Second Reading

Care Bill [HL] – in the House of Lords at 3:12 pm on 21st May 2013.

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Moved by Earl Howe

That the Bill be read a second time.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 3:19 pm, 21st May 2013

My Lords, it is a privilege to open this debate. Care and support are things that everyone will experience at some point in their lives, whether they need it themselves, know a family member or a friend who does, or provide care themselves. Yet today’s care and support system often fails to live up to the expectations of those who rely on it. While many have good experiences, the system can often be confusing, disempowering and not flexible enough to fit around individuals’ lives.

The Bill represents the most significant reform of care and support legislation in more than 60 years. The foundations of social law are based on principles that are no longer relevant in today’s society. This long-awaited Bill implements the recommendations of the Law Commission’s excellent three-year review, begun under the previous Administration, to pull together over a dozen different Acts into a single, modern framework.

The Care Bill also takes forward our commitments to reform social care. Through the Bill, we are clarifying entitlements to care and support to give people a better understanding of what is available, help them to plan for the future and ensure that they know where to go for help when they need it. The Bill will make a reality our vision for a system that promotes people’s well-being and focuses on the person, not the service. It makes preventing and reducing needs a priority, and empowers people to take control over their care and support. It introduces national eligibility criteria, bringing greater consistency and transparency of access to care across the country.

The Bill includes historic reforms to strengthen the rights for carers to access support, putting them on the same legal footing as those they care for. It emphasises the importance of integration and co-operation between care and support and other services, providing the flexibility for local authorities and care professionals to innovate and achieve better outcomes for people.

A new adult safeguarding framework will ensure that arrangements are in place to protect people from abuse and neglect. There are new guarantees for people receiving care whereby if they move from one area to another, they will not go without the care they need. For the first time, the Bill clearly sets out that local authorities are responsible for the care and support of people in prison.

I am pleased that public consultation and pre-legislative scrutiny have demonstrated widespread support for the principles and approach to law reform in adult care and support. Indeed, I am very grateful to those present who have already provided helpful and detailed scrutiny in draft through a Joint Committee of both Houses. The Government have accepted the majority of the recommendations of the Joint Committee on the draft Care and Support Bill. The Bill now reflects the importance of financial advice as part of the care and support information service; there is a stronger focus on prevention in assessments and care planning; and we have extended the powers to assess children for transition before the age of 18.

We have accepted the recommendations of the Commission on the Funding of Care and Support, chaired by Andrew Dilnot. The current care and support system offers little financial protection for the cost of care, which for one in 10 people will be in excess of £100,000. Critically, the Bill will reform care and support funding by creating a cap on care costs, giving people peace of mind by protecting them from catastrophic costs. By introducing universal deferred payments, it will also ensure that people do not have to sell their home in their lifetime to pay for residential care. Following the failure of Southern Cross, the Bill clarifies local authorities’ duties to protect people’s interest in the event of the failure of a provider, and creates a new regime for financial oversight of larger care providers.

In the debate on the gracious Speech, a number of noble Lords expressed concern about levels of funding for care and support. This is of course a very important matter. As a nation we are living longer, which I am sure all noble Lords welcome. Managing the fiscal consequences of this will be a key challenge in the coming years.

We must recognise that for the foreseeable future government spending will be constrained. However, we are also aware that in many areas local authorities are finding new and innovative ways of spending their available funding to secure better outcomes. The Bill will help to ensure that the care and support system works as effectively as possible to make best use of the resources available. To draw an analogy, the legislation does not change the amount of fuel available but rather the efficiency of the engine. I look forward to hearing noble Lords’ views about how the framework set out in the Bill can do this even more successfully.

The report of the Mid Staffordshire NHS Foundation Trust public inquiry, led by Robert Francis QC, identified inexcusable failures in care that must never happen again. Between 2005 and 2009 many patients received appalling care, and the wider health system failed to identify and act on the warning signs. The Government’s initial response set out our commitment to ensuring that patients are,

“the first and foremost consideration of the system and everyone who works in it”.

It set out a five-point plan to ensure safe, compassionate care.

Most of the steps we need to take are about increasing cohesion and bringing about a change in culture across health and care. This is not about fundamental changes to the structure of our healthcare system. However, there are a number of limited but significant changes we need to make which require primary legislation. These are changes primarily to the way health and social care information is used to assess performance, and to the way poor performance is tackled.

Through the Care Bill we will introduce a ratings system for hospitals and care homes, to give a single version of performance so that organisations and the services they provide can be compared like for like in a way that is meaningful to patients and the wider public. For while there is considerable information available on organisations providing health and care in England, there is currently no consolidated summary of how well they are doing. Aggregated ratings will help people choose the right services, and encourage organisations purchasing or providing services to improve them.

We will create powers so that the new Chief Inspector of Hospitals can instigate a single failure regime. A key finding of the Francis report was that the focus at Mid Staffordshire was on financial and organisational issues rather than the protection of patients and ensuring quality of care. A new failure regime, in which quality of care is as important as financial performance, will ensure that where quality of care is below an acceptable standard, firm action is taken to resolve it properly and promptly.

Robert Francis made a number of recommendations to promote openness in the health system. We will improve transparency and accountability by making it a criminal offence for providers of NHS secondary care to supply or publish false or misleading information about their own performance and outcomes. This will ensure that regulators, commissioners and the public have an accurate picture of the organisation’s performance, and enable the Care Quality Commission to detect quickly any signs of poor quality or safety and trigger the appropriate interventions.

The Care Bill also closes a loophole in the regulatory powers of the CQC. At the moment, if the CQC finds that a care home that is part of a large provider is not complying with registration requirements, the provider could close down the care home voluntarily in order to evade enforcement action by the CQC. In order to guarantee transparency of the regulatory system, the Bill will address this gap in the law to ensure that large providers operating a non-compliant service cannot avoid a record of poor care in this way.

These measures make limited but important adjustments to facilitate our response to the Francis inquiry. Together with changes we are making that do not require primary legislation, they will help bring about a revolution in the care that patients experience, rooting out unacceptable care, tackling failure promptly and effectively, and ensuring that the inspectorate and ratings framework inspires all hospitals to drive for continuous improvement.

Health Education England provides national leadership for the education and training of healthcare professionals. It supports a network of local education and training boards to enable local healthcare providers and professionals to take responsibility for planning and commissioning education and training in their area.

The Health Research Authority was formed to protect and promote the interests of patients and the public in health research, and to streamline the regulation of research. The Care Bill establishes both HEE and the HRA as statutory bodies independent of the Department of Health, giving them the impartiality and stability they need to carry out their vital roles free from political interference.

I am grateful to noble Lords from all parties for their support for this Bill in the debates on the gracious Speech. I look forward to debates about the detail of the measures it introduces, and I am sure that improvements can be made. Fundamentally, the Bill delivers much needed and long overdue reforms that can and should be widely supported. The Care Bill demonstrates the Government’s commitment to ensuring a compassionate, integrated and sustainable system of health and care, built around the needs of individuals and the outcomes they want to see, for now and the years to come. I commend it to the House. I beg to move.

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords) 3:31 pm, 21st May 2013

I thank the Minister for his very thorough and comprehensive introduction to the Bill. When the Care Bill was discussed last week in our debates on the Queen’s Speech, there were six overarching themes in the contributions from noble Lords.

First, there was a general welcome for the reform and consolidation of social care law, which we on these Benches initiated and strongly support in so far as it achieves a fairer, simpler and more sustainable system—three factors against which we will be closely testing the Bill through scrutiny and amendment.

Secondly, there was deep concern that this would be at best a partial solution unless a new legal framework is introduced in the context of addressing current and future social care funding needs. Given the scale of this Government’s cuts to local authority budgets, the Bill’s measures put forward in this context risk raising expectations that cannot possibly be met.

Thirdly, the Government’s proposals in the Bill on social care funding do not meet the Dilnot commission’s fairness criteria. Many in care homes will die before the cap at this level is reached; houses will still need to be sold; the cap will not in fact limit the costs that elderly people actually pay for their residential care; and the Bill will not mean that pensioners get their care for free if they have income or assets worth up to £123,000. The squeezed middle—those pensioners on average incomes who have worked hard, proudly invested in a home and tried to save for their older age—risk missing out.

Fourthly, the Bill offers only a partial response to the recommendations of the Francis report to address failures in hospital and care support. What happened at Stafford Hospital was terrible and lessons must be learnt. Last week Jeremy Hunt referred to Part 2 of the Bill as,

“a vital element of our response to the Francis report”.—[ Official Report , Commons, 13/5/13; col. 350.]

But in reality the Government have been disappointingly limited in their response to those vital issues identified by Francis. Where is the Government’s response to his concerns over safe staffing levels and the risks to safety and care? Where are Francis’s full proposals on the statutory duty of candour? Where is the regulation of healthcare assistants?

Fifthly, there were concerns that once again, like the Health and Social Care Act, this Bill will not in practice lead to better integration of health and social care. How will the Bill translate this into practice? How will the work of the Government’s consultation on integrated care, launched last week, inform our consideration of the Bill? Will it report in time for any legislative steps to be adopted? How will the institutions of the Health and Social Care Act—the health and well-being boards and Healthwatch England—link in with the care requirements placed local authorities? How will the marketisation and fragmentation of that Act align with any integrating intention in this Bill?

Sixthly, there was deep concern and dismay across the House that the Government have backtracked on vital commitments on public health, particularly on standardised packaging for cigarettes. The care crisis facing this country is not simply one of an ageing population but also one of co-morbidities and many more people living with long-term health needs. Public health plays an essential part in our response to those demographic changes, and is hugely relevant to issues dealt with under Clause 2 and to maintaining well-being.

So, the good news: the Bill is welcomed by Labour as an important first step towards providing a consolidated legislative framework for our social care system based on the excellent report of the Law Commission inquiry set up by Labour in 2009 to streamline and unify social care law. It implements 66 of the commission’s 76 recommendations, refocusing care and support on more patient-centred services better suited to people’s lives and needs, improving access to information and advice, strengthening the legal rights of carers, standardising eligibility criteria and establishing well-being as the guiding principle.

We strongly support that. It takes our work on patient choice and control forward. It builds on the progress that Labour made on key areas such as prevention, personalisation of services and carer recognition and support in our landmark National Carers Strategy. It also addresses much of the unfinished business in our pre-election White Paper on a national care service.

Like other noble Lords, I commend the pre-legislative scrutiny work of the Joint Committee. The Bill enjoys support among patient and carer organisations, staff, and service users and providers, but with the proviso that key improvements are needed to address what the committee itself identified as gaps and risks of unintended consequences. For completeness, we also welcome the proposals on Health Education England and the Health Research Authority, albeit with some significant issues to explore as we progress the Bill.

Now for the not-so-good news. On its own, the Bill will not go anywhere near far enough to tackle the crisis that is engulfing health and social care today. In addition to the crisis in A&E, now acknowledged by the Secretary of State, we have hospitals full to bursting, the discharging of patients becoming ever more difficult, handovers to social care services slower and subject to more disputes and a social care sector struggling to fulfil the demands placed on it. On the front line, thousands of nursing posts have been lost and many services are under pressure. In social care, the recent report of the Association of Directors of Adult Social Services lays bare the scale and severity of the financial squeeze on councils, who, by the end of this spending round, will have been stripped of £2.7 billion from their adult social care services, equivalent to 20% of their care budgets, as demand for services increases.

New rights to services and support risk being meaningless as council budgets are cut to the bone and people are faced with spiralling charges. Will the noble Earl tell the House whether the resources for local authorities to deal with the additional responsibilities placed on them by the Bill, including carrying out the extra assessments of the estimated 450,000 self-funders, will be made available, and whether it will be new money? Is it accounted for in the impact assessment? Is he confident that councils will have the trained staff to complete those assessments on time?

We welcome the delayed consideration of Part 1 until completion of the spending review, but can the Minister reassure the House today that his department has shared with the Treasury the representations of the Care and Support Alliance, which has stressed that,

“without appropriate funding for the social care system … the aspirations of the Bill will not be reached”?

Can he also give a commitment to the House that the regulations associated with Part 1 will be available in draft by the time of our consideration? Without them, our scrutiny of vital issues such as eligibility criteria will be severely hampered.

On Dilnot, it is disappointing that the Government have watered down the commission’s proposals, proposals which Labour believes represent an important step forward in beginning to address social care funding. When he announced the Government’s response to Dilnot, the Secretary of State made great play and emphasis that the plans were “radical” and would,

“transform the funding of care and support in England—bringing a new degree of certainty, fairness and peace of mind to the costs of old age”.—[ Official Report , Commons, 11/2/13; col. 592.]

He matched that with a promise that that would guard against someone’s property being sold and their savings wiped out. However, a £72,000 cap—£140,000 for a couple— will not be enough to stop many people with modest properties, especially in the north of England, selling their homes to pay for care. Under the deferred payment scheme, councils loan people money to cover their care costs, which now has to be paid back with interest, most likely by selling the family home after the elderly person has died. Nor will the Bill cap the costs that elderly people actually pay for social care unless differing local authority care charges are addressed, which could make a difference to care now. The cap introduced by this Bill will be based on the standard rate that local councils pay for residential care, which on average is £480 a week; but 125,000 self-funders face weekly bills that on average are £50 to £140 more than this average council rate and in some areas far higher. This extra amount will still have to be paid and not count towards the cap.

The Bill will not mean that pensioners get care for free if they have income or assets worth up to £123,000. People will still get free care only if they have income or assets under the lower means-tested limit that is not being increased and will still be £17,500 in 2017. Those with incomes or assets between this figure and £123,000 will get a sliding scale of support from councils as they do now. Can the Minister confirm that this is the case?

On these Benches we remain to be convinced that the Government can provide answers on these fundamental aspects. Can the Minister not recognise that the Government are overselling what the impact of the Bill’s current provisions will be, particularly bearing in mind that nobody will be benefiting at all until 2020 at the earliest?

Finally, I turn to the some of the other questions that noble Lords will no doubt raise during the Bill’s passage, and I look forward to the Minister’s response to them. Will the change in the legal language around the continuing care and social care boundary of the NHS, shifted by the Bill, result in the possibility of more people having to be means tested for residential care? What are the Minister’s estimates of the number of people who will fall out of the system and become ineligible for support under these proposals? Have the Government assessed the overall impact on disabled users of social care also hit by cuts in their benefit entitlement and support? What consultation have the Government had with the insurance industry and pension providers about the likelihood of markets developing to help self-funders bridge the gap up to the £72,000 cap?

We welcome the introduction of well-being as the guiding principle but should this duty not also be placed on the Secretary of State? On integration and prevention, why does housing still get only limited consideration and mention throughout the Bill? On young carers, when will the Government make their position clear in addressing via this Bill the gap in the law? His colleagues have resisted attempts to amend the Children and Families Bill to this effect. Why have the Government reintroduced the issue of after-care services for people with mental health problems leaving hospital after a period of detention? We thought that this issue was settled under the last health Bill, but it seems not.

Lurking in the background as we speak today is the reality of a social care system on the edge of collapse. Social care is being left to decline. Labour supports the principle of capping care costs, but we stress that a bigger and bolder response is needed by Government to meet the challenges of our ageing population. Whole-person care is our vision for a 21st-century health and care system that brings together physical and mental health, and social care, into a single service to meet all of a person’s care needs. Our independent commission has already started its work on looking at how health and social care services budgets can be brought together. “Integrated services” means not just a series of area or service specific initiatives, but a way of working for a whole service.

We have a major task ahead of us to improve this Bill and we on these Benches will work hard to meet this challenge, and ensure that older and disabled people, and their carers and families, get the best possible deal.

Photo of Baroness Jolly Baroness Jolly Liberal Democrat 3:43 pm, 21st May 2013

My Lords, I thank my noble friend Lord Howe for explaining the parts of the Bill so clearly in his introduction to this debate. I also thank the government Care Ministers—the previous one, my right honourable friend Paul Burstow; and the current one, Norman Lamb—for championing the Care Bill and the work of the Dilnot commission.

As the Minister has already explained, this Bill brings all previous legislation together for the first time, and is based on the well-being principle but also on the funding cap to protect those from catastrophic costs, the higher means test, the inclusion of rights for carers assessments, the portability of care and the mechanism to protect the care market.

The decision to manage this Bill differently from the Health and Social Care Bill was wise. Not only was there extensive consultation on the White Paper, but the Bill was based on the Law Commission report that itself had consulted widely. It is worth mentioning that we on the scrutiny committee looked at Part 1 so that the new Part 2 and the sections added to Part 1 should get close scrutiny in Committee.

The committee had members who are hugely experienced in the world of care, and was chaired by the previous Care Minister, my right honourable friend Paul Burstow. We took evidence from a wide range of stakeholders, and without exception they were full of admiration for the work of the Bill. However, as noble Lords would expect, they had areas in their own field that necessitated extra work. When we looked at what the report should say, we had a strong evidence base and deliberated long and hard about any deletions, omissions or just plain amendments to the draft Bill. Those recommendations, which were included in the report that was published, were to make a good draft Bill better. I therefore really welcome the Bill, but there are some areas where more work needs to be done. There are some unintended consequences, and some minority groups need assurance that the Bill will meet their needs.

This is not the time for detail, but areas that have received full coverage and early attention are young carers, adults caring for children, and the transition in service provision. The Law Commission felt that this Bill is the vehicle to place legislation for the assessment and meeting of their needs, but in winding up on the third day of debate on the humble Address the Minister was very clear that there is no place in this Bill for young people: that it is an adult Bill. Will he explain how the Government intend to meet this real need? If he does not have the information at the moment, will he please write to me and place a copy of the letter in the Library?

A third of the adult population who receive care are of working age. Many are in work or mobile, and many aspire to work. I would be grateful if, before we get to the parts of Part 1 about funding, the Minister will meet me to look at areas where the sector is anxious that their needs will not be met, resulting in failure to cope, leaving employment and subsequent isolation and depression. This was articulated most clearly in the report released last week by the All-Party Parliamentary Local Government Group and the All-Party Parliamentary Disability Group, entitled

Promoting Independence, Preventing Crisis

.

There are other sizeable but hidden populations who feel that the provisions of the Bill do not meet their needs. Before Easter, there were two all-party group commissions: one on dementia and autism and the other on BAME communities in old age. As I have said before, details are for Committee, and I am sure that my noble friend Lady Browning, whose expertise in autism is far greater than that of many noble Lords, will follow this up.

One of the scrutiny committee recommendations was about free care at end of life. Marie Curie Cancer Care has done a financial assessment of this policy, and the cost works out at £32.2 million a year. This will support the families of some 40,000 people who have care needs and are on the register, and will be just over £800 per individual. I note that the Government think that this has merit and that it can be implemented without a change to legislation. Will the Minister confirm that discussions are in hand on this and give some indication of a timescale, or has the proposal found the long grass already?

The intention of this Bill is to rationalise a confusing morass of Bills and measures to give clarity to local authorities, providers and, most importantly, those in need of care and their carers. In Part 1, the main thrust is the individual, not the system. It is based around the well-being principle in Clause 1 and the cap on funding to give assurance about catastrophic care costs. Both the cared-for and the carer will be entitled to an assessment and a care plan, whether they are a self-funder or not, and there will be a requirement to provide information about care options.

Part 2 was added to redress some of the problems that arose from the Mid Staffordshire Hospital scandal, to ensure that information is available in a readable and usable way to detect failure earlier, and to clarify actions in the event of failure. I am sure there is room for debate on this in Committee, too, but on balance we welcome the clause in Part 2 and hope that the further information referred to in yesterday’s deposited Statement on the joint Monitor/CQC approach to their new role and the development of ratings will be in time for the Committee debates on this part. Can the Minister assure the House that that will be the case?

Additionally, Part 3, on Health Education England and its Health Research Authority, is now hugely improved on the formulation in the Health and Social Care Bill, and is welcomed by the sector.

Of course, the economic situation in which we find ourselves is not the easiest, and I welcome the proposed delay—or perhaps I should say the pause—in Committee so that we can address the issues in Part 1 in the light of the spending review. I am sure none of your Lordships needs telling that the higher the level for eligibility for social care, the more will fall on the NHS. Let us hope that the Chancellor understands that point, too.

This will need modelling carefully, and I hope we will see some of that detail. Of course, it is worth knowing that were the CCGs and their health and well-being boards to work together as hoped integrating services, prevention would be increased, gaming would be reduced, and care would be delivered in an appropriate way by the appropriate body.

However, the Bill gives a sustainable and coherent framework for care in the future, some level of security about the cap for those with high care costs, and a method of dealing with hospital failure, including an early warning system. It comes with a warm welcome from these Benches.

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench 3:50 pm, 21st May 2013

My Lords, in welcoming this Bill I first declare an interest as someone who benefits from a whole range of care services, without which I would not be in your Lordships’ House. I hope that my professional knowledge, combined with my personal experience, will give added value to the debate over the coming weeks.

This Bill is the culmination of five years’ complex and challenging work to modernise the legal framework for adult social care. Much work has been done by the Law Commission, but the Government have also understood that they needed expertise that can come only from those who use care and support services. They conducted a lengthy and broad consultation. I have been impressed by the Department of Health’s efforts to get this right. Much credit for this must go to the fine leadership of its former director-general, David Behan. He recently left to take the helm of the CQC, which is very lucky. The Bill also benefits from the experience of Members of this House. A number of your Lordships served on the Joint Committee that considered the draft Bill and recommended improvements to it. The Government have listened, and the Bill is better for it.

Equally, the Bill is the culmination of more than 25 years’ work by the Independent Living Movement of disabled people. I consider myself very privileged to have played an active part in this social movement to radically change the way that care and support are designed and delivered. Since the mid-1980s we have fought to ensure that disabled people of all ages have the same opportunities that everyone else takes for granted. This has involved challenging entrenched professional attitudes, political assumptions and public misconceptions about what disabled people can and cannot do. The struggle continues today. Many people believe, as I do, that disabled people have lost ground recently. As someone once observed, “The price of liberty is eternal vigilance”.

However, this Bill shows how far we have come since the passing of the Community Care (Direct Payments) Act 1996—in my view, the most emancipatory care and support legislation in my lifetime. That Act was passed because a group of disabled people was able to persuade the Government of the day that they could be trusted to take control of the cash needed to pay for their personal care support. That was my first memorable experience of the House of Lords.

Twenty years ago, I sat in awe behind the Bar, as the noble Lord, Lord McColl, introduced his disabled persons Bill.

Three years later, in another place, the then Parliamentary Under-Secretary of State at the Department of Health, John Bowis, took over the Bill. His powerful speech at Second Reading would be just as relevant in today’s debate. He said:

“I have heard from people who have a disability, but also hold down a job or voluntary work and whose working lives are obstructed by the rigidity of a council service rota; or people who do not like to complain, but would really like a different range”, of home help support,

“or people who have responsible jobs, but are treated by the care workers as if they were rather tiresome and untidy children. They have no real independence, no real choice and no real dignity”.—[ Official Report , Commons, 6/3/96; col. 372.]

What became the Community Care (Direct Payments) Act 1996 was a bold step on the then Government’s part to empower disabled service users. Local authorities were required to deliver services differently. They could not just decide what was best for us anymore. That Act transformed many people’s lives, including my own.

As your Lordships will be aware, there has been much progress since that landmark statute. Further legislation has widened access to direct payments. Personalisation policies have developed other ways for people to have more say and control over their support and care. Personal budgets offer another way for people to decide how funds should be used to support them. Even the NHS has caught on, by introducing personal health budgets for people with long-term conditions, so they, too, can have more say over their healthcare. A process that started among working-age disabled people has broadened out to benefit other groups: people with learning disabilities, older people and people with mental health problems. They are all using direct payments and personal budgets—and so, too, are parents of disabled children, giving them both more control and allowing enough flexibility for many to pursue their dreams. Policy guidance has encouraged local authorities to work with people and their families as equal partners. By working together, many are coming up with solutions that best fit their individual circumstances, using public services to complement their own resources, personal assets and community links.

All these positive trends, many of them with roots in the user and carer movements, come together in Part 1 of the Bill. It represents a sea change in the values and attitudes embodied in the legislative framework for adult social care. It treats people requiring support as citizens first and foremost, with rights and entitlements stemming not only from this Bill but from the Human Rights Act, the Equality Act, and international agreements, such as the UN Convention on the Rights of Persons with Disabilities.

However, your Lordships would not expect me to tell them that this Bill is perfect. It sets out many of the right goals, but we will need to question the Government very closely on some of the means by which they intend to achieve them. For instance, we are promised first sight of the regulations on assessment and eligibility towards the end of June. This will coincide with announcements about the public spending review, so we can assume that resources will impact heavily on the qualifying criteria for public support. Much also depends on how local authorities choose to implement their responsibilities and powers under this legislation. There is a great danger that this Bill could be ignored as being fine words but without teeth.

There are already wide variations in the sensitivity and understanding shown by local authority staff in assessing and responding to people’s needs. I recently had a review visit to assess my suitability for a personal budget. Like fellow service users, I am naturally very wary of reassessments as they generally involve budget cutting. I did not know what to think when I received a copy of the reassessment report last week. It says that I have,

“severe difficulties in either self-expression or understanding”.

