded that despite the very welcome efforts of the Minister, this help would not do the trick. The concession does not negate the need for councils to have completed a vast range of preparatory activity by 1 October. This activity includes: taking action on such matters as impact assessments of free personal care on other related policies; undertaking financial modelling and making changes to current charging systems; conducting equality impact assessments and implementation planning; carrying out an awful lot of training in the new assessments; introducing, testing and ironing out the bugs in new IT systems and reporting procedures; setting up and market-testing contracting arrangements with providers; communicating with the general public through an information and communication drive with new publicity leaflets; and all the rest. It would be wrong to assume there will be any less pressure on councils to complete all these tasks by 1 October simply because they can backdate an individual's entitlements.

This brings me to the question of whether, irrespective of the problems of getting the administrative arrangements up and running by 1 October, local authorities can be expected to find the money for this scheme during the financial year that is just about to start. Councils have already set their budgets and council tax for 2010-11, and are already having to make hefty efficiency savings. The Government have given a pretty good idea of the amount each authority will get from the Department of Health to pay for free care, and local authorities must make up the balance, estimated at £125 million for the half year and £250 million next year-but perhaps much more if the figures used by the Government are wrong.

Some way down the line, there may be savings from the Bill's provisions. For example, fewer people may pay their way and go into residential care, but their money may run out and the council will be required to pick up the bills. If these people are helped to stay at home for longer, public spending at a later date could be avoided in some cases. However, local government expects no such offsetting savings for a couple of years, and everyone agrees that extra money must be found as soon as the new system kicks in. Indeed, Sir Jeremy Beecham at the LGA believes that imposing these new duties on local authorities without fully funding them or lifting other obligations from them violates the new burdens doctrine that was agreed between central and local government. How are local authorities to shoulder this extra financial burden when they are already making significant economies and their social care budgets are under huge pressure?

Even if staff are made redundant, costs in the first year are likely to be higher, not lower, because of redundancy arrangements and the rest, and I am sure that the charities, which want to see help going to those who currently pay for care as soon as possible, would not be happy if this help were at the expense of others who also need social care. As the Equality and Human Rights Commission says:

"It is difficult to see how local authorities could meet the cost of this measure from efficiency savings, without any detriment to social care services and other local services".

It is not justifiable to require local authorities to rob Peter to pay Paul, to redo budgets or to revisit council tax levels after the financial year has begun. Surely it is better to take this at a sensible pace and look at a start date of next April. I am therefore grateful to the Minister for her letter and her endeavours to help to ease the burden on councils which the current timetable certainly imposes, but surely the local government sector has right on its side when it says that it is unreasonable and unfair to require councils to implement and to pay a substantial share of the costs of the new arrangements from 1 October this year. Let us agree to postpone implementation, as set out in Amendment 2. I beg to move.

Photo of Lord Warner Lord Warner Labour 4:00 pm, 17th March 2010

My Lords, I support this amendment, to which I have added my name.

I agree entirely with everything that the noble Lord, Lord Best, has said. As noble Lords know, I am no great fan of this Bill, which I regard more as a cul-de-sac than a stepping stone or bridge to a reformed system. However, even if I supported this Bill, I would still press this amendment on the Government to save them from spoiling their own creation through poor implementation.

This is not a wrecking amendment; it is simply recognition of the realities of implementing a complex new scheme of assessment alongside other existing schemes of assessment within six months. Given the vulnerability of the people involved and the need to take account of carers' needs, it will be impossible to put into place a properly trained and prepared workforce in the time that is left between now and October across all local authority areas. The Government now seem to recognise this fact of life to some extent in the letter of 12 March from the two Ministers, but they cannot quite bring themselves to take the next sensible step of deferring implementation until they can be confident that all local authorities can implement the new scheme properly. In wilfully pressing on, the Government are choosing to ignore sound professional advice from those who have to administer the scheme. All this will do is create an administrative shambles that damages service users, carers, local authority staff and, indeed, the Government's own reputation.

This lack of preparedness has led the Association of Directors of Adult Social Services to make it crystal clear to the Government for a long time that the new system cannot be implemented in October. In replying to the Government's consultation, on page 3 of its response, it said:

"ADASS believes that the timescales proposed by the Government are unreasonable and will lead to significant problems with the implementation of the Bill".

It reiterated that position in a letter to me of 15 March, which it has copied to Ministers, and which we have tried to make available to all Peers. The Government are simply ignoring clear advice from the people who will be held accountable for implementing the new system. This, in my judgment, is irresponsible. I hope the Government will accept this amendment.

Photo of Baroness Pitkeathley Baroness Pitkeathley Labour

My Lords, I, too, have a great deal of sympathy with what the noble Lord, Lord Best, has said. He is absolutely right that we should not willingly antagonise those who are the providers of care, because the best care has always been the result of good partnerships between the local authorities, the health providers and-most importantly-the users and carers. It is because of their needs that I cannot support the amendment. I am thinking of the 140,000 families-a number estimated by Carers UK-who would be denied free personal care if we delayed, of the 65,000 people who would not benefit from the reablement which they might have been able to access, and of the older and disabled people going into residential care, when that could have been prevented. As we are often reminded, most people want to stay in their own home.

Therefore, although we have duties to the local authorities and to the workforce, we also have duties and responsibilities to the biggest providers of care-the carers-and the users. For that reason, we should try to reach a compromise of the kind the Minister has very helpfully suggested. I remind the House that, in response to what the noble Lord, Lord Warner, said, we are not actually starting afresh with the workforce. Let us acknowledge that many of the social care workforce are already extremely experienced in assessment and all the other areas of need that are required to implement such legislation as this. So I hope we will be able to find a compromise on this very important point.

Photo of Baroness Barker Baroness Barker Spokesperson for Health

My Lords, I share exactly the same concerns as the noble Baroness, Lady Pitkeathley, but I am afraid that I have come to exactly the opposite conclusion for the very same reasons. My reasoning is based, to a large extent, on the work I have done over the past year with a number of local authorities and, more importantly, a number of voluntary organisations.

I always think it is worth pointing out what is going on right now in world of social care. Local authorities and voluntary organisations-the key providers of information and support to the recipients of this care-are currently dealing with large-scale tendering of services, in many cases for the first time, and, at the same time, implementing the personalisation agenda. That is having a huge and immediate impact on the process of assessment and resource allocation.

A number of councils-some of the most enthusiastic for the personalisation agenda-have been moving towards implementation of care brokerage. Even the most advanced councils that I know of, such as Kensington and Chelsea or Richmond in west London, are in the early stages of pilot schemes which are funded for one year and have not yet been evaluated. At the same time, local authorities are achieving the very same efficiencies that we are supposed to believe they will be using to fund the implementation of this Bill, in ways that will also have a direct impact on it. They are tendering information and advice services on a generic basis. I am sorry because this is a very "anoraky" argument, but previously, information and advice services were largely provided on a client-group by client-group basis. But they are not now: they are being generically tendered for all adults over the age of 16. People with mental health, drug and alcohol problems, physical disabilities and carers will all be in the one contract. That will be a huge change, particularly for providers of information and advice. The information, advice and support services, which are always needed to make any change of this sort work-and they will be needed to make this work-are in turmoil. For that reason the noble Lord, Lord Best, is right.

I am not always particularly enamoured of provider arguments about their being overloaded, but these people in local authorities have a strong argument. A huge amount of change is going on. For example, seven local authorities in west London are coming together to tender all their information and advice services as one in order to achieve the economies that they are having to make. I hope noble Lords will understand that on the ground that is a monumental change. There will be a change of personnel and a change of practice. If this change goes ahead, there is a risk that a large number of people will not get this service to which they are entitled and will get no service at all because there is such confusion.

Notwithstanding the will of people to make services work better, more efficiently and in a more personalised way, I say to the Minister that whatever the intent of the Government the timing could not be worse. For that reason I support the argument put forward by the noble Lord, Lord Best.

Photo of Earl Howe Earl Howe - Shadow Minister, Health

My Lords, I warmly support all that has been said in support of this amendment by its other movers. No one who has spoken to local government as I have can possibly be in any doubt of the appalling predicament in which many councils now find themselves as they face the prospect of having to implement this Bill. Not only do they not know where the money will come from, they do not even know how much money, ultimately, they are likely to have to find.

They also argue, as I do and as the noble Lord, Lord Best, does, that this scheme is a new burden and therefore constitutes a blatant breach of the Government's own undertaking to local government not to impose such burdens. In Committee, the Minister made light of these concerns. She seemed to be saying that there was plenty of money around and that it could be found from efficiency savings if people would only put their minds to it. She also dismissed the idea that the policy represented a new burden.

It is important to expose those arguments for the nonsense they are. New burdens are new tasks imposed on local government which are not fully funded. Free personal care at home is a new task imposed on local government and will be only partly funded. It is not any use the Minister saying, as she did in Committee, that the 4 per cent efficiency savings which councils have to make next year leave plenty of room to meet the costs of the scheme.

The term "efficiency savings" means that you take money away from a local authority's spending total without damaging the services that are provided. Local authorities are therefore being asked by the Minister to spend money which, by definition, they do not have. It seems to me that that is a curious sort of sophistry. It may be that the line the Minister meant to give was that given by her colleague, John Denham, in another place, who indicated that the efficiency savings required were to be over and above the already budgeted 4 per cent savings.

We need to be clear how unrealistic that is. In many local authorities, it is impossible as of today to identify where such additional savings might come from. It is true that some local authorities will need to find comparatively small sums, but others will be landed with an instant and very large bill-I refer to those local authorities where a high proportion of those who are currently receiving personal care are funding that care themselves. It is irresponsible for Ministers to dismiss the acute funding problems that those councils are facing at a time when they have already finalised their budgets and the council tax for next year. I believe that it is the Government's responsibility and ours in this Chamber to recognise practical reality and to back this amendment.

Photo of Lord Sutherland of Houndwood Lord Sutherland of Houndwood Crossbench 4:15 pm, 17th March 2010

My Lords, I wish to support this amendment for all the good reasons given by my noble friend Lord Best and others, but I do not wish to see this Bill sunk. I wish to see some handcuffs on the Bill and of the options among the amendments, this seems to me the most elegant set of handcuffs. It has the advantage that it will have, at least, a way of dealing with the initial-and real-concerns of local authorities, and the problems not just of cash but of the provision of services in such a short time.

I think, however, that the best thing about the Bill is the direction of travel and I would not wish to see that lost. The advantage of this amendment is that if the Bill were to go through, it would give every incentive to an incoming Administration of whatever political hue-even if it were a coat of many colours-to seek the consensus which everyone in this House hopes will be the basis for real future planning in this very important area. For this reason I hope this amendment will be moved and passed.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, listening to this discussion I find myself slightly confused because it strikes me we are moving from a situation where there would be a sudden implementation date. However, the Minister's reassurances suggest that local authorities will have somewhat of an ease-in, ease-out option. I certainly do not deny the stress on local authorities-the fact that they are suddenly facing a great deal of work-but I am also well aware that there are desperately worried users and their carers who are faced with the question of whether they must move from their own homes or whether they are able to sit it out. It is a desperately important issue for them.

I am aware also that it is human nature to start knuckling down to implementing change only when the deadline is looming-whenever that deadline is. I cannot help feeling that with some of the work that must be done, there is a point where one just has to say that you need to get on and do it. The assessment processes are, by and large, already worked through. The professionals are already assessing patients; certainly the systems have to be worked through and must be streamlined so that they are fair.

It would help me greatly if the Minister could confirm my understanding from her reassurance-that there is now somewhat of an ease-in, ease-out process so that instead of there being a sudden transition, as this amendment would create, there is a period of grace. Can she also confirm that where there is undue pressure, every effort is made neither to jeopardise the users and carers nor to allow the whole system to come crashing down because of the local authorities?

Photo of Lord Turnbull Lord Turnbull Crossbench

My Lords, when I spoke on Second Reading I was critical of this Bill on grounds of both process and substance, and despite the assurances offered by the Minister nothing I have seen or heard subsequently causes me to revise that assessment.

On process, it exemplifies how not to go about developing a policy on a long-term issue. It introduces an option previously rejected in the Green Paper, even before the consultation period was finished, and, to judge by the outcry from local authorities and care professionals, insufficient work has been done to nail down the costs or establish clearly who should fund them.

On substance, the Bill remains flawed. Rather than progressively increasing the support elderly people are eligible for, as their needs rise over time, it introduces a discontinuity whereby people with moderately high needs in their own homes are helped much more generously than those with even greater needs who have to move into a residential home. This is an injustice and I do not think we should introduce that injustice without a plan being in place quickly to resolve it.

It is an acknowledged role of this House to seek greater time for reflection where flawed legislation or flawed implementation is put before us. In my view this is precisely such a case where we need more time to get the policy, its funding and implementation right. I therefore support this amendment.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

I rise because I fully support the Bill and have done from the very beginning. I also have some information from the Government about the work that they have already been doing with councils to ensure that councils have as much information as possible about the policy, the support that will be provided and the amount of central funding that they will receive. Moreover, we are talking here about people with the highest needs. Most of them have been anticipating that they will have a service from 1 October 2010 and I do not really think that we should disappoint them when they have been expecting an improved service. In point of fact, of course, one of the most important groups is the people who actually care for them. I have been a carer myself and I know how one waits and hopes for some assistance and is very unhappy when one does not get any. I do not think that the amendment from the noble Lord, Lord Best, should be accepted. We should proceed as fast as we can to get this policy operating so that people who have high needs get some assistance as soon as possible.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

I had not intended to speak but, listening to some of the debate, I want to add a very short comment.

I am certainly concerned for carers and users and the disappointment that they might face if this is not implemented as soon as possible. As someone who works in the sector all the time, I think that we have to face the reality of who will be disappointed and who will receive the service. What is absolutely clear is that, whatever happens, there will be rationing. We have heard the arguments-I shall not repeat them-from the noble Lord, Lord Sutherland, the noble Baroness, Lady Barker, and others, about the situation in local authorities. We all know that at the moment there are not enough domiciliary carers to meet the need. Those providers of domiciliary care services know that currently they are sending people in at six o'clock at night to put people to bed and at six o'clock in the morning to get them up, because that is the only time slot that remains. If we introduce the legislation immediately there will be a range of people who are currently receiving services but who are not at the heaviest end in the community, who will therefore lose those services because the services will be moved to people who can afford to pay for them but who will have a right to them. My worry is for those carers. I declare an interest as someone with responsibility for someone with serious Alzheimer's in the community in the north of England and who may well benefit from this change. I think that we have to think very carefully.

My other reason for speaking is that I do not wish the Bill to fail. I do not want to support what might be a wrecking amendment. We have long waited for social care to be on the agenda-for those who need that type of social care to have the same kind of benefit as they would if they went into hospital. Many of them are the same patients/clients; they are the same people who need that kind of service. I hope that we will not lose the side of the Bill that takes us into the Green Paper.

Local authorities need time. Practically, they will have to sort out who does and who does not receive a service. Although I find it hard to disagree with some of my colleagues who support carers and carers' associations, some of those people will lose out because there simply will not be enough money to go round.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

The amendment in the name of the noble Lord, Lord Best, refers to a commencement date of 1 April 2011. It is worth clarifying that this would prevent the making and laying of regulations before April 2011. The effect of the amendment would therefore be to delay implementation of the scheme until June 2011. That probably was not the noble Lord's intention; indeed, it was not the effect of the amendment that he tabled in Committee.

I am sure the House will be pleased to hear that I do not intend to repeat the remarks that I made at previous stages of the Bill but will instead address the issue of how the Government want to address the concerns expressed about councils' readiness to introduce these measures from October 2010.

I note briefly that we are supported in our ambition to take action by key charities, which recognise that the Bill provides a real opportunity to individuals and their families. I thank my noble friend Lady Pitkeathley for reminding the House that we are not starting down this path with a blank sheet of paper.

We do not think it right to delay support to individuals because of local implementation issues-we think it is right to tackle those issues. However, we have listened to the concerns expressed, both in this place and in our widespread consultation on the proposals. Taking those concerns on board, we have already confirmed in our response to the consultation that we will ensure that councils are able to phase in the implementation of free personal care between October 2010 and March 2011, to take account of both local issues and potential peaks in demand for assessment.

It is, however, our firm intention to introduce the scheme from October so that people can begin to benefit from this offer. In recognition of the large number of assessments that may need to be done initially, we propose to include in regulations a measure of backdating for individuals already assessed as needing personal care. Our intention is that, between October and April, councils will be able to delay the full assessment for free personal care of people who are already in the system and have been assessed as needing council care. These people will be able to have an assessment later and have any payments for free personal care backdated. Councils will be able to assess those people who are approaching social care for the first time-say, on discharge from hospital-in the normal fashion. Councils will, however, have to assess those people currently funding their own care and not currently known to the system when they make an approach from October.