If any of your Lordships have difficulty understanding what I am saying today, please come to my office for clarification. On a more serious note, the reassessment of my ability to communicate could mean the difference between a social care direct payment and NHS-funded care. That might be fine if support would not change for the worse as a consequence. It is no secret that some local authorities cannot wait to offload clients onto NHS continuing care. I am hopeful that health budgets will eventually mirror social care direct payments. However, this is not yet the case.

Last year, the JCHR investigated independent living. The resulting report was dedicated to a 22 year-old disabled man. This young man had been in part-time employment and living independently, supported by social care direct payments. However, after being admitted to hospital with a chest infection, it was decided that he would be safer with a tracheostomy. Tracheostomy care is not rocket science. It does not take long to train a sensible person. However, the local authority decided that this man was now “the problem” of the NHS. As a result, his direct payment was withdrawn. It took health commissioners six months to decide how he would be cared for, leaving him in a hospital critical care unit for three months longer than was necessary. This severely disabled independent man lost his job, his loyal PAs and his dignity. The cost to the taxpayer was £36,000 in hospital fees, double what it would have cost had he been allowed to keep control of his cash and care, with an enhanced payment from the NHS to pay for the extra PA hours needed during the night.

Is it any wonder that disabled people fear the future? They do not just fear the consequences of inadequate funding, they dread past ways of working creeping back in the name of austerity. Those of us who use care services must be given more control to enable us to survive these difficult financial times. Services need to adapt to enable the recipients to create their own budgeted support and to seek work, wherever that may be. This nicely leads me to return to an issue I have been raising in your Lordships’ House for the past four years. Noble Lords will know that I have a particular concern about portability of care and support. I will push for the Government’s proposals on portability in this Bill to match the outcomes set out in my Private Member’s Bill.

The Minister for Social Care in another place has indicated his desire to work closely with those of us campaigning for total portability of care and support.

I have consulted on the subject for more than five years with disabled people and their organisations, carers, lawyers and professionals in social care. My Private Member’s Bill is the culmination of that work. My Social Care Portability Bill has been recognised by the Department of Health. The greater part of it has been subsumed into the Care Bill before us today. However, there is one crucial difference. My Bill ensures that disabled people can move to another area, confident that they will receive the support they need to enable them to continue to play an active role in society. The manner in which the council meets those needs may be different because of the different configuration of local community and care services but it should not reduce choice and control, and the ability to achieve the outcomes they need. I believe that the Care Bill has the same intention but I would welcome confirmation that this is indeed the case. There are questions about bureaucracy and enforceability but the detail can be fleshed out in Committee.

There is one other matter I want to flag up today. Those who receive their care not from a public authority but from a private body lack the full protection of the Human Rights Act. The Joint Committee recommended an amendment to the Bill to put this right but the Government have not addressed it. It is a loophole that must be closed. I will be interested to hear the Minister reflect upon that issue.

I have great expectations of this Bill’s capacity to change the way that care and support are delivered in the future. We have waited for this a very long time. We must not let the opportunity slip through our hands. We are all interdependent. We all need to feel safe and valued. We all need our dignity respected. We must take heed of those “experts by experience”, of which I am proud to be one. We have much to offer the debate on how we create care and support services which maximise the well-being of those who need them. I am sorry if I have taken longer than many other noble Lords may for the rest of this debate but I feel so strongly about this issue. We have much work to do and I am happy to do my part.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 4:06 pm, 21st May 2013

My Lords, it is a great privilege to follow the noble Baroness, Lady Campbell of Surbiton, who speaks on these matters with a particular authority and profound experience. I should mention my interests: I am a vice-president of the Carers Trust, a member of Barnardo’s and I have honorary fellowships from three of the medical royal colleges.

I am extremely grateful to the noble Earl, Lord Howe, for his explanation of the Bill. I also congratulate the department and the Ministers there as quite a number of changes have been made to the draft Bill and yet they have managed to get it in so early in this Session. One of the difficulties that that may entail is that the funding arrangements may not be fully known at the beginning of our consideration of the Bill in Committee.

I was privileged to be a member of the Select Committee engaged in pre-legislative scrutiny of the Bill and I want to acknowledge the great expertise of my fellow committee members and the excellent chairmanship of Paul Burstow, who was the Minister before he found himself chairing this committee.

In the many submissions that the committee received there is one that goes very deep into this situation. It is from the King’s Fund, suggesting that the time may have come for a reappraisal of the arrangements between social care and healthcare. As I went through the Bill, I appreciated from time to time that the division between these two areas affects integration. There was a great desire for integration and I share that. One of my lawyer friends connected with the committee said that as a lawyer he had some difficulty with integration. One can see why that is. The King’s Fund has raised a huge question about whether some change should be made. No doubt the noble Lord, Lord Sutherland of Houndwood, will have something to say about the matter later, with his expertise in this area.

The Bill sets out in Part 1 a very welcome and wonderfully wide principle of well-being as its object for individuals. I am thankful for the alterations, and indeed the widening of that principle which was made on the recommendations of the Joint Committee. However, I echo what has already been said—that without adequate funding the anticipation of what the Bill will achieve will be considerably higher than the realisation, which can only be damaging for those who promote the anticipation in the first place.

The Joint Committee advised that the duty to have regard to this well-being principle should be incumbent on the Secretary of State when he is making regulations under the Bill. I must say that that seemed to me, and I am sure to the rest of the committee, to be eminent common sense. Sadly, however, in preparing the Bill, the Government did not feel that that should happen. In the explanation given in answer to our recommendation 22, the Government say:

“We do not agree that the Bill should require the Secretary of State, when making regulations or issuing guidance, to have regard to the general duties of local authorities under clause 1”.

As regulations are intended to give effect to the obligations of the local authorities under Clause 1, one would think that in making regulations it would be common sense to have regard to the principles on which the local authorities should work. Here is the Government’s answer:

“Local authorities are responsible and accountable for social care. We believe that creating new duties for the Secretary of State would distort these clear lines of accountability”.

I have some difficulty in understanding that. The object was not to create new duties for the Secretary of State but to assist him in performing the duties that he has to make regulations. It seems to me that to attempt to make regulations in relation to this matter for local authorities, which are bound by the general principle, it would only be sensible that the person making the regulations should have regard to the general principle.

I welcome the Bill very much: it has great opportunities, subject to what I have just said about the funding. I shall comment on only one or two particular points because there are many speakers and there will be many matters that people want to raise and I do not want to create unnecessary repetition.

Clause 22, as it is now, defines the difference between healthcare and social care. The Joint Committee commented on that but the department has enlarged the clause; it is bigger than it was before, but I am not sure that it is much clearer. In particular, it provides that if a registered nurse is to be employed, the consent of some commissioning board—usually the national one, I think—is required. I would have thought that something could be done about that without requiring continual reference to the commissioner.

I will not say much about the Dilnot clauses because generally they came later than our committee could have seen, but I agree with the point that the eligibility and cost arrangements nationally must be important for the Dilnot cap to work. It ought to be the same fit whether in London or Cumbria. That would require a degree of uniformity across both cost and eligibility that might be quite difficult to attain.

The noble Baroness, Lady Campbell, has already mentioned the human rights point. The Joint Committee suggested that this should be put in, and I adhere to this matter being looked at in Committee in due course. The point I particularly wish to stress is the situation of young carers. The Joint Committee recommended that this should be dealt with in the Bill. The answer is that it is inappropriate that children should receive adult care. However, that was not the point the Joint Committee sought to make. Its point was that the Joint Committee considered that there can be a relationship between the care provided for the adult and the child providing that care.

One of the important factors is that the child’s obligations of care, which are often undertaken cheerfully and voluntarily, do not cause damage to the child. The imposition and undertaking of undue burdens of care for adults, which may be given out of love, affection and loyalty to the adult, may be damaging to the child. I—and I think the Joint Committee as a whole—believe that this is an important factor to be put into this Bill. The regulations and legislation about care of children are contained in five different statutory provisions, starting with the Children Act 1989. There have been others since and I gather that there are about six different provisions of guidance on these matters. The children are surely entitled to some degree of simplification, just as the adults are, by this Bill.

Another point I shall touch on is the question of guidance. The Joint Committee recommended that guidance should be by way of a code, which should be available and endorsed by Parliament. However, the Government have said: “This is not really necessary. It is not quick enough; things change so quickly that we need to change them all the time, therefore it is not appropriate in this situation to have a code”. We expect a lot of social workers and often they are the people who take the burden of complaint when something goes wrong. It cannot be right to have a lot of different pieces of paper for social workers to know what the guidance is—and when the guidance changes the pieces of paper just increase. They do not always seem to destroy the previous pieces of paper, so the difficulties for people trying to carry out this work are increased by that system.

I remain of the view—which we can discuss in Committee—that guidance should not be ad hoc pieces of paper, but a code, which can last for a reasonable time. After all, the statutory provisions have lasted some time. There are many other matters that one could raise, but I do not want to find myself shortening the time available for others.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords) 4:18 pm, 21st May 2013

My Lords, like the noble and learned Lord who has just spoken, I—and several noble Lords speaking today—was a member of the Joint Scrutiny Committee. Like the noble and learned Lord, I join the thanks to the officials, the chairing and my fellow members. I very much welcome the changes that the Government have made to the draft Bill as a result of the committee’s report.

Your Lordships will many times have heard me and others—whom I have a habit of referring to as the usual suspects—detail how inadequate social care systems are for meeting the needs of the increasing numbers who need them. “The system is not fit for purpose”, “out of date”, “confusing” and “a lottery”—all those are familiar phrases to your Lordships’ House. So it is a great pleasure to welcome a Bill which attempts to address some, though by no means all, of the problems. Importantly, it addresses the issue of the law relating to social care. It encapsulates proposals made by the Law Commission report in May 2011. The Law Commission pointed out that the law relating to adult social care stretched back to the Beveridge reforms of the 1940s and included a plethora of other Acts, including the National Assistance Act 1948, parts of which are still in force. The law relating to people with disabilities and carers, as we have heard, is similarly contained in a variety of parts of Acts and Private Members’ legislation.

The Law Commission originally proposed that there should be a tightly defined process for determining the scope of adult social care. But when it consulted very widely, it decided instead to define the purpose of adult social care as promoting or contributing to the well-being of the individual. That recommendation was accepted by the Government and is central to the new policy. The whole of the new policy structure is shaped by the well-being provision, although I share with the noble and learned Lord, Lord Mackay, anxiety about the accountability of the Secretary of State for Health in this regard.

The enactment of the Care Bill will not just consolidate and streamline into a single statute 60 years of piecemeal law-making, it will place on a statutory footing for the first time both the principle and practice of self-directed personal care based on individual assessment. Particularly pleasing is that the well-being principle is also to be applied to the individual’s carers. It is around carers that I want to base the majority of my remarks this afternoon.

In the draft provisions it was not clear whether the important duty on local authorities to put the promotion of well-being at the heart of their delivery of care and support also applied to carers. The new reference to “individuals” rather than to “an adult”, which appeared to refer to an adult receiving care, now rectifies this and removes any doubt that carers are qualified. This is an important and welcome distinction.

The Bill also adds a new landmark duty that local authorities should have a duty to ensure that they plan for sufficient care and support services when enabling carers and disabled people to be supported, especially with regard to them being able to undertake paid employment.

A Private Member’s Bill was introduced by another member of the Joint Committee, Barbara Keeley MP, which would have put in place this sufficiency of support duty. Although the Bill did not progress, its vision has now been accepted by the Government who have responded in the Care Bill by placing a new requirement on local authorities to ensure that there are sufficient care and support services to meet current and future needs. This would have a particular focus on supporting carers to undertake paid work and caring where this is possible, although when we come to the issue of carers’ resources to provide that sufficiency, we will no doubt have many debates.

The new provisions in the Bill set out a framework for the development of more modern services that can help family members. As well as being hugely important in preventing financial hardship for families, this can also be seen as of great benefit to the wider economy. It has been estimated that carers giving up work costs the economy up to £5 billion a year.

Another very important change that has been made for carers is with regard to finance. The draft Bill did not make it clear that, as in the case of the person with care needs, a carer’s need for support should be assessed before their financial circumstances are considered. I am pleased to see that the Bill has been amended to put an assessment of support needs before financial assessment. Again, that is very important.

The draft legislation could have meant that carers could be wrongly charged for services provided to the person they care for. The Government have said that this was not their intention and they have made it clear that carers must not be charged. However, what is a carers’ service and what is a service for an older and disabled person are not yet clearly set out in the Bill. We will need to make further changes that will define what they are and prevent confusion and disputes down the line.

Two other areas about carers will need careful scrutiny as the Bill goes through and I hope that the Minister will comment on these. The first is the issue of young carers, as has already been mentioned. The Joint Committee that scrutinised the legislation called for amendments to ensure that young carers get equal rights to assessments and support in law, both in this Bill and the Children and Families Bill currently before Parliament. The Government have made some limited changes that mean that where a young person receiving care is in transition between children's and adult services, the circumstances where they or a young carer would be covered by provisions in the Bill would ease this transition.

However, the changes do not alter the fact that young carers will have lesser rights to assessment and support than adults caring for adults. The same thing will apply to parent carers, because we have to ensure that parent carers—those who look after disabled children—do not also end up with lesser rights, because the changes made for carers, and we hope for young carers, are very positive. Parent carers now have an imbalance of rights because they are not included, and we shall need to give this careful attention as the Bill proceeds.

Others have commented on the Dilnot proposals and I will not do so, except to say that, for many of us, the level of the proposed cap is disappointing. The effects of bringing many who are currently self-funders into the assessment system have not yet been sufficiently recognised.

In conclusion, there is no doubt that the Care Bill has the potential to make major improvements to how social care is delivered. However, we shall have to focus very carefully on several issues, apart from those I have mentioned already, if it is to achieve that potential. I will just list them now. The first is national eligibility criteria and where they are to be set: there is a great deal of anxiety about that. The second is the role of advocacy in helping people negotiate a system which, by the Government’s own admission, is complex and difficult to understand. The Joint Committee thought that advocacy ought to be part of the element of information and advice, but the Government have not accepted that. There is also, of course, the old issue of integration of health and social care, which we all know is so vital; the Government have recently made renewed commitments to such integration. Also under this heading, we need to look at the role of prevention, which is similarly such a vital part of integrated services. There is also the vexed issue of funding, on which I look forward to spending many happy hours. In order to make the vision encapsulated in this Bill a reality, the Government and the nation simply have to make resources available. Not to do so is a false economy and will store up many more problems for the future.

I hope our debates will enable us to look at a broader vision too, such as that encapsulated in the Ready for Ageing? report from the committee chaired by my noble friend Lord Filkin. If anyone imagines that the Bill before us today provides a long-term solution to all the problems in social care, they are very much mistaken. I hope the Minister will be able to acknowledge this. Recently I gave a lecture at King’s College entitled, “Social Care: Our Biggest Problem or Greatest Opportunity?”. My conclusion was that it was both. My noble friend Lord Filkin’s report is the clearest call yet that we have had for a new vision for social care—a different settlement for the older people we will all become. This is not just a matter for health and social care, but for whole communities, the whole of government and all political parties. This Bill is a welcome first step towards that new vision—or new settlement—but we must never lose sight of the fact that it is only a first step.

Photo of Baroness Tyler of Enfield Baroness Tyler of Enfield Liberal Democrat 4:28 pm, 21st May 2013

My Lords, I start by saying how very strongly I welcome this Bill, which I also see as a landmark piece of legislation, addressing one of the key social policy issues of our time. After decades of putting this issue in the “too difficult to deal with” box, and with earlier reports gathering dust on shelves, this Government, in very difficult economic times, are finally establishing the architecture which will allow for the capping of catastrophic social care costs—something that has created fear for many families up and down the country. Many people deserve credit for getting the Bill to this stage—including, of course, my noble friend the Minister—but I, too, particularly want to pay tribute to the outstanding work and tenacity of my honourable friends Paul Burstow and Norman Lamb in getting both the policy and the legislation to this stage.

I see this legislation—and the surrounding guidance and regulations—as having the ability and potential to transform the lives of many of our fellow citizens for the better. All my other remarks will be made within this context and reflect my wish to strengthen the Bill still further. Also, I will focus in particular on issues affecting carers, who contribute so much to their loved ones, families and to society, but who too often go unnoticed and unvalued. However, I do not claim to do so with anything like the same degree of expertise as that of the noble Baroness, Lady Pitkeathley.

There is much to welcome in the Bill and the recent changes which have been made as a result of the excellent pre-legislative scrutiny undertaken by the Joint Committee mean that it offers an ambitious and positive vision for the future of social care. It is also an important consolidation of the existing social care law. It introduces for the first time new rights for carers, giving them the same rights to assessment and care services from local authorities as those they care for, which is something that I welcome. However, as so many others have said both in this House and outside, much of this will hang on the amount of funding that is available for social care, a matter that I suspect we will return to time and again.

I would like to highlight the following key provisions. I turn first to the new well-being principle, which is something that I strongly support, in particular the fact that carers are now covered by this important duty. Secondly, the new requirement on local authorities to ensure that there are sufficient care and support services to meet current and future needs is absolutely critical. Thirdly, we have the introduction of a national eligibility threshold for care services, alongside a new assessment process and eligibility criteria. This will make the way people are treated when they apply for care more equitable and easy to understand, including when they move away to different parts of the country. Fourthly, at the heart of the Bill are paving clauses to allow for the introduction of regulations setting out the level of the cap on social care costs and changes to the care means test. This is of course the architecture, and there will be plenty of debate to come on the appropriate level of that cap. While I very much welcome the increased level of the care means test, which has already been announced, I hope that as the economy improves and more resources become available, it will be possible to reduce the level of the cap to something more akin to that suggested by Andrew Dilnot. Finally, there is to be a duty on local authorities to provide information and advice, again with the explicit inclusion of carers. This is important as currently far too many carers feel that they have missed out on financial support as a result of not getting the right information and advice early enough.

During the passage of the Bill I will want to focus on four particular areas, and I shall say something briefly about them now. I turn first to well-being. As I say, I am a strong supporter of the well-being principle underpinning everything that happens in social care, but like the Joint Committee and other noble Lords who have already spoken, I would like to see it extended to the Secretary of State so that the whole pack of cards is fully aligned. We hear much, quite rightly, about the importance of horizontal integration between health, social care, housing and other services. In my view, what I would call vertical integration within the care system is equally important, and I will be pressing for this to be incorporated in the Bill.

The second area is that of dignity. In recent times, we have seen and heard of shocking failures in the care of older people across both the health and the social care sectors. Moving forward, we need to see a major cultural shift to ensure that dignity is embedded in everything that happens, along with a positive attitude to ageing and working with older people, a point that the recent report on ageing from the Lords Select Committee on Public Service and Demographic Change, of which I had the privilege and pleasure to be a member, made loud and clear. Public confidence in the current social care sector’s ability to treat people with dignity is very low. A recent survey showed that only 26% of the public are confident that older people receiving social care are treated with dignity. We have a great opportunity here. The Care Bill could, for the first time, embed dignity in legislation as a core element of the well-being principle, thus placing it alongside other crucial aspects of well-being such as physical and mental health, and family and personal relationships.

I also want to add my voice to a pressing issue that unfortunately has gone largely unnoticed in recent legislation and to which others have already referred. Both the Care Bill and the Children and Families Bill represent commendable and critical efforts to improve the lives and enhance the rights of many people, but sadly, a particularly vulnerable group appears to have slipped through the gap between these two Bills. It remains mired in complex legislation and disadvantaged by limited rights. This group is young carers.

The 2011 census identified 178,000 young carers in England and Wales alone and a further survey taken by the BBC in 2010 estimated the number to be more like 700,000, with as many as 8% of secondary-school children providing moderate to extensive care. As a group, young carers are infamously hard to identify and evidence suggests that in many cases the carer tries to keep this part of their life secret. But although they may often be invisible, young carers and their rights are in serious need of attention. Evidence suggests that young carers are often rightfully proud of their roles and the invaluable contributions they make to their families and the lives of those close to them, but that does not mean that they do not encounter serious difficulties and disadvantages—a point made so eloquently by my noble and learned friend Lord Mackay of

Clashfern. So while young carers work to look after the needs of another person, the system must work to protect them and their rights and well-being.

A very welcome aspect of the new adult carers’ right is that it strips away the requirement for adult carers to have to establish that they are providing both regular and substantial care, placing a duty on adult services departments to provide services to meet the assessed needs of adult carers. Young carers, on the other hand, have been left with what has been described as,

“a mishmash of relic semi-serviceable carers’ Acts”.

In certain cases young carers will be required to establish that they are providing regular and substantial care with higher thresholds than for adult carers. In other cases young carers will have to demonstrate that they are in a household that is receiving services, and even then will have only a discretionary entitlement to support. When scrutinising the legislation, the Joint Committee called for amendments to ensure that young carers get equal rights to assessments and support in law, both in this Bill and the Children and Families Bill currently before Parliament. In response the Government have made some limited changes aimed at easing the transition between adult and children services, both for young people receiving care and for young carers, and they are welcome. But these changes do not change the fact that young carers will have lesser rights to assessment and support than adult carers caring for adults. Nor does it go far enough in placing a responsibility on adult social care services to prevent inappropriate caring by children—something which I would like to see clearly included in the Bill.

To summarise, both the Care Bill and the Children and Families Bill present an important opportunity to simplify and clarify the law for young carers, to provide a clear interface between the two pieces of legislation and to ensure that young carers are not left with unequal rights compared with adult carers. It is imperative that the Government urgently address this rights imbalance in an even-handed way. I ask the Minister to give assurances that the Government will look at the issues I have highlighted in a fully joined-up way to ensure that all carers receive the same legal rights to assessment and support.

Photo of Lord Rix Lord Rix Crossbench 4:38 pm, 21st May 2013

My Lords, the introduction of the Care Bill is to be welcomed. It provides the opportunity to fundamentally improve the lives of disabled people and the legal framework for the social care and support system. Social care is vital for people with a learning disability. Good social care and support empowers them to live independently and within the community. It means that they can be valued members of our society and not marginalised and hidden out of sight in institutions such as Winterbourne View.

The system, however, is in crisis. Social care for working-age adults is under-funded by at least £1.2 billion and thousands are being excluded from services as local authorities tighten eligibility criteria. It is a situation that the learning disability charity of which I am president is only too well aware. Mencap research has shown that the vast majority of councils have tightened criteria from “moderate” to “substantial”, which is now by far the most common level. Put simply, people with a learning disability are being left without any care and support for basic needs, such as help with getting out of bed in the morning, making a home-cooked meal, communicating with friends and family and even getting out of the house.

The report, The Other Care Crisis, produced by Mencap, the National Autistic Society, Scope, Leonard Cheshire Disability and Sense, and supported by economic modelling by Deloitte, highlighted that alongside the moral imperative for action, investing in support for people with moderate needs will ultimately lead to savings for the taxpayer. Well, Clause 13 gives the Government the ability to set a national eligibility threshold in regulations; however, setting the threshold at “substantial” rather then “moderate” will result in more than 100,000 people being denied the support that they need. To prevent us going backwards, the Bill must be underpinned by an appropriate funding settlement in June’s comprehensive spending review.

I wish now to move on to safeguarding. Time after time, we have seen how agencies have not taken safeguarding seriously, with horrific consequences for people with a learning disability. There have been the deaths of Francesca Hardwick and her mother Fiona Pilkington, the murder of Steven Hoskin and, more recently, the abuse scandal at Winterbourne View Hospital, where it took a whistleblower and “Panorama” to expose the abuse meted out by staff.

The Bill does much to clarify and strengthen the law, and address the widespread concern that current procedures for safeguarding adults at risk of abuse or neglect are inadequate. Putting adult safeguarding boards on a statutory footing will better equip them to prevent abuse and respond to it when it occurs. Nevertheless, it must be made absolutely clear when safeguarding investigations are to be carried out, their threshold and the process. However, the Bill also introduces a welcome duty on local authorities to make inquiries when it suspects that an adult is at risk of, or experiencing abuse or neglect, but there is no duty on providers or other relevant partners to inform the local authority when they suspect that an adult is at risk. This appears to be an oversight that I hope will be addressed by the Minister.

I should like also to touch on the cross-over between the Care Bill and the Children and Families Bill, currently on Report in the other place. We all know the difficulties that disabled young people and their families face in transition to adulthood and how often young people fall through the gaps as they move from children’s to adult services. These two pieces of legislation offer a unique opportunity to make this better.

The Children and Families Bill will introduce education, health and care plans, potentially up to the age of 25—something to be widely welcomed. At the same time, the Care Bill introduces care and support plans for disabled adults over 18. Young people aged between 18 and 25 could therefore have two different plans. It seems to make sense that when a young person is eligible for both, they be brought together to create a consistent approach. I hope that the Minister and officials will work with interested parties, including

Mencap and the Every Disabled Child Matters campaign to ensure that these plans are complementary and do not result in separate processes and plans.