In that way, we are offering councils which feel that they will not be fully ready by October the opportunity to have a staged approach to implementation. They will be able to focus on meeting the needs of people who have funded their own care, safe in the knowledge that those within the system will not be disadvantaged if they are not ready to fully assess them from the date of the introduction of the scheme. I will be circulating draft regulations before Third Reading that will give effect to these flexibilities for councils.

We are marrying two important objectives, recognising the practical difficulties that might be faced by some councils but ensuring that those with the highest care needs in our society receive the personal care that they need free of charge, as eloquently explained by my noble friend Lady Turner.

In addition to the specific new provision, offering flexibility while committing to provide for those in the highest need, we have published a clear implementation plan in our response to the consultation. We will be working closely with local government representatives to support councils in implementing the new arrangements, including a new commitment from the Department of Health to provide some centrally funded training for councils.

The government consultation response also sets out our proposal for the allocation formula to be used to distribute the specific extra grant of £210 million to cover the six-month period from October 2010, including an indicative allocation for each council. This gives local authorities greater clarity on the funding available, and a greater ability to plan for the implementation of this scheme.

Extensive discussion has taken place on the Bill, and we have announced flexibilities around implementation to ensure that councils provide free personal care from October. I ask the noble Lord to withdraw this amendment and engage with us in discussions to ensure that we have the best support possible to councils to help them through this implementation. If he does not wish to do so, I ask the House to reject his amendment.

Photo of Lord Warner Lord Warner Labour

Before the Minister sits down, will she confirm for the record that the Government believe that they should ignore the advice of the professional body whose members will be responsible for implementing this-namely, ADASS?

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

My Lords, we are not ignoring the advice of ADASS; we are in continuous discussion with it. We disagree with some of its members about how this can be implemented.

Photo of Lord Best Lord Best Crossbench

My Lords, I am grateful for support for this amendment from right round the House. The Minister's point that the excellent concession that would allow councils to phase in the assessment of eligibility over a period time and then later on pay the individual the sums back to the date when they applied does not unfortunately negate the need for councils to complete a vast range of other preparatory activity of the kind that I listed earlier. It would be wrong to assume any less pressure on councils to complete all these tasks by 1 October simply because they can backdate individuals' entitlements.

I can see local authorities incurring a good deal of opprobrium if the implementation date remains 1 October but nobody gets any cash for several months. The complaints that councils would receive would be very unfair when they are making it clear in advance that these deadlines are quite unrealistic. The noble Baroness, Lady Barker, explained the huge changes that are overloading those in local authorities. The noble Earl, Lord Howe, noted how the financial burden of this measure will force a number of councils to make horrible choices on what to cut elsewhere in their budget. The noble Baroness, Lady Howarth, expresses her anxieties that others in real need of care will suffer. The noble Lord, Lord Sutherland, adds that this amendment does no harm to the Bill's direction of travel.

If there are technical flaws in the wording, I apologise. No doubt, if passed by your Lordships, this can come back to us from the other place with a better turn of phrase. I detect widespread agreement that more time is needed before this Bill should be implemented. I would like to test the opinion of the House.

Division on Amendment 2

Contents 208; Not-Contents 127.

Amendment 2 agreed.

Division number 1 Personal Care at Home Bill — Report

Aye: 206 Members of the House of Lords

No: 125 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 3

Moved by Earl Howe

3: Clause 1, page 2, line 12, at end insert-

"( ) For the purposes of this section, where a person has been assessed as deafblind, provision of personal care to a person living at home shall include the provision of communication and mobility support."

Photo of Earl Howe Earl Howe - Shadow Minister, Health 4:46 pm, 17th March 2010

My Lords, with this amendment I return us briefly to an issue I raised in Committee and one which the Minister has since been kind enough to talk to me about privately. I refer to the fact that this Bill and its implementing regulations look likely, if nothing is done, to sideline the needs of deafblind people.

Perhaps I may remind the House why this is such a concern. To be both deaf and blind is surely one of the cruellest of disabilities. It is impossible for any deafblind person to live a normal life without receiving some measure of care, and for the worst afflicted it would be difficult to describe their level of need as anything other than critical. Indeed, under the current FACS guidance, deafblind people are frequently assessed as having a critical need under the category which relates to involvement in family and wider community life. If the care needs of deafblind people are not addressed, they are at extreme risk of having to go into residential care.

The problem is that, deserving of help as these individuals may be, the people whom this Bill is designed to benefit are not the deafblind but rather the frail elderly or those younger people who are severely physically disabled. The kind of personal care which the frail elderly typically require-dressing, help with toileting and bathing, assistance with eating and so on-is often not relevant to a deafblind person whose needs centre above all on help with communication and the whole business of interacting with the outside world. The draft regulations published by the department effectively narrow the definition of personal care so as to exclude this kind of personal care.

In Committee, I pointed out what I felt was the unreasonableness of this narrow definition of personal care, bearing in mind the vulnerability and acuity of need of the deafblind. I invited the Minister to take time to think about this, which I know she has done, having been good enough to see me together with representatives of Sense a few days ago. I have therefore tabled this amendment as a means of asking her whether on reflection she believes that anything can be done to ensure that those deafblind people who have the most critical care needs and who are at greatest risk of requiring residential care if their needs are not met can, after all, qualify for free care and support. I beg to move.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, I do not want to come between the House and hearing what the Minister has to say for any longer than necessary, but I wish to offer my support for the amendment moved in similar terms by the noble Earl, Lord Howe, in Committee. Unfortunately, I was not able to be here to do so, which is why I want to say a few words to indicate my warm support for the amendment before us today.

Deafblindness is a combination of disabilities both of hearing and sight. In this condition they are multiplicative and not just additive. Deafblindness is not just deafness plus blindness. The two disabilities compound one another in such a way as to give rise to a distinct disability which is different in kind, not just in degree, from the disability of either deafness or blindness.

Most of what we learn about the world comes through our eyes and ears, so deafblind people face major problems with communication, access to information and mobility. Without support, deafblind people are frequently unable to access basic information, maintain social contact, cook for themselves, go to work, exercise, engage in leisure activities, get out to the shops or the bank, visit the doctor, deal with post and bills, and even get around their own home in order to carry out household chores. Without communication and mobility support, many deafblind people do not feel safe going out of their house alone. They are, thus, effectively prisoners in their own home. Inside the house, they may be unable even to speak to anyone on the telephone, read, watch television, or listen to the radio. In this condition of extreme isolation, it is not surprising that they often develop higher rates of ill health with consequent cost to the National Health Service. They have a higher incidence of falls and a greater likelihood of developing conditions such as strokes, arthritis, heart disease, depression, and mental distress.

Those who suffer from deafblindness have a very serious level of disability. It is just about as serious as it is possible to conceive of. But, as the noble Earl explained, deafblind people are often able to perform the bare minimum of tasks of daily living, such as getting themselves up, washing, dressing, and maybe even feeding themselves by one means or another, even if they are unable to cook for themselves. This means that, according to the definition of personal care customarily employed, a deafblind person would not qualify for free personal care under the provisions of this Bill. The definition of personal care needs to broadened to include the mobility and communication support which deafblind people so desperately need. That is why I so strongly support this amendment.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench

My Lords, I also strongly support this amendment. Like the noble Lord, Lord Low, I was unable to be here at the Committee stage because of other commitments. I just seek clarification from the Minister about reablement. The Bill says free provision is,

"conditional on the person undergoing a process designed to maximise the person's ability to live independently".

I hope the Government are going to concede something in this area. Many of these people will have already had maximum independent living support prior to this Bill. I am concerned about what happens if somebody has a condition which is so severe that it is envisaged that no improvement can be made towards their independent living, or if they have already undergone a process, as part of their care management, which takes them to the maximum level. I hope we do not end up with the tokenism of some kind of reablement package.

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

My Lords, I thank the noble Earl, Lord Howe, for raising this issue and the noble Lord, Lord Low, for the passion he expressed. I also thank the noble Earl for the time he has spent with my noble friend discussing this. As he knows, we will ask for the amendment to be withdrawn. However, we have discussed the assurances that I will give, and I will briefly go through them.

The Government are very sympathetic to the deafblind, who are a group with very specific needs. We will ensure that the guidance we produce makes clear that where a person is unable to undertake activities of daily living because of deafblindness, this should be recognised; for example, where they are unable to feed themselves because they cannot identify food. While people who are deafblind have specific needs, the measures in the Bill are about providing free personal care to people with the highest needs. These measures are targeted and costed to include deafblind people within this group. The Bill is not intended to cover the entirety of a person's care needs; only their personal care needs. We have always said that this is a proportionate measure-a step on the way to longer-term reform of the social care system.

To extend the free personal care scheme to provide communication support to the deafblind would be significantly to widen the scope and the costs of our proposals. On Sense's own figures, given in evidence to the Health Select Committee, there are approximately 180,000 deafblind people who might seek to benefit, and Sense anticipates that this figure will rise to more than 300,000 by 2029. To include communication and mobility support would be moving beyond the scope of personal care into the wider domain of care and support. The forthcoming White Paper will set out our plans for wider future long-term reform of the social care system.

Noble Lords have expressed concern about whether the measures are affordable and could be implemented in time by local authorities. To accept the amendment would increase both the costs and complexity of the implementation of such measures. While we do not believe that the Bill is an appropriate place to insert specific provisions for specific conditions, we are sympathetic to the needs of the deafblind. For that reason, we reissued statutory guidance in June last year to all local authorities. We have also, in the revised eligibility framework published last month, reminded local authorities of their obligations to take proper account of sensory impairment in reaching decisions about eligibility for social care. When Ministers and officials met Sense, we agreed that we would ensure that the guidance published to support the implementation of free personal care will remind authorities of their obligations to take the needs of this group seriously and offer the support needed.

On the matter raised by the noble Baroness, Lady Finlay, I believe that the issue of reablement was covered by my noble friend in Committee. We expect local authorities to use reablement in a sensitive way, and not in the difficult areas to which she alluded. I hope that the assurances provided in Committee are sufficient. In the light of what I have said, I hope that the noble Earl will withdraw his amendment.

Photo of Earl Howe Earl Howe - Shadow Minister, Health

My Lords, I thank all noble Lords who have spoken in the debate and in particular the Minister for his reply. I am a little disappointed. I had hoped that the deafblind community might be able to take from this debate a greater degree of hope and comfort. It is reassuring that the Government have re-emphasised in guidance the importance of recognising the gravity of this disability but it does not appear that there is much scope for making particular allowance for it in the scheme that we are debating. That is, to put it mildly, a pity. However, I do not propose to pursue the matter. I hope that the Government will give it some additional consideration as their plans materialise. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4

Moved by Baroness Masham of Ilton

4: Clause 1, page 2, line 12, at end insert-

"( ) After section 16 of the Community Care (Delayed Discharges etc.) Act 2003 insert-

"16A Right of appeal

(1) The Secretary of State shall by regulations establish an appeal mechanism for persons who believe that they are entitled, under section 15, to a qualifying service free of charge for a period of longer than six weeks, but who have been refused such a service by their local authority.

(2) Regulations made under subsection (1) shall be made by statutory instrument and any such instrument may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.""

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench 5:00 pm, 17th March 2010

My Lords, I have retabled this amendment on the right of appeal, as it is important to make it clear that there is a straightforward and fast-track mechanism. No doubt, in the critical band of people who need help, there will be complex problems. One must not forget that such people are very vulnerable and that their carers, if they have them, may be at their wits' end. There are still unanswered questions: what will be the cut-off point and who will do the assessments? It is well known that many local authorities have differing criteria, so there is sure to be a postcode lottery. When I read the list of activities of daily living, I see that many deal with nursing duties covering such things as eating and drinking when there is difficulty swallowing, managing urinary and bowel functions, management of treatment that consists of a prescription-only medicine and dealing with equipment such as pressure-relieving mattresses. Those activities all need trained people who know what they are doing.

I thank the noble Baroness, Lady Thornton, for making herself and members of the Bill team available to Members of your Lordships' House. I agree with the Minister that we do not wish to add any unnecessary layers to the process. However, I see too many bureaucratic layers in the existing social service appeals procedure. In Committee, the noble Baroness, Lady Barker, explained the cumbersome process. She said:

"One is an appeal against an assessment ofneeds, the second may be an appeal against the basis on which that assessment was made-that is, the criteria-and the third is an appeal against the decision about what funds or, indeed, services to allocate to somebody".-[Hansard, 22/2/10; col. 825.]

Could the system not be streamlined and made simpler and fast-tracked?

After Committee stage, I received a telephone call from a lady with severe arthritis. She had a problem getting out of her bath and so needed to have a shower installed. When she was assessed, it had been agreed that she needed a shower, but she was told that she would have to wait three years. Are people really being put first or are those just meaningless words?

In the paper on personal care, it is proposed that to be eligible for free personal care someone must satisfy two key criteria: first, they must be identified by their local authority as falling within the fair access to care services critical band; and, secondly, they must require significant help or significant prompting in order to carry out four or more activities of daily living. What happens to all the other people who need a little help to enable them to stay independent and to live in their own homes? Will the local authorities say, "Sorry, we have no more money"?

After appeals, 50 per cent of assessments have been found to be wrong. The Minister sent a paper about complaints from North Yorkshire. One of the questions was:

"How long will it take the Ombudsman to investigate the complaint once the council has responded to it?".

The answer was:

"Our target is to complete the investigation of half of the complaints made to us within 13 weeks. Eighty per cent of complaints are fully investigated within 26 weeks".

Complex social care complaints tend to be among those that take longer to investigate. How long is longer? The people within the critical band have complex conditions; they cannot wait. They need help when they need it. Would it not be possible to build on the ombudsman's service and have local ombudsmen to set up a fast-track appeals process for those at-risk people? I beg to move.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

I support the amendment tabled by the noble Baroness, Lady Masham. This Bill clearly seeks to achieve a laudable and desirable end and we have heard articulated a small number of the very serious issues that have arisen in our contemplation of it. Those affected by the legislation will by definition include those most seriously ill and disabled in our society, each of whom may present with a wide range of issues requiring an equally wide range of responses. They will inevitably include those with the most serious communication and access difficulties, as referred to by the noble Lord, Lord Low, in the context of those who are both deaf and blind. The critical nature of those conditions will necessitate a speedy response to an application and to any appeal.

Pending the resolution of a dispute-there will inevitably be disputes, as we have seen in the other sectors, on the objectivity and fairness of what has been decided-the people will have to cope without help. We have heard this afternoon that those who are subsequently accepted for free personal care at home will have the money backdated, but that comes too late for those who have no money. The result of not having a speedy and effective disputes resolution mechanism may drive them into residential care.

I suggest that any dispute resolution must be accessible, open and easily understood by those who seek to use it. People must be able to find out what it is and they must be able to take part in the process. The system must be timely and effective and it must be operated by those with sufficient training in the matters related to the dispute. The noble Baroness, Lady Masham, referred to those matters of training and specific issues that will be raised by applicants in this situation. For those reasons, we must contemplate the possibility that a new disputes resolution is necessary.

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

My Lords, I thank the noble Baroness, Lady Masham, for bringing up this issue. Some general comments have been made about the proposed scheme, but I shall refer to only one of them, which is the suggestion that there will be a postcode lottery for the scheme. That is not true; it will be a national scheme to national standards and we will be taking a series of measures to ensure that uniform standards apply throughout the country.

The real question brought up by the amendment is whether there should be a separate appeals mechanism. The Government believe that there should not be and that the present local government appeals mechanism, together with the ombudsman, does a good job and meets the objectives of a speedy, effective and well informed assessment.

The amendment would require the Secretary of State to make regulations that establish a specific appeals mechanism for those who believe that they are entitled to indefinite provision of a free qualifying service but have been denied it by their local authority. That would include a denial by the local authority to provide free personal care.

There is already a system for complaints under the existing procedure, providing the possibility of local resolution, supplemented by the possibility of independent investigation. We intend that that system will cover any complaints about eligibility for free personal care. If the person is not satisfied with how their complaint is dealt with under existing local authority complaints procedures, they can take the matter up with the Local Government Ombudsman or with the courts by means of judicial review.

I agree with the noble Baroness that it is important that decisions on free personal care at home are as fair and transparent as possible, including the right to challenge local authority decisions by people who have reason to believe that they should be eligible for such care, based on the criteria set out in regulations. That should be followed by the possibility of complaint to an independent body, should that be necessary.

The Local Government Ombudsman states in its fact sheet on adult social care:

"Experience suggests that many councils are quite successful at resolving complaints through their own complaints procedures".

That is reiterated by North Yorkshire County Council, which says in its guide to its local complaints procedure that more than 95 per cent of the complaints that it receives are resolved informally at the first stage of the complaints process.