Clause 55 of this Bill gives local authorities the power to assess children and young carers under the adult statutory framework in advance of their 18th birthday. This will be known as a child’s needs assessment. If a local authority does not comply with a request to undertake an assessment, it must give a written explanation for the decision. The clause is welcome and will allow young people better to plan their future because they know their entitlements. However, local authorities will have to assess children and young carers in advance of their 18th birthday only if they judge it will be of “significant benefit” and,

“it appears to the authority that the child is likely to have such needs”.

There are also repeated clauses about the potential contribution of “other matters” such as support from friends and family when determining necessary provision. This might well allow local authorities to use this wording as a way to pass on their responsibility to carers and family members or, frankly, to wriggle out of their responsibilities altogether.

Clause 63 creates welcome new protections to ongoing children’s services where a child’s needs assessment has been requested. However, this puts the onus on the parent or the child to request the assessment. If a parent or child is not told of their right to request such an assessment, and do not request one, they receive no protection under this clause. I therefore hope the Minister will consider extending this protection to all children and young people, not just those who have requested an assessment.

Part 3 of the Bill focuses on health, specifically on the establishment of Health Education England, which will be responsible for the planning and delivery of education and training for the NHS and health workforce. It is absolutely critical that the NHS meets the needs of people with a learning disability. This is simply not the case at the moment. The three-year confidential inquiry into the premature deaths of people with a learning disability published its final report in March of this year. The inquiry looked at the deaths of 233 adults and 14 children with a learning disability in the south-west. It found that 37% of deaths would have been potentially avoidable if good quality healthcare had been provided. As if to underline this, today there was a report by the NHS Ombudsman, Dame Julia Mellor, on how mistakes by an out-of-hours GP service and Basildon University Hospital in Essex contributed to the death of a young woman with both physical and learning disabilities.

Unfortunately, this is no surprise to many families, who feel that blunders, poorly trained staff and indifference are to blame for the deaths of their loved ones. We await the Government’s response to the confidential inquiry’s findings, and its recommendations on how to prevent the needless deaths of people with a learning disability. Clearly, the training of healthcare professionals is vital. I trust that appropriate and acceptable amendments will be made during the passage of the Bill through your Lordships’ House.

To conclude, I reiterate that the Care Bill is a very welcome piece of legislation. However, I cannot stress enough that if we are to meet the aspirations of disabled people we will need to ensure that the eligibility threshold is set at “moderate”, not “substantial”. “Substantial” should be used for the funding of social care for disabled people, but knowing this Government’s attitude toward adequate funding for this vital service, I can only say, “Don’t hold your breath”.

Photo of Baroness Bakewell Baroness Bakewell Labour 4:47 pm, 21st May 2013

My Lords, there is no doubt that this is indeed a momentous Bill. It will affect the lives of many who are already old, and the many millions whom medical progress and judicious lifestyles will bring to a multiplicity of years. It attempts to deal with what is not simply an immediate domestic crisis, although of course it is that. It is about a change in human society on a Darwinian scale: for the first time in history the human race will be living substantially longer than ever before. In Japan, there are already 50,000 people who are more than 100 years of age.

We have to realise the scale of the change that is under way. When Beveridge wrote his 1940s report he confronted five challenges: the evils of squalor, ignorance, want, idleness and disease. Today there are just as great evils stalking the old in this country: they are fear, ignorance, need, loneliness and neglect. In dealing with the problems that this creates, society has a mountain to climb. This Bill, which is much needed, deals merely—and deals well—with the immediate foothills. In doing so, it endorses two important priorities, which I welcome. Part 1 defines the central concern of the legislation as being the well-being of the individual. Later, the Bill shifts the emphasis of legislation towards,

“preventing … the development of needs” in the first place. This is an honourable objective but there are many obstacles that the Bill does not resolve. In examining and improving this Bill, we must bear in mind the scale of the problems as they already exist and the expectations that such problems will vastly increase in future.

Considered as a “foothills” measure, the Bill may be judged a very good one. It now includes many of the recommendations made by the Joint Committee on the draft Bill, and I pay tribute to the committee’s efforts. But there are many issues that we still have to address more thoroughly so, on behalf of older people, I will address the five evils I enumerated.

The first is fear: old people are haunted by what will happen as they age. They fear having to give up their home to move into strange places among strange people. The Bill goes some way in the implementation of the Dilnot report recommendations to assure them on this account. However, Dilnot had suggested a cap of between £25,000 and £60,000; the Government have set the cap at £72,000. This will clearly be of greater benefit to the wealthiest. It is not yet clear what types of insurance packages might be offered to the less well-off to cover their costs. It is obvious that with average earnings currently at £26,500, many people will not be buying such insurance at all. At the same time, the funding cap could create a new form of regional inequality due to the wide variation in average house prices in different areas of the country. In addition, with the increase to £123,000 as the upper threshold for receiving means-tested support, the King’s Fund estimates that the result will be an additional 100,000 older people in need of public funding. The fear will persist.

The second is ignorance: many old people long ago took to heart the phrase “from the cradle to the grave” and are still in shock when you explain to them that the NHS comes free but that social care—however it is defined—must be paid for. Confusion about the difference between medical and social exists in the system and the Bill makes a gallant attempt for care provision to integrate the two. However, the difference remains: one is a free service and the other must be paid for, either by the state responding to precise criteria or by the individual. Given that no one would have conceived things this way when the NHS was created, the dilemmas persist about how to inform those who implement the system as well as its beneficiaries about exactly how it works.

An example of how such issues come to a head can be seen when an individual is discharged from NHS care—a hospital—into social care. Caroline Charles, the director of external affairs at Age UK, tells us that 6% of hospital beds are occupied by people readmitted to hospital within a week of discharge because their care arrangements have not been worked out satisfactorily. The Bill tasks local authorities with integrating care and health provision—a hugely costly and convoluted undertaking.

I will round up my final three concerns into one. Need, loneliness and neglect all afflict far too many of our old people. The Bill’s answer to these issues is to define need. The noble Lord, Lord Rix, referred to this concern as it affects the disabled. Levels of need were introduced and defined in 2003 as critical, substantial, moderate and low. Different local authorities applied different criteria, but the Nuffield Trust cites a recent survey that found that 82% of councils now provide care only to those with substantial or critical needs, an increase from 62% in 2005-06. The trend towards setting higher needs thresholds is driven remorselessly by funding pressures on local authority budgets. The Bill moves the responsibility for eligibility to a central, nationally consistent measure—an important and welcome step forward. However, whether it will succeed in setting the criteria back to moderate, as so many of us wish, depends very much on a substantial increase in spending.

So we come remorselessly to the issue of money. With appropriate judgment, the Bill loads local authorities with many of the tasks of meeting the needs of older people, but without strong commitment to central government spending, many of those changes will be unworkable. According to Age UK, since the Government came to power, £710 million in real terms has been cut from social care spending, mostly as a result of cutting local authority budgets at the very time when needs are rising. ADASS reports that more than a third of local authorities anticipate having to reduce services and a fifth expect to have to increase charges. All of this is moving in the wrong direction and towards further disasters and tragedies. The implementation of the legislation calls for a commitment in the coming spending review to a major increase in spending on social care.

Finally, as we contemplate the mountain peak of need from the foothills of reform, let me reaffirm my suggestion: I believe that it is time for England to have its own commissioner for the old. That would be a unique role that would give such a commissioner access to planning across different government departments. The life of the old is influenced by housing, transport, justice, and now, with the encouragement of David Willetts, education; each department should have a strategy for the old linked across departments. Of course, a commissioner for older people would be a new cost. In Wales and Northern Ireland, where such appointments already exist, each commissioner has a budget and an office, but it is already proving money well spent in keeping people informed on the available options, and keeping all departments immediately aware of needs and impending crises. In the long term, that will represent major and consistent savings. Such an appointment would help both the needy and their providers to find their way around this confused and confusing system. The 10 million people now over 65, the 3 million over 85, deserve no less.

Photo of Lord Willis of Knaresborough Lord Willis of Knaresborough Liberal Democrat 4:57 pm, 21st May 2013

My Lords, what a privilege it is to follow the noble Baroness, Lady Bakewell. If there is to be a commissioner for the old in England, I second her nomination at this point.

I also congratulate the Government on bringing together these timely reforms to our social care system. When the noble Baroness, Lady Bakewell, was talking about the problems for local government, I was reminded that it is 20 years since I was elected to North Yorkshire County Council for the first time and put in charge of looking after the budget for adult social services. It was an impossible task 20 years ago. It is an impossible task today. Her remarks are very timely in concentrating our efforts on getting that right.

Parts 1 and 2 begin to address key questions of affordability and access addressed by the Dilnot commission and the issues of quality and safeguarding highlighted by the Francis report. Although modernising the legal framework, as proposed by the Law Commission, and clarifying the rights of individuals and their carers, is an important step, no one should suggest that the Bill will rectify decades of neglect in our social care system. Here, I agree very strongly with my noble and learned friend Lord Mackay that not until we have completely aligned our health and social care systems can many of the issues recognised by Dilnot be fully addressed. Nor would anybody suggest that the proposed new funding arrangements will be a panacea, but they provide at least a more equitable solution than exists at present and afford the nation a breathing space until a more radical solution can be found. I say “more radical” because the reality is that at the current rate of increased demand our health and social care system is not sustainable.

About 30% of the UK population currently suffers from a chronic disease, many with co-morbidities, and the rates of increase are frightening, as are the costs. Seven and a half million of us are being treated for hypertension—many I suspect in this Chamber at the moment—which is up 11% since 2006-07; 2.5 million are treated for diabetes, which is up 25%; 1.8 million have chronic kidney disease, which is up 45% since 2007; 800,000 have long-term cancers, which is up 79% since 2007; and 270,000 have long-term dementia, which is a rise of 25% over that six-year period.

Unless we seek better ways of preventing the onset of chronic conditions and managing them more effectively in the community, or even better finding cures, many of the worthy reforms in this Bill will merely provide respite care. This is why I am so supportive of Part 3, the setting up of Health Education England and the Health Research Authority as arm’s-length bodies. The way we will transform the health and care landscapes radically is by improving the education and training of the workforce, and by giving it the tools to transform patient care by using our outstanding research base.

Health Education England has already made a hugely positive start under the excellent leadership of Sir Keith Pearson, but the need to move swiftly to NDPB status to make sure that we align workforce planning with education and training is essential. What is missing from the legislation is a duty to future proof workforce supply into the NHS and social care system. There should not be a three-year plan for LETBs but a 10-year rolling target so that we avoid the feast and famine often associated with kneejerk reactions from government Ministers as problems of nurse, doctor and consultant shortages appear.

We cannot allow a return to local, short-term self-interest that is the real danger for the LETBs; nor must we exclude the private and voluntary sectors, the key role that they must play in workforce planning, and—crucially—the contribution that they must make to training and education. When he replies I hope the Minister will say how the private and voluntary sectors will be brought in. Incidentally, I am delighted that in Clause 82 there is now a duty for Health Education England to promote research. I congratulate the draft Bill committee for getting that into the Bill, but why does this duty not extend to the LETBs? Improvements will come about only if all the workforce recognises the value of research and puts it at the heart of its daily routines. LETBs are crucial to this agenda. Perhaps the Minister can explain why they have been excluded from that duty.

There are many other issues that need to be raised over Health Education England, but one requires an urgent response. The damning criticism in the Francis report about the role of healthcare workers is largely ignored in this legislation, as are crucial elements concerning nurse education. Francis was clear about the need to train, regulate and register HCAs. These recommendations were also strongly made by the recent commission that I chaired, but in the Bill there is no regulation and no registration, and only a minimalist training programme that is not mandatory.

Can I suggest to the Minister that at the earliest possible date Skills for Health is quietly retired, that new standards are set by the NMC and that Health Education England is mandated to ensure high-quality training with appropriate certification for all healthcare support workers? I understand the challenges of adopting a fully fledged registration scheme, but ensuring that any healthcare support worker who cares directly for patients is trained to a mandatory standard, and that training is certificated and registered for inspection with employers, is surely achievable. Making employers legally responsible for registering the competency of their staff and regularly updating that competency safeguards patients, staff and the reputation of the provider.

Finally, I am delighted with the progress made on the HRA so far. The HRA has demonstrated that it is more than an enhanced national ethics service, which I feared it might become, and I congratulate the Minister and his colleagues on ensuring that it was given that freedom. The crucial next step of creating an NDPB with scope to make the NHS and our social care system the most research-intensive in the world is hugely exciting. However, there remains timidity about the legislation in this Bill. In 2011, the Academy of Medical Sciences highlighted the need for better and more streamlined regulation, and we are not there yet. Clause 93 gives the HRA the duty to promote the co-ordination and standardisation of practice in the UK with regard to health and social care research, but will this extend to the removal of unnecessary levels of regulation?

At a recent Science and Technology Select Committee hearing, part of its inquiry into regenerative medicine, one regulator said to the members, who included the noble Lord, Lord Winston, that because the science was complicated, so must the regulation be. That is what bedevils the regulatory framework for research. The power of different regulators to gold-plate their regulation continues to worry me. Does the HFEA really have a role in embryonic stem cell research, or could its regulatory functions be subsumed by the HRA or indeed be merged with the Human Tissue Authority? Will the HRA have the powers to abolish, or at least to recommend to Parliament the abolition of, unnecessary regulators, or will those regulators, with their independence, still have the upper hand?

As we move to more stratified medicines, regenerative medicine and greater emphasis on genomics and bioinformatics, the key will be to move fast with often small groups or lone patients. The current system of regulation is too burdensome and cumbersome for us to be able to act. The system is simply not fit for purpose. Surely we should be seeking to strengthen the powers of the HRA so that it can decide appropriate regulatory pathways, rather than the existing regulators.

A similar issue arises with National Health Service research and development permissions. The HRA has done brilliantly in streamlining local ethics approvals, but there are still difficulties with individual trusts over site approvals. Not only does each site have to give approval, but if there are variations to a clinical trial, the whole process has to be repeated. This is nonsense if we are aiming for more trials involving more patients at more sites. Simply publishing good guidance, as expected in Clause 98, is insufficient. I hope the Minister will go further and say how the HRA will ensure that trusts have regard to its guidance. Of course, the success of research and the HRA will depend significantly on public buy-in, an issue which the Joint Committee took very seriously. Transparency is key, and the open publication of data should be a statutory requirement for the HRA. The Association of Medical Research Charities, which I chair, has just published

Our Vision for Research in the NHS

, which includes, from all members of the charity, a call to publish research results and make them accessible.

This is an excellent Bill. It has huge potential. It is not a panacea. It is a great start, but it needs a little bit of courage, and I urge the Minister to have that courage.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench 5:08 pm, 21st May 2013

My Lords, I am delighted to follow the noble Lord, Lord Willis. I must confess I felt my score on the hypertension scale rise as we went through the day and the debate got nearer, but we are ready in time. I thank the Minister for the very clear way in which he introduced the Bill, and I must apologise for missing the opening seconds of his speech.

There are six reasons why this Bill should be welcomed—and it is not often that one can say that about a government Bill. First, it consolidates and modernises the legal framework for adult social care. Secondly, it creates a framework for limiting people’s exposure to crippling costs for their care. Thirdly, it establishes the principle that the well-being of the individual should be the animating purpose of social care. Fourthly, it establishes rights for carers. Fifthly, it establishes the principle of portability of care. Sixthly—a slightly more parochial concern, in which I declare my interest as a vice-president of the RNIB and a visually impaired person—it renews the statutory basis for local authority-maintained registers of visually impaired adults. We still have some work to do to ensure that the system is maintained for visually impaired children. The Government are to be commended on all these things.

The Bill, therefore, makes important progress in getting the framework right. However, there is still major work to do to ensure that it is adequately funded and implemented in the right way. Without this, all this good work will come to nothing. Adult social care is now consuming more and more of local government’s budgets, and is set to consume virtually all of them in a couple of decades’ time. However, four in 10 disabled people who receive social care and support say that it does not meet even their basic needs for things like eating, washing, dressing and getting out of the house. At present, the shortfall in funding is conservatively estimated as being in excess of £1.2 billion a year. Over the past three years £2.68 billion, or 20%, has had to be cut out of adult social care budgets. If greater integration of health and social care budgets is to mean anything at all, it must mean a transfer of resources from the NHS budget to fund adult social care properly.

This has important implications for the sections of the Bill that deal with prevention—Clause 2; and eligibility—Clause 13. Getting these right will be key to delivering the Bill’s potential, and I will say a word about each of them. Prevention has the potential to be a win-win. It clearly matters to individuals, who see their care needs escalating without the kind of support that Clause 2 requires local authorities to put in place. However, it matters not just to individuals, but to cash-strapped councils as well. In the debate on the Queen’s Speech, the noble Baroness, Lady Hollis, spoke most interestingly of their being three stages of retirement:

“a decade or so of healthy life … a decade of some limiting disability, such as a lack of mobility, the inability to reach or difficulty in hearing, but with care needs sufficiently modest that … they can normally be met at home; and between two and five years of frail dependency, including dementia, during which substantial personal care is needed”.—[ Official Report , 14/5/13; col. 292.]

The noble Baroness suggested that the second stage, of limiting disability, would most repay investment, because funding and supporting people at that stage is not all that expensive. All the evidence points to prevention being cost-effective.

An analysis by Deloitte of a range of British Red Cross services suggested that the charity achieves savings of £1.50 for every £1 invested. Its 2012 report, Taking Stock: Assessing the Value of Preventative Support, estimated savings ranging from between £700 and £10,430 per person, depending on the individual circumstances. This places a premium on the preventive aspect of care. Providing relatively low-cost, timely support—for example, when someone is discharged from hospital or loses their sight or hearing—makes obvious sense.

The Bill represents significant progress on the prevention agenda. The Care and Support Alliance, the coalition of more than 70 organisations working with people with care needs, particularly welcomes the references to preventing needs in the assessments and eligibility sections of the Bill, in Clauses 9 and 13. Yet the Bill says nothing about the importance of providing this kind of intermediate care—what is increasingly referred to as reablement, which we used to know as rehabilitation. Reablement perhaps focuses more on getting people over the immediate short-term crisis. The Bill says nothing about these things. This is especially regrettable when you consider that a structured programme of rehabilitation and the provision of minor aids and adaptations can be just the services that the blind and partially sighted, and many other adults who become disabled, need most if they are to remain independent. Clause 2 on prevention will therefore need strengthening if we are to move towards a care and support system with prevention at its heart. At the moment, the accountability for fulfilling the preventing needs duties is weak so, when we come to Committee, I shall look for amendments to strengthen the lines of accountability through health and well-being boards.

The Bill has changed to signal the Government’s intention to set out specifications for different types of preventive services and to whom or for how long they might be available. What are the Government’s intentions with regard to regulations here? Will those adults who need a short burst of intermediate care, or perhaps even longer bursts of specialist rehabilitation, get the help that they need? Can the Minister confirm that intermediate care and other qualifying services such as community equipment will remain free of charge, as today?

One of the most important areas for reform of social care concerns the question of eligibility. The Bill will fail to improve the social care system for disabled and elderly people if eligibility is set too high. We are all familiar with the impact that slashing social care budgets has had; many local authorities have been raising the threshold at which people become eligible for support. In 2005, 50% of local authorities set their eligibility criteria at moderate needs; by 2012, 84% were setting their eligibility criteria at the higher, substantial needs level. As a result, just 14% of those with moderate needs are receiving care, and at least 800,000 people with care needs are not receiving any support at all. The introduction of an eligibility threshold under the Bill is thus most welcome, but it will do little good unless the threshold can be set at the equivalent of moderate under the fair access to care services system, and the Secretary of State is required to have regard to the duty of local authorities to promote individual well-being in setting the threshold.

There is no denying that this will be a daunting challenge, but there can only be dividends to be reaped from putting in the necessary support before things reach crisis level. In its Cutting the Cake Fairly report from 2008, the Commission for Social Care Inspection reported that needs assessments were unduly standardised. We need to get away from generic needs assessments and, instead, match disabled adults undergoing assessment with the specialist assessors who are best qualified to determine their care and support needs.

Clause 12 paves the way for specialist needs assessments. However, if I am not mistaken, Clause 12(1)(f) is actually weaker than the corresponding clause in the draft Care and Support Bill. This clearly needs to be put right. If blind, partially sighted and other disabled people who need one were to receive a specialist needs assessment undertaken by a person with expertise in the relevant field, there would be a stronger chance of their care needs being identified as the often substantial needs they really are.

Photo of Lord Patel of Bradford Lord Patel of Bradford Labour 5:19 pm, 21st May 2013

My Lords, the Minister has clearly outlined the many positive qualities in the Bill. Although I welcome many aspects of it, a number of issues cause me concern, particularly with respect to the care of some of the most vulnerable people in society—those with mental health problems.

I wish to explore four specific aspects of the Bill and seek assurances from the Minister about how the Government intend to address these: first, the lack of adequate safeguards for effective advocacy—for example, in ensuring take-up of personal budgets and protecting those detained under the Mental Health Act; secondly, what I see as unnecessary changes to the definition of mental health aftercare services; thirdly, how adult safeguarding boards will be able to exercise their functions effectively; and, finally, the lack of clarity about continuity of care for people in prison and on leaving prison.

I start with the new national eligibility criteria and personal budgets. Overall, I support the Bill’s focus on this and believe that giving everyone who is eligible access to a personal budget will greatly improve their lives. However, accessing these budgets is a far from simple process. For example, there are already significant variations in the take-up of personal budgets between councils and regions, and between different community groups. The official figures from the NHS information centre show that while 29% of adult care users or carers receiving community services had a personal budget in 2010-11, the rates ranged from 4% in Somerset to 71% in Manchester. The figures suggest that progress on moving people onto personal budgets is slowest in the south-west, where the average take-up is around 18%, and fastest in the north-west, at around 35%.

Moreover, the uptake of personal budgets among people with dementia still lags way behind most other client groups. The Alzheimer’s Society in a report in 2011 found that three in five people with dementia assessed as eligible for a care package were not even offered a personal budget, while 15% declined an offer of one. The report clearly highlighted the importance and need for advocacy or brokerage services and stated that,

“support planning and brokerage services are crucial to enable people to access the system”.

I fear that without a statutory entitlement to effective advocacy and support, some of the most vulnerable users and carers, such as those with mental health problems, learning disabilities and dementia, will not be able to access the system nor have their needs met through the kinds of informal support services that personal budgets are so good at enabling.

I am concerned that it was not considered necessary specifically to reference advocacy within the duty to provide information and advice. In meeting this duty, local authorities will be expected to provide information and advice that is accessible and proportionate to all. Of course, I recognise that an individual’s requirements for information and advice could range from a leaflet or a face-to-face conversation to long-term independent advocacy but, as the Law Society stated, “information … is no substitute” for a proper system of advice and advocacy for service users to navigate what will be a “complex system”.

Further, in a really important point, the Law Society notes that Clause 2(3) states that local authorities may be permitted to “make a charge for” this service and that this will be set out in regulations. I would like to know how vulnerable people who lack resources and in many cases live in poverty will find the means to pay for this. For those who are vulnerable and disadvantaged, charging could in fact become a new barrier to accessing an already difficult system.

What about those with mental health problems? The Bill rightly highlights the Government’s aspirations of achieving integrated and joined-up care, including parity of esteem between physical and mental health. This parity of esteem must include those detained under the Mental Health Act, where there is an even stronger case for the provision of effective and independent advocacy. I feel very strongly that unless all patients subject to compulsory powers under the Mental Health Act can access a truly independent mental health advocate, they will continue to be at risk of missing out on the most basic elements of care and support intended by the Bill. This is even more important for those groups already experiencing significant inequalities, such as those suffering from mental health problems who are from black and minority ethnic communities. It is crucial that we tackle these existing inequalities in the mental health system. I believe that providing effective and independent advocacy would be an essential step in doing this.

In fact, I am very concerned about the relative lack of focus on mental health in the Bill. Frankly, mental health is the biggest unaddressed health challenge of our age and is costing our society and the economy millions of pounds every day, not to mention the cost of the suffering among individuals and families. Why, given the critical nature of mental health problems, have the Government once again chosen to change the statutory provision of free aftercare services for people who have been treated under the Mental Health Act? I speak, of course, about Section 117 services, which noble Lords will recall that this House debated to a large extent during the passage of the Health and Social Care Bill. Yet here we are again, faced with what I believe to be an unnecessary and possibly harmful change to these vital services. I will be seeking to make amendments in Committee unless the Minister can explain how these changes help or improve provisions which may not be perfect, but which ensure a degree of protection for those very vulnerable groups of people.

In particular, I am at a loss as to why the Government are attempting to change the eligibility criteria for Section 117 services. For example, Clause 68(5) introduces a new definition of aftercare services such that these services must be,

“meeting a need arising from or related to the mental disorder of the person concerned”.