We are aiming to develop a simple, national decision tool to support decisions about eligibility for free personal care. The tool will be widely available to people who think that they may qualify, so that they can decide whether it would be worth while making an approach to the council in the first place. In that way, we hope that the number of speculative approaches that councils receive will be reduced. Similarly, the Social Care Institute for Excellence has been commissioned to produce training material for front-line staff in councils. A simple guide for the public is also being produced as part of that work. We believe that that will help to ensure that people both are better informed about the process and better understand the reasons why decisions have been taken.

We anticipate, therefore, that this much more transparent process, which involves individuals, should ensure that people have less need to resort to disputing the outcome of assessments. We have shared materials from local councils and the Local Government Ombudsman, which explain the current procedure, with the noble Baroness in a meeting with her, and last week sent an explanatory letter to her and other Peers. We hope that those steps have been helpful in providing some clarity and reassurance regarding the existing system.

The noble Baroness suggested in Committee that the Care Standards Tribunal could be expanded to include appeals about eligibility for free personal care. I thank her for that suggestion, but we do not think that it would be suitable. The existing complaints procedure for social care is fit for purpose in handling disputes relating to personal care at home. In any event, the jurisdiction of the tribunal has now been absorbed by the Health, Education and Social Care Chamber of the First-tier Tribunal.

We would not want further to confuse either the complainant or the council handling the complaint by introducing yet another mechanism. Multiple approaches can be the recipe for delay and further confusion and it would be unclear which process would take precedence. We will look to review the situation as part of our overall review of the policy's costs and implementation within 12 to 18 months of its introduction, but at present we do not think that there are grounds for introducing a new appeals mechanism.

I thank the noble Baroness, Lady Masham, for meeting us to discuss her concerns and I hope that the letter that was circulated last week, along with examples about use of existing complaints procedures, provided reassurance that there is already adequate provision in this area. Accordingly, I invite her to withdraw her amendment.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench 5:15 pm, 17th March 2010

My Lords, I thank the Minister for his reply. North Yorkshire and other local authorities have their appeal systems, but they are far too slow. When you are dealing with critical care, you need fast-track solutions. What worries me is that the professional bodies have their own support but service users often have to struggle for everything. Many years ago, when I was on a community health council, I found that it was the council members who did not turn up for meetings. I just hope that they will change their tune now that they are going to deal with seriously ill people.

I saw a glimmer of hope when the Minister said that, in 12 to 18 months, the situation would be reviewed. I think that I will be saying, "I told you so". I hope that the system will work, but now that there will be a delay on the Bill perhaps councils will have time to get organised. I thank the Minister again and I thank my noble friend for her support-she knows about ombudsmen far better than anyone else does. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 2 : Extent and short title

Amendment 5

Moved by Lord Lipsey

5: Clause 2, page 2, line 31, at end insert-

"(3) This Act shall come into force on such day as the Secretary of State may, by order made by statutory instrument, appoint.

(4) A statutory instrument containing an order made under subsection (3) may not be made unless a draft of the instrument has been laid before, and approved by, a resolution of each House of Parliament."

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, I shall speak to the amendment in my name and those of the noble Earl, Lord Howe, and the noble Baronesses, Lady Barker and Lady Murphy. In doing so, I remind the House that I am the honorary president of SOLLA, the Society of Later Life Advisers.

The amendment would insert into the Bill a commencement date and make sure that that date is carried first by an affirmative resolution of both Houses of Parliament. It mirrors an amendment moved in another place with the support of both the Conservative Party and the Liberal Democrats. Also, if I may put it this way, it represents a belt to go with the braces of the noble Lord, Lord Best, in ensuring that before the Bill is put into effect we have bottomed out the many open issues we are left with after all the hours this House has spent debating it. As was pointed out in another place, there is nothing to stop the Government introducing that commencement order tomorrow if they so wish. However, I accept that in practice there will not be a commencement order until after a general election-indeed, that is part of its purpose. This means a short delay, no more and no less.

I want to emphasise one point. There has been a suggestion that the amendments tabled by some of us are designed to wreck the Bill. This is a terrible calumny. Delaying is not stopping. I am not a supporter of the Bill and the policy behind it, but if I were I would want delay too: I would want my Bill put in the best possible order before I shoved it into effect. Nothing will be served for the Government if this results in administrative chaos or such a burden to finances that it has to be withdrawn again. These amendments are not unhelpful to the Government, even though that is not necessarily the only reason we move them. They are not wrecking amendments. The only thing they wreck is the attempt to force the Bill through as if it were an emergency measure, short-cutting parliamentary procedures, ignoring the criticism of its provisions which has dominated public discussion and without thinking through the fine detail as it needs to be thought through.

If ever proof of what I am saying were needed, it came in the report from the Commons Health Select Committee, published last Friday. Not all of your Lordships will have had the opportunity to study that report, but I hope you can take it from me and others who have that it is an Exocet into the heart of this policy. Its conclusions refer to, "policy-making on the hoof", "piecemeal reform", "perverse incentives", "unintended consequences" and underfunding which,

"could be detrimental to the long-term interests of NHS patients".

That is not a contribution to the Conservatives' election manifesto; it is based on evidence from a committee of the House of Commons, with a majority of Labour members, on the eve of a general election. This is the verdict of the Government's loyal supporters-Labour, as I am, to the roots-so let us not think that this is some ideological cross-party issue; it is what the Select Committee said. Your Lordships have a duty to ensure that the Government properly consider and respond to that report and its criticisms before the Bill is rushed into law.

The second thing to be resolved is the administrative difficulties. I will not repeat all that the noble Lord, Lord Best, said.

Thirdly, there is the controversy over costs, although I will not go into the detail of this either, as the noble Lord, Lord Warner, will do so when he moves his amendment. I will, however, quote SOLLA, which I mentioned earlier, because I do not think that a single outside authority or anyone else, other than the Government, believes that these assessments of costs are realistic. They were shoved out in a few hours after the Prime Minister's speech, and they have been defended as though they were genuine and serious assessments of costs. SOLLA said that the costing is "at best only approximate", and it cites the view of most experts-and SOLLA's members are experts-that they are severely underestimated. We cannot let this Bill go through when we do not have the faintest clue how the expenditure that it mandates will be funded.

I have great sympathy for the Minister. She is a gallant and much loved Minister in this House, and she is working with hopelessly overburdened officials to an impossible timetable that has been dictated to them by No. 10. No. 10 can dictate to Ministers and to their officials, but it cannot dictate to this House, and it is our duty to make and accept the case for a steadier timetable. My argument for a steadier timetable would apply even if there was no election and even if it was true-and it is far from true-that the Government's policy attracted the support of all the parties in this Parliament in a spirit of consensus. Of course, an election is imminent and the Conservatives and the Lib Dems have set out quite different approaches to this problem from the Government's approach. I am not going to adjudicate between them, save only to say that there has been some very unfortunate political toing and froing on this. I look forward, after the election, to returning to the spirit of consensus that should inform our debates on these issues and to getting a consensus solution that will last not for the month to the general election, or for the year that follows it, but for years and decades to come to give our older people the certainty that they require.

The Government have proceeded throughout as though this was emergency legislation. The policy itself was announced in the Prime Minister's conference speech in the midst of a government consultation that had explicitly ruled out the policy that it encapsulates. It was examined in detail in the Commons in a single day, and had its Committee stage in your Lordships' House before the Government had completed their consultation on the regulations. The Government have not yet produced their White Paper-this is the most serious lacuna of all-setting out their policy for a comprehensive reform of long-term care, towards which they repeatedly claim the Bill is an interim step. It would be a grave mistake to pass this legislation without seeing the full plan for the architecture.

I accept that I have a certain strength of feeling about this, but this is not just my view; those two calm heads and former Cabinet Secretaries, the noble Lords, Lord Turnbull and Lord Butler, have used quite exceptionally severe words when speaking about it. The noble Lord, Lord Butler, told the Committee of this House that this Bill, which commits a future Government to huge expenditure, was,

"an act of national sabotage".-[Hansard, 22/2/10; col. 893.]

I wonder whether he ever put that into Cabinet minutes. These are strong words. The noble Lord, Lord Turnbull, said that the Bill was,

"so badly constructed, so poorly costed and so weakly scrutinised that",-[Hansard, 1/2/10; col. 68.]

we should not let it through. Cabinet Secretaries do not use their words lightly, and those are words that the whole House should weigh in its consideration this afternoon.

It is now 38 long years since I first started work in and around Westminster, and in that time Governments have done some pretty disgraceful things and Parliament has passed some pretty bad Bills. But, rack my memory as I will, I cannot recall in my lifetime an example of a piece of legislation which has so completely caused a British Government to ignore the precepts of good governance. Never mind the policy: look at the way it has been done and let your Lordships put that right. Fortunately, we exist in our constitution for one very specific purpose: as a backstop against constitutional abuse. Today, I hope we will carry this amendment, as we carried the amendment of the noble Lord, Lord Best, and as I trust we will carry others. That will at least gives pause to this headlong rush into half-baked legislation. Resolving the problem will be a matter for incoming Ministers with an up-to-date mandate from those who should ultimately decide these things-the people of this country.

Photo of Earl Howe Earl Howe - Shadow Minister, Health

My Lords, in supporting everything that the noble Lord, Lord Lipsey, has said, I would like to add my own very brief perspective on this amendment, lest the attitude of my party is in any way unclear. This amendment would in no way frustrate the Government's ability to deliver on schedule their policy of free personal care at home to those in the most severe need; it does not tie the Government's hands except in the loosest sense. Should the current Government be re-elected at the general election in a few weeks' time, all they would need to do is lay the appropriate regulations immediately.

If, on the other hand, a Conservative Government were elected, Ministers would be able to take what we believe is the responsible course, which is to cost this policy properly, make sure that it is affordable in the context of the overall public finances and that it is deliverable in terms of the human resources that will be needed. None of these things is clear yet. The Government have brought this policy in, as the noble Lord, Lord Lipsey, has said, on the hoof, and they are blatantly playing to the gallery in so doing. I do not think that that is a responsible approach for any Government to take, particularly at a time of economic stringency. Our wish, if we are elected, is to achieve a political consensus on the long-term reform of social care policy, which would include a fair and coherent framework of social care funding to apply across the spectrum. In doing that, we would want to pick up the pointers and challenges laid down in the Government's well argued Green Paper of last summer.

As I said in Committee, I would have liked to see this Bill act as the enabling legislative vehicle for at least part of that comprehensive reform package. The undesirable and unintended consequences which I believe will ensue from this scheme if it is launched on its own could have been mitigated very substantially by a graduated scale of entitlements which avoided the cliff edge that this scheme will create and by creating appropriate counterbalances to the perverse incentives inherent in the Government's policy. That is clearly not to be, but given that Ministers are not interested in that broader idea, I do not think it is in any way wrong for an incoming Conservative Government, if they arrive, to make the introduction of this policy dependent on a much more thorough analysis of the risks that it carries and the financial burdens that it will impose on local government-for we really cannot say, as of today, that we have certainty on either of those things.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

My Lords, this amendment in the names of my noble friend Lord Lipsey, the noble Earl, Lord Howe, and the noble Baronesses, Lady Barker and Lady Murphy, would require that a commencement order would need to be made before the proposals in the Bill could come into force. Additionally, such an order would need to be approved by the affirmative procedure, with consideration in this House and the other place.

Not only has this one-clause Bill had considerable scrutiny in this House and the other place, it has been openly and transparently discussed with many stakeholders over recent months. I covered this issue at length at Second Reading and in Committee, and the Government published their response to the consultation on regulations and guidance on 12 March 2010. Therefore, given the extensive scrutiny that this Bill has had here and in the other place, and more widely with stakeholders in the sector, we consider this amendment unnecessary.

In addition, the Delegated Powers Committee reported on the powers in the Bill on 22 January 2010. It said:

"There is nothing in the Bill to which we wish to draw the attention of the House".

In other words, the negative procedure is appropriate.

My noble friend Lord Lipsey has tabled the amendment in the knowledge that the statutory provisions he is proposing would mean that the timetable for delivering free personal care from October would be placed in jeopardy. Please note that I have not used the word "wrecking" at any point during these debates, nor do I intend to do so. This is the Government's priority and I can assure my noble friend that we will do whatever is necessary to deliver to that deadline for those people who need to benefit from this Bill. I would say to the noble Earl that if his party was so concerned to move forward to tackle the broader issues of social policy, it is a shame it pulled out a few months ago.

I remind the House that the Bill had an unopposed passage in another place and that there were extensive discussions with stakeholders, voluntary organisations and charities throughout. Today, I received a copy of a letter from Carers UK urging the Government not to delay. Given previous discussions, the amendment would not serve the best interests of councils, as it would introduce yet further uncertainty into their plans for implementation were this to be agreed.

Therefore, I urge all noble Lords to ensure that the Bill is not put at risk of delay and that they do not seek to jeopardise the delivery of this policy in October. I would ask that the amendment is withdrawn or, failing that, that it is opposed.

Photo of Lord Lipsey Lord Lipsey Labour 5:30 pm, 17th March 2010

My Lords, I think that the Minister is beginning to tire of her task, given the perfunctory nature of those remarks. Within them, I think that she inadvertently misled the House as to the findings of the Delegated Powers Committee. It did not question the use of negative resolution procedures for regulations under the Bill as it then stood. Whether that was an inadvertency on its part or an oversight, or whether it should have done, does not matter because the House is not bound by it anyway.

The Delegated Powers Committee could not have considered whether this power-that is, the power to bring the Bill into force-should be by affirmative or negative resolution because it is only now before the House. It seems to me to be clearly appropriate that a decision of this magnitude, which was really a decision around which so many of our debates have evolved, must be taken by affirmative resolution in both Houses, as this amendment proposes.

The breath is somewhat taken away when I hear that the Bill had extensive scrutiny in another place or that it was not opposed. As I have pointed out to the House, this amendment was moved in another place by the two Opposition parties-unfortunately, it was defeated by the Government majority-in one day of frenetic proceedings when the whole Bill was shoved through. I think that your Lordships will recognise that if ever there was a Bill that required detailed scrutiny, it is the Bill before us today. This is not frivolous legislation. It has widespread administrative, financial and, most important, personal and social implications.

For the Minister to claim that a single day's consideration in the Commons represents proper consideration of this Bill is not a proposition with which I could assent. I trust that the House will refuse to assent, as I test the opinion of the House in the Lobbies.

Division on Amendment 5

Contents 201; Not-Contents 134.

Amendment 5 agreed.

Division number 2 Personal Care at Home Bill — Report

Aye: 199 Members of the House of Lords

No: 132 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 6

Moved by Lord Warner

6: Clause 2, page 2, line 31, at end insert-

"( ) This Act shall not come into force until the Secretary of State has commissioned an independent review of the affordability of the provisions contained within this Act and has laid the report of that review before both Houses of Parliament."

Photo of Lord Warner Lord Warner Labour 5:45 pm, 17th March 2010

My Lords, this amendment is in my name and those of the noble Baronesses, Lady Barker and Lady Murphy, and the noble Earl, Lord Howe. The amendment arises solely from the Government's failure to convince people in this House and outside that the Bill is soundly costed and affordable. To get in first, let me say that this is a good governance amendment, not a wrecking amendment.

The concerns over affordability have been made worse by the fact that we do not know how the Bill would fit into any longer-term solution and what the cost of that solution would be. We know, however, that the Government have failed to convince the Health Select Committee, the LGA, the Association of Directors of Adult Social Services and the King's Fund with their numbers, so I feel in quite good company.

I shall anticipate the Minister's response that the Government's estimates are based on independent analysis by the PSSRU at the London School of Economics. The trouble is that the Secretary of State would not let the Health Select Committee see the detailed workings, despite two written requests, and the assumptions behind some of the computations look decidedly shaky. If the number of weekly care hours assumed for people with critical needs, demand assumptions and price increases used all look unrealistic, as I think they do, the Government's figures are going to be unconvincing-and that is what they are.

I start with the ADASS cost figures. I will not repeat my Second Reading speech, other than to remind the House that ADASS said that the Bill would cost at least £1 billion a year to implement, compared to the Government's figure of £670 million. The Government have consistently tried to rubbish the higher figure by saying that ADASS admitted overestimating some of its costs. However, the association said to me, in a letter dated 15 March:

"At no time have we admitted that the results from our survey were an overestimate of the true state of affairs that would occur if the Bill were to be implemented. If anything, we deliberately decided to underestimate as far as we possibly could, wherever we could, so as to avoid appearing to exaggerate or talk up our figures".

The association has not "sexed up" its figures. It sticks firmly to its estimate of at least £1 billion a year, which is based on real-world calculations from its members. I confirmed this again with the association yesterday by e-mail.

ADASS is supported in its view by the LGA. The noble Lord, Lord Best, has already indicated some of the arguments on that, so I will not repeat them. Moreover, the Health Select Committee sided with ADASS's position more than it did with the Government's. In paragraph 296 of its report of last Friday, the committee said:

"Furthermore, estimates of the likely levels of demand and cost appear low, and there is a risk that the reform could be substantially underfunded".