This is surely unnecessary, but more importantly—and this gives me real cause for concern—given the history of local authorities in trying to avoid their responsibility for aftercare services of this kind, this new definition would enable local authorities to refuse aftercare on the basis that the need is no longer related to the mental disorder. Far from clarifying the position, this new definition adds to the complexity and risk, creating a situation where more people are denied access to these essential services.

I understand that the Government’s aim was to translate the Law Commission’s recommendation on Section 117 of the Mental Health Act into the draft Bill, but I note that the Law Society has asked for specific assurances that there is no intention by government to erode the current free-standing duty to provide free aftercare under Section 117 to,

“some of the most vulnerable”, individuals in society. I suggest that the proposed new definition of aftercare services is too restrictive and could generate complex legal disputes over whether a service should be provided under Section 117. I will need a great deal of persuading that the proposed changes bring any benefit and do not in fact create the likelihood of greater harms.

Care of the vulnerable must be at the forefront of our efforts. Therefore I welcome the statutory framework for adult safeguarding, which includes the establishment of Safeguarding Adults Boards in local areas. The Bill states that these boards will be required to produce safeguarding plans and updates on progress, and that where a board “knows or suspects” that “serious abuse or neglect” has contributed to the death or serious harm of an individual, it will be required to carry out a safeguarding adult review.

However, I have a number of concerns and questions around how these boards will be able to exercise these functions effectively. For example, not only must local authorities and the NHS work together, but neighbouring local authorities must establish communication systems to ensure that all knowledge on abuse issues is shared not just in a local area but across areas, if another Winterbourne View is to be avoided. We also need avenues of communication for carers and families to register concerns, and for these to be looked at quickly. In fact, carers and families should not only have input on the boards but, I suggest, be supported to act as representatives on them.

Moreover, effective safeguarding work cannot be disassociated from other aspects of care and support provision. For example, with more and more people with higher needs potentially being employers with personal budgets, they will be vulnerable to abuse in their own homes. How will this be safeguarded against? There can be no doubt that for these boards to be effective, local authorities will require additional funding. Where is this to come from? I will not add to the many comments about lack of funding already made by other speakers; I simply pose the question again.

Finally, as I understand it, the whole point of this Bill is to move away from responding to crises and emergencies which can result in costly and unnecessary hospital or residential care. The aim is rather to develop person-centred and preventative approaches that meet real needs in a timely and appropriate fashion. One group who especially need this are those with social care needs who are entering or leaving prison. For this group, care is often not of the same standard as it would be in the community. In fact, a 2007 report by the University of Birmingham for the Care Services Improvement Partnership, Adult Social Care in Prisons: AStrategic Framework, identified major shortcomings in the provision of social care in prisons.

Clause 69 could be a very important step in addressing these shortcomings, particularly considering that around 70% of prisoners will have mental health and substance misuse problems. Providing this care can have a significant impact on reoffending and greatly enhance people’s ability to rebuild their lives on release. However, for such benefits to be realised, it is essential that there is continuity of care between prisons and the community. We need to ensure that prisoners have access to care that is equivalent to what is available in the community. People receiving care before entering prison should continue to receive such support, and any care provided while a person is in prison should be continued through the gate. Local authorities, prisons and probation services must work together to ensure that effective links are in place. I would like some reassurance from the Minister that this will indeed be an outcome from the Bill and one that he recognises is important.

Many aspects of this Bill are welcome and are long overdue. However, there are significant omissions and there is a real risk that in the current economic climate and with the background of funding cuts, nothing will really change. I am concerned about those who are most vulnerable and whether we have truly learnt the lessons from Winterbourne View and Mid Staffs. If we continue to react to problems rather than resolving them at an earlier and more effective point, we will place the most vulnerable in our society at risk. I hope that the Minister will reflect on my concerns and respond appropriately.

Photo of Baroness Emerton Baroness Emerton Crossbench 5:31 pm, 21st May 2013

My Lords, I thank the Minister for the introduction to the Care Bill. This legislation provides the missing links in the Health and Social Care Act 2012 and sets out clearly the responsibilities and the part to be played by local authorities in providing the missing links towards achieving a fully integrated service which aims to provide holistic care, from maintaining pathways in well-being, disease prevention, sickness, care and support through to end-of-life care.

The Bill also shows how the costs of the services will be met, ensuring that advice and understanding will be available for all. The Bill’s success depends on breaking down the organisational and professional boundaries that have prevented progress previously. It will succeed only if its three parts are fully discussed in Committee and then implemented in line with the comments made on Second Reading. The Committee will address Part 3, followed by Part 2 and then Part 1. I firmly believe that Part 1 will not succeed unless Parts 2 and 3 are fully understood and addressed.

I am a retired nurse and a carer so I approach the Bill from an essentially practical perspective. I shall therefore start with the provision making Health Education England a non-departmental body. This change is vital if the body is fully to fulfil its responsibilities, as the noble Lord, Lord Willis, said. The Secretary of State will issue a mandate and this will be of great value to Health Education England, which must work in tandem—and within a defined budget—with a wide range of specialities and many different bodies. The Government’s addition of Clauses 87(5) and 93(3) from the draft Bill underlines the fact that planning for a period of longer than one year is essential when considering workforce requirements such as education and training which involve a long lead-in period. Clause 88 sets out the importance of having sufficient numbers of skilled workers to meet the health and social care requirements. LETBs will have responsibility for planning for the workforce and the skills requirements for a defined area but they must also take account of the wider geographical requirements if specialities and the time element are to be addressed, especially if this is to be cost-effective.

Healthcare assistants—support workers—have been a subject of concern regarding training and the review by Camilla Cavendish which the Prime Minister requested is due shortly for publication. Skills for Health has published a list of skills that should be part of the training for healthcare assistants. As we know, however, simply teaching a skill without providing the background knowledge is of no value in delivering quality care. Both Robert Francis QC and the noble Lord, Lord Willis, recommended mandatory training. I hope that the Government will seriously consider that after considering Camilla Cavendish’s recommendations. I ask the Minister seriously to consider mandatory training programmes which might link skills training to the NMC’s care standards, which are the core of the nurse training curriculum. That would provide a greater understanding for both the healthcare assistants and for the registered nurses who are responsible for supervising and delegating to the healthcare assistants. If high-quality care is to be delivered in the NHS, in local authorities and, importantly, in the independent sector of nursing homes and care homes, where standards are not always compatible with high-quality care, then the matter of training for healthcare assistants must be dealt with urgently.

Health Education England has an enormous task in improving the provision of workforce data on all disciplines and clarification is required about the part to be played by the Centre for Workforce Intelligence and how this slots into the Health Education England programme. Achieving the right numbers of appropriately qualified people who are in the right place at the right time is an enormous task but it is essential if safe, high-quality care is to be delivered to the satisfaction of patients and their families. There are already examples of shortfalls in all disciplines but in nursing there are great disparities between those who produce high-quality care and those who do not. These disparities usually reflect the ratios of registered nurses to healthcare assistants and the required level of supervision. The right numbers in the right ratios are the most cost-effective and care-effective way of delivering high-quality, safe patient care both in the NHS and in local authority health and social care services. I hope that the two vital issues of healthcare assistants’ training and the ratio of registered nurses to healthcare assistants can be sorted out as a matter of urgency.

Continuing professional development is crucial to the future of integrated care programmes. It is important that the values set in the NHS constitution and within healthcare trusts, primary care and local authorities are understood by all employees and employers. There is a need to encourage onward development of all employees by implementing a sound appraisal system which reflects the needs and aspirations of each employee and results in an individual CPD programme. If this is not rigorously followed through on, the issue of burnout and loss of commitment will become apparent. In such circumstances morale falls and healthcare provision can fail. Such a culture is not conducive to high-quality care and is similar to that experienced in Mid Staffordshire.

I turn to the Health Research Authority. Evidence-based practice and innovation depend on research findings. It is a great disappointment that the constitution provided in the Bill is stated in such general terms that it is impossible to determine whether there will be multiprofessional representation on the board or among the employees. All healthcare professionals now require a degree but the responsibility for research has until now remained with the medical profession and little attention has been paid to the other healthcare professionals when considering representation on boards, in committees and in terms of funding. How can innovations be developed without research backing? Promises were given verbally during the briefing and passage of the Health and Social Care Act but there is no evidence that any notice has been taken.

One good example of the outcome of some research done by a Florence Nightingale Foundation scholar— I declare an interest as president of the foundation—was the introduction of care bundles. As a result of that scholarship the mortality rate in people suffering from three long-term conditions was reduced to below the average SMR. We need more projects and research like that to ensure that practice is based on evidence and sound research. I ask the Minister to ensure that there is more investment on the multiprofessional side of research as well as on the medical side.

Part 2 of the Bill refers to care standards. It is pleasing to see that the Government have taken steps to legislate on some of the Francis report on the Mid Staffordshire inquiries. The CQC’s role in identifying failing trusts on the basis of quality as well as financial concerns is welcomed by nursing staff who strive to maintain delivery of safe, high-quality care to the satisfaction of patients and relatives. Work by the CQC is ongoing and we will study it as an important step forward.

Part 1, on care and support, is a crucial part of the Bill that fundamentally sets out the responsibility of local authorities in the fields both of preventing the need for care and support and promoting well-being. However, the critical and most difficult part is promoting the integration of care and support within the health services. Fundamentally, integration is vital and the most important ingredient in successful health and social care, bringing together a huge band of people who will need educating, training and an understanding of the true meaning of holistic care that enables a patient pathway to be clear and understandable by those delivering the care, whether within the aegis of the local authority, the NHS or the independent sector.

In summary, the Bill is a welcome step forward in tackling the issues that so badly needed to be addressed, that will influence and persuade health and social care providers to provide the population they serve with quality and satisfaction.

Photo of Baroness Browning Baroness Browning Conservative 5:40 pm, 21st May 2013

My Lords, it gives me great pleasure to follow the noble Baroness, Lady Emerton, in these matters. She has not only a lot of knowledge, but a great deal of personal experience. I always listen carefully to what she says. I refer the House to the register and to my interests particularly in certain charities which I shall mention. I, too, share the welcome that has been widely given across the House to this legislation. It has great potential to improve the lives of many people with a disability or who are elderly and frail. Simplifying legislation that affects local authorities’ care responsibilities is both timely and something that many of us hoped would happen for some time.

Like others, I share concern about the ability to fund such an ambitious piece of legislation. In the impact assessment available in the Printed Paper Office, I noticed that the monetarised benefits actually outweigh the public sector costs. If that is true, it is really to be welcomed, but I must tell my noble friend at the Dispatch Box that in Committee we will want to look carefully not just at the costs identified in the impact assessment, but at what are perhaps the glaringly obvious omissions, particularly future demographics. This Bill is very generous. To a degree, it seeks to underwrite the costs for people who currently do not receive state help with their care. The way in which the population demographics work out in this way is challengeable. I would say to my noble friend that what is really important is that we do not raise expectations through this legislation, only to find that they cannot be resolved.

I say this from personal experience. I remember some years ago when my son, who has Asperger’s syndrome, was in his late 20s and lived permanently at home with my husband and me. As the named carer, I received through the post forms to fill in, asking me what my carer’s needs were. Every time this form came, I am afraid that I wrote across it in large letters: “If my son’s needs were met, my needs would be minimal”. They probably caught me on a bad day. As any carer will know, the reality was that sometimes even the very basic needs of the person you are caring for are not met. In a way, this Bill promises that this will be addressed. After all, what does “well-being” mean if not the well-being of the whole person? The well-being of carers is very much dependant on the well-being of the person for whom they care.

This is particularly relevant among those people who cannot advocate for themselves. We heard in today’s debate discussion about people with dementia, mental health problems and learning disabilities—so ably expanded by my dear noble friend Lord Rix. I have had an association with various autism charities and can say that these people need somebody to make the case for them—usually the carer, though there is not always an immediate carer. It is really important that this legislation will fulfil its promises.

I am a little concerned about one particular area. Although it is extremely welcome that throughout this Bill there are requirements to assess—for example, the person needing care or the carer—if those assessments cannot be fulfilled, there will be a huge feeling of let-down. My own experience, not just as a carer, but having served for nearly 20 years in another place as a constituency MP, is that all too often there is huge push-back and resistance to an assessment, even when there is a statutory requirement to provide it. This is purely because the people who are asked to carry out the assessments know only too well that whatever their conclusions, they cannot do very much about them because the resources are not there to deliver what that person needs.

It must be pretty awful for the people who carry out those assessments to know that if they do their job fully and properly, at the end of the day there is not an awful lot they can do to make a difference to that person’s life. I think my noble friend described the resources attached to this legislation as being about the engine working better rather than putting more petrol in the car. I would say to him that the engine needs to work better and he needs to fill up a few more times, otherwise I do not think that the resources will meet the need.

Looking quickly at the autistic community, I mentioned earlier that there are some omissions. This applies both to autism and to people with dementia, perhaps more elderly people who go on to have Alzheimer’s. There are a huge number of people who are still undiagnosed. In the autistic community it is improving, particularly with younger children. However there is still an adult community with needs that do not always come to attention. As with those with learning disabilities, if they have been living at home with elderly parents who themselves have a crisis, it is the crisis of the person they have been caring for that comes to the attention of the authorities. All too often, that means crisis management and huge sums of money with all the disruption that goes with it to try to put some form of stability package in place at short notice.

This is not helped by something which the Bill aims to address—I hope it is successful and has been touched on by many speakers already today. This is the relationship between health and social services. When I was a constituency MP, I used to say, tongue-in-cheek, “We are having an ‘Oklahoma!’ moment”. Often people would come to my surgery with the typical problems of those who do not receive the correct services, or are carers who are at breaking point and cannot get anybody to understand their needs. For those who can remember it, “Oklahoma!” has a song with the line, “The farmer and the cowman should be friends”—but they never seem to talk to each other. That is the “Oklahoma!” moment, and it is quite easily resolved by Members of Parliament. When in my surgery or on the phone I was presented with a problem that quite clearly needed a group of people to sit around a table and talk about it, I used to cut to the “Oklahoma!” moment as quickly as I could. All too often, good things happen when an MP says to health and social services, “I think you should get together”. Indeed, I sometimes used to say, “Don't worry, I'm very happy to come along to the meeting myself”, which usually galvanised a few people. Problems were not always totally resolved overnight, but we started to make progress. It used to occur to me, “Why do I have to have this ‘Oklahoma!’ moment when all these people could be doing all this for themselves?”.

I say to my noble friend that, as we go through the Committee stage of the Bill, I will want to pay particular attention to those parts that seek to improve things so that we do not have “Oklahoma!” moments. The structure must be such that automatically there is dialogue and not stand-offs about who pays for what, because the difference between who funds the social care and who funds the health care is addressed in the Bill. All of this bodes well for resolving many of these problems, but I still have concern that if the resources are not available, we shall not do so.

Finally, it is important that we have a new piece of legislation on the statute book; the Autism Act. It has not really bedded down yet and it is early days. But the new Care Bill must ensure that the duties in the Autism Act statutory guidance continue to apply to local authorities and local NHS bodies to ensure the ongoing implementation of that Act. I hope that the Minister will be able to reassure me on that when he makes his concluding remarks.

Photo of Baroness Wilkins Baroness Wilkins Labour 5:51 pm, 21st May 2013

My Lords, as so many noble Lords have said, making the points that I wanted to make, this is potentially a very important piece of legislation. I warmly welcome it. The well-being principle set out in Clause 1 is particularly welcome and the Government are to be congratulated on acting on so many of the Joint Committee's recommendations for strengthening the Bill. But unless this Bill is properly funded, its aspirational principle and welcome structure will just rub salt into the wound of the current crisis in social care. The Bill must be properly funded and other government departments must work in concert with this legislation if the social care crisis is to be alleviated.

The media debate around the Bill has largely focused on the care needs and the funding of that care for older people. I want to concentrate on the social care needs of working-age disabled people who comprise one-third of social care users. I will focus particularly on funding and housing.

Current government action on these two issues does not bode well. As we know, the fine aspiration set out in the well-being principle is cloaking a grim reality. This is particularly the case for the more than 20,000 most severely disabled people who, until it was closed to new applicants in 2010, were funded by the independent living fund to live ordinary lives in their own homes.

When I became disabled in the mid-60s, these were the people who, unless their families had sufficient money and suitable housing, were warehoused in residential care with no hope of living any sort of normal life. In the decades since, as we heard from my noble friend Lady Campbell, we have witnessed the liberation of this group to live fully integrated lives as part of the community. Some have been enabled to work and make considerable contributions to our society only because the ILF has provided top-up funding to the support available from local authorities.

But despite the fine words of Clause 1, these ILF users fear that current government action is threatening to return them to institutional care. ILF funding is ending and these people are being transferred to the local authority system in 2015. Their fears are not exaggerated and have been confirmed by the directors of social services, the Local Government Association and the Government's own impact assessment as well as the National Association of Financial Assessment Officers who have said that some councils will decide that residential care is a less expensive option than supporting people to live at home.

A few weeks ago, a group of ILF users took this decision to judicial review. It lost, but during the two-day hearing, it became clear that transition funding to protect current ILF users is available only for one year, 2015-16, and that neither the DWP nor the noble Earl’s own Department of Health want to take responsibility for making the case to the Treasury for further funding in the spending review.

What steps will the Department of Health and the DWP jointly take to ensure that funding is available after 2015? Will the Minister assure the House that ILF users will not be forced into residential care or confined within their own home with only ‘life and limb’ care following the transfer of funding responsibilities to local authorities? If this Care Bill is to fulfil its principle of well-being, what level of funding do the Government believe is necessary to ensure that we do not return to the days when disabled people with high support needs had no opportunity to live independently? If there is no time to answer at the end of the debate, would the Minister be so kind as to write to me?

The justified fears of ILF users serve only to highlight the current crisis in adult social care which is failing to support disabled people to do the basic things in life—basic needs such as washing, dressing and getting out of the house. I will not repeat the points that other noble Lords made so eloquently. However, as the Care and Support Alliance has emphasised, this Care Bill will fail to improve the social care system for disabled people if the welcome proposal of a national eligibility threshold is set too high. The White Paper's suggested threshold of “substantial” is too high. For the ambitions of Clause 1 of the Bill to be realised—that social care should enable participation in work, education and society—it is essential that the eligibility threshold should support that ambition, not demolish it.

It is vital that the national threshold is set at no more than “moderate” to ensure that prevention is at the heart of the social care system. Prevention must lie at the heart of this Bill. It will also depend on other government departments and other local authority services playing their full parts to ensure that social care expenditure does not escalate in an unintended way.

One of the most important factors in prevention is housing; both the provision of suitable housing and the aids and adaptation service. Countless stories of people being unable to return to their own homes after serious illness or accident because of inaccessibility are heartbreaking. They also result in costs occurring elsewhere in the system because of delayed discharge from hospital or expensive residential care. Simple adaptations to a person’s home can prevent the need for costly care, whether it is the provision of ramps and handrails, lever taps or a downstairs bathroom when stairs become insuperable.

This applies equally to the need for supported housing especially for people with learning disabilities. Frequently, local authorities do not even seem aware of their legal responsibility to house this group. I congratulate the Government on having listened to the Joint Committee on the draft Bill and including the suitability of a person’s home in the definition of well-being in Clause 1. During the passage of this legislation, I will seek to ensure that housing also appears on the face of the Bill in other relevant clauses so that it cannot be forgotten.

Finally, it seems like a forlorn hope that the Chancellor will recognise the urgent need to build the thousands of homes needed for social housing. They are particularly needed by disabled people who are more dependent on social housing than the rest of the population. Instead, the Chancellor spends our scarce resources on his help-to-buy scheme, which can only lead to yet another catastrophic housing bubble.

I wish the noble Earl the eloquence of angels in persuading his fellow government Ministers that they must all play their part if this Bill is going to result in more than just fine words and aspirations, particularly the Chancellor of the Exchequer.

Photo of Baroness Barker Baroness Barker Liberal Democrat 6:00 pm, 21st May 2013

My Lords, I declare an interest as one of the usual suspects referred to by the noble Baroness, Lady Pitkeathley. Like many of the speakers in today’s debate, I am a veteran of more care Bills than I care to remember. I wish to put on record my admiration not just for my colleagues Paul Burstow and Norman Lamb, who did a remarkable job getting this Bill to where it is now, but also to a number of people—not least of whom are the noble Lords, Lord Lipsey and Lord Sutherland of Houndwood—who over the whole of the last decade started the debate which has got this Bill to where it is today. An awful lot of work has gone on in the last decade that has shaped this legislation. It has to be clear, coherent and consistent; people and their carers need to know what they are entitled to receive from social care, what they will be expected to contribute and what their entitlements will be. That has been a long process, but it is a relief that we have finally got there.

A lot in this Bill is admirable and it starts for me at the third sub-heading in Part 1, which talks about the purpose of assessment. Assessment is key to all of this Bill: the extent to which it is possible to assess a person’s needs, means and support networks and the extent to which social care, health and private insurance have a common assessment process are the keys to whether the aspirations that we all have for joint care can really and truly be achieved. At the heart of it all is housing. We have known for some considerable time that the care that an older person receives in later life depends upon whether they own a property and the extent to which they can use that to fund their care. This Bill goes a long, long way to ensuring that other people—those who do not have properties at their disposal—get the help that they need as well.

There is much detail in here about the assessment process and much of it is extremely welcome. However, there is one subsection—Clause 9(4), which looks at how one’s need for support is assessed—which talks about the need to look at what a person can do and the sources of support around them in their family before an assessment for eligible needs can be carried out. We need to be clear by the time this Bill finishes all its stages that people and their families are being assessed on what it is that they are able to provide by way of support and care, rather than what they are expected to provide to make up for some of the deficiencies of the care system at the moment. We do not wish to see people and their families pressurised into providing more than they possibly can.

I welcome Clause 11, which talks about the enduring responsibility of a local authority to care for an older person even if they refuse to have an assessment. All of us who have worked with older people know that horrible moment when a carer finds that their mum has gone for her assessment and sworn blind that she can do lots of things which on the her very best day she might be able to do, but routinely she cannot. Here I also make the point that the noble Lord, Lord Hunt of Kings Heath, and I always raise on occasions such as this, in memory of Lord Weatherill. There are some people, particularly Christian Scientists, who do not lack capacity but who wish to refuse to have assessments and so on. Their views need to be upheld. I am extremely pleased that the need to assess somebody’s financial resources is in the Bill. It is quite clear that that assessment happens separately and after their needs have been assessed.

Clauses 15 and 16 talk about the cap on care costs and implement Andrew Dilnot’s report. Again, there is much in this that is extremely welcome. It is welcome that there are some things for which local authorities will not be able to charge. The whole process of how one gets from the point of an assessment of need to the point of eligibility is much more complicated than many people realise. There will be things such as care costs that people have already paid for in their own homes which are not taken into account. The same is true for payments for their daily living costs. We also know that the current system whereby local authorities will pay up to what they call the usual rate—which may be well below what an older person and their family believe they need—will continue to endure under this new system.

It is absolutely critical that this whole part of the Bill is scrutinised in great detail, because there is a danger that this could end up like the fares for a budget airline. You have an upfront figure, which by the time you finally get to the airport, turns out to have so many add-ons that it bears no resemblance to the original fare. If, at the end of our process of scrutiny, that is what we end up with, then the whole system will become discredited. We really need, above all else, to emerge from this legislation with everybody knowing in detail, with some certainty, what their costs are going to be.

One of the issues on which the Government’s response to the joint scrutiny committee was slightly disappointing was about drawing the boundaries between health and social care. Those of us who have been involved in working with older people for any length of time know that when resources are tight, the ability of the NHS and local authorities to withdraw and start pressuring people from pillar to post gets tempting. There was an attempt in the draft Bill to differentiate clearly between healthcare and social care. In the Bill that has emerged now, it is less clear than it was originally. That will not help anybody; it will simply set the basis for ongoing court cases about what constitutes continuing care. Again, one of our main duties in the passage of this Bill is to ensure that there is clarity on that point.

Turning to deferred payments for social care, we currently have a system of deferred payments and we have some case law already on the way in which that works. It is welcome that the Government wish to extend that and to make it more consistent across the country. However, I hope that in doing so, they have paid attention to the existing case law about when people’s properties can be taken into consideration when other members of their family are living in those houses. I have to ask the Minister what financial modelling has gone into this part of the Bill, because we are talking potentially about the deferment of a lot of money for a lot of care for a very long time. Given the state of finances of local government at the moment, we could be talking about a policy of quantitative worsening of social care, rather than quantitative easing of it.

I move on quickly to safeguarding. It is very welcome that we are finally getting a statutory power to investigate the potential abuse of older people. People such as the noble Baroness, Lady Greengross, have been working for 20 years towards a time when we put the abuse of older people on as serious a statutory footing as the abuse of children. However, the changes to Section 47 of the National Assistance Act—the power to remove older people from unsanitary conditions—without a power of entry when a third party is withholding access to somebody who may be being abused, may mean that we have a statutory power that is not going to protect people. I agree with the noble Lord, Lord Patel of Bradford, that Section 117 support for mental health is important, and we must make sure it is not weakened.