The committee was not helped in its deliberations by the Secretary of State's reluctance to provide his workings, as it made clear in paragraph 280.

I have rather more confidence in the ADASS figures than I do in the Government's, but that £1 billion figure is itself likely to rise faster than the Government estimate and this at a time when the public finances will be deteriorating, whoever is in government. That is because the Government's assumptions on demand and cost inflation are optimistically low. Their impact assessment states that there will be a 1.5 per cent annual increase in service volume due to demography and a 2 per cent annual increase in price for pay increases.

The Government deny that there is any valid comparison between their scheme and what has happened in Scotland since home care was made free. I accept that there is not a direct comparison between this scheme and the Scottish one, but that is not the same as saying that there will be no similarities in human behaviour when you make this care free for some people. In Scotland, the number of people claiming went up by 36 per cent in four years when care was made free. In the last of those years, cost increases by care providers went up by 15 per cent-that was in a single year. There has to be a wide variation between what has happened in Scotland and what will happen in England, but I simply do not believe that the human beings either side of Hadrian's Wall are that different in their likely behaviour when something is made free. Totally ignoring the Scottish experience as the Government are doing seems to me contrived. The Health Select Committee clearly did not believe the Government's estimates on future cost increases for this Bill and neither do I.

Lastly, there is the issue of whether local government is being treated fairly over funding this legislation. The noble Lord, Lord Best, has described well its grievances, so I will not repeat them. However, if ADASS and the LGA turn out to be right about the costings-as I believe they will-it will be a pyrrhic victory, because they will have to pick up the extra tab, which could well be over £300 million in the 2011-12 financial year alone. There is also something of a conjuring trick about how local government is supposed to meet its £250 million share of the claimed £670 million annual cost. The Government have said that local government is expected to find its share from the 4 per cent efficiency savings that it is to deliver in 2010-11 so that there are no extra burdens. In its letter of 15 March, ADASS said to me:

"We believe this is very poor reasoning. We are already delivering 4% savings to fund demographic changes and to keep council tax increases down. As a result of the PCaH there will have to be additional savings or increases in council tax".

Since it is difficult to increase council tax so close to the new year, this looks like cuts in services and possibly cuts to other elderly and vulnerable people, as others indicated earlier in the debate. The Government should accept the reasonable local government argument that this is a new burden that should be properly funded by central government.

We are at the beginning of a long, difficult and expensive road to comprehensive and durable reform of adult social care. This is probably the biggest social policy issue facing us in the next few years. A recent report by the London School of Economics suggests that the cost of free personal care for the elderly could have a price tag of an extra £20 billion a year building up over the next couple of decades. Getting the sums right and apportioning the cost fairly will be an important part of the journey that will have to be undertaken on, I hope, a cross-party basis.

With this first faltering step on this journey, the Government have not covered themselves with glory in their costings. They need to accept some help with the numbers from an independent source-I would suggest an organisation such as the Audit Commission or the King's Fund. This amendment will help them to get back on track without delaying the implementation of the Bill beyond next spring as the House voted for earlier this afternoon. I beg to move.

Photo of Earl Howe Earl Howe - Shadow Minister, Health

My Lords, I strongly support this amendment. The Government's assurances that the Bill is affordable and that their costings are robust are belied by their own statements, never mind anything being said by local government or ADASS. It is worth reminding ourselves of some of the relevant parts of the impact assessment. First, there is the basic question of how many people stand to benefit from this policy. We do not know the answer to that question. Paragraphusb 5.5 of the impact assessment states:

"Data relating to the number of people who are defined as FACS Critical at any point in time and the relative distribution of their needs/disability is not something that is routinely collected at the centre".

Paragraph 8.8 states:

"We know very little about the disability of those younger adults who do not already receive free personal care, so all of the estimated costs ... are themselves uncertain".

Paragraph 5.10 talks about,

"the inherent uncertainty in estimating the costs of offering free personal care in their homes to those with 4 or more ADLs"- and so it goes on. Paragraph 5.11 states:

"Estimating the costs of re-ablement is difficult. We do not know for certain how many people are already receiving re-ablement services. In addition, we do not know exactly what proportion of individuals require no further care following re-ablement or for how long they derive such a benefit".

Paragraph 5.18 states that,

"there is a section of the population who will receive personal care who previously did not ... A value on this benefit has not ... been calculated".

The impact assessment says in terms that the costs of this scheme are based on estimates. One or two estimates at the margin might be all right, but basing just about every costing assumption on an estimate where there are no underlying data at all makes this exercise unacceptably risky. We know that financial modelling is still going on. Consultations with stakeholders about the costs are still going on. In the absence of much clearer information, it is impossible as of today to say that the Government's policy is affordable, which is why this amendment is absolutely right and appropriate.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

My Lords, this amendment in the name of the noble Lord, Lord Warner, supported by the noble Baronesses, Lady Barker and Lady Murphy, and the noble Earl, Lord Howe, would require an independent review of the affordability of the provisions contained in the Bill to be carried out and a report laid before Parliament before the Bill could come into force.

I fear that my remarks will be tedious, as I am about to say pretty much what I have said on the two previous occasions when we discussed such an amendment. Given the considerable scrutiny that this Bill and the costs of measures enabled by it have had in the other place and more widely, we feel that this amendment is not necessary. I do not intend to burden the House by repeating for the third time the discussions that we had on Second Reading and in Committee.

We have looked in detail at the concerns raised by the Association of Directors of Adult Social Services. We remain confident that our estimates, of £670 million, are robust, based on the independent analysis by the London School of Economics. Clearly, we disagree with ADASS and its interpretation of the discussions. I can only repeat what we believe to be the case. The ADASS survey, by the association's own admission, overestimated some aspects of the costs through a misunderstanding of the Government's figures. I would like to clarify that it is correct that ADASS has not admitted to this position publicly. This was a position that it took in informal discussions with officials and the ADASS resources committee. While there is no official record of these conversations, we think that it is disappointing that the association is now distancing itself from what we believe was a previously agreed position.

However, we have listened to the concerns expressed. In the government response to the consultation, we have provided additional clarity about the £210 million of additional funding that will be allocated for the coming year, covering the six months from October 2010 to March 2011. We have circulated a letter to all councils about this so that they are now clear about exactly how much money they can expect. They can now make plans using these indicative allocation figures, which will be subject to final confirmation in June.

We are confident in our costings and have been open and transparent about the funding available with our stakeholders. In addition, we are fully committed to reviewing the costs of this scheme within 12 to 18 months of implementation and we will be working closely with local government representatives to ensure successful implementation. We are committed to collecting data from October and we will work with the councils to ensure that they have the necessary information.

Given that, we cannot see how an independent review prior to implementation would achieve anything. Where there is uncertainty-and we have been open and transparent about the uncertainties that exist-it is because the evidence is not there yet. Much of this involves assumptions about how people will behave and we cannot know whether they are right until the scheme is in place. We will need to work with councils to collect that information from the start, once the scheme is in place, and respond accordingly. That is the commitment that we have made. The net effect of this amendment would be to delay or jeopardise the implementation of this policy in October and the assistance that it would afford to the most vulnerable who need it. I therefore ask that the amendment be withdrawn or, failing that, be opposed.

Photo of Lord Lipsey Lord Lipsey Labour 6:00 pm, 17th March 2010

Before the noble Baroness sits down, may I ask her a question? She says that the Government are confident in their costings. Will she therefore explain to the House why they twice denied the Health Committee of the House of Commons sight of those costings and why she told me in Committee that she would provide me with the costings but in fact provided me with a manual to the London School of Economics model, which predated the Prime Minister's announcement by several months?

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

I do not have anything to add to the remarks that I have already made that explain our position on the costings.

Photo of Lord Warner Lord Warner Labour

I am going to be equally tedious, but, before that, let me say one thing to my noble friend. Where there is this level of uncertainty about something, those of us who have been around in the public service for a long time usually try a pilot scheme in order to work things out and get more reliable data. We do not whack a Bill through both Houses of Parliament as emergency legislation. She might like to digest and brood on that issue with some of her colleagues. However, having listened to her, I remain totally unconvinced and I wish to test the opinion of the House.

Division on Amendment 6

Contents 171; Not-Contents 120.

Amendment 6 agreed.

Division number 3 Personal Care at Home Bill — Report

Aye: 169 Members of the House of Lords

No: 118 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 7

Moved by Baroness Barker

7: After Clause 2, insert the following new Clause-

"Expiry

(1) This Act shall cease to have effect at the end of the period of two years beginning with the day on which it is passed unless the condition in subsection (2) is satisfied.