We have within our grasp a system that will deal with the biggest problems with which we have been grappling for more than 20 years: how to make our social care systems, our health systems and the rest of our public finances work together, so that individuals, their families, their communities and the National Health Service all know where they stand in relation to each other. We are not quite there, but with some concerted effort, and using our combined experience, we will get there by the end of this Bill.

Photo of Lord Patel Lord Patel Crossbench 6:09 pm, 21st May 2013

My Lords, the Government have to be commended on bringing forward this Bill to reform the current system of social care and thus bringing in a fairer system. Many noble Lords have commented on the financial issues, saying that adequate finances will be required to make sure that the ambitions of the Bill are delivered. Noble Lords have also commented on another important issue, that of the eligibility criteria that are to be used. If these two things are not met appropriately, the duties being placed on local authorities in Clause 1—promoting well-being, preventing deterioration and reducing need—will be difficult to meet. It will also mean that more people end up in A&E, in primary care and as in-patients.

I am concerned about two other issues. As yet, the Government have not accepted the need to provide free care and support for cancer patients at the end of life. I remain encouraged by the comment made by the noble Earl when we considered this issue in the debate on the gracious Speech. He said that there was “much merit” in the idea. I hope that he will be able to convert the thought that the proposal has much merit into an amendment that the Government will bring forward.

A survey by Macmillan Cancer Support has shown that 91% of cancer patients at the end of life wish to die at home or in surroundings familiar to them. The barrier to this is the lack of care and support they need along with complicated, lengthy and stressful processes to access funding for care. Financial means testing when patients are dying does not seem to be compassionate or caring. The argument for providing free social care at the end of life is strong. It will deliver the Government’s vision of integration and choice. Research by the Nuffield Trust shows that a saving of some £52 million a year could be made through reduced hospital admissions. I hope sincerely that the Government will amend the legislation to do this, or accept an amendment that I will bring forward.

There is also the issue of the support that the carers of cancer patients get or, rather, that they do not get. Almost 1 million cancer carers give their valuable time to this, saving services probably in the region of £12 billion a year, yet half of them receive no support at all and the other half very little. This is partly because most of them do not see themselves as carers and are unaware of their rights; fewer than 5% get any assessment at all. What would help is if a similar duty as the Bill puts on local authorities is placed on the NHS to work with local authorities to identify the support needs of carers who are themselves supporting cancer patients. Cancer carers will then receive the support they deserve.

The other areas of concern to me relate to Clauses 55 to 63, also referred to by the noble Lord, Lord Rix, and I associate myself with his comments. I want particularly to make a point about the support and care of children and young adults during the transition period. More than 40,000 children and young people aged between one and 19 in England have long-term conditions which, for the most part, will end their lives or for which they will require palliative care. They may have complex health conditions and severe disabilities, and for the most part they are looked after by parent carers. This is not end-of-life care, but care that brings some comfort, respite, the relief of suffering, and a little bit of quality of life. Evidence shows that while they are children and in their early teens, these young people receive support from children’s services. In their late teens they begin to receive services from adult services, but that support is often reduced, fragmented and disjointed. Parents describe this transition of care as “standing on a cliff, about to fall into a black hole”. It is not difficult to imagine the stress and anxiety it must cause to young people and their carers.

The proposals in the Bill are a step forward, but in my view they need to go further. A consortium of charities which has grouped together under the charity, Together for Short Lives, feels that this provision needs to be strengthened. The Bill should make it clear that when a young person reaches the age of 14, local authorities should initiate transition planning with the young person, their family and the relevant agencies, so that by the time they reach the age of 16 a five-year rolling programme for their support and care is in place. I hope that the Government will be sympathetic to this and that the Minister, if he is able to do so, would be willing to meet with representatives from Together for Short Lives and myself.

Part 2 of the Bill relates to performance rating. I support in principle the idea of introducing a system that assures quality of delivery of health and social care. Suffice it to say at this stage that whatever the final system that is introduced is like, it has to be credible and have the confidence of both patients and health professionals. If it is going to be based on three domains of quality—clinical effectiveness, patient experience and patient safety—the dataset needed to achieve this in an equitable and fair way is available for some areas, but not all of them. I hope that the Government will see the introduction of assessment as formative and embedded over a period of time, evolutionary in helping to develop appropriate datasets leading to improved services, rather than a one-off assessment that identifies only failures and shortcomings.

I am very familiar with a system based on standards that encompass the three quality domains of clinical effectiveness, safety and patient experience, but using a different process that works. I know of no system within our national healthcare that is similar to the proposals, although of course there are large healthcare providers which are using a similar methodology. I look forward to the debate on this subject and hope to contribute to it.

Perhaps I may comment briefly on the other parts of the Bill, starting with Health Education England. In my view, the Government have brought in provisions that we agreed in principle in the Health and Social Care Bill. The Government have to be commended on doing this and I thank the noble Earl. I am also encouraged by the appointment of Professor Wendy Reid as the medical director. Health Education England will have someone with huge experience and skills in health education. My only comment relates to the local education and training boards. Why is there not a duty placed on them to promote research and research training, a point also mentioned by the noble Lord, Lord Willis of Knaresborough?

As for legislation related to the Health Research Authority, its current role is small and we will want to see how it evolves. I recognise the comments made by the noble Lord, Lord Willis, about too many regulators in the area of health research. I hope that the Government will look at this, while the inquiry into regenerative medicine may also give rise to some comments. I think that the Government are right not to put a duty on the Health Research Authority to require the publication of the results of research. It is much better that the authority should work with others to encourage the publication of research and that it develops over time an appropriate methodology. The mandatory publication of research by the authority would have been the wrong thing to do. It does not work; it has been tried in other countries, including the United States.

As for the Human Fertilisation and Embryology Authority, the original Government thinking was right, but now that they have changed their mind and have decided to keep the authority, I hope that it concentrates on its key role of improving services related to infertility.

In conclusion, on the whole I am supportive of this Bill and hope that the Government will be sympathetic to amending some of the areas I have alluded to in order to help improve the lives of those most in need of care and support.

Photo of Lord Wigley Lord Wigley Plaid Cymru 6:19 pm, 21st May 2013

My Lords, I welcome this very important Bill. I do not want to repeat the points that have been made, but I will add my support to the comments made by the noble Baroness, Lady Campbell of Surbiton, on the need for real independence and dignity for disabled people and to the points made by the noble Baroness, Lady Wilkins, on the housing needs of disabled people of working age. I also share the concern expressed by her and by many speakers in this debate that this Bill will work only if adequate resources are available. I noted the comments made by the noble Lord,

Lord Rix, that the system is now in crisis and that people with real needs are left without support, which is a worrying situation.

I want to highlight matters relating to the detailed working of this Bill and the complexity that arises in some areas by virtue of the fact that social care is devolved in Wales to the National Assembly, since some of the provisions in this Bill impinge on devolved responsibilities. First, can the Minister confirm that legislative consent Motions have been agreed with Ministers in Cardiff and that there are no outstanding issues that need to be resolved?

Secondly, on the issue of funding, the Secretary of State Mr Hunt said on 11 February:

“All the Barnett consequential issues are decided by the Treasury”.—[Hansard, Commons, 11/2/13; col. 601.]

I understand that additional spending in England of about £1 billion should generate about £60 million of consequential spending in Wales. Can the Minister confirm that a figure has been agreed, and can he tell the House what it is? There is the associated question of the Barnett formula being generally inadequate and particularly inadequate in this context, where the age and need profile in Wales differs from that in England. Wales has higher levels of disability for historical and industrial reasons, and thousands of people retire from England to the beautiful coastlines and countryside of Wales. They are very welcome to come, but there is a cost implication. Wales has the highest proportion of older people of any country or region in the United Kingdom. Nearly one in four are over 60 years of age, and that is expected to increase by a further 5% over the next 10 years. The noble Baroness, Lady Browning, rightly emphasised the need to be aware of the demographic changes that are taking place and the effects that they will have. Any funding system that is based merely on total population relativities will inevitably generate inequalities.

Thirdly, the Government of Wales are currently in the process of reorganising social care in Wales. The Social Services and Well-being (Wales) Bill is similar to this Bill in many aspects and will, inter alia, increase the number of services for which people can claim a direct payment from the local authority, introduce national eligibility criteria, and provide for portable assessments to avoid the cost and trouble of reassessment. These detailed provisions need not exercise your Lordships’ House. What is of concern, however, is that any provisions in this Care Bill with an England and Wales remit will impact on the changes taking place in Wales under the other legislation.

Equally, changes taking place in Wales will have an implication for cross-border placements and the portability of care packages. Can the Minister tell the House whether discussions have been concluded with Ministers and officials in Cardiff and whether all issues in this area have been resolved? In particular, has there been a resolution of the portability of social services assessment undertaken in Wales in the event of persons choosing to move to England, and likewise of the portability of care packages for persons choosing to move from England to Wales? I am not referring to cross-border placement, which is quite another matter. Will the UK government cap on social care costs follow an individual who moves to Wales from England and is already in receipt of a care package, and if the cap is different in Wales, which of the two would apply? There is a real danger of disputes arising. The Care & Support Alliance commented:

“The Care Bill could have gone further to set out a strong and clear dispute process”.

The difficulty to which cross-border issues give rise within England between local authority areas is covered by Clause 36. This provision deals with people choosing to move for genuine reasons, but it does not appear to deal with those moving between England and Wales for genuine reasons. Likewise, Schedule 1 deals with the cross-border placement question, and paragraph 1(2) deals with the placement from England to Wales, but it does not appear to specify who has the responsibility for paying. Perhaps the further provisions referred to in paragraph 1(5) are meant to cover this, but it is far from clear and we need some assurances on the matter. It is also less than clear that paragraph 6(2) of Schedule 1 is adequately rigorous to provide for full recompense or that it is relevant in all cases. I should say that the Social Services and Well-being (Wales) Bill also fails to clarify these cross-border issues. These are matters that we certainly will need to clarify and to follow up in Committee.

Finally, I refer to the proposed health research authority provided for by Clause 96. Clause 98 states that the HRA’s remit is to promote the co-ordination and standardisation of practice in the UK in the regulation of social care. The Bill places a duty on the HRA and the devolved Administrations to co-operate with one another, but how on earth is such a duty going to be enforced? And what happens if disagreement arises between conflicting expectations in Wales, Scotland and England? Does the Secretary of State in England have to act as a referee in such a dispute? I am not arguing against the need for such co-operation, of course, but legislating for these matters never guarantees the desired outcome. All these issues are points for further consideration in Committee. Meanwhile, I am very content to support the Second Reading of the Bill.

Photo of Lord Lipsey Lord Lipsey Labour 6:26 pm, 21st May 2013

My Lords, I declare an interest as unpaid president of SOLLA, the Society of Later Life Advisers. I want in my remarks to concentrate on the Dilnot-related parts of the Bill—that is to say, the cap and the related changes to the means test. I should state straightaway that I welcome the cap. Indeed, I hope that the House will not think it unduly immodest of me if I claim to be, if not its father, perhaps its grandfather. In the minority report of the 1999 royal commission, which I signed with the noble Lord, Lord Joffe, there was a proposal that people should have their care costs covered if they were in care for more than five years. I was not even able to command the majority in the minority on that matter, because the noble Lord, Lord Joffe, did not agree with me on that, although we agreed on everything else. So right from the beginning I have been a strong supporter of people being protected against catastrophic costs of care. I emphasise the word “catastrophic”, because I am also extremely glad that the Government opted for the

£75K cap, which I referred to in this House in my initial reaction to the Dilnot proposals, and not for the much lower figures put forward by the commission, which frankly I thought to be unaffordable.

I hope that my credentials as a broad supporter of what the Government are doing are established and that it will not seem impossibly contrarian if I point out two disadvantages of the proposed scheme that we need to bear in mind throughout proceedings. The first is that it is still pretty expensive—£1 billion by the end of the next Parliament, rising to £2 billion by 2030, according to calculations by the Health Economics Group at the University of East Anglia and the LSE’s PSSRU. In the times of austerity in which we are living, any increase in public spending needs to be very thoroughly justified, because of its implications for taxation if nothing else. There is a particular danger in spending money on helping people to pay for care. The real acute and immediate crisis that we face is not about people paying for care; it is about the amount of care that we are providing, on which spending has been cut by about £710 million in real terms since this Government came to power. There are loads of figures, but that is the one that hit me. People are doing without services. If you do not have substantial needs, you do not get services any more. When the priorities come to be weighed, that seems to me to be the pre-eminent one.

There is also the issue of where this money goes. The Dilnot proposals—for all their advantages, which I will come back to before noble Lords get convinced that they should not go forward—do little for the poor. They mostly benefit the better-off. That is because poor people get paid for in full under the present means-testing system. It is the better-off who have to pay. Of course they do not like that and it understandably creates a furore. Even the Government’s plan, which I will call “watered-down Dilnot”, benefits most the better-off. According to the same academic sources that I quoted, the plans in 2030 will be worth £52 a week to people over 85 in the top quintile by income—the top 20%—compared with just £20 a week to those in the lowest quintile. That is an inevitable consequence of replacing means-tested benefits with targeted universal benefits, which is why some of us are chary of the current fashion for scrapping means tests.

Dilnot argued that the cap will protect a bigger share of the assets of those with modest wealth than those with lots of wealth. That is true. It is, however, also true that those with modest wealth will have to contribute to the cost of their care a higher percentage of their wealth than will richer people. It was therefore as difficult a choice for me as it was for Joel, my noble friend Lord Joffe. I go back to the only dispute that we ever had.

Against those disadvantages had to be weighed two important advantages. One is that there is real injustice in the present system, because it is a total lottery as to whether you need care or none at all. It seems unfair that one set of people, however well off they may be, have their wealth wiped out because they happen to need a lot of care, while more people—about two-thirds—get away with the full loot to leave to their children because they do not happen to need care. That lottery is unjustifiable.

I have been in politics for some time and, frankly, I thought that it would be a tremendous advantage if, at reasonable cost, we could get this issue of paying for care off the agenda and concentrate on the things that really matter—the money that has to go into care services, the way that those services are organised and the way that individuals get more control over those services. The issue of the old having to sell their homes to pay for care is a distraction from a more important debate, and the proposals, at modest cost, will take it off the agenda. It is right to proceed with them, but I am sorry that the cap changed from £75,000 to £72,000 and that it has been brought in a year earlier as a result of the Budget. That means increased Exchequer costs earlier, which is robbing money that should go on services.

Incidentally—this is a side issue, but important—the administrative burden on local authorities is quite alarming. Getting this done by 2016 is a major deal. Authorities will need to invest huge amounts in systems, staff, advice and all these things—perhaps £500 million just for the administrative costs. The Government must—I repeat, must—pay for that in full, but it will be nip and tuck as to whether it is done in an orderly fashion to the new timetable. If that had not been done, we would have had a little extra money. At quite modest cost, the government scheme could be tweaked to do more for those with relatively modest wealth and we would not have to worry as much that all the benefits were going to the better-off.

This now gets a bit geeky, but I will persist. The Government propose to raise to £123,000 the limit on how much wealth you can have before you stop getting means-tested support. That is good; it represents the value of a cheap house in some parts of the country. However, it is not very good. I do not know how many noble Lords are fully aware of this but, in fact, if you have £123,000 in assets and that modest house, all the money that the Government are trying to give you under the means test will be taken away from you. Why is that? It is because of a little-known thing called the tariff. Under the present system, for every £250 that you have in excess of about £14,000 in assets, you lose £1 a week in benefit. You would require a 20% return on your savings—£50 a year on £250—to benefit. The money is taken out of your pocket by this tariff in the means test as it is put in by the increase in the ceiling.

How could this be changed? It could be done easily. Suppose that the tariff was changed so that, instead of losing £1 for every £250 of your assets, you lost £1 for every £500. Therefore, those with assets of up to £123,000 would get decent benefits from the state towards the costs of care. Nor would the cost to the state be great. According to the academics whom I quoted, the cost would be around £150 million—less than a sixth of the cost of the Government’s proposals. A small slice would go to those with modest income and wealth and, if necessary, it would reduce the very large slice going to those with substantial income and wealth. In other words, if this proposal were to be combined with the cap proposals, we would have a much less regressive package. If it were necessary to fund it by raising the cap from £72,000 to, say, £80,000 or a little more, that would be a price well worth paying for a more socially just solution.

My party has rightly criticised the Government, mildly, because their plan does not do enough for the less well-off. Here is a ready-made solution. The Minister was described at a meeting earlier this afternoon as a saint. I would not dissent from that. I do not mean to be offensive to the noble Earl, but he would not like the tag put on him that he cares only for the better-off. When the Bill goes to Committee, I am confident that the noble Earl, Lord Howe, will stand up and accept amendments to reduce the tariff to £1 for every £500, thereby making this Bill much more progressive and helpful to those hard-working people on modest incomes who want their fortunes to be protected.

Photo of Lord Bichard Lord Bichard Deputy Chairman of Committees 6:36 pm, 21st May 2013

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

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

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

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

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

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

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

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

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

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

Photo of Baroness Donaghy Baroness Donaghy Labour 6:47 pm, 21st May 2013

My Lords, I welcome the introduction of the Care Bill. There are areas which I hope to see strengthened, but it represents a basic framework on which future generations should be able to build. My concern is how we make the words a reality. It is not the first time that this has been mentioned in debates. Will future funding restraints prevent any real improvements? How can we ensure the essential co-ordination between hospital care and home or residential care? My final concern is around the capacity and welfare of our workforce in health and social care and in local authorities. To make the words a reality the Care Bill must, in the words of Age UK,

“make a tangible difference to the lives of people with care and support needs who are currently effectively ignored by the system”.

The Bill contains measures to ensure a single national eligibility threshold for care services, but if, as the noble Lord, Lord Rix, has already mentioned, the regulations set the minimum level at “substantial” rather than “moderate”, it would affect 100,000 people and would render a national system meaningless. Age UK asks for the Bill to be strengthened in a number of ways, for instance by linking eligibility for social care to the achievement of outcomes based on the individual’s well-being, as defined in the Bill. The requirements on local authorities to plan to meet the diverse needs of their populations and to promote quality and choice could be strengthened by requiring service commissioners to monitor and take action where necessary. Clause 8, describing the kinds of support which local authorities must offer, should include issues such as transport.

Finally, on turning words into deeds, good quality information and advice is needed. The most stressful thing for any family caring for the frail elderly is finding their way through the maze, feeling unsupported and fearful that they are not accessing the best possible services for their loved one. Website information is welcome, but some people need more intensive help. The clause on advocacy has already been mentioned. It should be strengthened, perhaps by creating a positive duty on local authorities to ensure that someone has the help and advice they need.

Secondly, despite not being written in the scope of this Bill, future funding is critical for its success. As many of us have said in this and previous debates, there have been real-terms cuts to social care funding: 7.7% in 2011-12 and 6.8% in 2012-13. The rising levels of unmet need are such that 800,000 people who need care now are not receiving it. The Nuffield Trust calculates that,

“there would be a funding gap of between £7 and £9 billion by 2021/22 if funding were held constant in real terms”.

It adds:

“These funding pressures would rise to between five and six per cent a year if the recommendations of the Commission on Funding of Care and Support were implemented, resulting in a total funding gap of £10 to £12 billion by 2021/22”.

This gap will have to be faced by the next elected Government and will probably be met only by a combination of productivity savings, managing chronic conditions, holding down pay and taking a larger share of public funding. The social care funding gap is likely to be between 3% and 6% a year, depending on trends in chronic conditions, and Dilnot costs of course. The Nuffield Trust concludes that:

The NHS in England may face continued austerity measures into the early 2020s”, which is something of an understatement.

The Local Government Association supports the intentions behind the Bill but has pointed out that,

“the government’s austerity programme … does not fit well with the aspirations of the Bill”.

Policy decisions and financial decisions have become detached. The point about underfunding has also been made by the Care & Support Alliance and Age UK.

The need to co-ordinate health and social care is going to become even more desperate. In its response to the Francis public inquiry report, the Nuffield Trust states:

“The reality is that more and more trusts will be treating large numbers of sicker, older adults in an atmosphere of pay restraint and frozen budgets”, and recommends that,

“the highest priority for initial development of fundamental standards be given to care of the frail older people on acute wards … and that this priority should shape any new requirements for data collection in NHS trusts set by the NHS Commissioning Board or the Care Quality Commission”.

The NHS is already creaking under the weight of our failure to solve the social care crisis. When I was a carer, I fought tooth and nail for my mother to be allowed to stay in hospital until her health improved rather than be sent back to the care home where she spent the last 18 months of her life—not that her care was good in hospital; it was a choice between bad and worse. I understand the dilemma of families who want to do the best for their elderly relatives. Perhaps we need more halfway house temporary accommodation, jointly funded by the NHS and local authorities or charities, to relieve the undoubted pressure on hospital beds. If care standards in residential homes were better, that would relieve pressure on hospital beds.

The changes proposed in the Bill will put enormous pressure on staff in the health service, social care and local authorities generally. The Joint Committee on the draft care and support Bill has already raised the issue of initial and ongoing training and support needed for local authority staff and social workers. Others have dealt with the certification of care workers. Long shifts and low pay are a real problem in residential homes and often determine the quality and commitment of staff. With all these new responsibilities being piled upon staff by this Bill, we should not forget our responsibility to meet their capacity and welfare needs. Also, the statutory requirement for candour may not sit easily with a more market-oriented approach to health and social care. This would also place a tremendous burden on some staff.

Finally, I have not referred to the “Dilnot-lite” elements of the Bill. Of course it is disappointing that the Dilnot figure was not accepted. The proposed figure will benefit very few people, particularly with the additional £12,000 a year overhead costs, but it is a start and having a framework is very important.

The timetable for the Mesothelioma Bill clashes with the Committee stage of this Bill, so I will not be able to be present for the early stages, but looking around I feel sure that all angles will be well covered by noble Lords on all sides of the House.

Photo of Lord Sharkey Lord Sharkey Liberal Democrat 6:55 pm, 21st May 2013

My Lords, it is a pleasure to follow the noble Baroness, Lady Donaghy. Like her, I very much welcome this Bill. It is a very good Bill and the Government are to be congratulated on bringing it forward, on responding constructively to the recommendations and observations in the Joint Committee’s excellent report on the draft Bill, and on incorporating the essence of the Dilnot report into the Bill. When it becomes law, the Bill will have the effect, among other things, of introducing certainty, stability and consistency into the provision of care. It will also create the conditions in which financial institutions can begin to write policies that will directly help in the pooling of risk, which is not the case at the moment.

The Bill deals with a very complicated subject and seeks to make fundamental changes to the current arrangements. Many of the critical components of this reform of the care system are to be left to secondary legislation and guidance. Although it is clear that many details will need to be and should be left to secondary legislation and guidance, I think that the Bill would benefit by addressing some of the key issues more directly in primary legislation.

The recent toing and froing over Section 75 of the NHS Act illustrates the point. There are some things to which the answer is not yes or no. There are things that the House may very well want to debate in a way that produces amendment. I suggest that the size of the various caps critical to this Bill are such things and would be better debated amendably than on a yes or no basis.

Dilnot noted in his report that setting the cap above £50,000,

“would not meet our criteria of fairness or sustainability”.

The proposed cap of £72,000 is greater than Dilnot’s £50,000, even allowing for inflation. I suspect that many Members will want a vigorous debate in Committee on where the trade-off between reach and affordability should lie. The same goes for the definition of eligibility in Clause 13, and for Clause 34(1), which will by regulation set out when an authority may agree to defer payment. All these things may be better discussed in the more flexible environment of primary legislation.

I will now comment on four more specific areas of the Bill. The first is communications, which is dealt with in Clause 4. The Dilnot report, which for me is a model of absolute clarity, has 10 recommendations. Two of these are about communications because Dilnot clearly views that issue as central to the success of the entire scheme. Recommendation 7 says:

“To encourage people to plan ahead for their later life we recommend that the Government invest in an awareness campaign”.

This is proactive and prospective information. Recommendation 8 says:

“The Government should develop a major new information and advice strategy to help when care needs arise”.

This is reactive and responsive information. The Bill addresses the second recommendation and not, I think, the first.

Clause 4 specifies in some detail what information must be provided by local authorities but it seems to be aimed, as Dilnot puts it, at situations “when care needs arise”. It does not seem to deal with Dilnot’s Recommendation 7, which asks for more general, wider and very much earlier awareness campaigns. Dilnot seems to be asking for a heavyweight, national publicity campaign aimed at the general population before need arises.

Furthermore, the Bill contains no provisions for defining the test for sufficiency in “sufficient” information as stipulated in Clause 4(3). It does not seem to include the requirement to provide information, for example, about how to appeal against a judgment of ineligibility. I assume that there is such a right of appeal, and a simple and quick mechanism for handling such appeals in the first instance, even though I could not spot it in the Bill.

There also appears to be no requirement in the Bill for local authorities to have a mechanism for measuring and reporting their success in providing information or the success of that information in achieving its objectives. I should be very interested in the Minister’s comments on general early-awareness campaigns; on the need to measure success in providing what the Bill calls sufficient information; and on the existence of an appeal mechanism at first instance.

The second area I wanted to speak about is eligibility. I have already said that I think that the criteria for eligibility should have been available before this debate.

I also worry about a Section 75 problem in dealing with the criteria and secondary legislation. In particular, I wonder how local authorities are to be able to take a properly comprehensive view of who might be eligible. The Bill states in Clause 9:

“Where it appears to a local authority that an adult may have needs for care and support”, and so on. That strikes me as a very passive and rather weak obligation. It does not specify any duty to be properly aware of such adults, merely to act if it appears to the authority that an adult may have such needs. We may need firmer language here. The Bill would surely benefit from obliging local authorities to take appropriate and proportionate steps to make sure that they are reasonably likely to know when an adult is in need of care and support.

The Bill is also silent on the time that a local authority may take between becoming aware that an adult may be in need, making an assessment, determining eligibility and providing the service. It is clear that we need national standards of service here. I assume that requirements will be written into guidance, but I would welcome the Minister’s assurance on that.

The third area that I want to address is the question of direct payments. The Joint Committee was quite right to propose that we should not be too restrictive about the use of direct payments, and I was glad that the Government agreed to that in their response and to see no unreasonable restrictions in the Bill. However, the problem is likely not to be abuse but accidental mismanagement and complications arising from it. It seems highly likely that some who ask for and are allowed direct payment may find the subsequent commissioning and managing of the services that they need stressful, complex and burdensome. It may be a very good idea if the local authorities have an obligation to provide friendly oversight of and help with the management of direct payment services, at least in the first months of their existence. It would be a great pity if the valuable ability of people to specify and obtain what they need was allowed to suffer from bureaucratic, management or legal difficulties due to inexperience, misunderstanding or contractual unsuitability.

The fourth and final area on which I should like to touch briefly is funding. As many other noble Lords have said, to make all that work, the funding needs to be sufficient. In particular, the Dilnot cap needs to be set at the optimum level to balance reach and affordability. We will want to examine the assertions made in the impact assessment carefully in Committee. I hope that the impact assessment’s calculations turn out to be accurate on examination and when we are in possession of all the details to be contained in secondary legislation.

I note, for example that the Joint Committee states in Recommendation 5:

“The introduction of a capped cost scheme, which will result in many more people being assessed and entitled to a personal budget, is likely to lead to an increase in disputes and legal challenges. We are not confident that Ministers have yet fully thought through the implications for local authorities of these changes”.

Rather worryingly, there does not seem to be any financial provision for that in the impact assessment.

I end by repeating what I said at the beginning. Notwithstanding my four areas of concern and my feeling that the balance here between primary and secondary legislation is not quite right, I believe that this is a very good Bill. I believe that, with proper funding, it will lead to a clear and genuine improvement in the provision of care, and I congratulate the Government on introducing it.

Photo of Baroness Greengross Baroness Greengross Crossbench 7:04 pm, 21st May 2013

My Lords, I add my name to the list of noble Lords who have expressed the view that the Bill is very welcome indeed. I was privileged to serve on the scrutiny committee considering the Bill. Integrating—or at least having co-operation between—services that are so differently organised at the moment is extremely difficult to succeed in, but essential if we are to get it right. We are talking about an extremely vulnerable group in our society. In fact, there is more than one group. There is a huge number of frail, older people and a very large number of disabled people of all ages. It is not fair or worthy of our society to think that people can shop around for the services that they need. It is impossible, we know that. They must be integrated.

I have a very simplistic view on this. I know that it is difficult to bring a paid-for service and a service that is free at the point of delivery together, but if the money is ring-fenced and put in the hands of either the clinical commissioning group or the health and well-being board, where they are mandated to mix up the money and use it in a co-ordinated way, I cannot understand why that would not work. As I said, that is my simplistic way of looking at this.

Everyone has echoed the fact that we need more money to make this succeed. We do, but Andrew Dilnot and his colleagues demonstrated clearly that the amount of money needed to make this succeed is a minute proportion of what we spend in the National Health Service, primarily on acute services, and that if we integrate those services we can achieve a great deal. We do not always measure the savings that we will make on acute NHS services, as a proportion of NHS costs, by getting this right. Those are not, generally speaking, the right services to deal with the people involved. People often need to go into hospital for short periods but much of what they need can, and much more could, be provided in the community.

I have previously spoken with the noble Earl about the innovation that is necessary, including step-down facilities for people who do not need to be in acute hospitals, like the Scandinavian model of patient hotels. That would not be privatisation, as they would be NHS-funded contracted services which provide private accommodation and family care—opportunities for care rather than healthcare—with access to medical specialists as and when necessary. All sorts of such experimental schemes can be introduced if we mix the money. I think that that is the priority.

We need to get rid of the terrible situation at the moment where people are waiting in their own homes for the care that they need. I know about this because I was the lead commissioner for domiciliary care for older people not very long ago. If people who need services are at home, a care worker comes to you who cannot count the time that it takes to get there but then has to get you up, clean you up, clean up your room, dress you, make you a meal, talk to you and help you eat your meal within 15 minutes. That is, physically and mentally, totally impossible. It is an insult and an impossibility. We cannot go on doing that to vulnerable people, so we must somehow put our resources together and get this right. It is a disgrace at the moment and of course, when it does not work, we need advocacy services. I agree with the noble Lord—forgive me, but I think that it was the noble Lord, Lord Bichard—who was talking about the role of care homes. Another step-down facility can be the care home, if the care home of the future can be more of a local hub.

I would like to see that my mum gets to know the care home provider, goes there for French classes, local history lessons or art—and for the odd weekend if daughter is going away—and that, knowing it, she goes there for a holiday and then moves in. That is not dumping mum; it is mum going to a place that she already knows well. The care homes of the future must be a resource for the local community and linked to all the other services. They must be part of the step-down procedures, from acute hospitals to caring for the sort of vulnerable people who we are talking about.

In the Bill, there is the possibility of making this happen but we must get some things clarified. What are the duties of a local authority in promoting well-being, for example? It is not absolutely clear. We must be certain that there is enough care and support provision in every local area. In terms of well-being, we need to make sure that the Prime Minister’s challenge on dementia, which is due soon, will outline how much progress is being made on making the quality of care as important as the quality of treatment. When we talk about the growing challenge of dementia, it is not always about treatment but about care. The prevalence of dementia makes that essential. The other point that we might bring in is that much of dementia care should come under public health because it is about prevention, well-being, design and preventive care. If we can bring public health professionals, who are now very important at a local level, into this group of providers then we stand a chance of getting this right.

I also support the noble Lord, Lord Bichard, in making the point that end-of-life care is important and that we must make sure that people who are approaching their last days do not have to pay for the care that they need. These definitions of what health and social care are should disappear at that point. We are talking about services to dying people. After all the years that I have worked in the field of aging and with older people I know that the loss of dignity and respect, and going into an inappropriate hospital setting, are what people fear most as their life draws to a close.

I agree with everybody who said that moderate care must be part of the equation. If I was a director of adult social services, I would have to concentrate on those in the greatest need. We are so limited as regards the number of people who can obtain services at all. If we could only include moderate services, we might have a chance of preventive types of care being part of our envisaged service provision.

We must also do something about self-funders subsidising the funders who get their total funding paid for by the local authority. In terms of inflating the cap and the personal care account, although annual wage inflation appears to be the chosen index some sort of acknowledgement must be made of the actual cost of care. I assume that the practice of self-funders paying more than local authority-funded people, often for the same accommodation in a residential or other type of care home—subsidising the latter, in other words—will be clarified or should cease. Otherwise, self-funders are going to reach the cap far in advance of other residents. This is not only unfair but might well be challenged as not being legal, being a form of taxation which is not publicly accountable.

When elderly people who are frail go into hospital, their discharge procedure must be verified and known about as part of the admission process. I think we made this clear in the scrutiny committee. We get these terrible stories now of very frail people being discharged from hospital with no proper plan. We know, because we have heard about this recently, about the horrible wait that people have to leave hospital. We must make sure that advice relating to care and support includes information about how to access relevant independent financial advice. This should bring in the members of SOLLA; the noble Lord who spoke about that was in an authoritative position to do so.

Some new schemes are coming forward from one or two think tanks, including one with which I am associated, which are looking at more affordable savings products that might appeal to people of modest means. I hope that for people not normally able to pay for an insurance scheme, these products would help encourage the insurance companies to come in and provide the sort of long-term schemes that are needed to make this care system work properly. Unfortunately, they really do not exist in this country at the moment, but with the catastrophic costs being taken on board by the state it should be possible before too long to interest the insurance industry in being part of paying for care for older people in the future.

This Bill has been awaited for a very long time. We need to make sure that other things that we have learnt, such as human rights protection, are not left out of the Bill as it proceeds through Parliament. We know that there are some serious problems in ensuring that human rights protection will follow people, however their care is provided. I hope that we can work on that in Committee to make sure that it is clarified and that it is simple to access human rights protection. Whoever the provider of care might be, frail and vulnerable people, who are usually very old, need that protection. We have seen too many instances of human rights being abused and quite dreadfully breached. This Bill is so important, as long as it guarantees that those sorts of abuses will not happen in the future.

Photo of Lord Warner Lord Warner Labour 7:17 pm, 21st May 2013

My Lords, let me say at the outset how much I welcome this Bill and in doing so I pay tribute to the contributions made to its construction and arrival in this House by Paul Burstow and Norman Lamb. I should also declare my interests, as a member of the Dilnot commission and as a member of the

Joint Select Committee on the draft Care and Support Bill. I emphasise that it produced a unanimous cross-party report with more than 100 recommendations for improvements, mainly in relation to Part 1 of the Bill. The evidence given to the Select Committee showed strong stakeholder support for the Bill, but there were important proposals for further improvements that we reflected in our recommendations.

At this stage I shall not comment on the Dilnot recommendations, other than to distance myself slightly from the remarks of my noble friend Lord Lipsey and to associate myself with the excellent remarks made by the noble Lord, Lord Sharkey. I will come in a moment to some of those Joint Committee recommendations that were not accepted by the Government. First, I would like to ask the Minister about the Bill’s silence on the key area of public health to which the noble Baroness, Lady Greengross, referred.

We know that the NHS’s core business is the management of 17 million people with long-term chronic conditions, many of which have been largely caused by—if I may put it this way—lifestyle decision-making. We know that nudging on its own does not really cut the mustard with issues around smoking, alcohol consumption and poor diet and that legislation may be needed. It was disappointing to many people outside this House—certainly, I have had a lot of approaches about this—that the Government did not use this Bill to bring forward the standardised packaging of cigarettes, the minimum pricing of alcohol and some kind of simplified system of food labelling. They have failed to do so. Will the Minister tell us a bit more about the Government’s plans for introducing legislation in these three areas? If it is not to be this Bill, when will we see legislation tackling these issues, on which there is a very large measure of public support for something to be done?

I now turn to some areas in Part 1 that require fuller scrutiny in Committee and probably amendment. The principle in Clause 1 of promoting well-being has been warmly and widely welcomed, as the noble and learned Lord, Lord Mackay, mentioned earlier. The Joint Select Committee considered that this principle should be applied to Ministers when exercising their responsibilities under the Bill. Ministers in oral evidence seemed slightly sympathetic to this idea, but when they got back to Richmond House they seem to have gone cold on it and rejected the Joint Select Committee’s recommendations. I will be interested if the Minister can produce more convincing arguments than I have heard so far on why the Joint Select Committee’s recommendation was rejected. If we are not convinced by the arguments of the Minister and his colleagues, I hope that some of my colleagues on the Joint Select Committee will join me in prodding the Government a little further with an amendment to see what they are made of.

I shall flag up briefly for the Minister some other areas in Part 1 where I am minded to put down amendments. On integration, I think the response to some of the Committee’s recommendations suggests that the Government are a bit happier talking the talk rather than walking the walk with practical ideas such as—dare I suggest it?— pooled budgets, joint commissioning, joint provisioning and a number of others. Like the noble and learned Lord, Lord Mackay, I still think that implementing the Bill’s changes effectively over time requires a statutory code of practice, and I would favour an amendment to achieve that. As noble Lords have said, the Bill needs strengthening on young carers, advocacy and human rights protection for those in private care homes. We have been over that latter ground a number of times in this House, and it is time to deal with this once and for all. I do not think the outside world is convinced by the Government’s position on this or, indeed, by the previous Government’s position on it. We need some careful drafting that gives proper protection to those in care homes who are paying their own way. It is not good enough to leave things as they are.

Let me flag up some issues around whether there will be a credible way of dealing with what is likely to be a considerable number of disputes over this legislation. The noble Lord, Lord Sharkey, mentioned this. There will be two types of dispute: disputes between service users and the local authority, and disputes between the local authority and service providers. We could leave things as they are, but if we really want a lot of judicial reviews and to clog up the courts, that is the right way to go about it. We need to hear a bit more from the Government about their further thinking on some tribunal-type way of dealing with these disputes without relying on the courts.

I am genuinely puzzled by the Bill’s drafting on the boundary between the NHS and social care, as is the noble and learned Lord, Lord Mackay. I am still unclear whether the boundary has been changed. I would very much like to hear the Minister’s response to the view of the noble and learned Lord, Lord Mackay, given the attention he has given to this issue in the Joint Select Committee and outside it.

The issue in Part 1 that is of greatest concern to most people is Clause 13 on eligibility criteria, as a number of noble Lords have said. They are to be dealt with by regulations and, as I understand it, drafts will not be published before the spending review announcement scheduled for late June. The Government have promised to establish a minimum national threshold of service need to be met under these criteria. It is still a bit unclear to me where in the Bill we find that. Will the Minister explain how this will be done?

More widely on Clause 13 there are widespread concerns that this threshold will be set too low to ensure that enough effort is put into preventive help to protect independence and preserve well-being. I think consideration will have to be given in Committee to placing in the Bill a stronger framework of requirements on eligibility criteria rather than leaving so much to ministerial discretion within regulations. I certainly feel a set of amendments coming upon me on this issue, and I welcome any contributions on this issue—the more, the merrier.

There are some other issues I want to raise on Part 1, such as including social care savings in auto-enrolment schemes for pensions, the right to die at home and free social care at end of life for patients suffering from cancer. However, the last point I wish to raise today on Part 1 is one that a number of other noble Lords have raised: funding for social care. The

Dilnot commission’s report made it crystal clear that its proposals would not solve the existing shortfall in social care funding. I do not wish to trade figures today with the Minister on this issue, but what is beyond doubt is that there is a major funding shortfall relative to need. It is fair to say that historically under successive Governments social care has been less generously funded than the NHS, and promising a brave new future under this Bill without adequate funding for implementing the new system would be a cruel deception to inflict on many vulnerable people. More immediately, the funding crisis in social care is having a major impact on the NHS in terms of the major flow of people into A&E departments, especially at night, and the lengthening of hospital stays as discharge packages cannot be funded.

Social care has never had a review of its funding like the review that the late Derek Wanless carried out for the previous Government on the NHS. We should consider bringing forward an amendment to the Bill to provide for an independent review of the funding required for adult social care. I would like the Government to be willing to contemplate asking the Office for Budget Responsibility to conduct such a review, and I would like to be in a position to put down an amendment so that we can debate this issue fully during the passage of the Bill. I know that the King’s Fund will be undertaking a further review of social care funding, but Derek Wanless did one for it on this some time ago. It simply does not have the clout and authority that an organisation such as the Office for Budget Responsibility has.

There are a few issues on Part 2 that I will wish to raise. I shall not dwell on them for very long today, but I want to mention to the Minister some of the issues around Clauses 76 and 77, which are concerned with trust failure. As I understand these clauses, they relate to foundation trusts only, but the trusts with the possibility and risk of failure are those within the remit of the NHS Trust Development Authority. They are the trusts with the longer-standing financial problems and, by association, they present the greater risks to quality for patients. Indeed, the TDA’s mandate, in a ministerial letter of 7 May, says that the TDA is expected to “make a significant contribution to improving quality of care”. Can the Minister explain to us why the TDA trusts are not covered by the Bill when they appear to have a less robust approach to failure than Monitor? Does this not put patients in these trusts more at risk than those in foundation trusts?

Photo of Lord Sutherland of Houndwood Lord Sutherland of Houndwood Crossbench 7:30 pm, 21st May 2013

My Lords, it is, of course, a pleasure to follow my colleague, the noble Lord, Lord Warner, whose experience contributed so much to the outcome of the Dilnot review, and who has regularly drawn the attention of this House to the importance of its conclusions. I also thank the noble Baroness, Lady Barker, for her kind remarks. Suffice it to say that I remain one of the usual suspects and will continue in that gang for the foreseeable future.

The context of this Bill has a history. The post-war creation of the modern welfare state as we know it was momentous, and many of us have benefited from that for most of our lives. The two Bs, Beveridge and

Bevan, gave us two structures. The first is the National Health Service, which in principle offers healthcare free at the point of delivery, and the second offers other benefits that cannot be defined as healthcare, including care services deemed to fall outside healthcare. These are not free at point of delivery but are subject to two constraints. The first is means-testing and the second is that responsibility for delivering these benefits lies currently with local authorities, and so is not currently in national service as is the National Health Service. This Bill goes some way, but not the whole way, towards changing that situation, and I will come back to that. It contributes to a redefining, but I agree with the noble Lord, Lord Warner, that the role and the difference between healthcare and social care still remains unclear.

The second and last relevant point of difference from when the national services—the health service and the local authority care service—were set up is the growing demographic change in our country and in every country. Demographic shifts have created a completely new situation which, whether we like it or not, will have an impact on how and where we spend money. We simply live in a different world. For 50 years, we got away with trimming at the edges, changing bits here and there in relation to health and social care spending. That can no longer be the case. It is clear, at last, that something must be done. This Bill does something, and it is very welcome. That is the strength of the Bill. However, it is, at best, a good start, for many of the reasons that have been given already. Its strength is that a peg has now been put in the ground, and there is a commitment to having a national strategy and policy that we have simply avoided because of the huge fissure that runs between health services and social care services. That is part of the world in which we live and it has very significant consequences.

The fundamental recommendation of the Dilnot report, that a cap be put on the cost of care for any individual, has been accepted. All credit is due, for this is at last an acceptance by the Government, including, therefore, the Treasury, that the risks involved in the frailties of old age, like those involved in cancer, stroke and diabetes, should be shared across the whole community. I hope that that principle has been established in the Bill before us.

Of course, the fears of the Treasury, which are always there, are already being realised. Inevitably, a chorus of voices points out that there is less to this than meets the eye. The Bill does not commit the resources that we all know are necessary if you are to duplicate the quality in social care services that we have in the National Health Service. As we have heard, Dilnot’s proposal included the possibility that a cap might be as low as £25,000. In the event, it is eventually £72,000, with the possibility of deferred payment. Again, as we have heard from the noble Lord, Lord Bichard, local authorities are vigorously pointing out that there is already a shortfall in funds made available before account is taken of this new proposal. They estimate that the current round of cuts to the adult care budget amounts to £2.68 billion—or 20% of previous provision—and that is before the provisions of this Act are dealt with. At the same time, as has also been mentioned, care home owners often subsidise local authority-sponsored residents from the charges made to those who are self-financing. That cannot be right. There should be a single charge, and a single cost that applies to everyone. However, the rich—or the moderately rich—are subsidising others. That is the position in which they have been put.

Of course, we all know that we are now in the worst financial crisis in living memory. Account has to be taken of that—and I put it to you that account has already been taken of it. What that does—and the noble and learned Lord, Lord MacKay of Clashfern, made this point very fairly—is to raise expectations, in the way in which this Bill is being canvassed, which will come home to roost. People who have legitimate hopes that their old age will be comparatively secure will be disappointed.

Equally important in the Bill is an implicit bet—and that is the best of it, as far as I can see—that the principle of a cap on care costs will stimulate a strong insurance market to cover pre-cap and possibly post-cap costs. We shall see, but there is no guarantee about that. Of course, conversations have been held, but my previous experience on the Royal Commission was that those providing insurance products were not interested. We shall see if a cap makes all the difference. Let us hope that it does.

The Government, while being commended on a good start, or indeed on facing up to demographic change, must accept, however, that as we stabilise our economy—and the expectation and hope is that we will do that—a reordering of priorities will be the only rational response to the empirical realities of the huge demographic change. We must accept, as a Government and as a Parliament, that these priorities will have to be looked at. The world out there is different. The facts and the shape of the population are different. If there is no more money, priorities have to move around a bit. That is the reality, or we will be having desperate scenes in the houses, streets and care homes of our country.

One change which cannot and should not wait until then is the need to ensure that the huge sums already being spent on care, social care and even more so on healthcare—the noble Baroness, Lady Greengross, referred to this—are spent in the most efficient and effective way, and to maximum standards of the quality of care.

In two successive parliamentary Sessions we have had two relevant major Bills. The first, now an Act, was, despite its Title, almost wholly concerned with healthcare. It is called the Health and Social Care Act but there is not much social care in it. This second Bill, as its Title says, has to do with care. However, there is the rub. Why were these two not one Act? There is a legal, financial, and administrative fissure in our society that runs through our attitude to the provision of care. We simply cannot continue like this. It is at government and at professional level. Doctors and social workers are the best of friends in the pub, but you should hear them when they talk about each other when it comes to money. There is a fissure there.

On the royal commission, we reran the hoary old joke about the difference between a health bath and a social bath. You had to divide them up in those days to decide which fund provided the money to provide the bath. Both the commission and the Dilnot report firmly made it plain that bringing together health and social care provision and, ultimately, budgets, is essential if we are to maximise value for money in this massive and increasing spend—and it will not go down.

There are some good pilots taking place. I would find it very helpful if the Minister could tell us what the outcome of the pilots would be. What process is there for taking account of the evidence of what they provide in terms of shared facilities, budgets and provision? The message is very clear: combining budgets provides better administration, improves the effectiveness of spend and, importantly, has a huge potential vastly to improve the quality of care.

I would like quickly and briefly to make two points that have come up in the debate about the assessment and evaluation of what is going on. The first is that there is provision, rightly, to deal with what I can refer to only as the Southern Cross problem. We cannot have major providers going bust on us. That is right—but I wonder whether it is right to ask the Care Quality Commission, whose expertise is in a wholly different field, to take responsibility for this. Is there not even a group within the department of health economists, or economists, who know about running big businesses—they are essentially property businesses—and can give a proper health reading? Those responsible for assessing the quality of care are not those people. Yes, they will employ others. But if it is to be a kingdom within a kingdom, why not charge reasonably well paid civil servants with doing that?

Lastly, although it is not mentioned in the Bill, the Minister made mention of a new inspector. I simply ask whether we can have some information about the context in which such an inspectorate will work. It is canvassed as being like Ofsted, which is of course a great reassurance to those of us who were involved in setting up that body. However, it does not seem at all like Ofsted. Does this new inspectorate have a statutory basis? Is it independent of Ministers? We have had a row within recent weeks about who can close down a unit within a hospital—for example, for the heart surgery of children. Where are the lines of accountability? What is the new inspector responsible for? The chief inspector of schools is accountable to Parliament, not to Ministers. That gives it an independence and certainty about being taken seriously that will not necessarily be the case for an inspector within the employ of the department. So there is a lot of room for clarifying the provision there, but I am sure that we will come back to that in Committee.

Photo of Baroness Uddin Baroness Uddin Non-affiliated 7:43 pm, 21st May 2013

My Lords, I come to this debate from the perspective of a professional in the social care sector, as well as with experience as a local authority councillor and, not least, as a carer for over 30 years. I agree that we are at a crossroads for our social care system. In my contribution, I shall draw on the evidence presented to us in the Joint Committee inquiry on the Promoting Independence, Preventing Crisis report, which was ably led by the all-party parliamentary groups on local government and disability. I take this opportunity to salute the work of my noble friend Lady Campbell, Anne McGuire, Heather Wheeler, and the noble Baroness, Lady Wilkins.

Much emphasis has rightly been put on the demands of our growing ageing population, and it is right that we do so, as is the fact that one in three of those who use our care services are disabled people of working age. I would like to focus on that aspect, and I make no apologies for unreservedly quoting some aspects of the inquiry, which I commend to the House.

For too long, Governments have used a sticking plaster approach and incremental improvements in dealing with adult social care, resulting in systems that are bewildering for the recipient and unwieldy for authorities to administer. So I, too, welcome the principle of adult social care reform. The Joint Committee inquiry took evidence from a long list of expert witnesses representing all sectors, all the major disability organisations and those involved in statutory provisions, as well as local authorities and academia. There was undeniable consensus, and a call for disabled people to be at the heart of social care policy reform as well as making decisions in their care. In doing so, we must not see them as passive recipients, but must uphold their human rights under the UN convention to which the United Kingdom is signatory, and embrace the fundamental principles of independence.

There are pervasive concerns that much of our provisions fall significantly short of providing dignity and choice, thus hampering independent living. Of course, the funding shortage is a reality, but we cannot allow those who may be voiceless to be sidestepped at the behest of what may be regarded as best value by locally set criteria. The evidence received by our Joint Committee points to local authorities struggling to achieve the best outcomes, resulting in raising their eligibility threshold for care provision. Many instances have been cited, implying that current eligibility criteria have led to many thousands of disabled individuals falling out of the care system altogether.

The statistics are astonishing. The Audit Commission on social care in England found with the fair access to care system in 2005 that 50% of 152 local authorities in England provide services to those with moderate needs and above but, by 2012, 84% were only providing services at the higher threshold of substantial need, with three councils now providing social care to people who fall into all four eligibility bands and only 24 councils providing care to those with moderate needs and above. The Care Bill will fail to improve the social care system for disabled people if eligibility is set so high that those in need will not receive even the basic help such as washing, dressing or getting out of the house. These changes, challenges and differences in eligibility are bound to lead to more disabled people left ineligible for care and support, contrary to the Minister’s claim that the Bill will provide compassionate and consistent care to those who need it.

The inquiry committee hopes that the Government will consider more uniformity in setting thresholds for eligibility right across the country, ensuring that the 2013 spending review will give due regard to adequate resources being made available so that the needs of disabled people are not compromised. I was surprised to hear the Minister say that legislation will not impact on the funding available. How can provision be efficiently provided, as he suggests, when the system is already stretched to its limits? Disabled people deserve to have confidence in any new care and support system, and I hope that we will be able to rectify some of these anomalies.

There is a significant body of opinion calling for prioritising the design of a new framework of eligibility, which should actively engage core stakeholders, addressing gaps highlighted already in the House today. The joint inquiry report suggests that the current fair access to care services criteria should be replaced by a system that is more objective and coherent and implemented across the country, where resource allocation is transparent and enables the disabled person and their carers to take part in the decision-making process. Worryingly, the evidence that we took suggests that there is little cohesion within various partners of care providers. This will stretch the ambition of the seamless services that the Care Bill envisages. Personalisation appears not to break down the barriers between care, housing, transport, leisure and community involvement, particularly when any person moves from one area to another. Therefore, I welcome the commitment in the Bill that continuity of care packages will not be interrupted by any move to another local authority or area. I would like to ask what mechanism will be in place to ensure a smooth transition if that happens, and whose lead responsibility it will be to manage the transition. I suppose that I am asking who will manage the “Oklahoma!” moment and who will provide the leadership.

This Care Bill is happening alongside the Government reassessing all those working-aged disabled adults receiving disability living allowance and transferring recipients on to the personal independence payment. The House has voiced significant concerns to the Government, which were augmented last week by the whistleblower giving an insight to reports that individuals were not receiving even-handed services. The fact that supporting evidence given by applicants was not forwarded by the assessing company for assessors to use suggested a bias towards finding reasons to award points begrudgingly or not to award points, thereby affecting resource allocation. I have spoken to a number of carers and this is being seen by some as another cynical example of eligibility criteria being used to reset the goalposts for determining how much financial help people with disabilities require and ultimately receive.

A Member of this House recounted in a meeting last week the experience of being assessed. I hope that that respected individual will not mind my repeating what was said. The whole experience was said to have been so harrowing that the individual felt defeated by the very system which has the ambition of delivering dignity and choice through this Care Bill. I am deeply saddened that so little appears to have changed in the 30 years since I had a bitter experience with my son. Trying to access educational and social care was like asking for rain on Mars. In the end, we as a family were so defeated that we retreated into relying only on our own resources and ways and means.

I agree that reforms need to be made but they must and should be robust and intelligent in respectfully and professionally identifying genuinely deserving individuals, especially as regards those with disabilities which are difficult to understand and those with fluctuating conditions. Indeed, I have been made aware of the case of a disabled adult and her advocates who are trying to augment a personal budget. The person says that she felt bullied by a director of commissioning into accepting a package which represented best value for the authority but completely ignored her condition and needs and possibly violated her right to privacy and family life. If our society is to be judged by how we treat our weakest members, we have some distance to walk. I hope that we will be bold and ambitious enough to remember that social care must not simply be about basic survival but about supporting people to live independently. Independent living means disabled people of all ages having the same universal rights of freedom, choice, dignity and control as other citizens at home, at work, and in the community. It means having the right to obtain practical assistance and support to participate in society and live an ordinary life that others take for granted.

Your Lordships may not be surprised to learn that even in this context there is a distinct difference in the services provided to those from minority communities. It is a fact that 32% of all disabled people live in household poverty. Sadly, for minorities this figure jumps to 44% of disabled people living in household poverty. A report suggests that income for minority disabled people is 30% lower than for the general disabled population. The Equalities National Council and Scope in a report entitled Over-lookedCommunities, Over-due Change found that services are not fully inclusive for BME disabled people, who experience significant language and communication barriers, social isolation and stigma exacerbated by their lacking access to information and advice, including from well recognised NGOs. Many of the large NGOs operating within communities accepted that they had some way to go in addressing the needs of minority disabled people. In fact, a quarter of BME disabled people report difficulties receiving benefits and accessing independent living compared with 16% of others, indicating that additional unmet needs exist. Evidence on barriers to care shows that BME disabled people's conditions and impairments tend to escalate quickly to higher levels of need. I submit to the House that this is a costly process and that it is therefore even more important that the social care system provide effective coverage at lower care need equivalent to “moderate” within the current fair access to care needs system.

That is not all: meeting criteria and being eligible for support is not the end. An assessment determines the value of someone’s personal budget, and the resource allocation system ascribes a number of points to each eligible need which has been identified and, in referring to a table, sets out the financial value of each set of points, which then fleshes out the support plan to purchase and achieve identified independent living outcomes. Final decisions about the value of personal budgets are made by an anonymous panel of local authority social care professionals based on information provided by the disabled person, their social worker and the RAS calculation, often without ever having met the disabled person. The Sue Ryder report, The Forgotten Millions, highlights this point and found that a lack of uniformity among local authorities in allocating resources and calculating care packages for individuals is causing deep confusion and stress. A case was brought to my attention recently of a disabled adult who had all services stopped at 6 pm one evening. Apart from the legality of how and why this happened, an anonymous panel had turned down for the third time a request to increase travel by nine miles twice weekly, despite the social worker having great input from advocates on the matter. As the client had received an insufficient explanation from the social worker at 6 pm at night, she had to recall her father from business in London. He arrived at the social work offices the next day to petition the head of services as to why this had happened. Fortunately, services were immediately reinstated, with the family being offered a transfer from a direct service from the local authority to a personal budget.

Many carers claim that all these formal processes lack transparency regarding panels, their remit, obligations and decision-making. Disabled adults and their advocates are forbidden from having adequate details about the panel making the decisions. Surely transparency should be an obligation. If the objective is to provide care and support while maintaining the dignity of the individual, surely it is critical to have the individual or their representative present to ensure that their opinion is heard and valued as they are the experts on their own lives. The panel should have due regard to the contribution of disabled people in determining the nature of their care and support in any decisions that are made. Our report asks that the Government place resource allocation systems on a statutory footing through the Care and Support Bill and place new duties on councils to be transparent about these decisions. I welcome the move to put personal budgets on a statutory footing in Clause 25 of the Care and Support Bill. That should be enhanced to ensure that local authorities are transparent about decisions relating to the allocation of resources. All too often, personal budgets have care costed at one rate, with another rate available if external agencies are used.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Lords Spokesperson (Department of Business, Innovation and Skills), Baroness in Waiting (HM Household) (Whip)

I apologise to the noble Baroness but she has been speaking for 15 minutes, which is normally the maximum time.

Photo of Baroness Uddin Baroness Uddin Non-affiliated

I apologise. I am nearly finished. Anyone not associated with the care sector will become dizzy when encountering the array of acronyms and phrases such as RAS, FACS, DLA and PIP. Indeed, they are fortunate members of our society, with the ability to lead an active, fulfilled and independent life. They are fortunate enough to be able to perform everyday tasks such as getting up, washing, dressing, personal care, food preparation and eating without having to justify even the most basic daily tasks. For those members of our society who are reliant upon our care systems, this Bill represents a new hope that our social care system will enable disabled people to live an independent life which is just and equitable. I note noble Lords’ massive endorsement of the Bill and eagerly await its outcome.

Photo of Lord Turnberg Lord Turnberg Labour 8:00 pm, 21st May 2013

My Lords, when I spoke in the debate on the Queen’s Speech last week I concentrated on care of the elderly in the community which is one of the most critical issues facing society, as we have heard from some remarkable speeches today. If anyone has any doubt about the scale of the problem they will just have to read Hansard. I will not repeat what I said the other day, save to reiterate my specific plea that we pay attention to the screening of vulnerable elderly people in the community by primary care and social services staff so that we can introduce simple preventive measures to keep people at home. I hope the noble Earl might say something about that.

Tonight I want to concentrate on the proposals in the Bill to establish Health Education England and the Health Research Authority as non-departmental public bodies. These are, of course, extremely welcome proposals but inevitably there are a number of aspects where we need to seek clarification and improvement. The roles of the HEE and the associated local education and training boards—inelegantly abbreviated as LETBs—are spelt out in the Explanatory Notes but I fear that the Bill itself is fairly silent on how it will ensure high quality and standards in education.

For example, much is made of the fact that the LETBs are provider-led and dominated by the needs of NHS trusts for sufficient numbers and range in the workforce to meet those needs. So far so good, but what is missing is a proper recognition that the quality of training, the curricular content and the skills and knowledge of those going through training programmes will be taken care of. Where, for instance, is reference made to the need to include postgraduate deans on the boards of LETBs? It is not in the Bill and given only passing reference in the Explanatory Notes. Where is reference to the need to engage closely with local universities or training colleges—that is, with those whose whole raison d’être is education and all that that entails? Content of training programmes and maintenance of standards is their special expertise and for providers to ignore that aspect will be to their detriment. I am sure they are aware of that but we need mention in the Bill of a need to involve universities, either in the membership of the board, albeit in a minority, or, if not that, then an obligation to seek their advice in formulating their programmes of training.

At the national level, in the HEE, there is some recognition in the notes to the Bill, but not in the Bill itself, of a need to seek advice from the royal colleges—here I have to express my interest as an ex-president of a royal college—the GMC, the GDC and the NMC in developing its policy. It seems to me that all those bodies have considerable expertise in education and training. Indeed, the main functions of the medical royal colleges, for example, are in the development of all the curricula for medical trainees and in setting their exams and assessments to make sure that they have reached an acceptable level of skills, aptitudes and knowledge. Every cardiologist, orthopaedic surgeon and psychiatrist has to go through a training programme devised and run by a royal college. The regulatory bodies have responsibilities for the oversight of training and education to ensure that it is fit for purpose. Yet despite all this remarkable body of expertise, no mention is to be found in the Bill that the HEE will draw on any of this for advice and assistance.

Then there is a further issue of the need to take account of the importance of clinical researchers in programmes of training and education. We have heard much helpful comment from Ministers about the need to embed research in the NHS and to make every health professional a researcher and every patient a willing participant. The noble Earl was extremely helpful in getting research high up the agenda for the NHS in the Health and Social Care Bill. It is, of course, through research that we may in due course find some answers to the major diseases from which we suffer such as dementia, diabetes and Parkinson’s, so it is vital that research really is in the middle of the NHS.

While the new Bill is very helpful in stating that the HEE must promote research into matters relating to its activities, which is rather subtle, it hardly takes account of the need for LETBs to take account of this in their training programmes. Those embarking on a clinical academic career have to be able to take time out from their purely clinical training to train in research, perhaps for up to three years if they are going to do a PhD. All other trainees, at least in medicine, need to be able to carry out some research so they have experience of what research is about. They are then in a better place to take advantage of the results of research and not resist the rapid introduction of innovations when they go on into practice. I fear that the dominance of provider-led interests in LETBs will lead them to paying little attention to this aspect of training unless they have access to advice from their local universities and the research community. I fear very much that the shadow body of the HEE has shown little sign so far that it is aware of this particular point.

I come now to the Health Research Authority. I believe we are extremely fortunate in having Professor Jonathan Montgomery as its first chairman. He is clearly switched on to the need to be able to protect the public and the patient interest, while at the same time encouraging high-quality clinical research and not putting unnecessarily burdensome regulation in the way. It might be thought that these twin responsibilities—the need to protect patients and ensure their safety and confidentiality on the one hand while promoting and encouraging research on the other—are opposed to each other but they are closely aligned. Patients want not only to be safe but they are very keen for research to be done on their diseases. Furthermore, surveys of patients’ attitudes show that more than 90% of patients want to be involved in research themselves in clinical trials. They are desperate for innovations in treatments arising from research to be applied to them. Of course they want to be safe and protected but they also want high-quality research, so the two go hand in hand. It is pleasing to know that Professor Montgomery is well aware of this and the need for proportionality in regulation.

I welcome the clear statements in the Bill on this and in particular in Clause 98(3) where it is proposed that the HRA must promote standardisation of the regulation of research across England and ensure that such regulation is proportionate. It is clear, too, that for the HRA to gain credibility with the public and patients it cannot simply pontificate about safety from on high. It must actively communicate with the public and have processes in place for it to be able to listen to the views of the wider public. It needs access to the public view and should put in place mechanisms to achieve that.

I come now to another aspect of transparency. In addition to its own transparency, the HRA should also be encouraging transparency of researchers engaged in clinical trials in academe and industry and their results should be published as expeditiously as is reasonably possible. Results should become freely available, after careful checking for reliability, whether they are positive or negative. It is helpful to know that GSK is leading the way in industry by publishing its data more openly and others are beginning to follow. We do not want the HRA to be given too rigid a formula. That would be counterproductive, but we do want to be able to encourage and support the HRA in its efforts to use measured persuasion.

Finally, it is good to see in the Bill the confirmation that the HRA will continue its good work in co-ordinating the work of the ethics committees and in taking on the roles provided until now by the Secretary of State and what was PIAG in ensuring the safe use of patients’ data. It is gratifying to know, too, that the HRA is moving towards a single application process for entry into the jungle of research regulation. There remains at least one major barrier to research and that is the local R&D approvals that have to be given by each trust where clinical trials are being done. This is where we need a rational, proportionate and national system and if the HRA can incorporate trust R&D approval into that national scheme, the research community would heave an enormous sigh of relief.

I hope I have not given the impression that I am unhappy with this part of the Bill. I think the proposals to set up HEE and the HRA are extremely valuable but of course there is always room for some improvement.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench 8:10 pm, 21st May 2013

My Lords, I thank the noble Earl for explaining this Bill so clearly. The idea of the Bill is good in theory but will it work in practice? Will there be enough resources to go round and will there be good communication and co-operation between professionals? Will this Bill eliminate the postcode lottery? As so much help is organised locally, this may continue to be a problem.

The Bill emphasises care for elderly people but one must not forget those people of working age who have disabilities. A little help can make all the difference. If eligibility is set too high, people will become isolated in their homes and unable to work. Children, if there are any, may have to help their parents, causing problems at school and putting a strain on their childhood. I am sure that care can become more co-ordinated and save resources if health and social care work in co-operation and co-ordination.

To give your Lordships an example, I speak as president of the Spinal Injuries Association. One of our members, who is paralysed from the neck down but is bright and motivated, goes out to work. The health service helps her with her toileting and the social services help her with dressing. It means that two lots of helpers come in for one person. I am sure that the skills of operational therapists can help with integration as they work in both health and social services. The wheelchair and equipment service needs improving, as does the speed of adaptations to people’s accommodation when they become disabled. This sometimes means that extra time is spent in hospital.

Part 2 of the Bill deals with the post-Mid Staffordshire NHS Foundation Trust. The aim is that no such appalling situation can arise again, but nobody seems to have taken responsibility for the failings. The people who knew about what was happening and witnessed the neglect and cover-ups were not listened to. I feel that throughout the health and social care systems, we need openness and honesty, and that a duty of candour would help. I would be grateful if the Minister would say what progress is being made, as this is a recommendation of the Francis report. A culture has developed among some nurses of doing as little as possible to make patients safe and comfortable. Not all staff are the same; some are exemplary and kind, which is what patients who are often worried and in pain need.

I am concerned that unacceptable practices are happening in many hospitals throughout the country; either they are unbeknown to management or it turns a blind eye. One foundation trust, which ticks all the boxes and always has a good review, had a hospital to which a friend of mine was admitted as an emergency. He had been chairman of the PCT and worked hard for the NHS. Time passed and he was given nothing to eat, so he asked if he was nil by mouth. “No”, said the nurse, “the last person in your bed did not fill in the menu card, so nothing was ordered”. He was then offered a sticky toffee pudding—the last thing his condition needed. He also said that the nurses chattered all night and did not help a critically ill patient in the next bed.

To make the situation better for patients there will have to be a huge change in attitude and practice throughout the health and social care systems. Only last Saturday the Yorkshire Evening Post reported appalling abuse of patients at the Solar Centre in St Catherine’s Hospital in Doncaster. There had been delays in the conviction of two care assistants who mistreated vulnerable patients. The newspaper stated that this was,

“an appalling abuse of trust and a violation of what society should be able to expect from people in the care profession”.

One of the problems seems to be that people who cannot get other jobs become care assistants. As there is such a demand they get work, even if they are undesirable and not fit for purpose. Should there not be better selection and vetting of those who work with vulnerable people? It seems vital that there should be registration of care assistants with adequate training. I am told that Australia is going back to state enrolled nurses. It has found that not having the practical, trained nurse has been dangerous to patients. There is need for a highly technical nurse, but also for a practical nurse to work alongside.

There seems to be an overall welcome for establishing Health Education England, and the Health Research Authority. Research is vital if progress is to be made.

Resistance to much needed antibiotics is an example and new drugs and research are needed into such devastating diseases as motor neurone disease, neuroblastoma in children and all the rare conditions which need new and effective drugs. Some day a way may be found to join and regenerate the spinal cord.

I feel it was an unwise move by the Government to disband the Advisory Group for National Specialised Services—AGNSS. Will they consider reinstating this much needed service? I look forward to the Minister’s reply.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords 8:17 pm, 21st May 2013

My Lords, we are approaching the end of what has been a serious and expert debate on the Care Bill, which has clearly drawn considerable support from your Lordships’ House. However as speaker after speaker has pointed out, there is a marked contrast between the Bill’s intentions and the reality of the health and social care system, which is under huge financial pressure at the moment. Of course, this Bill puts new pressures and responsibilities on local authorities, but there are no signs yet as to how those authorities are to find resources.

We are happy to co-operate in postponing deliberation of Part 1 of the Bill, to allow it to take place after the spending review has been announced. However, in a sense that concerns the future and future responsibilities. The fact is the crisis is here now in relation to social care. Very little has been heard from the Government about how they intend to respond to it. I hope the noble Earl will say something about it tonight. Many noble Lords have referred to the eligibility criteria and the intention to set this at a national level to get consistency and deal with the issue of the huge variation that is now apparent throughout the country. This has been widely welcomed, but I would tell the noble Earl that we certainly expect the Government to publish the all-important draft regulations before we go into Committee to deal with this important matter. I would be grateful if the Minister will confirm that he intends to do that.

He will know that there is widespread expectation that the Government will set the national level at the “substantial” level. I do not expect the noble Earl to confirm that tonight, but does he agree with the noble Lord, Lord Rix, that local authorities have increasingly moved the threshold up to the substantial level, with, of course, prevention and early intervention being unavailable? May I also ask him about the risk of those local authorities which do not at the moment set the threshold at the substantial level, actually raising it in the light of the national criteria being set at that level? That way, we will have national consistency, but it will be consistency where provision is at the meanest. That would cause considerable concern in many local authority areas.

The noble and learned Lord, Lord Mackay, and my noble friend Lord Warner raised the question of Clause 22 and the all-important boundary definition between the means-tested social care and the free-at-the-point-of-use NHS. The noble Lord, Lord Sutherland, hopes that at some point this might be a thing of the past, but at the moment this is a critical delineation between the two services. The Minister will know that the Select Committee was concerned that a court might view any changes in the wording as implying a change in the meaning of the provision. It is important that we hear a response from the Government about why we ought not to worry about that.

The noble Baroness, Lady Campbell, spoke so eloquently of the problems of people being shunted between the two services because of the cost implication between local authorities and the NHS. At the same time, the noble Baroness passionately promoted the need to support disabled people to be as independent as possible. This is not an issue that will go away and we will need to come back to that in Committee in terms of the new meaning—if it is a new meaning— in Clause 22.

This is not just a Bill for older people, but the challenges that older people face are formidable, as my noble friend Lady Bakewell said. Like my noble friend Lord Lipsey, I welcome the Dilnot provisions and the cap—as far as they go. However that is not the complete picture. The cap and increased threshold will reduce the risk of catastrophic costs, but there is a concern about the way that people of modest means will be treated. I listened with great interest to what my noble friend Lord Lipsey said about the operation of the means-tested tariff and the impact on people with modest income. My noble friend Lord Warner does not quite take his view on that, but it would be good to have a debate on this in Committee.

I would also be interested to know whether my noble friend Lord Lipsey has taken into account that in some benefits the first £6,000, and in others the first £14,000, are exempt from the tariff, which in itself is progressive, with those with the most savings hardest hit. It is important we come back to that.

My final point on Dilnot is about the insurance market, which a number of noble Lords raised. What is the noble Earl’s current assessment of the prospects of an insurance market developing? Has his department been in recent communication with the ABI and can he say any more about the confidence that he has in insurance products developing? This is very important in reaching a conclusion about the likely success of the Dilnot proposals in this legislation.

Finally in this area, I turn to a point raised by my noble friends Lord Lipsey and Lord Warner. The actual administration and assessment that will have to take place, particularly as thousands of self funders will need to be assessed under these proposals, will lead local government into a major administrative task and to an increase in disputes and legal challenges. The Joint Committee was not confident that Ministers had fully thought out the implications for local authorities of these changes. Will the noble Earl comment on that and also on my noble friend Lord Warner's suggestion that we need to establish tribunals in order to deal with disputes to keep them out of the courts as far as possible?

Very good points were made about the need for impartial information in relation to Clause 4. When one thinks about some of the financial consequences of the decisions made, it is a powerful argument. I also hope that the noble Earl will respond to my noble friend Lord Patel in relation to Clause 68 and the question of after-care and the implications that it has in relation to Section 117 of the Mental Health Act 1983. We had extensive debates on these matters only a few months ago. I hope that this is not opening up the question and is not a reinterpretation.

On carers, my noble friend Lady Pitkeathley spoke eloquently about the importance of these provisions, and we welcome them. But there is a question about why they do not relate either to parents caring for disabled children or young carers. As Barnardo’s has said, young carers represent a uniquely valuable group of people whom the Government should be ensuring receive help to address the very serious effects that caring has on their lives. The noble and learned Lord, Lord Mackay, made an important point about the need to ensure that, in the case of children caring for adults, the impact on the child must be given due consideration.

My noble friend Lady Wilkins talked about housing. The point she raised is surely right. What concerns me is the lack of very much reference to housing provision or housing authorities in the Bill. I am sure that we can look forward to some amendments in that direction from my noble friend.

On safeguarding, it is a matter of regret that there is no duty on providers to report to local authorities where they suspect the risk of abuse. It is also a matter of regret that there is no clause allowing for power of entry. This was raised by the Joint Committee and it was clear that there should be a power of entry for local authority representatives where a third party is refusing access to a person who may be at risk of abuse. I know that the Government will say that the consultation produced a lot of people opposed to that. But if we are to take abuse seriously, we should come back to examine whether a power of entry is necessary and should be required.

On Part 2, there is the NHS failure regime. I was pleased that the noble Earl’s officials gave us a briefing on this. It is rather complex and there seems to be a risk of confusion of roles between the two regulators, CQC and Monitor. Will he respond to the question raised by my noble friend Lord Warner about non-foundation trusts? I should have declared an interest as chair of an NHS foundation trust and indeed as a consultant and trainer with Cumberlege Connections. Why are the weaker organisations subject to a much less regulated framework than the foundation trusts? Why are the non-foundation trusts not covered in the Bill?

I am disappointed that there is only a partial implementation of the Francis recommendations, particularly as far as primary legislation is concerned. For instance, where is the duty of candour? We have the offence in Clause 81 of publishing false or misleading information. But Francis wanted a statutory duty of candour on healthcare providers to inform patients or appropriate persons if treatment has caused death or serious injury to the patient. Why is that not in the Bill? Where is the registration of healthcare support workers, as the noble Baroness, Lady Emerton, suggested?

On public health, I agree with noble Lords who regret that there is no provision for standardised packaging for cigarettes. I look forward to a continuing debate on that matter. On Health Education England, some very important points were raised by noble Lords. I would particularly refer to my noble friend Lord Turnberg’s comments about the LETBs and the need to ensure high quality in training and the involvement of post-graduate deans. As regards research, again, the provisions are very welcome but there is real concern that this country is losing out in terms of the number of multi-centre trials that take place here. Does the noble Earl thinks that the HRA should be given more authority over both the local research ethics committees and NHS trusts in terms of R&D approval? We cannot just leave it to these different bodies when the whole prosperity of our country is in many ways based on this kind of investment.

This has been an excellent debate. We look forward to the responses from the noble Earl. He will know that there are a lot of provisions here that command general support but, ultimately, the real concerns relate to current and future resources, and to the need for the Government to respond strongly in convincing argument about the kind of integrated services that are required to ensure that the provisions of this Bill will be implemented. The Government need to show that they really do get it and are going to come forward with those proposals.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 8:31 pm, 21st May 2013

I begin by thanking everyone who has spoken today. There have been some excellent and highly informed contributions from all sides of the House. Health and care matter to us all throughout our lives; the quality of the contributions today demonstrates how important the issues are in this Bill. I am grateful in particular for the welcome given to Part 1 of the Bill by many noble Lords. A large number of questions have been raised during the debate and I will endeavour to cover as many of them as possible in the time that I have. Unfortunately, there is unlikely to be time to address all of these issues but I will, of course, write to follow up on any unanswered questions.

I listened with care, as I always do, to the speech of the noble Baroness, Lady Wheeler, but I must confess that I was disappointed by the somewhat negative tone that characterised her remarks. Anyone listening to her could be forgiven for thinking that the Labour Party opposed the principles set out in the Bill. I was very glad to hear the noble Lord, Lord Hunt, correcting that impression. I hope that, at the very least, we can look forward to a constructive approach in Committee from all noble Lords opposite. As ever, I stand ready to work with the noble Baroness and the noble Lord, Lord Hunt, and indeed all noble Lords to ensure that we explore the Bill thoroughly so that we can, in due course, send it to another place in a form of which we can be collectively proud.

A number of noble Lords referred, unsurprisingly, to the funding envelope for adult social care. We recognise that the last spending review provided local government with a challenging settlement and that is why we took the decision to prioritise adult social care and provide extra funding to help local authorities maintain access to services. In the White Paper, we committed to additional support for social care over the next two years. However, it has to be remembered that local authorities ultimately have discretion over how they use their resources. Of course we agree that the level of funding available in future will have an impact on how far the reforms are realised, but noble Lords should appreciate that we have committed to funding the reforms set out in the Bill in full.

For example, as the noble Lord, Lord Lipsey, pointed out, funding reform will cost the Exchequer £1 billion a year by April 2019 and there will be an additional £175 million a year to fund the new legal rights for carers in 2015-16. I assure the noble Baroness, Lady Wilkins, that the needs of social care will be at the front of Ministers’ minds as we approach the spending review. However, noble Lords will understand the realities facing us. We cannot improve care and support by simply putting more and more money into the system, and in this financial climate it is therefore more important than ever that councils review their practices, drawing on the work of the sector’s efficiency programmes, to ensure that they are using their resources in the most effective and efficient way possible.

The noble Baroness, Lady Wheeler, and others criticised the level of the cap on care costs. It is surely to be welcomed that, for the first time, there will be a cap to protect people from spiralling costs, and that people will no longer have to live in fear that their home will be sold while they are in a care home or that all their life savings will disappear. The level of the cap is not set in the Bill, but will be set in regulations. Why do we propose to set it at £72,000? We want to strike the right balance between supporting people in paying for care and managing the public purse in a sensible, sustainable way. We believe that a cap of £72,000, which is equivalent to around £60,000 in Dilnot terms, along with the increase in the means test threshold to £118,000, achieves this balance. I was grateful for the broad support provided by the noble Lord, Lord Lipsey, in that context.

The noble Baroness, Lady Bakewell, in her characteristically eloquent and powerful speech, contended that the formula we have arrived at protects the wealthiest. The current system, as she knows, exposes those with few savings or modest housing wealth to the greatest risk of losing everything to pay for their social care. That is unfair and it needs to change. Yes, we are expanding the scope of the means test benefit so that more people will get help, but the vast majority of state support will be provided to the 40% of older people with the lowest incomes and wealth. This is about protecting people with the greatest lifetime care needs, not the greatest wealth.

The noble Baroness, Lady Wheeler, asked me to confirm the details of the sliding scale of contribution towards care costs. People with assets above the lower capital limit, which will be £17,000 from April 2016, will have to make some contribution to the costs of residential care. The sliding scale determines the amount they must contribute. Individuals are deemed to be able to contribute £1 for every £250 of assets above the lower capital limit. We are extending the upper capital limit to £118,000 in residential care, which removes the cliff edge in the current assessment and will result in a gradual increase in support towards an adult’s care costs.

I have noted the hopes and concerns of a number of noble Lords, including the noble Lords, Lord Rix and Lord Warner, and the noble Baroness, Lady Bakewell, around the eligibility threshold. There has been widespread support for a national eligibility threshold and noble Lords are understandably keen to see the regulations that set it. In determining the threshold, we must consider the funding settlement to local authorities; the national minimum eligibility threshold will be announced as part of the spending review on 26 June, and the regulations will follow. Indeed, in answer to the noble Baroness, Lady Campbell, and the noble Lord, Lord Hunt, we will make available a draft of the regulations under Clause 13 to provide for the national eligibility criteria in order to support debate of the Bill in Committee.

The noble Baroness, Lady Uddin, said in her powerful speech that care and support was harder to access for minority ethnic people. I would say to her in that context that information is central to ensuring equality of access to care and support, a point rightly made by the noble Lord, Lord Hunt. Clause 4 sets out clearly and places the duty on local authorities to provide information which is accessible to people needing care and support in the local community. The information must be accessible to those for whom it is provided. So, for example, it should be translated into the languages that are used in the area. The noble Baroness also said that a disabled person should be involved in decisions about how their needs are met and their personal budget is settled. Clause 25 sets out important new duties for the local authority to involve the adult in care planning and to take all reasonable steps to reach agreement with the adult or carer on how their needs are to be met.

My noble friend Lord Sharkey and the noble Lord, Lord Warner, expressed their concern that the Bill contains no provision for a right of appeal against eligibility decisions. The Bill sets out, for the first time in primary legislation, how eligibility decisions will be made by local authorities and the new right to a written record of the decision and the reasons for it. These are important new rights, which will promote transparency and aid decision-making. Where people are unhappy about a decision, there is an established right to make a complaint which is set out in the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. There is no need to set out another system in the Bill. I say to the noble Lord, Lord Hunt, that we will look at the existing complaints arrangements, including considering how best to provide for effective challenge to local authority decisions, in the light of the findings of the review of NHS complaints led by Ann Clwyd and Professor Tricia Hart and our consultation on the capped-cost scheme.

The noble Lord, Lord Patel of Bradford, drew attention to Clause 2(3) and the power to charge for prevention services. He was concerned about how people will pay for this. Local authorities already have the power to charge for preventive services. We do not expect this to be the norm for lots of simple preventive services but we think it important to retain the ability to do so. We intend to use regulations to ensure that services which must currently be provided free, including intermediate care and minor aids or adaptations, remain provided free of charge.

The noble Lord, Lord Sutherland, drew attention to the cross-subsidisation issue. Local authorities and individuals can pay different prices for care, as he well knows, and this can be because individuals have chosen premium facilities or because the local authority has negotiated a lower price in exchange for buying care for a large number of people. The Bill places new duties on local authorities to promote an efficient and effective market for high-quality care services. The local authority must ensure that it has regard to factors such as the sustainability of the market.

The noble Baroness, Lady Wheeler, asked how the Bill interacts with benefit changes. My department is in regular contact with the Department for Work and Pensions on the relationship between welfare reform and our proposals for care and support in order to understand the interaction and impact on people who use care and support, carers and families.

My noble friend Lady Barker asked whether the development of the deferred payment scheme would take into account existing case law. The answer is yes. We have committed to a universal scheme for deferred payments for people who need residential care. In designing this scheme we will of course take into account all relevant case law.

The noble Baroness, Lady Wilkins, spoke about the Independent Living Fund. Following the closure of that fund, we have committed to passing funding to local authorities in order to allow for ILF recipients to be brought into the mainstream care and support system. Final details will be announced as part of the spending round on 26 June.

The noble Lord, Lord Hunt, and the noble Baroness, Lady Wilkins, stated their view that the Bill does not do enough to reference the importance of housing to care and support. In actual fact, the Bill does a lot to recognise housing as a determinant of health and well-being. In response to comments during consultation and pre-legislative scrutiny, we have included “suitability of living accommodation” within the list of matters which well-being relates to in Clause 1. Clause 3 requires local authorities to integrate the provision of healthcare and support and health-related services, which includes housing, while Clauses 6 and 7 require local authorities to ensure the co-operation of their housing officers, both internally and with the authority’s “relevant partners”, in care and support.

The noble Baroness, Lady Donaghy, stated her view that Clause 8 should include transport as a way of meeting needs. I agree that the provision of transport is an important way of meeting people’s needs but we do not believe that there is any requirement to set this out in Clause 8. That clause provides high-level examples of ways of meeting needs so as to leave maximum flexibility to the local authority and the adult to agree on how their needs should be met. Of course, that could encompass transport.

The noble Baroness, Lady Wheeler, and the noble Lord, Lord Hunt, asked whether we had been talking to the insurance industry about the reforms. It is encouraging that many companies support the change. We have been talking to the industry. The Association of British Insurers has welcomed the announcement as a,

“positive step forward in tackling the challenges of an ageing society”.

My noble friend Lord Sharkey asked why the Bill does not implement Dilnot’s recommendations for an awareness campaign. Legislation is not required for that but the Government agree on the need to raise public awareness. The Government will adopt a strategic approach to maximising the public’s understanding of the new care and support system, and that is a crucial part of our plans to implement Dilnot.

My noble friend Lady Jolly and the noble Lord, Lord Patel, spoke about the proposal to legislate for free end-of-life care. The palliative care funding review recommended that social care should be provided free at the end of life. The Government are funding eight pilot sites to test this and other recommendations, which are gathering evidence over two years until 2014. Before making any decisions we want to consider the evidence collected from the pilots. I can, however, confirm that primary legislation will not be required to enable social care to be provided free at the end of life.

My noble friend Lady Browning spoke about autism and people with Asperger’s. The autism strategy and its statutory guidance mark a great step forward for adults with autism in England, as I know she acknowledges. What it does not do, however, is guarantee that everyone with a diagnosis of autism will receive support or services from local authorities. If your needs do not meet the eligibility criteria set out by your local authority you will not receive social care services. The Bill will ensure that you are given information about what other support is available in your local area. As local areas gain a better understanding of autism needs locally and develop autism commissioning plans we expect local authorities to look more at the cost benefits of more low-level and preventive services such as befriending services or social skills training.

A number of noble Lords including the noble Baronesses, Lady Pitkeathley and Lady Wheeler, my noble friends Lady Jolly and Lady Tyler, and my noble and learned friend Lord Mackay, referred to young carers. The boundaries between children and adult legislation ensure appropriate distinctions between what can reasonably be expected of adults and children. It is of course crucial that adult and children’s services work together to ensure that young people are not carrying out inappropriate caring roles or are disadvantaged in their education and losing their childhood because of caring. First and foremost, however, young carers should be seen as children and assessed in that context.

Several amendments to the Children and Families Bill on support for young carers were debated in the other place. My honourable friend the Parliamentary Under-Secretary of State for Children and Families, Mr Timpson, recognised that the effective identification of young carers and assessment of their needs for support are best achieved by children’s social care, health and education services working together and considering the whole family’s needs. He explained that he would reflect on the arguments put forward and the evidence from the National Young Carers Coalition. Ministers in his department are very happy to meet noble Lords who are interested in this area as the Children and Families Bill moves to this House. Officials are in contact with the National Young Carers Coalition and other key stakeholders as part of the consideration of the evidence that they have provided. I should say, however, that the Care Bill encourages local authorities to take a whole-family approach in assessing an adult, which means that adults’ needs for care and support are not seen in isolation from their family circumstances, including the contribution of young carers. Regulations about assessment procedures to be made under Clause 12 will put a duty on councils to have regard to the family of the adult to whom the assessment relates.

The noble Lord, Lord Rix, spoke about the transition into adulthood, and I completely agree that transition between childhood and adulthood is an important time when young people and their families are thinking about their goals and aspirations for the future. The Bill gives young people and child carers the right to request an assessment before they turn 18 in order to help them to plan for the transition to adult care and support in order for them to have the information that they need to prepare for their future. The Bill will ensure that no child reaching the age of 18 should go without the care and support that they need around the point of transition. It will require local authorities to maintain children’s services until a decision has been taken about whether they require adult care and support in place for there to be no gap. The Bill will therefore incentivise local authorities to focus more closely on the relationship between these services to improve the experience of transition for all.

The noble Lord, Lord Patel, said that care plans should be in place from the age of 14, and for five years thereafter. As he well knows, the difficulties that some young people and their families face as they move into adult care and support are well documented. The Care Bill aims to smooth the transition. It sets no restrictions about whether the child is already receiving a specific service under children’s legislation in order to request this assessment, nor does it contain any restriction or stipulation about the age of the child for whom the request may be made, or their proximity to their 18th birthday. Instead, the local authority must consider whether the individual child is likely to have needs for care and support after they turn 18 and whether there would be significant benefit in undertaking the assessment.

My noble friend Lady Barker said that Clause 9(4) needs to be clear that people’s needs are assessed on the basis of what their family can provide and not what they are expected to provide, so that there is no pressure on them. I completely agree with what she said. The assessment is to include whether any carer is able, and is likely to continue to be able, to provide care. The intention is also that the regulation supporting assessment will require the local authority to have regard to the needs of the whole family, as I have just mentioned.

The noble Lord, Lord Low, stated his view that Clause 12(1)(f) is weaker than it was in the draft Bill. I will write to him about that, but that is not our intention and we will look at that point. My noble friend Lord Sharkey referred to the Clause 9 duty to assess where it appears to the local authority that a person may have needs. He thought that might be too passive. The duty is worded on the basis of the existing duty that it will replace, Section 47 of the National Health Service and Community Care Act 1990. It implements the Law Commission’s recommendations on what should trigger the duty to assess, and it is not intended to be passive. In fact, we do not think that it is.

The noble Baroness, Lady Campbell, spoke powerfully about the portability provisions in the Bill. The Bill will ensure that no one should face discontinuity in their care and support when they move local authority area. This is an important reform which will improve well-being for many people who use care and support. The Care Bill will place duties on local authorities that will ensure continuity of care. This will provide clarity on which local authority is responsible, and should ensure that there is no disagreement between authorities which might result in disruption to a person’s care.

The noble Baroness asked why there was no requirement for equivalent services when somebody moves. We believe that when people move local authority area their circumstances are in many cases likely to change. They may be moving to be nearer family support or to take up employment, and their needs for care and support may also change. After the move it will not always be appropriate for them to have services that are equivalent to those that they had before. Moreover, equivalent services may not be available in the new area. The assessment process we are putting into legislation is very much focused on these needs, rather than service provision.

With the leave of the House I would like to continue for a little longer, because there are a number of questions which I hope noble Lords would be glad if I answer while I am on my feet. If that is not the wish of noble Lords, I will race through the rest of my remarks. My noble and learned friend Lord Mackay of Clashfern, my noble friend Lady Tyler and the noble Lord, Lord Warner, all referred to the duty in Clause 1 to promote individual well-being, and asked why the Secretary of State was not bound into that duty. I am sure that we will have debates in Committee on that point, but I only say now that the well-being principle in Clause 1 is intended to apply at an individual level, when a local authority makes a decision. This individual focus on the specific well-being and outcomes for that person is at the heart of the way that the Bill has been drafted. It is not intended to apply in a more general way. Given that we do not think it would be appropriate for the Secretary of State to be subject to the same duty, the Secretary of State does not make decisions at the individual level.

The noble Lord, Lord Patel of Bradford, and the noble Baroness, Lady Pitkeathley, asked why there was no mention of advocacy in Clause 24(2)(b). The

Bill specifies that the information and advice service provided by local authorities,

“must be accessible to, and proportionate to the needs of, those for whom it is being provided”.

This allows for information and advice to be provided in a variety of ways, as is appropriate to the needs of the people who use the service. Information and advice provided by an explanation in a leaflet or on a website may be a sensible way of providing this service for many people, but other people may require individual discussion through their assessment and care support planning process, in a variety of depths from independent brokerage to advocacy.

The noble Lords, Lord Bichard and Lord Warner, and the noble Baroness, Lady Pitkeathley, referred to the key issue of integration, which again I am sure we will debate in Committee. Integration is about more than legislation. That is why my department has been working with national partners—NHS England, Monitor, the Local Government Association, ADASS and others—to empower local health and care communities to improve integrated care and support for their populations and to tackle the barriers to achieving this. This is described in detail in Integrated Care and Support: Our Shared Commitment, which was published last week and which I commend to noble Lords.

The noble Lord, Lord Wigley, asked about cross-border issues and whether a legislative consent Motion was required for issues to do with Wales. We do not anticipate any issues in this area. Legislative consent on matters applying to Wales has been sought from and agreed in principle by Welsh Ministers. Of course, this is subject to the tabling and agreement of a legislative consent Motion by the Welsh Assembly. The issue of cross-border placements is complex due to diverse charging systems and regulatory requirements across the UK. The exact details of cross-border residential placements will be tailored to the wishes of each Administration and we will create a bespoke set of regulations for each Administration to meet those diverse operational requirements.

The noble Lord, Lord Rix, expressed concern that, in relation to the safeguarding duty, there is no duty to assess based on the appearance of risk. He suggested that that was an oversight. It is not an oversight. The adult safeguarding duty to make inquiries in Clause 41 arises where the local authority suspects that an adult with needs for care and support,

“is experiencing or is at risk of abuse or neglect”.

The local authority duty is to make inquiries to decide what action should be taken. One such form of action is to assess the adult’s needs under Clause 9. The duty to assess needs arises where it appears,

“that an adult may have needs for care and support”, and that would cover an adult who is at risk of abuse or neglect.

My noble and learned friend Lord Mackay said that social workers should not have to rely on bits of paper to know what they have to do and that there should be a code of practice. I totally agree that social workers should not have to look at lots of bits of paper. Guidance should be set out in single, clear, accessible volumes. The only issue is whether it has to be laid before Parliament each time it is changed. We do not think that that is necessary. Equivalent guidance to social workers on children’s social services is not laid before Parliament but is set out in accessible volumes and we plan to do the same. Our proposals will look and feel just like a code of practice and will have the same legal effect.

The noble Lord, Lord Patel of Bradford, drew attention to Clause 68 and the proposed definition of Section 117 aftercare. We noted that several mental health organisations were concerned that the consultation definition of aftercare was drawn too tightly. We therefore changed the wording to clarify that Section 117 services address needs “related to” as well as “arising from” the person’s mental disorder. We have also clarified that the purpose of Section 117 aftercare is to reduce,

“the risk of a deterioration of the person’s mental condition (and, accordingly, to reduce the risk of the person requiring admission to a hospital again for treatment for the disorder)”.

Various noble Lords, including the noble Lord, Lord Low, and the noble Baroness, Lady Greengross, asked about Clause 22. The boundary between the NHS and local authorities is critical to the way in which the law impacts on the services people receive. This needs to be as clear as possible so that the division between local authority care and support and healthcare, particularly continuing healthcare, is more easily understood. The current law is especially complex and dates back to 1948. It was not designed for setting out the boundary between modern care and support and the reformed NHS. It has been subject to much case law and dispute over many years. The clause establishes the boundary between the responsibilities of local authorities and the NHS and includes a regulation-making power to enable clarification in the event of uncertainty. It is not intended to alter the current boundary, but instead to express it in a more transparent way which fits with the new framework.

I shall cover rapidly the rest of the points made, if I may. My noble friend Lady Jolly asked about the timescales for introducing ratings. We are currently considering the Nuffield review; we will respond in due course with our plans for implementation. We want to proceed quickly, but it is important that the CQC has the time to develop ratings properly in consultation with the wider health and care system. The CQC will begin the discussion on ratings with the publication of a consultation document in June.

The noble Lord, Lord Patel, emphasised that the domains of effectiveness, patient experience and safety should form an important part of the CQC’s ratings of hospitals. In accordance with the Nuffield Trust’s recommendations, it will be for the CQC, working with key stakeholders, to design and develop the rating system. However, the ratings are likely to include information on safety, effectiveness and user experience, as well as some measures of the quality of governance.

The noble Baronesses, Lady Wheeler and Lady Masham, asked why the duty of candour was missing from the Bill. We will introduce a statutory duty of candour on health and care providers to inform people if they believe that treatment or care has caused death or serious injury and to provide an explanation. That will be introduced in secondary legislation as a requirement for registration with the CQC.

The noble Lord, Lord Sutherland, asked about the role of the chief inspector. The Chief Inspector of Hospitals will oversee CQC inspections, assessment and ratings of providers, identifying both good and poor performance. Ratings will be part of the information used to establish a single version of the truth. The chief inspector will be a CQC post, which does not need to be established in statute.

The noble Lord also asked why the CQC is the right body to oversee market failure. The CQC is the independent regulator of care and support providers in England. It already has significant experience of the care and support sector and long-standing relationships with all registered providers, on which it can build to assess financial sustainability. In our view, the CQC is the body best placed to take on that important role.

The noble Lord, Lord Warner, asked why the NTDA is not included in Clauses 76 and 77. Where the TDA considers that it is in the interests of the health service, it can already advise the Secretary of State to place an NHS trust which it considers to be a clinically and/or financially unsustainable into special administration. An equivalent provision for the CQC to trigger similar action in respect of NHS trusts will be made through directions to the TDA; it does not require primary legislation.

I was struck by the fact the noble Baroness, Lady Wheeler, asked me why the Bill was a partial response to Francis. The short answer to her question is that we can do a lot without primary legislation, but we will be producing a further response in the autumn which will include action resulting from the range of reviews currently under way—for example, on complaints, safety, bureaucratic burdens and training and support for healthcare assistants.

I turn briefly to Health Education England. My noble friend Lord Willis asked how it will ensure sufficient workforce supply. I have a lengthy answer, which I hope that he will allow me to entrust to paper and which I shall copy to all noble Lords. I will write similarly in answer to the noble Baroness, Lady Emerton, on the role of the Centre for Workforce Intelligence and the action being taken by Health Education England to support the development of care assistants and to ensure that there is a sufficient number of nurses and the right ratio of nurses to healthcare assistants.

The noble Lord, Lord Turnberg, asked how Health Education England could ensure continuous improvement in the quality of education and training. Again, I have a good answer for him. In short, I can say that as commissioners with responsibility for the investment of around £5 billion, Health Education England and the LETBs will have considerable influence over the education that is commissioned from education institutions and the training that is delivered by employers through clinical placement and training programmes. They will work together with providers to deliver high-quality clinical and public health placements. I can assure the noble Lord that Health Education England must seek advice widely. The Bill requires that the body obtains the necessary advice needed to carry out its functions, which includes professional regulators and organisations involved in the provision of education and training—royal colleges and universities, for example.

The noble Lord, Lord Rix, asked me what Health Education England will do in terms of improving education and training for people who care for those with learning disabilities. The answer is that it will work with employers, commissioners, education providers and professional bodies so that education and training evolves better to support people in that category.

My noble friend Lord Willis and the noble Lord, Lord Patel, asked why local education and training boards do not have a duty to promote research. Health Education England has the primary duty to promote research. As committees of Health Education England the LETBs will support the national body in delivering this duty through their workforce planning and education and training functions. Health Education England will work with the National Institute for Health Research to ensure appropriate investment in education and training to develop clinical academic careers.

I will respond to the noble Baroness, Lady Emerton, on her question of representatives of the professions on the board of the HRA, and that there should be more investment in multi-professional research and not just clinical research. In my letter, I shall also cover transparency of research, which was rightly raised by the noble Lord, Lord Turnberg, and others.

To my noble friend Lord Willis, I can say on his question about the HRA’s responsibility for co-ordinating and standardising regulatory practice that that is precisely what is envisaged for the HRA. That is why the clauses give the HRA a unique free-standing duty to do just that, relating to the regulation of health and social care research, in addition to the duty to co-operate with other regulatory bodies. I am happy to expand on that when I write to him, along with the question posed by the noble Lord, Lord Wigley, about the HRA’s duty to co-operate with the devolved Administrations.

The noble Baroness, Lady Pitkeathley, observed that this Bill does not provide all the answers to the challenges facing us in meeting the needs of those adults who require social care. I would never claim that it does. However, I have discerned that she and other noble Lords regard the Bill as a landmark measure, representing an essential and major advance in the law relating to care and support. Later stages of our debates will provide an opportunity to consider the detailed issues that noble Lords have raised today and the Government’s mind is open to making further improvements to clauses. I look forward to those debates, and to engaging with noble Lords outside this Chamber to clarify and discuss the Bill’s provisions. Meanwhile, I repeat my thanks to all noble Lords who have spoken today in a debate that has been fully worthy of the vital and pressing issues now before us. I commend the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.