(2) The condition is that regulations made under section 15 of the Community Care (Delayed Discharges etc.) Act 2003, having the effect of requiring the provision of personal care at home free of charge for periods of more than six weeks, are in force."

Photo of Baroness Barker Baroness Barker Spokesperson for Health 6:12 pm, 17th March 2010

My Lords, Amendment 7, tabled in my name and those of the noble Lords, Lord Lipsey and Lord Warner, and the noble Baroness, Lady Murphy, concerns what is commonly known as a sunset clause. It would impose a time limit on the effects of the Bill which is specified at two years. Why do we seek such a measure? Having listened with great interest not only to the discussions in your Lordships' House but also to a variety of briefings from the Association of Directors of Social Services and the charities, as well as from the Government, I still think there is too much about the Bill which is unknown. What it should be is a pilot measure, and I will come on to explain why I believe that this amendment is the most effective way to turn it into a pilot.

As the noble Lord, Lord Lipsey, said, the Health Select Committee report of another place is a pretty devastating critique of the Bill. I commend noble Lords to read it all, but would direct them in particular to the section that talks about unmet need. I refer to the paragraphs in which the Secretary of State and officials set out in various ways the extent to which they cannot be sure how many people there are at the moment who might be eligible for care but who pay for themselves, and the number who might be eligible with or without assistance from a carer. I have to say that of our debates in Committee, the ones I thought were the least satisfactory were those in which we discussed the process of assessment and the involvement of carers.

During the passage of the Bill, I have become used to the term "carer blind assessment", but when I read the Select Committee report, I came across a term that was new even to me, and I know a lot of jargon in this field; and that is "carer centred". It is where carers are not involved in the assessment of someone's abilities but, I believe, that carers themselves are taken into account in terms of assessing the services that will be provided. I may be wrong, but that is what I understand.

Throughout our discussions I have said that I have a fear that is different from that expressed by many noble Lords. They are concerned that the Bill will lead to an opening of the floodgates and that large numbers of people who are currently paying for their own needs will now believe themselves eligible for personal care. I have said consistently that I think that there is a completely different danger to consider. The number of people who will be assessed as being FACS-critical and in need of substantial assistance with four activities of daily living may be very small. I shall quote a statement made by Mr Andrew Harrop of Age UK to the Select Committee. I should say that the same thoughts were passed on to me by Pauline Thompson, the longstanding policy officer of Age UK who is to retire tomorrow. Many noble Lords will know her and will have appreciated her work. Mr Harrop said that he found some of the policy a narrow but "welcome move forward", but went on to say about the proposed eligibility threshold that,

"you will need to be very, very disabled in order to get this free offer ... the people who are going to be supported by this could be relatively few in number. There is a particular concern that people with fluctuating needs could be disadvantaged by the tightness of the eligibility criteria".

Officials in front of the Select Committee admitted that councils do not regularly hold data on unmet need, and indeed there is a school of thought, backed by In Control, which says that assessment of need by councils is unnecessary because people themselves are best equipped to know their own needs. Therefore, unmet need simply is not recorded.

In her response, the noble Baroness will say, as I would if I were she, that this Bill has the support of a number of different charities. Not surprisingly, those charities are doing their job, which is exactly the job I would do if I were in their place. They are attempting to secure some help for some of the people with whom they work. But all of those charities have noted that the legislation is deeply flawed at various different points.

We should go for a sunset clause for the following reason. The noble Lord, Lord Lipsey, is right to say that an incoming Government-I would include an incoming Liberal Democrat Government in this-will be faced with one of the most difficult political decisions to be made in a long time. It is so difficult that this Government ducked it 10 years ago. It will be extremely difficult to convince people not only that there must be restraint in public expenditure, but also to agree the priorities for the resources that are available. Governments of any hue find it intensely difficult to take away an entitlement that so far has been given for free. That is why, at this stage, we should add this clause to the Bill so that two years after the enactment of the legislation, whoever is right-whether it leads to an unmanageable level of demand for free personal care or whether I am right and the eligibility criteria have been drawn up in such a way that the Bill does not fulfil its intended purpose-a Government of any hue will be free to look again at the overall context of personal social care.

My colleague, Norman Lamb, has done a sterling job over the past few weeks in making the point that there has to be reform of social care and that, whatever the detail of that reform, it has to reflect a universal basic entitlement to care, a partnership model between the state and individuals, and some role for private insurers, all based on common criteria. I think that any incoming Government will work towards that. Perhaps the Minister will be able to tell us, when the White Paper is published, that her Government are moving in that direction. So far all that she has been able to do is assert that this is a step towards that kind of process, but she has given us no evidence. In the absence of that, and with so many unknowns of such magnitude, I believe that putting a sunset clause into a very small Bill at this time is a prudent act and one that we should take.

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, I thoroughly agree with every word the noble Baroness, Lady Barker, has uttered. Let us face it, depending on this afternoon's decisions in this House, after the election there will be a further debate to refine the arguments and discuss the costings and administrative implications. At the end of that process, the Government of that day may decide to proceed with the Bill. In that case, this amendment is otiose. It will have no effect because the Bill will be in force within two years. The other way things could go is that the Government, after an election and after that due process of debate, may conclude that this Bill is unaffordable or irredeemably unfair. In that case, I hope we will be looking for a consensus in the way forward. But if this Bill is still on the statute book, that is going to be harder. There will be organisations for the elderly, which, as the noble Baroness, Lady Thornton, has said, support the Bill in principle but not always in practice, and which keep on hankering after it, saying, "If only we could persuade the Government to implement it". They will not be inclined to go along with the search for consensus. The sensible thing is for the Government of that day to conclude that this scheme is not going to work and is not the way forward and that not only should the scheme die but also the legislation which gave birth to it so that we can move on to the next stage of designing the kind of policy for the long-term care of the elderly that they need and deserve.

Photo of Baroness Thornton Baroness Thornton Government Whip, The Parliamentary Under-Secretary of State for Health

My Lords, this amendment in the name of the noble Baroness, Lady Barker, inserts what is known as a sunset clause and would require the Act created by this Bill to lapse automatically after two years if the powers within it have not been used to make regulations. It is our intention to use the powers enabled by this Bill to introduce regulations that will come into force from 1 October 2010 so that those most vulnerable and most in need can benefit. We have made a working draft of the regulations publicly available at an early stage and have been working with stakeholders to develop these in order to successfully implement the scheme. This is a strong indication that we intend to use these powers as soon as is practicable. We will seek to publish a further draft of the regulations shortly which reflect the outcome of the consultation. As I have said, this Bill is the first stage of a reform agenda towards a national care service. As we develop those plans, we will, of course, need to look at the bigger picture, but the future direction of travel is quite clear. It is our view that there is no reason for the Act to lapse after it is given Royal Assent and placed on the statute book. I therefore ask for the amendment to be withdrawn by the noble Baroness or, failing that, for it to be opposed by the House.

Photo of Baroness Barker Baroness Barker Spokesperson for Health

My Lords, I understand the noble Baroness's predicament. None the less, I am not persuaded by her argument. Whatever the next Government's hue, they are going to have to have the political capacity to, I hope, lead a consensus towards some very difficult decisions. A great deal of historical baggage will have to be ditched in order to come up with a solution which is in the best interest of those older people who are in most need and least financially capable of paying for their own care.

Photo of The Archbishop of York The Archbishop of York Bishop

Before the noble Baroness sits down, does she not agree that we should legislate on questions of principle and not in anticipation of the colour of the Government likely to come into being? Otherwise, we would never legislate. If the principle is right that restrictions should be removed on who can be provided with care free of charge, we should legislate for it. If an incoming Government find that difficult, that will be their business. But a legislative body should legislate on the principle of whether the Act is right and not because it is anticipating the difficulties of another Government coming into being.

Photo of Baroness Barker Baroness Barker Spokesperson for Health

The most reverend Primate raises an entirely fair point. He will forgive me for saying he did not take part in the previous debates. Had he done so, he would have seen that noble Lords in all parts of the House have major objections to this Bill on grounds of both principle and practicality. My own disagreement on point of principle is not that I do not believe that older people need personal care but that this Bill currently stands to favour many people who can pay for their care themselves, rather than targeting those who cannot, and I rather fear that will be at the expense of services for people who are poorest in our society. So it has been a matter of both principle and practice and I wish to test the opinion of the House.

Division on Amendment 7

Contents 125; Not-Contents 112.

Amendment 7 agreed.

Division number 4 Personal Care at Home Bill — Report

Aye: 123 Members of the House of Lords

No: 110 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers