Report (2nd Day)

Care Bill [HL] – in the House of Lords at 3:17 pm on 14th October 2013.

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Clause 9: Assessment of an adult’s needs for care and support

Amendment 32

Moved by Earl Howe

32: Clause 9, page 8, line 27, leave out paragraph (d)

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, I shall speak also to the other amendments in this group, Amendments 33, 36, 37, 39, 40, 42 to 45 inclusive, 62, 90, 91, 100, 101 109, 112, 115, 116 and 117. In Committee, we had a wide-ranging and informed debate on assessment. I have reflected on the issues raised and I have tabled amendments which I hope noble Lords will agree address those concerns and clarify our intentions around the assessment process.

In Committee, we considered a provision which was intended to ensure a focus on the adult’s strengths and how these can contribute towards the outcomes they want to achieve as part of the assessment. This provision was drafted to support our aim to build the care and support system around the person and to consider the adult’s own capabilities: what they can do—as well as their needs—and what they cannot do. While most noble Lords agreed with the principle, a concern in Committee was that the provision set out in the Bill might be wrongly interpreted by local authorities as allowing them to place additional caring responsibilities on family and friends rather than providing care and support. Amendments 32 and 33 look to address the concerns that arose.

Amendment 32 removes the requirement to assess the adult’s capabilities and other matters as part of the needs assessment. Amendment 33 provides for a consideration of such matters to happen separate to, but alongside, the needs assessment. Local authorities should have a discussion with adults or carers in parallel to the assessment, considering how their own capabilities and any other matters can help to achieve the outcomes they want to achieve on a daily basis. These amendments remove the source of concern, while retaining the important point of policy on which we agree.

In Committee, there was also concern as to whether the assessment process was sufficiently supportive of the focus of the Bill on the prevention of need. We have considered this and have also brought forward amendments to strengthen this focus. The second part of Amendment 33 and Amendment 45 require a local authority to consider at the time of the assessment whether any universal services available locally, whether provided by the local authority under Clause 2 or Clause 4 or by another organisation, would be of benefit to the person. This replaces the previous provision in which such a consideration took place only after the eligibility determination. This would support situations where, for example, a local authority might decide to defer the final eligibility determination until the person or carer has taken part in a preventive service, such as a reablement programme. Amendments 36 and 37 make similar provision in relation to carer’s assessments. Amendments 90, 91, 100, 101, 109 and 112 make equivalent changes in relation to the assessment of children, child carers and young carers.

In Committee, the noble Lord, Lord Low, pointed out that while the regulation-making powers would provide for an expert to carry out complex assessments, they did not require it. I assured the noble Lord that this was not our intention and that I would look again at the provisions to ensure they provided for this. Having considered the provisions I have concluded that they needed to be strengthened to provide for when an expert must carry out an assessment for complex needs, such as for a person who is deafblind. Amendment 39 rectifies this, and I would like to thank the noble Lord for raising this in Committee.

Through Amendment 40, we will require assessors who are trained but may not have experience of carrying out an assessment for a specific condition to consult a person with experience in that area. For example, an assessor who normally assesses older people who is asked to assess a person with learning disabilities would have to consult a person with experience in that condition.

I turn now to Amendments 42, 43, 44, 62, 115, 116 and 117. Members of the Committee asked to see clear links between this Bill and the Children and Families Bill, which is also before the House. I share their view that both Bills must work together so that no one falls through a gap in the legislation. Amendment 42 ensures that a local authority can combine an adult’s assessment with any other assessment it is carrying out, whether under this Bill or other legislation, as long as the individual or individuals being assessed agree. For example, it clarifies that the authority can carry out a needs assessment with a young carer’s assessment. Amendment 43 allows the authority to carry out a needs or carer’s assessment jointly with another assessment being carried out by another body, whether of that person or a person relevant to the situation, as long as the individual or individuals being assessed agree. Amendment 62 ensures similarly that local authorities have powers to combine care and support plans and support plans with any other plan of that individual or another. Amendments 115, 116 and 117 make similar provision for a child’s assessment, a child carer’s assessment and a young carer’s assessment when they are transitioning to adult services. These amendments reflect similar government amendments tabled to the Children and Families Bill and reflect the synergy between both Bills and how they work together to ensure that the needs of children and young carers are considered during the adult’s assessment.

I have listened to the strength of the arguments made in Committee. I hope your Lordships will agree that the amendments I have tabled address the concerns that were raised and that they strengthen and clarify the assessment provisions. I beg to move.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the changes that the Government have made concerning assessments are very welcome. I particularly thank the Minister for the careful and considered way in which he listened to the issues around young carers, and particularly the way in which these now mesh with the Children and Families Bill, which was a concern to many of us. That is very welcome.

Amendment 32, which removes the reference to support available from families and friends, is particularly welcome. Disability and carers’ organisations have very serious concerns that the original wording would lead to local authorities making assumptions about what families could provide without conducting a thorough assessment of a person’s needs and then carefully considering how those needs could best be met, particularly taking into consideration the family’s willingness to provide that care.

Amendment 33 also includes a requirement that when an assessment is carried out it is also considered whether the person would benefit from prevention services or from information and advice. That greater emphasis is also very welcome. However, I would like the Minister’s comments on one concern about Amendment 33. It refers to,

“which might be available in the community”.

If this wording is included in the Bill, it is vital that strong guidance is given to local authorities not to run the risk of negative, unintended consequences. There will be guidance, regulations and assessments, as we know. What assurances can the Minister give that community services will not be seen as an automatic alternative to statutory services and will not therefore create a further barrier for those in need of statutory support?

Can the Minister assure me that guidance will make it clear that local authorities cannot make assumptions about the availability and appropriateness of other support from community services and whether it is wanted by the disabled or older person? The Government have made it clear that they do not intend local authorities to look to families and friends to provide care and support, potentially taking on a greater caring role. Can the Minister give assurances that local authorities should also not be looking to families and carers to provide more care as a get-out clause, if you like, from providing statutory services? This is particularly important given the great variability in so-called community services from area to area and, of course, the huge stress on local authority budgets, which is a fact of life for all local authorities at present.

Photo of Lord Low of Dalston Lord Low of Dalston Crossbench

My Lords, I very much welcome the Government’s Amendments 33, 39 and 40. So far as Amendments 39 and 40 are concerned, in Committee, as the Minister has remarked, I sought a strengthening of Clause 12(1)(f) to ensure that regulations would specify the circumstances in which a specially trained person must carry out an assessment or a reassessment of persons who need one. The Minister was kind enough to thank me for raising the point, and I thank him very much for bringing forward these amendments. I am delighted that the Government have come forward with amendments that effectively meet my wishes, recognising that the Bill, as initially presented to the House, did not precisely reflect the Government’s intention.

Talking of specialist provision, I kick myself that I forgot to refer to this in connection with Amendment 26 from the noble Baroness, Lady Meacher, about the need for local authorities to commission a full range of services to meet the diversity of their residents’ needs. I meant to illustrate this by reference to the situation of deafblind people who are all too often offered mainstream services or services designed for those with a single sensory loss instead of the specialist provision appropriate to their particular needs. Perhaps, in welcoming the Government’s amendment on specialist assessments, I can slip in the thought that if local authorities are required to ensure that sufficient services are available for meeting the needs for care and support of adults in their area, they would rightly be under some pressure to identify the full range of deafblind people’s needs, and those with other specialised needs as well, and plan accordingly.

On Amendment 33, I argued in Committee—I fear at too great a length for some, but I shall try not to repeat that mistake today—that the Bill would be much stronger if local authorities were also placed under a duty to take prevention into account in exercising any of their functions under Part 1, not just those relating to direct provision of care. Failure to do this meant that there was little in the Bill for those not deemed eligible for care and support, even though their needs might be quite considerable. It also did little to advance the Government’s own strategy of rebalancing the care system away from crisis intervention and in a more preventive direction.

The new government amendment, however, embraces a more strategic approach by obliging local authorities to consider whether measures short of full care and support, including anything which might be available in the community and not just directed at individual care, could assist the individual. This could ensure that those who did not reach the eligibility threshold were not bereft of support entirely and would in effect make the eligibility threshold go further. This is very much to be welcomed, and makes the Government’s setting of the eligibility threshold at the equivalent of “substantial” somewhat easier to accept.

However, I ask for an explicit reassurance on one or two points; perhaps the Minister might like to make a note of them in order to respond to them when he comes to wind up. I would like a reassurance that preventive services will remain universal and free of charge. We know that entitlement to many reablement services is assessed against the FACS criteria. We also know that councils have previously tried to charge for them even though it is illegal to do so. An explicit commitment has been made to minor aids and adaptations continuing to be provided free and without the need for a financial assessment. No similar statement has been made about intermediate care. I believe that the House would very much welcome the Minister giving the same explicit commitment to intermediate care services, including most reablement services, continuing to be free of charge. There is evidence to indicate that councils will look to restrict access to preventive support. I therefore welcome the Government’s underlining their commitment to universal and uncharged preventive services.

In Committee, the Minister assured us:

“Under this Bill, local authorities would be expected to consider how the provision of reablement and other types of care and support could contribute to the achievement of an individual’s desired outcomes as part of the assessment process. Clause 13(2)(b) makes it clear that, in determining eligibility, local authorities must consider if the person would benefit from preventive services—whether or not they have eligible needs. This would include reablement services”.—[Hansard, 9/7/13; col. 262.]

However, research undertaken by the British Red Cross last month found that 64% of councillors think that preventive services provided through the duty set out in Clause 2 will be focused on adults whose needs for care and support meet their council’s eligibility criteria. It would be helpful if the Minister could give an assurance that the commitments made in respect of Clause 13(2)(b) attach to its new placement in Clause 9, so that local authorities must consider during an assessment if the person would benefit from preventive services, including reablement services, whether or not they are likely to be determined as having eligible needs.

In Committee, the noble Earl gave me an assurance, as he has observed in speaking to the government amendment, that,

“we intend to maintain the existing entitlements to aids, minor adaptations and intermediate care in regulations”.—[ Official Report ; 16/7/13; col. 695.]

However, research undertaken by the British Red Cross last month found that 60% of councillors think that services offered through the duty set out in Clause 2 are more likely to be charged for than to be free at the point of need. Therefore, can the Minister give an assurance that, as per the Community Care (Delayed Discharges etc.) Act (Qualifying Services) (England)

Regulations 2003, intermediate care will continue to be required to be provided free of charge to any person to whom it is provided, for any period, up to and including six weeks, and without the need for a financial assessment?

Photo of Baroness Meacher Baroness Meacher Crossbench 3:30 pm, 14th October 2013

My Lords, Amendment 41 is a probing amendment, so I will speak briefly. Before I say anything else, I applaud the Minister for the raft of amendments in this group. I was particularly pleased to see the amendments in relation to young carers, although this is not relevant to Amendment 41. However, government Amendments 32, 33, 36 to 38 and—perhaps in particular—39 and 40 are, of course, relevant to this amendment. My Amendment 41 requires that regulations that make further provision for carrying out a needs or carers’ assessment will specify the circumstances in which a person’s social care needs are to be regarded as complex—the amendments do not refer to that term, so I would like a further clarification of that—and that having defined “complex needs”, social workers should always be involved in the assessment of cases meeting that criterion. That is the proposal of the College of Social Work. I should say that the involvement of a professional social worker does not mean the exclusion of all others. Clearly, if a professional social worker is dealing with a deafblind person, he would need to involve a specialist in that particular group of disabilities.

The college makes the first point that a good assessor sets out to create a complete picture of a person’s situation, strengths, capabilities and aspirations. Social workers are trained and recruited on the basis that they have the necessary cognitive and emotional depth to undertake those assessments. The second point is that people with complex needs generally have an awful lot of different services to which they need to relate if all their complex needs are to be met. The role of the care co-ordinator therefore becomes vital in those situations; care co-ordinators tend to be professional social workers.

As the noble Earl knows, the Law Commission argued that where a person has complex or multiple needs, a proportionate assessment would require an in-depth and comprehensive exploration of those needs. It is difficult to imagine that somebody other than a professional social worker would be equipped to do that. The types of situation which would be treated as complex cases include: where a person is subject to legislation or national guidance; where a person is or may be subject to abuse; where there is conflict between a person and a member of their family or their carer; and where there is a need to support the applications of individuals or their families for continuing healthcare funding.

Government Amendments 32, 33, 39 and 40 could pave the way for regulations which would meet the concerns addressed in Amendment 41. The noble Earl will know that our particular concern is for clients with learning difficulties, mental health problems and, in particular, dementia—people whose needs will be quite complex and difficult to assess. You need people who have been trained in that sort of work. Can the Minister say, with respect to these vulnerable groups, whether regulations will clarify their need for a professional social work assessment, albeit involving others as well? If regulations will not deal directly with the assessment of people with complex needs, and in particular with those who have all those mental health problems, can the Minister explain what provision he plans to make in order to ensure that the needs of these particularly vulnerable people will be properly assessed and addressed?

Photo of Lord Dubs Lord Dubs Labour

My Lords, I welcome how far the Minister has moved from Committee to today. I hope that noble Lords will not think it churlish of me to say that perhaps he might be persuaded to move a little further. I will speak first to Amendment 60, which seeks to oblige a local authority to provide advice and information about what can be done in the event of an emergency, or if needs change. I am specifically talking about what I think we have referred to before as people with fluctuating conditions and needs. We know that there are many millions of people in the country who have fluctuating conditions such as multiple sclerosis, rheumatoid arthritis, HIV, Crohn’s, colitis, epilepsy and Parkinson’s disease, and there may be many others. Therefore, we are talking about a significant number of people who will be affected by the provisions of this Bill.

Not long ago I was talking to a woman in a wheelchair who had MS. She was very lively, bubbly and sparky, and she said to me: “You know, I’m not always like this. Some days I go down and I can’t even get out of bed, so don’t judge my condition by the way you see me today”. I took that very much to heart, and it is clearly the sort of situation that this amendment is about. As the Bill is currently drafted under Clause 25, it would not really make provision for such situations.

This amendment is actually operationally simple. It would help to ease the pressure placed on formal and informal carers, and would give them more certainty. Not only will it ensure that individuals get the timely care that they need when they need it but, equally importantly, it has the potential to prevent costly and unnecessary hospital admissions. If this amendment is not in place, there is always the possibility that with a downward fluctuation in condition, the person without the support will then have to be hospitalised. That in itself is costly and is utterly undesirable from the point of view of the person who could be helped in the home if this amendment were to be passed.

Local authorities are surely in a position to provide better tailored care, to promote confidence and control and allow people to prepare for such rises and falls in their care needs. The current drafting does not allow for it. A snapshot was taken by the NRAS—the National Rheumatoid Arthritis Society—which indicated that currently more than 30% of respondents with rheumatoid arthritis have been admitted to emergency care as a result of a flare-up in the disease in the past year. This is something which I trust could be prevented if we changed the way in which this clause was to operate. A survey of 1,000 people with MS revealed that 95% of respondents felt that better services during a relapse or a sudden deterioration of their condition would help them to maintain their independence. More than 80% said that they want to be able to plan their care and support in advance of that care being required. This amendment would help people whose conditions might suddenly worsen and, as I said earlier, would potentially prevent unnecessary and costly hospital admissions.

I turn to Amendment 61. As the wording of the Bill in Clause 27 states, local authorities have the power to generally review care plans. However, they are not required to specify when they anticipate that these reviews will take place. This amendment seeks to put some certainty into the process. There should be an agreed date between the adult and the local authority upon which a review of the care and support plan would be offered. I envisage a discussion between the local authority and the person concerned about the best way in which their care needs can be met.

An anticipated review date, agreed between the local authority and the adults, would provide stability and certainty to those being cared for. It is not a large change but it would be beneficial for the people concerned. I do not want to spell out with examples where people have said what a difference it would make if they had this element of certainty. I would like this amendment to be passed, which will give the adult the confidence that their care would continue as agreed until the specified date or until the adult themselves chooses to request a review in line with Clause 27(1)(b).

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I generally support these government amendments, and thank the Minister for introducing them. There is just one small point I want to mention, which has been raised in my mind by the observations made by the noble Baroness, Lady Pitkeathley, in relation to Amendment 33.

I had understood paragraph (b) of Amendment 33 to carry the implication that if something was found that would benefit the person in question as a result of examination of what is in (b), the needs assessment would include that. However, I just wonder whether the last part creates the possibility that if the benefit can be received from something in the community, outside the provisions that the local authorities have made, that would be excluded; in other words, it would tend to reduce the needs assessment. I had rather thought that the proper construction of this phrase would mean that that also should be taken into account as included in the needs assessment, and that, where it was available, the cost of it should be included in the needs assessment. Perhaps my noble friend will be able to clarify that point for me.

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords) 3:45 pm, 14th October 2013

My Lords, this large group of amendments reflects issues that we covered extensively in Committee. We largely support the amendments as they address the suitability of the extent to which friends and family should be acknowledged in the process of assessment of the needs of adults, carers and young carers for care and support.

The group includes amendments on young carers’ support and assessment needs in relation to the Care Bill and its interface with the Children and Families Bill, about which I spoke last week. I do not intend to go into this issue again, other than to stress our support and relief that young carers are recognised in a joined-up way in both Bills. In particular, we welcome the safeguard in this group of amendments, which ensures that local authorities are able to combine assessments relating to adults being assessed with assessments relating to young carers only with the consent of both. The new provisions also make it explicit that it will be possible to join up care plans with other types of care plan only with the consent of the relevant parties, and we welcome this too.

We were very concerned that as originally drafted, Clause 9, which sets out the assets-based approach to assessment, could have been misinterpreted and used to push greater responsibility for meeting needs from the local authority to carers, family and friends. It blurred the distinction between an assessment being about what the needs are and the ways of meeting them by looking at how needs are met by other ways through the provision of services before any decision about eligibility has been made.

Thankfully, the Government’s amendments addressing this problem are now more in accord with the Law Commission review of adult social care legislation, which made a clear distinction between consideration of care and support needs and how the needs should be met. On specialist assessments, we are pleased to see the amendments upholding the current practice and guidance, which provide for assessments to be undertaken by people with expertise. It is an issue on which the House expressed itself very strongly, especially the need for specialist assessors in the case of people with complex health or mental health needs. The noble Lord, Lord Low, and the noble Baroness, Lady Meacher, have set out these issues again today very clearly, and I look forward to the Minister’s response to their questions on the outstanding issues.

Finally, I support the intention of my noble friend Lord Dubs in Amendment 60 to ensure that the care and support plan provides contingency planning for an emergency, such as the carer suddenly being ill or unable to provide care. The self-directed assessment model does include discussion on contingency and risk but the extent to which clear provision is covered in the care and support plan is patchy. Indeed, it is not always easy to be specific about what would happen because often the reality is that instant emergency cover is hard to organise when relatives live a considerable distance away or the cared-for person is not able to summon up emergency help. My noble friend is right to reinforce the point about the need for emergency contingency planning, especially where people have fluctuating health conditions, such as MS, rheumatoid arthritis and HIV.

In Amendment 61, my noble friend also underlines the importance of including a review date in the plan. It would be very valuable to require social services departments and providers to be clearer about not just the review date for the plan but what the monitoring and review process is and what kind of client feedback or complaints process there would be, as well as client-carer involvement in assessing quality of care and standards of service. I suspect that very few care plans currently measure up to these requirements and I would be grateful if the Minister could tell me what requirements the Government will place on local authorities and commissioners in this respect.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, I am grateful for the support that noble Lords have given to the government amendments. Perhaps I may start by covering the questions that were put to me. The noble Baroness, Lady Pitkeathley, and my noble and learned friend Lord Mackay of Clashfern asked for assurances that the guidance will make clear that local authorities cannot assume that support will be forthcoming from community services or carers as a get-out. I assure the noble Baroness and my noble and learned friend that the intention in Amendment 33 is not to place extra responsibilities on carers and families, nor to delay local authorities in providing statutory services. I will commit to making this absolutely clear in the statutory guidance that will be co-produced with stakeholders. I hope that that is a valuable reassurance.

The noble Lord, Lord Low, asked for reassurance about preventive services remaining universal and free of charge, as well as intermediate care. I can reassure him that certain services will be provided free of charge, and regulations will set out which types of prevention services must be provided free of charge. Regulations will also set out which types of prevention services local authorities can charge for. It will then be for local authorities to decide whether they charge for such services. This will maintain the current position, where charging for preventive services is determined locally, in accordance with local requirements. Additionally, we would expect intermediate care, including reablement and community equipment such as aids and minor adaptations, to remain free of charge. That is a minimum. The regulations will allow for flexibility, to keep the list up-to-date as services change over time.

The noble Lord, Lord Low, also asked whether the commitments in Clause 13(2)(b) will apply also to Clause 9. Will an assessment be deemed necessary where preventive services may be of benefit, even if someone is unlikely to be eligible? The duty to assess in Clause 9 is independent of the provisions on prevention. Amendments 33 and 45 make it clear that preventive services should be considered during the assessment rather than having to wait for the eligibility determination. This will mean that people can be advised during the assessment on their preventive needs, whether or not they have eligible needs. I hope that that is helpful.

Perhaps it will be helpful if I move on to the amendments tabled by the noble Baroness, Lady Meacher. Amendment 41 seeks to ensure that an appropriately qualified social worker will carry out complex assessments. I absolutely sympathise with the noble Baroness’s amendment and believe that my Amendments 39 and 40, to which she referred, will go some way towards addressing her concerns. I also reassure her that, through the powers in Clause 12, we will require local authorities to ensure that assessors have the appropriate training to carry out the assessment. We have listened to the concerns of adults who use care and support, and to their carers. They are right to say that assessors should receive appropriate training.

Amendment 39 will enable us to specify circumstances in which a specified person, such as a social worker, must or may carry out an assessment. We believe that an expert must carry out an assessment for a deafblind person. We will consult stakeholders during the development of these regulations to identify any other conditions where a specified person should carry out the assessment.

I am grateful to the noble Lord, Lord Dubs, for raising in his Amendment 60 the issue of fluctuating and emergency needs, and, in his Amendment 61, anticipated review dates in the care and support planning process. Clause 25 sets out the minimum framework for the planning process, and balances the need to set out standards for care and support planning while not constraining the ability of local authorities to fit the planning process around the person. I reassure the noble Lord that providing advice and information on what can be done to meet or reduce a person’s needs will include providing advice and information where an adult may be experiencing fluctuating or emergency needs.

In addition, where it is clear that an adult experiences fluctuating needs, the care plan should reflect this by specifying how the needs will be met. I undertake to the noble Lord to ensure that statutory guidance clarifies this, and that fluctuating and emergency needs are included in what advice is to be provided.

The issue of timescales of reviews is something we have considered carefully. The review is an important part of the process as it can identify where a person’s needs have changed and if their care and support plan should be revised to reflect this. Clause 27 on the review of care plans creates a general duty for the local authority to keep plans under review as well as a specific duty to review the plan when the authority believes the person’s needs or circumstances have changed. In addition, the clause contains a right to request a review. I reassure the noble Lord that nothing in the Bill prevents the local authority and the adult agreeing a time for the next review if they wish to do so. We believe this to be a more pragmatic way of fitting reviews around the lives of people, and one which supports our policy of personalised care. I reassure the House that we intend to detail these issues in statutory guidance on care planning.

I hope that I have reassured the noble Baroness and the noble Lord and that they will feel able not to move their amendments.

Amendment 32 agreed.

Amendment 33

Moved by Earl Howe

33: Clause 9, page 8, line 36, at end insert—

“( ) When carrying out a needs assessment, a local authority must also consider—

(a) whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcomes that the adult wishes to achieve in day-to-day life, and

(b) whether the adult would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.”

Amendment 33 agreed.

Clause 10: Assessment of a carer's needs for support

Amendments 34 and 35 not moved.

Amendments 36 and 37

Moved by Earl Howe

36: Clause 10, page 9, line 21, leave out paragraph (f)

37: Clause 10, page 9, line 31, at end insert—

“( ) When carrying out a carer’s assessment, a local authority must also consider—

(a) whether, and if so to what extent, matters other than the provision of support could contribute to the achievement of the outcomes that the carer wishes to achieve in day-to-day life, and

(b) whether the carer would benefit from the provision of anything under section 2 or 4 or of anything which might be available in the community.”

Amendments 36 and 37 agreed.

Amendment 38 not moved.

Clause 12: Assessments under sections 9 and 10: further provision

Amendments 39 and 40

Moved by Earl Howe

39: Clause 12, page 10, line 39, leave out from “which” to “jointly” in line 40 and insert “the assessment may or must be carried out by a person (whether or not an officer of the authority) who has expertise in a specified matter or is of such other description as is specified,”

40: Clause 12, page 10, line 46, after “matter” insert “or is of such other description as is specified”

Amendments 39 and 40 agreed.

Amendment 41 not moved.

Amendments 42 to 44

Moved by Earl Howe

42: Clause 12, page 11, line 23, leave out subsection (5) and insert—

“(5) A local authority may combine a needs or carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the adult to whom the needs or carer’s assessment relates agrees and—

(a) where the combination would include an assessment relating to another adult, that other adult agrees;

(b) where the combination would include an assessment relating to a child (including a young carer), the consent condition is met in relation to the child.

(5A) The consent condition is met in relation to a child if—

(a) the child has capacity or is competent to agree to the assessments being combined and does so agree, or

(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that combining the assessments would be in the child’s best interests.”

43: Clause 12, page 11, line 26, leave out from “in” to “, the” in line 27 and insert “relation to the adult to whom the assessment relates or in relation to a relevant person”

44: Clause 12, page 11, line 37, at end insert—

“( ) A person is a “relevant person”, in relation to a needs or carer’s assessment, if it would be reasonable to combine an assessment relating to that person with the needs or carer’s assessment (as mentioned in subsection (5)).”

Amendments 42 to 44 agreed.

Clause 13: The eligibility criteria

Amendment 45

Moved by Earl Howe

45: Clause 13, page 12, line 1, leave out paragraph (b)

Amendment 45 agreed.

Clause 14: Power of local authority to charge

Amendments 46 to 48 not moved.

Amendment 49

Moved by Earl Howe

49: Clause 14, page 13, line 13, at end insert “; and the regulations may in particular (in reliance on section 112(6)) specify—

(a) different amounts for different descriptions of care and support;

(b) different amounts for different descriptions of support.”

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

In moving Amendment 49, I wish to speak also to the other government amendments in this group, Amendments 50, 51, 52, 53, 54, 59 and 169. We are currently consulting on the detail of our reforms to care and support funding, including charging. This consultation and the accompanying engagement are looking at key issues around future charging for adult care and support. We need to ensure that the Bill has sufficient flexibility to take account of the views expressed through this consultation and the on-going engagement. This work has highlighted areas where the Bill as drafted may not be sufficiently flexible. I turn to my Amendments 49, 51 and 52 concerning local flexibility in charging policies.

Currently, local authorities are free to set their own charging policies for non-residential care. The intention was to create a more consistent framework for charging across local authorities. However, there was uncertainty whether the regulation-making powers as drafted would have allowed local authorities to contribute towards the care and support costs of people who have resources above the financial limits. A rule which prohibits local authorities from making any contribution towards the care costs of such people would restrict the ability of local authorities to use different arrangements when these would best meet local needs. For example, local authorities sometimes subsidise services such as telecare. We wish to allow this to continue and do not want to require local authorities to charge people the full cost of these services.

My other amendments, Amendments 50, 53 and 54, concern circumstances in which a financial assessment has not taken place or a local authority considers that a full assessment is unnecessary. We wish to encourage people to undertake financial assessments because this will enable local authorities to charge them a fair contribution towards their care costs. However, we recognise that some people are likely to refuse to undergo a financial assessment; for example, someone may be unwilling to allow the local authority to access their financial information. In order best to promote these people’s well-being, it may be appropriate for local authorities to arrange care on their behalf. The local authority would be able to charge individuals the full cost of this care and any arrangement fee.

These amendments will therefore allow regulations to enable local authorities to broker care on behalf of people who do not wish to undergo a financial assessment. The regulations will also make provision for light-touch financial assessments where a full financial assessment would not be proportionate, such as for low-cost care packages, in particular for carers. Regulations and guidance will be designed to ensure that such assessments are used appropriately.

The remaining government amendments in this group ensure that all those who should get an independent personal budget receive one and that the regulation-making powers retain their intended flexibility. I hope noble Lords agree that the additional flexibilities provided for by these amendments will equip local authorities with the tools they need better to promote individual well-being and that noble Lords can therefore support my amendments. I beg to move.

Photo of Lord Lipsey Lord Lipsey Labour 4:00 pm, 14th October 2013

My Lords, I shall speak briefly to Amendment 55 on top-ups and comment, also briefly, on the proposal for a ministerial advisory committee.

I can be brief about top-ups but not because the issue is not important. Indeed, its substance is vital if the Government’s scheme for a cap is to work. We made good progress on the basis of the Minister’s remarks in Committee, and further progress was made in the Government’s consultation document, published on 17 July. I hope that he will indicate that things are still on the right track towards reaching final solutions in the near future.

I recapitulate the argument from Committee. You cannot at the moment top up your own care home fees. If you go into a care home, a third party—your son, daughter or friend—can top them up but you cannot put in your own money. That is important now, and the statutory bar is often got around or simply ignored. However, it will be a lot more important once the Dilnot scheme incorporated in the Bill takes effect.

Consider an old person who is living in a home in which the fees are £800 a week. Suppose that the limit to what the local authority will pay in fees is £500 a week. What happens when the person has spent up to the cap, at the local authority rate of course? It may be that a third party can give them the extra money to pay up, but suppose they are isolated and on their own. I am afraid that the answer is simple and stark. The individual would have to choose between only two alternatives. One is to accept the £500 a week from the local authority and move into a cheaper, perhaps worse, home, with all the disruption to that person’s life that that would involve. The other would be waive the local authority contribution and continue to pay the £800 themselves. That would mean that the cap had not done them a blind bit of good. The way round this is to permit individual top-ups, so £500 would come from the local authority, £300 from the individual. The noble Earl endorsed this in Committer when he said that,

“people should be able to use their savings to purchase more expensive care if they want to”.

He went on to say that revised arrangements to this effect would,

“be set out in regulations made under Clause 30(2) of the Bill”. —[ Official Report , 16/7/13; col. 736.]

This is spelt out in paragraphs 263-266 of the consultative document, which also has pointers to some of the potential risks. I hope that this was with a view to solving those risks and not to coming along at a later stage and saying that they are insuperable. I ask the Minister to make a brief progress report to reassure the House that this bar on individual top-ups is going to be rescinded. Without it, the Dilnot scheme simply will not work.

I will now say a word on the ministerial advisory committee amendment in the name of my noble friend Lord Hunt of Kings Heath who kindly adopted a proposal that I made in Committee. As the House knows, I have previous in this field, having been working on long-term care since I was on the royal commission in 1999. I also have a bit of previous on public policy in general because I started working for Tony Crosland when he was shadow Environment Minister in 1972. Of all the myriad subjects on which I have had to do reasonably serious work in this time, this is by far the most complicated. It involves a mix of financial and administrative problems with the most sensitive human considerations, particularly since it concerns people at a stage of their life when they are going into the second age of vulnerability due to age. Public and private are inextricably mixed in a way that complicates things. The whole cap is part of a private/public co-operation; therefore, it is crucial to align what both parts are doing.

The scale and range of the stakeholders involved is enormous. The Care and Support Alliance had more than 100 individual voluntary organisations which came together to promote a solution in this Bill. There are also a lot of nooks and crannies that are not obvious. I am going to come to one in a speech later this afternoon, a feature of this Bill which only became known to me on Friday which greatly changes the deferred payment scheme under the Bill. There are nooks and crannies that can be simply ignored. We had another one earlier in the Bill. It suddenly turned out that if somebody had an income close to the top for which they could claim means-tested support, they had better not claim it, because otherwise they would lose more than they gained through attendance allowance. So it is a hugely complicated field.

I am not a critic of the department on this, nor of its Ministers. They have wrestled bravely with this, helped of course by the superb Dilnot report—I am standing behind my noble friend Lord Warner who was involved in that process—which helped hugely to clarify the intellectual framework. But there are complications as yet unfathomed. As the scheme goes forward I promise that there will be lots of unexpected and unintended effects. In particular, how people register they are getting care needs, how they are then assessed, and how it builds up towards a care cap, will work out quite strangely. The Government will need the best possible advice on how to do it.

All I am suggesting, as my noble friend Lord Hunt will propose in his amendment, is that it would be well for us to set up right at the beginning a ministerial advisory committee that includes everyone—the voluntary groups, the financial services industry and those who regulate it, and government departments—that can keep on top of these things. As major problems are identified, the committee can report to the Minister on them. As I say, it is not a vote of no confidence in the Department of Health. Indeed, I hope that the department will welcome the proposal because it has shown itself to be willing to talk openly throughout this progress of this Bill. The Minister used a good phrase to describe it when discussing the regulations earlier—co-production. We will need co-production as much after the Bill and the regulations have gone through as before. An advisory committee would provide that.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, I welcome the noble Earl’s amendments. As we start another day on Report I should declare my interests as chair of a foundation trust, as a consultant trainer with Cumberlege Connections, and as president of GS1. The noble Earl said that the first group of amendments is designed to give more flexibility to local authorities so that they can make a contribution to a person who might normally be affected by the means test. That is entirely reasonable, but I wonder if he could tell us a little more about the consultation timetable from which this has clearly flowed.

I have also noted the amendments that will allow the local authority to charge the cost of care to those people who refuse to undergo a financial assessment. Again, this seems reasonable, but given the difficult circumstances in which that scenario might arise, does the noble Earl not consider that that lends support to those noble Lords who think that there ought to be appeals systems in place? When we come to appeals, I wonder whether the noble Earl might be a little more sympathetic to those amendments.

I want to lend my support to my noble friend Lord Lipsey in relation to top-ups. He argued persuasively in Committee to allow self-funders to top up if they reach the cap but wish to remain resident within a care setting where the costs are higher than the local authority is paying. That is a strong argument, and I, too, welcome the progress that has been made. However, like my noble friend, I hope that the noble Earl will be able to give us a further report on progress on this matter.

I come now to my Amendment 56, which has been very effectively trailed by my noble friend; in fact, it is difficult for me to do as much justice to the amendment as he has done. It requires the establishment of an independent ministerial advisory committee to keep under review the workings of the cap and the means-testing arrangements set out in Clause 17. It is fair to say that all noble Lords who have debated this Bill have welcomed its general intent and the principles that underpin it. The Dilnot commission marked a significant step forward in creating consensus on how people are to be protected from financial catastrophe if they have to fund their own care. We have debated in detail the Government’s response as set out in this Bill: the establishment and operation of the cap, the level of the cap, the continued financial risk to self-funders, the deferred payment scheme, the capacity of local authorities to accept the responsibilities being placed on them, and in particular, I would identify the responsibility for assessing thousands of self-funders who will come into contact with the local authority for the first time. We have discussed the advice to be made available to vulnerable people in a complex area and its interrelationship with the eligibility criteria.

No one, in welcoming the general thrust of the Bill, will believe that this is the last word. I am sure that the operation of the care packages set out in this Bill will need to be kept under frequent review by the Government and particularly by the noble Earl’s department. Oversight of the system would surely benefit from a bipartisan group of people from whom the Government could continue to take advice. My noble friend Lord Lipsey has gone back many years in relation to the debates in this area. Of course, he served on the 1999 Sutherland royal commission. In parallel we have had the Turner commission on pensions and we have seen the benefit of a bipartisan approach in relation to Dilnot.

We would all agree that the funding of long-term care requires stability as far as possible and, even more importantly, a long-term political consensus. As my noble friend Lord Lipsey said, this is a very complex, complicated set of arrangements. We would be best served by the establishment of an independent group that could advise Ministers on how the system was working and enable politicians from all sides to benefit from serious, impartial advice.

I know that the noble Earl has yet to be persuaded of the benefits of an advisory committee, but it would be an effective way to build on the consensus that I think has been created. I hope that even at this late stage, he might be sympathetic.

Photo of Lord Warner Lord Warner Labour 4:15 pm, 14th October 2013

My Lords, as the self-appointed keeper to this House of the Dilnot tablets, I support Amendments 55 and 56, spoken to so ably by my two noble friends. Turning to Amendment 55, in framing our recommendations in our report, it was never our intention to impose a new set of rigidities in place of the old set of rigidities. It is important that the new system retains as much flexibility as possible. It is worth thinking about what lies behind much of the argumentation in our report and the new architecture that that report proposes. It is all about people, in as fair, orderly and manageable a way as possible, making contributions from their own resources to the rising costs of adult social care as we cope with, live with and adapt to an ageing population. Given the messiness of the present arrangements for top-ups, it would be perverse not to create the maximum flexibility for people to top up, particularly where these top-ups relate to their ability to stay in a home where they and their family have been very comfortable with the arrangements. Preventing such top-ups would be a truly perverse way of implementing the Dilnot architecture. We need a more flexible way of coping with this. Therefore I support my noble friend Lord Lipsey’s set of amendments.

On Amendment 56, my noble friend has a very strong point. I say this as someone who spent 10 years wrestling with means tests as a senior civil servant coping with social security. In those 10 years, numerous were the times when we had to cope with unforeseen consequences of what we thought were well designed social policy changes, but which turned out not quite to work when subjected to the scrutiny of the real world across a large population. I congratulate the Government on taking our report and turning it into a largely workable—we have a few doubts, but largely workable—set of arrangements that can be brought into operation quickly. However it would be very optimistic to think that there would be no unforeseen consequences—wrinkles, if I may use the word—which needed to be looked at, in particular in the areas of means-testing and the working of the cap. I emphasise that this is not a job application from the Dilnot commission to make, like Frank Sinatra, another return appearance, but we do need some kind of credible, independent body to take a look at this.

I would just gently remind the noble Earl that, at the end of our report, on page 69, we talked about some of these potential wrinkles, including the potential further changes in and around means-testing, which we did not have time to wrestle with but which we just flagged up for the Government. I will not go into the details but just the headlines. Under “Consistent treatment of housing assets”, we noted the way they are treated differently across the social care means test in terms of domiciliary and residential care—they are not treated on the same basis. There is also the issue of whether the means-test taper actually disincentivises savings and the issue of consistency between the way people in residential and nursing care, where it is not continuing care, have to meet general living costs but do not have to meet them where it is continuing care. We know that there are already some potential anomalies in the way that the new architecture will interact with some of those areas. We flagged that up in the report.

My noble friend has argued for some kind of independent advisory committee. He may not altogether thank me for raising some of these potential further changes but they are issues that have to be wrestled with. The new set of arrangements will throw up their own issues, which will also have to be wrestled with. Some kind of independent advisory committee, looking at the way in which the new scheme has worked and has bedded down, particularly in the area of the means test, would be a valuable contribution. I do not think it is a partisan issue. It would be welcomed across the parties and I hope that the Minister can look a bit more favourably on my noble friend’s amendment.

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, first, I add my voice in support of Amendment 55, in the name of the noble Lord, Lord Lipsey. We have not fully taken into account the impact that the Bill will have, when it becomes an Act and is brought into being, on the many people who are now in care homes and where the funding of those homes will suddenly become much more public. Everybody will report to the local authority to get on the meter and the extent of people’s self-funding will become better known. There will be a sort of explosion if we do not get this right and do not allow people to make top-ups. What are we going to do: assume that some of these people will be moved from the care home that they are in and where they are, we hope, happy to another care home because there is inflexibility with the top-up system? That would be really cruel and I hope that we can get as much flexibility and remove as many restrictions on people as we can.

Several cases have been brought to my attention of people who are already in a care home running out of money. They, or their relatives, cannot afford the whole amount but want to be able to top up the local authority amount, which, at the moment, nobody is fully aware of. As this is all going to become much more public knowledge, it is important to have as much flexibility as possible. I hope the Minister will have another look at this.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, first, I turn to Amendment 55, in the name of the noble Lord, Lord Lipsey, which concerns the circumstances in which people wish to top up their own fees to pay for more expensive accommodation. To begin with, and for the avoidance of any doubt, I will emphasise that I agree that people should be able to choose to spend their own money on more expensive care, provided it is affordable. Like the noble Lord, Lord Lipsey, I want people to be able to choose to live in more expensive accommodation and gain from a cap on care costs, so that they pay part of the cost of care from their own savings and still receive local authority support.

Through the consultation and stakeholder engagement, we are seeking to better understand the impact of relaxing the rules on self-top-ups and to determine what protections may be needed for vulnerable people.

The answer to the question posed by the noble Lord, Lord Hunt, is that consultation will close on 25 October. The Minister of State for Care and Support and departmental officials have, over the past quarter, attended a variety of events covering the care and support sector, local authorities and financial services providers. These have been broadly supportive of the principle that people should be able to contribute towards their care costs from their own assets. Stakeholders have also recognised that people need to make decisions which are financially sustainable for the long term, and that financial information and advice need to play an important role in achieving this. We will be able to provide a more comprehensive overview of the views expressed in our response to the consultation in the new year. I repeat that we are on the noble Lord’s side. Our only concern is to ensure that when we relax the rules, there are sufficient protections, both for the individual and for the local authority.

Amendment 56 concerns review of the operation of the capped-cost system. I am sure we can all agree unhesitatingly that these reforms need to be implemented effectively to deliver the outcomes we are striving for. The capped-cost system will provide peace of mind and protection against catastrophic costs and will target most help at those with the greatest need. I am confident that we can further agree that to deliver these benefits, we need good oversight. Therefore, I am with the noble Lords opposite in spirit. To that end, we will be reviewing and assuring both implementation and funding, and have committed to reviewing the core elements of the capped-costs system within each five-year period. We will also conduct post-legislative scrutiny, as the Government have committed to do across the board for all new Acts. The agreement we have with the Liaison Committee in the other place is that this should be done between three and five years after Royal Assent.

Furthermore, we have established the Joint Implementation and Programme Board with the Local Government Association and the Association of Directors of Adult Social Services. We will use this to work with local government on continuing assurance and improvement of the arrangements. We are confident that, in their totality, these arrangements provide generous opportunity for assurance and review to ensure that the reforms remain true to our vision.

For that reason, I do not believe it would be necessary or desirable to supplement these arrangements with a further review by additional oversight bodies, such as an independent ministerial advisory committee. Such additional oversight would cut across the scrutiny conducted by the Health Select Committee and cross-government planning on spending through spending rounds. I am sure that noble Lords opposite will not be totally satisfied with that, but I hope that they will be sufficiently reassured by the confirmation I have given that we will conduct a proper review of the operation and funding of these reforms through several channels. I hope that they will agree that this amendment is, therefore, unnecessary.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

Before the Minister sits down, is he satisfied that, without the amendment of the noble Lord, Lord Lipsey, there is sufficient flexibility under the system as it is presently provided to allow for the sort of difficulties that are envisaged as possibly coming out after the consultation?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I can reassure my noble and learned friend that, if we look at the arrangements we are proposing in combination, there will be sufficient mechanisms in place to take account of any unexpected wrinkles that emerge of the kind that the noble Lord, Lord Lipsey, perfectly reasonably anticipates; and to react and respond to those difficulties as appropriate. The answer, in a nutshell, is yes.

Amendment 49 agreed.

Amendment 50

Moved by Earl Howe

50: Clause 14, page 13, line 13, at end insert—

“( ) Regulations under subsection (7) may make provision as to cases or circumstances in which an adult is to be treated as having income that would, or as having income that would not, fall below the amount specified in the regulations if a charge were to be made.”

Amendment 50 agreed.

Clause 17: Assessment of financial resources

Amendments 51 to 54

Moved by Earl Howe

51: Clause 17, page 15, line 14, leave out “provide that where” and insert “make provision as to cases or circumstances in which, if”

52: Clause 17, page 15, line 22, leave out “provide that where” and insert “make provision as to cases or circumstances in which, if”

53: Clause 17, page 15, line 38, leave out “financial resources at or” and insert “, or as not having, financial resources”

54: Clause 17, page 15, line 38, at end insert—

“( ) The regulations may make provision as to cases or circumstances in which a local authority is to be treated as—

(a) having carried out a financial assessment in an adult’s case, and

(b) being satisfied on that basis that the adult’s financial resources exceed, or that they do not exceed, the financial limit.”

Amendments 51 to 54 agreed.

Amendments 55 and 56 not moved.

Clause 19: Power to meet needs for care and support

Amendment 57

Moved by Earl Howe

57: Clause 19, page 17, line 5, at end insert—

“( ) A local authority may meet an adult’s needs under subsection (3) where, for example, the adult is terminally ill (within the meaning given in section 82(4) of the Welfare Reform Act 2012).”

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 4:30 pm, 14th October 2013

My Lords, I assure the House that the Government are in agreement with the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. We are working hard to deliver our shared objective of improving care for people approaching the end of their lives. It is in that context that I shall move government Amendment 57.

On the issue of treating the assessment of terminally ill people as urgent, I fully recognise noble Lords’ concerns. With that in view, I have tabled an amendment to make it explicit that the end of life is an example of when local authorities may treat cases as urgent. We do not believe that it would be right to require local authorities to treat all cases in this way—circumstances have to dictate the approach taken—but we agree that clarity around end-of-life cases as examples of urgent situations for the purposes of Clause 19 may provide a useful indication to improve practice. I shall not anticipate noble Lords’ remarks in support of their amendments, so at this stage I beg to move.

Photo of Lord Warner Lord Warner Labour

My Lords, while I welcome Amendment 57, I want to set out the case for the Minister going a good deal further. Amendment 137 follows the discussion in Committee of amendments proposed by the noble Lord, Lord Patel, and myself. We have come back with an alternative amendment, which has also been signed by the noble Baroness, Lady Greengross. We have done this in consultation with voluntary organisations over the summer, and the wording of Amendment 137 reflects those discussions. To summarise, the amendment would enable the Secretary of State, after discussion, to make regulations that did three things: first, allow people to have their preference for place of death recorded by local health and social care services and for that preference to be implemented wherever practicable; secondly, have their care and support needs and those of carers treated as urgent in assessing needs—and we think, reasonably, that Amendment 57 deals with that; and, thirdly, exempt terminally ill patients from adult social care charges.

Since Committee the Government have brought forward Amendment 57 and, as I have said, I think that it meets many of our concerns about urgent assessment at the end of life. It has certainly had the effect of diluting enthusiasm in some parts of the voluntary sector for a more wide-ranging amendment on end-of-life choice, and I slightly backhandedly congratulate the Minister and his civil servants on achieving that. However, I would still like to have another go at trying to convince the Government, and possibly some members of my own Front Bench, that we should be a bit more ambitious.

Around half a million people die each year in England, about two-thirds of them over the age of 75. A century ago most of us would have died in our own homes. Today, most will die in hospital. The latest figures show that in April 2012, about 42% of people died at home or in a care home. This is an improvement from 38% four years previously, but on present trends it will be at least the end of this decade before half of deaths occur in the place of usual residence. These figures of improvement at the national level, however, conceal considerable regional and local variations.

If you live in the south-west, with 48% of deaths occurring in the place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. Of course, as a Londoner I think there are many benefits of living in London, but choosing where I die is not likely to be one of them. There is an even wider variation between local authority areas. The great majority of us want to die at home or the place we normally live rather than, I suggest, the hectic and somewhat impersonal environment of an acute hospital ward. Perversely, we end up not only dying not only in the place where we least want to be but also in the most expensive place.

Marie Curie research has shown that a week of palliative care in the community costs about £1,000 a week, whereas a week of hospital in-patient specialist palliative care costs virtually £3,000 a week. The National End of Life Care Programme shows an estimated potential net saving of £958 per person if you die in the community rather than in hospital. Polling for Macmillan has shown that eight out of 10 health and social care professionals agree that community-based end-of-life care would save money. On top of this, nine out of 10 MPs think their constituents should have the choice to die at home. What is not to like about the first prong of Amendment 137?

I am not trying to dragoon people into dying outside hospital to save money. I want people to have as good and dignified a death as possible, with their friends and families around them. That is more likely to be achieved if they have a right to register their preference for dying at home or their place of normal residence. This would mean fewer people dying in hospital and it would also reduce pressure on A&E departments and acute hospital beds. I suggest that this is a not inconsiderable benefit—as Sir Humphrey would have said—in terms of the cost savings that could arise from allowing people to express their preferences on their right to die at home.

I accept that at this point it may be rushing our fences a bit to pay for exempting terminally-ill patients from local authority care charges. We need some detailed costings and possibly—I suspect the Minister will say this—we need to wait to hear what comes out of the pilot schemes in this area. However, we would also welcome having more information from the Minister on the progress being made in those pilots.

Accepting the first part of Amendment 137 would lay down a clear marker that Parliament wants government to move in the direction that most people want: which is the right to choose to die at home or their place of normal residence wherever practicable. This amendment gives the Government plenty of time to consult on all the detailed arrangements. It does not require those regulations to be made by any particular time and it gives the Government a lot of freedom about what the nature of those regulations might be. We should not miss the chance of this Bill being before Parliament to move in this area and put this change on the statute book. I hope the Minister will respond favourably and be prepared to entertain at Third Reading an amendment of the kind set out in the first prong of Amendment 137. I would certainly be happy—as I am sure my colleagues would—to discuss this further with him.

Photo of Baroness Greengross Baroness Greengross Crossbench

I support the comments made by the noble Lord, Lord Warner, about this amendment. We know that the things people say they dread as their final days approach are loss of dignity and loss of respect, and we hear far too much about poor care at the end of life. Very often, it is poor care because people are not in the place they would like to be. We also know that the number of carers identified and signposted by the NHS to the enhanced support is not widely known. We know that much more needs to be done to draw together all the various approaches—I am involved in one of those approaches at the moment, looking with a group of experts at how to improve end-of-life care with doctors, professionals in end-of-life care and lawyers who deal with patients’ wishes. There is still a lot be looked at and brought together, and this Bill gives us a good chance of getting this right, or at least much nearer to being right than it is at the moment.

As the noble Lord, Lord Warner, mentioned, the coalition of charities has also suggested that end-of-life care should be free at the point of delivery. I know that this requires much more consideration—the noble Lord talked about that. I want to concentrate on hoping that this will be considered and that services to dying people and possible loss of dignity and respect will get a far higher profile as things that need urgent attention. Terminally ill people should have their preferred place of death recorded by local health and social care services. That preference needs to be implemented wherever it is practical. People must have their care and support needs and those of their carers treated as urgent by the local authority responsible for assessing those needs.

For people who are dying, every day is precious. They cannot wait while the bureaucratic wheels grind slowly along, and not always in their favour. I support the amendment tabled by the noble Lord, Lord Warner.

Photo of Lord Patel Lord Patel Crossbench

My Lords, I spoke about this issue when we debated the gracious Speech, at Second Reading and in Committee, when I supported the amendment put forward by the noble Lord, Lord Warner, and today I support Amendment 137. Every time we have debated this, the Minister has been sympathetic to the idea of providing free social care to those who are dying. When I think about this amendment, I think of a patient who has just been told of a diagnosis of terminal cancer, that their life will now last a few months at the most, and that medicine cannot offer much more than perhaps palliative care or treatment of some kind. Once the patient and the family have recovered from the shock, their immediate thoughts are, “Can I cope with my life—which will now be very short—at home, and what support can I get?”.

Currently, the means test for free social care can represent a barrier for those who wish to die at home. It makes it unaffordable for some, but it also means that the person may be passed between the local authority and the NHS while the two systems decide who is eligible for care and whether it should be free or means-tested. Government Amendment 57 is a demonstration of the Minister’s clear intention. He wishes to see this happen, and I thank him for moving this amendment, but it does not go far enough to achieve what I think he, too, wishes to achieve.

The second subsection in the new clause proposed by Amendment 137 is addressed, at least in part, by government Amendment 57. However, Amendment 57 does not introduce any new duties for local authorities. It highlights the existing ability of local authorities to regard the care and support needs of people at the end of life as urgent. In contrast, Amendment 137 allows the Government to introduce secondary legislation to require local authorities to regard the assessment of needs at the end of life as urgent. If the intention of the government amendment is to do that, is it clear enough? The final part of Amendment 137 relates to free social care at the end of life. Research suggests that the introduction of free social care at the end of life has broad-based support. I believe this will help to prevent expensive, unnecessary hospital admissions, prevent burdensome financial assessment during a difficult time and is an important part of giving people genuine choice at the end of life.

From the debates we have had I believe the Government, and particularly the noble Earl, are sympathetic to the idea of providing free social care for the terminally ill. The Government stated in the care and support White Paper that they see,

“much merit in providing free … social care … at the end of life”.

Indeed, they committed £1.8 million to collect the data necessary to assess the policy’s benefit through the palliative care funding review pilots. I recognise the importance of the PCFR pilots in providing data on how a system for funding end-of-life care can be implemented. When they launched the pilots the Government committed to introducing the new funding system in 2015, following the conclusion of the pilots in 2014.

I seek a firm commitment from the Government that they will make a decision by the end of this

Parliament on free social care at the end of life. Indeed, the Joint Committee on the draft Care and Support Bill called for free social care at the end of life to be introduced, “at the earliest opportunity”, and the Government had confirmed that the Care Bill provides a statutory framework to implement free social care at the end of life in the future.

There needs to be a firm commitment from the Government and a timetable for making a final decision and implementing the policy. Do the Government still support the principle of free social care at the end of life and giving patients the choice of dying at home? Are they confident that the pilots will be able to collect enough data to implement free social care at the end of life? What assessment have the Government made of the number of people who will be unable to die at home if this choice is not implemented by 2016? Finally, what assessment have they made of the savings for hospitals of enabling patients at the end of life to be cared for and die at home? I look forward to the noble Earl’s response.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Crossbench 4:45 pm, 14th October 2013

My Lords, I declare all my interests in this field, which are listed. These amendments are incredibly important for patients who are dying. The Government’s amendment is to be welcomed; I can see no problems with it. It might sound bizarre but I have some slight anxieties over the wording in two places in Amendment 137. It refers to a preferred place of death, whereas I would rather see the words, “preferred place of care”. Many people who are dying know that they want to spend their last days, weeks or months at home. They want to have everything done to support them at home, particularly out of hours. We have debated this for some time within my own specialist teams and specialist services. We are worried that there could be two unintended consequences. People who are not yet ready to confront the fact that they really are dying will be pushed to have that conversation before they are ready, which would be traumatic. There could also be the unintended consequence of some kind of target developing and patients being whipped out of one place of care.

The difficulty we see clinically is that when clinical situations change, patients sometimes change their mind. It is not uncommon for someone who originally said they wanted to die at home to say, when they really are dying, that they feel safer where they are and want their family brought in and as much of a home environment created as possible. It may be the regulations at ward level, or the way in which they are interpreted, which are blocking that and need to be addressed. For example, it does not matter at all if you have a husband on an all-female ward, but I have occasionally known staff to think that it does and that it is not appropriate to have a man stay overnight, which is absolutely appalling. Staff need to recreate the home environment where that person is as much as possible. However, if they have complex needs or unstable symptoms, they may well feel safer in whichever place they are, whether it is hospice or hospital.

In looking at the amendment I also tried to get some details of how many patients are successful under the DS1500 special rules. It is quite difficult, because I understand that the Department for Work and Pensions does not routinely collect that data. However, it seems as if in the year 2011-12, 11% of all successful claims were for the category of patients who were deemed to be terminally ill. One of the difficulties when you are looking at local authority charges for adult social care is that we cannot predict prognosis. That is always the catch with defining terminal illness. We are making our best guess, as it says in the Welfare Reform Act, as to whether someone can “reasonably be expected” to die within six months, but it is no better than that. It is a guess. There are patients who outlive their prognosis. I understand that the DWP does not push for reassessment inside three years, so there is quite a lengthy period of leeway. The potential difficulty that I can see unless this is really thought through and costed is that if somebody turns out not to be dying, what will then happen? Would they be forced to go through a reassessment? Would that then be used to try to claim back money from them afterwards? I raise those questions which would have to be thought through very carefully.

I certainly find it difficult—in fact, offensive—when people have to be assessed for care when they are quite clearly dying. However, there is that group of people you really do not know about. They appear as if they are dying. They tend to be more in the non-cancer rather than the cancer population, where their prognosis prediction becomes really difficult.

Those are just some caveats, although I support the spirit of the amendment wholeheartedly in terms of having patients where they want to be. However, as I said before, we need to focus on their place of care during their last days, weeks and months, and not only on their place of death.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I very much welcome government Amendment 57. Of course, I have supported the recommendation of the Joint Committee on this matter, and continue to do so. Subsection (a) of Amendment 137 is important as a way forward. However, the difficulties to which the noble Baroness, Lady Finlay, has referred, are quite important in this connection. Many people in terminal situations would find a hospice one of the best places to go if that choice were open to them. Many people, of course, would prefer to die at home in a family situation. The hospices are normally able to engender a family atmosphere around death. People I have spoken to in the hospices have said, “If you have to die, this is the place to do so”; the “if” is not all that important.

There are practical questions to be taken into account, but it would be quite a step forward if the Government were able to come forward at Third Reading with an amendment which allowed some form of indication of the place of care, as the noble Baroness, Lady Finlay, says, or the place where one would wish to terminate one’s life in a way that was registered, so that those responsible would be able to give effect to it, so far as is possible, having regard to the changes that can take place in the last few months, days and hours.

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords)

My Lords, we welcome another opportunity to consider the very important issue of how people are cared for at the end of their life. The

Joint Committee on the Bill urged progress on this vital matter and strongly endorsed the case for the introduction at the earliest opportunity of free social care for terminally ill people. In this context, the Government’s amendment is very much work in progress as it makes explicit the local authority’s power to treat end-of-life care as urgent, in a similar way to how fast-tracked access to welfare benefits such as the disabled living allowance is expedited and works in practice under other legislation, which the noble Baroness, Lady Finlay referred to. The amendment makes it clear that local authorities have the ability to consider the needs of terminally ill people as urgent and to meet their needs ahead of conducting assessments.

We welcome this provision. Many councils already fast track social care in this way, and I hope that this amendment will give those councils that do not the push and impetus that they need to take up this very self-evident and fundamental requirement. The new clause in the Bill is rightly welcomed by the Sue Ryder Foundation, Help the Hospices and Macmillan Cancer Support. However, as Macmillan also points out, the provision is permissive and does not legally require local authorities to meet a terminally ill person’s need for care and support without a needs or financial assessment.

We recognise that there is still much work to be done on this matter. The Government are currently undertaking a review and refocus of the end-of-life strategy and I read in the press over the summer that it was shortly to be published. It is now six years since the strategy was introduced under Labour so I would be grateful if the Minister could update the House on the timetable for that.

As we recognised during the debate in Committee, the results of the seven adult and one children’s palliative care pilots will be crucial to considering the move towards the provision of free end-of-life care as called for by the Joint Committee and as set out in Amendment 137 in the name of my noble friend Lord Warner, supported by the noble Baroness, Lady Greengross, and the noble Lord, Lord Patel. We need to understand current patterns and resource use across health and social care at the end of life, and to have the vital data—from across care provided by the NHS, social care, and the voluntary and private sectors—from which the costs of an integrated end-of-life care system can be properly assessed. The Minister reassured the House that the pilots are on track, despite the handover of responsibility to NHS England and concerns that the work was falling behind. We certainly hope that this is the case as the pilot findings will be so important to how future services can be shaped and delivered.

We acknowledge and share the Government’s concerns about the issues raised in Amendment 137 that the infrastructure may not be in place to support people’s preferences about where they wish to die; commissioners need to be sure that the right services are in place in the community to support people being looked after in their home. My own party is currently working on this as part of our policy review and whole-person care commission, and I know that my noble friend Lord Warner’s contribution to that work will be much appreciated and valued. Enabling NHS patients to have the right to die in the place they regard as home or their normal residence can be achieved only if end-of-life care is fully integrated across the NHS, local councils and hospices, to foster mechanisms to make it achievable and not simply an aspiration.

Once again, the position of carers of people who are terminally ill, as well as those they are caring for, needs to remain to the fore when we are looking at this matter. In Committee my noble friend Lady Pitkeathley cited the Carers UK survey that showed just how much more support is needed for carers to help them think and plan for the end of life of the person they are caring for—something that we can and should be taking action on now. Many carers just do not know how to plan for the death of a loved one and how to try to look ahead when caring ends—returning to or taking up work, social contact and managing financially.

One of our bereaved carers I spoke to recently through our local Carer Support Elmbridge had had a nightmare experience over funding and not being able to ascertain who was paying for what in the transition from social care to NHS continuing care before her husband died. This included two months’ overpayment by social services, which had to be sorted out after the death, at a time of great anxiety about family finances. To add to this, an ambulance turned up two months after her husband’s death to take him to his routine blood test at the local hospital. Your Lordships can imagine how devastating this experience was for the carer. Sadly, this is not an isolated case, and an integrated end-of-life strategy has to make sure that these things do not happen.

Finally, in Committee I raised the issue of access to palliative care and end-of-life care for BME groups following the recent and alarming findings of the Marie Curie Cancer Care and Public Health England survey and the shockingly low use of these services among black, Asian and ethnic minority groups. The report identified major problems involving lack of knowledge about services, misunderstanding, mistrust and a lack of cultural sensitivity on the part of providers. In his August letter to noble Lords, the Minister referred to the work that NHS England is undertaking on this in conjunction with palliative care pilots. Will the Government be responding specifically to the Public Health England report, or is it part of the strategy review and refocus? Will the Minister set out for the House the Government’s outline timetable for the review and publication consultation, the timing of the publication of the pilot’s results, as requested by my noble friend Lord Warner, and the introduction of the new funding system for palliative care as promised for 2015?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 5:00 pm, 14th October 2013

My Lords, I am grateful to noble Lords for expressing their views on this important subject so eloquently. As I said in Committee, I support the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. In looking at the amendment, the first essential question is whether we need to take legal powers in this Bill to fulfil those objectives.

I want to assure noble Lords that we already have the necessary legal powers to implement both choice in end-of-life care and a new palliative care funding system. In relation to choice, there is already a power in Section 6E of the National Health Service Act 2006 to make regulations, or standing rules, to require NHS England and clinical commissioning groups to make arrangements for patient choice in respect of specified treatments or services. We would use these powers to implement a choice offer in end-of-life care.

As noble Lords know, making the changes to the system required to offer real choice, which includes enhancements in community palliative care services, will not be straightforward. Not least of the issues is the cost of making these changes. I agree with noble Lords that there is the potential for savings to be made in moving these services out of hospitals and into the community. However, one of the most comprehensive studies in this area, the Cochrane review found that while there were small but significant improvements from community-based palliative care, the evidence for its cost-effectiveness was inconclusive.

We must also guard against the danger of making changes too quickly, and I am thinking of a particular danger. It would be in no one’s interests if the upfront investment required to enhance community services came at the expense of existing services. That is why the Department of Health and NHS England will be working together, and with organisations from across the end-of-life and palliative care sector, on a review of the timescale for introducing this choice offer at a time that will be right for patients and for those in the NHS working in this vital area. We have to ensure that when a choice offer is introduced, it will be a real choice backed by a system that is able to deliver it.

On palliative care funding, as I stated earlier, the Government’s position remains that there is much merit in providing free health and social care in a fully integrated service at the end of life. One of the key conclusions of the Palliative Care Funding Review was:

“There is a stunning lack of good data surrounding costs for palliative care in England”.

We responded to that by establishing eight palliative care funding pilots, involving more than 80 organisations. The noble Lord, Lord Patel, asked me whether those pilots were essentially big enough to produce meaningful results. The palliative care pilots cover 80 organisations in those eight areas and we are confident that they will give us sufficient evidence to design a new palliative care funding system. We need to be absolutely sure that the evidence being gathered by the pilots, which are running for two years, until 2014, is thoroughly analysed and a complete picture is available to both the department and NHS England before the details of the new funding system are finalised. To answer the noble Lord, Lord Patel, yes, we are acutely aware of the benefits of introducing a new system in this important area.

The noble Baroness, Lady Wheeler, asked about the pilots. The Public Health England review that is taking place welcomed the work that is going on. NHS England is also looking at this, in conjunction with its review of the end-of-life strategy. As regards the timetable for that, NHS England is working to publish early in the new year. Supported by the data from the pilots, we aim to have a new funding system in place by 2015, a year sooner than the review proposed. Similar to any new policies on choice in end-of-life care, this can also be introduced through secondary legislation. In this case, Clause 14(6) of the Bill provides powers to make regulations that prohibit local authorities from making charges in specific cases.

I hope I have convinced noble Lords that I am very much behind their laudable aims in tabling this amendment and I completely understand their desire for us to do the right thing. I am grateful for the opportunity to set out on the Floor of the House the Government’s commitment to delivering solutions in relation to end-of-life care. But I hope I have also persuaded noble Lords that decisions on end-of-life care funding and on choice of place of death cannot be taken lightly or inadvisedly, and that we must first take account of the evidence and implications.

I am doubtful that I will be able to say anything further on these subjects at Third Reading beyond what I have said today, but I would of course be more than happy to meet with the noble Lords, Lord Warner and Lord Patel, and other noble Lords, after Report to explore the practicalities around all these issues, and indeed some of the very pertinent issues raised by the noble Baroness, Lady Finlay. I hope that for now noble Lords are assured that our plans for quality and choice in end-of-life care will deliver improvements, and that they feel sufficiently assured to withdraw their amendment.

Amendment 57 agreed.

Photo of Lord Warner Lord Warner Labour

I thought I had a right to respond to the noble Earl on Amendment 137.

Photo of Lord Colwyn Lord Colwyn Deputy Chairman of Committees, Deputy Speaker (Lords)

It was the noble Earl’s amendment. Can we go back to it? We cannot.

Clause 20: Duty and power to meet a carer’s needs for support

Amendment 58 not moved.

Clause 24: The steps for the local authority to take

Amendment 59

Moved by Earl Howe

59: Clause 24, page 21, line 1, leave out subsection (3) and insert—

“(3) Where a local authority is not going to meet an adult’s needs for care and support, it must nonetheless prepare an independent personal budget for the adult (see section 28) if—

(a) the needs meet the eligibility criteria,

(b) at least some of the needs are not being met by a carer, and

(c) the adult is ordinarily resident in the authority’s area or is present in its area but of no settled residence.”

Amendment 59 agreed.

Clause 25: Care and support plan, support plan

Amendments 60 and 61 not moved.

Amendment 62

Moved by Earl Howe

62: Clause 25, page 22, line 20, leave out subsection (11) and insert—

“(11) A local authority may combine a care and support plan or a support plan with a plan (whether or not prepared by it and whether or not under this Part) relating to another person only if the adult for whom the care and support plan or the support plan is being prepared agrees and—

(a) where the combination would include a plan prepared for another adult, that other adult agrees;

(b) where the combination would include a plan prepared for a child (including a young carer), the consent condition is met in relation to the child.

(11A) The consent condition is met in relation to a child if—

(a) the child has capacity or is competent to agree to the plans being combined and does so agree, or

(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that the combining the plans would be in the child’s best interests.”

Amendment 62 agreed.

Clause 35: Deferred payment agreements and loans: further provision

Amendment 62A

Moved by Lord Lipsey

62A: Clause 35, page 29, line 27, at end insert—

“( ) Regulations under this section must provide that—

(a) a local authority shall direct anyone considering a deferred payment arrangement to an appropriately qualified financial adviser or to appropriately qualified financial advisers; and

(b) any loan under this scheme shall be sufficient to pay for advice under paragraph (a) above.

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, am I speaking at the right time on the right subject?

A noble Lord:

Yes.

Photo of Lord Lipsey Lord Lipsey Labour

That is a great relief to me. I will come to the narrow-ish point in the amendments shortly but I want to put them in context.

One of the reasons why advice is absolutely crucial in the deferred payments scheme is that this is one of the least understood and least explored facets of the Bill. I will come on to one or two aspects of that. In a way, it makes it hard to make the case for the importance of advice, because so many things on which advice will be needed have not yet seen the light of day. In Committee I referred to some of the unresolved issues that have been raised by Partnership, the Equity Release Council and others. They will emerge, and this will make it clearer why advice is needed.

I will first put the issue in the following context, to show how unexplored it is. If the noble Earl, Lord Howe, will forgive me, I will correct something that he said in Committee. He said that 40,000 people each year have to sell their house to pay for care. I think that the noble Earl mis-spoke and that he meant to say, “up to 40,000”. That is the explanation that has come to me of what he said. I make no complaint; it is hard when one’s words are examined in such terrible detail.

I have spent a surprising—perhaps wasted—amount of my time trying to trace the figure that 40,000 people each year are forced to sell their home to pay for care. I have been doing it ever since I sat on the royal commission 15 years ago. When we were sitting on the royal commission, we eventually found a very dodgy piece of research, now more than 20 years old, which kind of concluded that the number might be about 40,000. Of course, what happened was not that the piece of research was examined and found to be accurate but that the figure got into the Daily Mail cuttings library, so that every time that paper campaigned against people having to sell their house to pay for care—I praise it for this—the figure was repeated, until it became accepted throughout the world as the number involved.

Having spent all these years studying the subject, I am very tempted to go into greater detail, but I do not think that the House would thank me for it. However, I refer any noble Lord who might be interested to the Full Fact website. It is a fact-checking organisation, of which I am a director, which goes into the matter in minute but very clear detail, and points out that the Government’s claim is based on exploratory research that is almost 20 years out of date.

More importantly, the 40,000 figure is used as if it were the number of people who are forced to sell their house. “Forced” is a funny word in this context. For most people who go into a home, selling their house is the sensible thing to do to fund the cost of care. You do not want to leave the house empty; that benefits nobody. It does not provide housing for anybody; the house starts to crumble and is worth less to you and your family, so you had best sell it and get something that is more suitable. However, the deferred payment scheme is so important because there are people for whom that is not true. For example, some people want their families to live in their house and therefore cannot get cash for it. That is why we have a deferred payment scheme. “Forced” suggests that this is something dreadful in all cases, when in fact it is dreadful in some cases. It is absolutely right, as I said before, that we have such a scheme for some cases but not for all cases.

I now come to another severe complication, and I am afraid that I will have to resort to the vernacular in order to make clear to the House what has happened. The original scheme put forward by Dilnot has had its balls cut off by the Government in the consultation document. That is not too strong a way of putting it, and I will explain why. Yes, every council will offer a scheme, but there is now a huge restriction that will mean that very few people will take advantage of the deferred payment scheme. It would not in any case have been 40,000, but now I think that it will be nearly nil. Why is that? The consultation paper makes it clear, in paragraph 150 on page 44, that you are eligible for a deferred payment loan only if your other assets in total come to less than £23,250. If you have more than that, you have to spend down until you have £23,250 left in the bank or wherever it is, and then you can consider a deferred payment scheme. However, most people who have reasonably valuable houses, who are the people most likely to want to adopt this measure, will have far more than £23,250 worth of other assets. Most of them will not feel the least bit happy if they have to spend down until they have only £23,250 left in the bank before they can get any help from the deferred payment scheme. That hardly pays for a daily delivery of the

Racing Post for the rest of their lives, their nightly gin and tonic or more important things such as the literature they want to read or all the things that make their life fuller. For those people, a deferred payment scheme is simply not available.

You have to think about the timing of this measure. In theory, people could let their money run down to the £23,250 sum and then apply for a deferred payment scheme, but what is going to happen to the house in the mean time? They must either let it or leave it empty. Something has to happen with it. Usually, people make decisions about funding when they go into a care home. That is the moment when a deferred payment scheme has to come into effect if it is to be effective. However, the answer given to most people with funds of £23,250 will be, “You might want to do this but you can’t because the Government say that you can’t”.

I am a veteran of the long struggles that have taken place on this issue, with the politicians saying that we need a deferred payment scheme because it is wrong that people should be forced to sell their houses and officials saying that it will be expensive and a nuisance, and blocking it. I do not know whether that is what happened in this case but, as I say, this is now a castrated deferred payment system with a brutal limitation imposed by the consultation document, which was nowhere heralded or mentioned when the scheme was drawn up. That is very sad. Indeed, it is more than very sad; it will cause fury because people have read in their newspapers that a deferred payment scheme means they will not have to sell their house. However, they will then find that they will have to do so because of this arbitrary change by the Government. The result will be fury.

I support the Bill strongly but one of my concerns about it is that I fear that in various ways it falls short of the billing it has been given. That is certainly true of the cap, which will be reached only at the rate of local authority payments. The issue we are discussing is another case in point. People will believe that the Government have dealt with this problem but they have not. That was an error and I hope that the Government will think again about this.

One thing that might help a little when people reach the stage when they need to think about deferred payments and that sort of thing is if they are directed to proper advice so that someone who is on their side—their financial adviser—can explain to them why they are not eligible, if an explanation can be given, or perhaps suggest alternatives to the deferred payment scheme. For example, if you take out a deferred payment scheme, an alternative would be to let your house and use the money you receive in rent to pay for your care. A financial adviser will point to that. That alternative has various advantages and disadvantages: for example, you avoid paying interest on the money but you have to pay tax on the income. I will not go into all the complications but it is crucial that people get the right advice.

To return to my previous point, I tried out this discovery of the £23,250 limit, which I made courtesy of an adviser only last week, on three Members of this House who are most knowledgeable about the subject of care, and not one of them knew about it, which must mean that it is pretty obscure.

To try to dispose of a red herring that gets thrown in the way of this subject, I am not saying in the amendment that people should be forced to take financial advice. You cannot force people to do so. If it is forced advice, they will not take it seriously and it will not work. However, the council can point people in the direction of financial advice—not to an individual financial adviser because councils do not know which of them offers good advice—but to somebody who is appropriately qualified to give people the advice they need. The consultation paper pays lip service to this in paragraphs 171 to 174. However, we need more than lips; we need teeth if people are to get the advice they need to navigate around this very complicated aspect of the Bill.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords 5:15 pm, 14th October 2013

My Lords, this is an important subject. Clause 34 provides for deferred payment agreements and loans. In such an agreement,

“the charges or loan advanced is repaid by the adult or from their estate at a later specified date, or on the happening of a specified event, such as the sale of property. The debt is normally secured against the person’s property to ensure repayment”.

I say at once that we welcome the support to be given to such a scheme. However, I hope that the noble Earl will be able to respond to my noble friend on the point that he raised. His essential argument is that the scheme as originally recommended has been severely restricted, as indicated in paragraph 150 of the consultation, whereby a person is eligible only if other assets are less than the £23,250 limit. Can the noble Earl confirm that figure? If so, can he estimate for the House how many people he thinks are likely to want to use the scheme? The 40,000 figure seems even more mythical if people’s other assets have to be reduced to such a level. We need to clear up that important point either today or, if the Minister is unable to do so, perhaps on Third Reading.

I wish to speak now to my Amendment 63. One worry which we discussed in Committee concerns how local authorities are to run these schemes, and that worry remains. My noble friend Lord Lipsey spoke in Committee of his concerns about the creation of administrative difficulties for local authorities because each local authority would have to design and implement its own scheme. There would be a risk not only that the amount of energy which each authority had to expend would be extremely wasteful but that some very poor quality schemes could be developed. My noble friend Lord Warner, when discussing the balance of arguments between a national scheme or local schemes, said:

“The worst of all worlds would be not to take hold of this issue and leave it to a marketplace of 152 different bodies”— in other words, local authorities—

“without much guidance or assistance with compatibility of IT and issues of that kind”.—[ Official Report , 22/7/13; col. 1065.]

In Committee the noble Earl seemed a bit reluctant to accept the need for national direction in this area. The fact is that only a minority of local authorities currently operate deferred payment schemes. The local authorities’ responsibilities that we have discussed in relation to the Bill are many and extensive, and I shall not go through the list again. There is no doubt whatever that there are worries about whether local authorities really have the capacity to implement the legislation as noble Lords require. Instead of these 152 local authorities having all to develop their own deferred payment schemes, surely there is a persuasive case for a model scheme to be drawn up based on the experience of local authorities which are already operating a scheme but which are in a minority at the moment.

I have little doubt that a model scheme would save money by reducing the work that an individual local authority would have to do. The scheme would be informed by best practice and individual decisions would still be left to individual local authorities because they would be given a model scheme to which they could make adjustments. I should have thought that that would help ensure that the use of deferred payments would be developed and expanded as effectively as possible. I very much hope that the noble Earl will be able to agree to this amendment.

Photo of Lord Warner Lord Warner Labour

My Lords, I rise again as the keeper of the Dilnot tablets on the subject of deferred payments. If we had intended that access to a deferred payment scheme was to be limited to people with assets less than £23,000, we would have said so in our report. That was not what we intended. I commend the report to the noble Lord, and I hope the House will forgive me if I just cite a few bits of it.

I refer the noble Lord to page 41 of our report. We said:

“Evidence submitted to the Commission suggests that the availability and use of deferred payment schemes is patchy”,

and we went on to explain that. The government consultation document suggests that it will continue to be pretty patchy as well because very few people are likely to come forward for this. We said—and this was a recommendation:

“At a minimum, the Commission recommends an extension to the current deferred payment scheme so that it is a full, universal offer across the country.”

That is what we said.

The Government have given the impression in various interviews—I have gone head to head with government spokesmen about this on a number of programmes—that they were going to support an extended deferred payment scheme and that it would be pretty much similar across the country. If you had a deferred payment scheme in Cumberland, it would look remarkably like a deferred payment scheme in Cornwall. It seems that we are getting into a position where none of this will be the case. It is pretty rough on the public if the Government and their spokesmen are giving the impression that they are implementing the Dilnot recommendations on deferred payment schemes when they are palpably not doing so under the present set of proposals as I understand them.

It is not too late for the sinner to repent—the consultation period is open until later this month. However, it is necessary to revisit this in terms of what government policy is on this particular issue, both in terms of access to a deferred payment scheme and on the issue of a model scheme. The two go hand in hand. It is no good having a model scheme if it is a model scheme for a handful of cases in different parts of the country. We need a model scheme that is actually available so that people who want to cope with the issue of how they fund their care can access a deferred payment scheme. It is always a risk when you are on a committee such as the Dilnot committee that, quietly and unobtrusively, the bureaucracies will nibble away at well intentioned recommendations. Some of us have had this experience ourselves, and some of us have done a bit of nibbling as well from time to time as civil servants, so we recognise nibbling when it is going on. We are in that position here.

It is down to the Minister to start some discussions about this issue, not to leave things to the marketplace, and not to give the public impression that there is going to be a widely available deferred payments scheme when, in fact, it is going to be available only to a fairly limited number of people.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

I do not understand why it is necessary to have any kind of limit in relation to this matter so long as there is sufficient security to allow the deferred payment to be feasible from the point of view of the Government. The proposition that the deferred payment scheme should be limited by the amount of assets a person has strikes me as rather unnecessary. So far as a model scheme is concerned, I would have thought that there is a lot to be said for having a form of document which is universal. There would of course be the possibility of different particular provisions relating to particular cases, but the central core of a deferred payment agreement could be put in a form of universal application.

Photo of Baroness Barker Baroness Barker Liberal Democrat 5:30 pm, 14th October 2013

My Lords, I rise only to ask a question. I agree with the noble Lords, Lord Warner and Lord Lipsey, that a deferred payment scheme was an important selling point for the Dilnot report. Even though very few local authorities are running such schemes at the moment, it is an important and live issue in the minds of older people and their families; it is one that they dwell on quite a lot. I want to ask the keeper of the Dilnot tablets—who is not a character from Harry Potter—whether the commission gave any consideration to setting a figure as outlined by the noble Lord, Lord Lipsey. Did it have a level of assets in mind that people should be able to exclude?

When the noble Lord, Lord Hunt, talks about a scheme, is it a model that would apply to individuals or is it really a model that would apply to local authorities and their ability to carry the costs of the Dilnot scheme in their area for a defined period of time? I can see what the noble Lord, Lord Hunt, is saying in terms of having a model, but I am slightly confused about it. Perhaps when the Minister comes to reply, in telling us about the Government’s thinking on all of this, he might address what to me appears to be the key underlying factor.

Photo of Lord Warner Lord Warner Labour

My Lords, perhaps it would help the House if the character from Hogwarts actually explained what was going on in our minds when we made the recommendation. I shall quote a sentence from the report:

“In making this change, we believe it would be sensible for local authorities to be allowed to charge interest to recover their costs, to make the scheme cost neutral”.

We were not trying to second-guess how many applicants there would be, but it would be sensible to set up a scheme that worked in a way which did not actually cause a charge to be made on the Exchequer for the running of the scheme.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, perhaps I may deal first with the initial point raised by the noble Lord, Lord Lipsey, about the figure that I quoted in Committee. He asked whether I had in fact meant to say that up to 40,000 people might have to sell their homes every year. The answer is that I should have said “up to 40,000”. I am afraid that there is a conscious element of vagueness in the figure because there is no one comprehensive source to provide information about what the precise figure actually is. We have arrived at a figure of up to 40,000 as the best estimate. I hope and believe that over the summer my officials provided the noble Lord with a breakdown on how we reached that figure and that he has found the information useful. The point of quoting the figure is that we believe that it is around the number of people who could benefit from the arrangements we are discussing. I apologise if I misled the Committee and the House in stating a figure that sounded precise when I should have been a little more circumspect.

The second issue raised by the noble Lord was about the deferred payment scheme and his perception that the Government have effectively emasculated it. I do not share that perception. There will be some circumstances in which local authorities must offer a deferred payment, and that is when the Bill specifies that the local authority would be under a duty to offer a deferred payment. We are consulting on the eligibility criteria for when people must be offered a deferred payment, which is where the figure of 23,250 is used. The Bill has an additional power for local authorities to offer deferred payments more widely, and we are seeking views on this through the consultation. My noble and learned friend Lord Mackay asked why we need limits at all. It is our policy intent that deferred payments will be available more widely and consistently than they currently are, which I think is what the Dilnot commission intended us to do. We need to ensure, however—

Photo of Lord Warner Lord Warner Labour

Perhaps I may correct the noble Earl. We actually referred to a universal and standard scheme. We assumed that such a scheme would be wider, but we were looking for a standard scheme that would make this widely available. That is the part which is missing from the Government’s reassurances.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I shall come on to the standard scheme proposal in a moment. We need to ensure that this arrangement is rolled out in a way that is financially sustainable for the local authority in each case. We will be supporting the implementation of the capped costs system and an extension of deferred payments with £335 million, which should enable this to happen.

I shall move on to the amendments themselves. I hope that the House will forgive me if I do not rehearse at length the same points that I made about financial advice last week, but I should like to take a moment to reassure the noble Lord, Lord Lipsey, on the specifics of his proposal. It is imperative that everyone has access to sound, reliable information and advice while making decisions about their care to ensure that any option they choose makes good financial sense for them and is sustainable in the long term. It is clear that local authorities have a central role to play in ensuring that their local populations are aware of the range of information and advice, both regulated and non-regulated, that is available to them and that they know how to access it. Last Wednesday, your Lordships accepted my Amendments 16 and 17 which clarify this. The noble Lord’s amendment would underscore the need to make sure that everyone who decides to take out a deferred payment agreement reaches that decision in a considered and informed manner. I agree that that should be the case. All too often, people do not plan ahead for the possibility of needing care and so can find themselves having to make important and lasting financial decisions in a moment of crisis.

Deferred payment agreements can be used to reduce some of this urgency and ought to be accessible to ensure that they provide the peace of mind that they are intended to. For this reason I would hesitate to make the process through which a person can access a deferred payment too onerous. We are currently consulting on the information and advice a person should receive before taking out a deferred payment agreement. We will listen carefully to what is said and we will use this to inform the approach that should be taken. I have already given the noble Lord my undertaking to discuss further what remaining differences we have about financial advice, if any, and I hope that those discussions will allow us to explain in more detail our policy intentions and what our own government amendments in this area aim to achieve. I hope that the noble Lord will agree that we are essentially of the same view about this and that he will be content to discuss the matter with me further outside the Chamber. That being so, I hope that he is sufficiently reassured today to withdraw his amendment.

I turn to Amendment 63, tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Wheeler. We are in concordance with them that a model deferred payment agreement would help local authorities and that is why we already have one in place for the schemes that are currently operating. What we intend to do now is build on and improve the current model. In doing that, we will work in partnership with local authorities to learn from the well established schemes, some of which have a decade of experience. While the case for a model scheme is clear, I think it would be wrong to mandate national systems and structures for deferred payment agreements. It is important that we strike the right balance between local flexibility and national consistency. Systems and structures must be developed in partnership with local government and allow for and, indeed, encourage local efficiencies to flourish. As noble Lords may know, we have established with the Local Government Association and the Association of Directors of Adult Social Services the joint implementation and programme board to support the implementation of these reforms more generally and, through this, we will support local authorities to deliver the universal scheme from April 2015. This work will include our commitment to providing a model deferred payment scheme, based on the current model, as well as statutory guidance to support local authorities in exercising these functions.

The statutory guidance on deferred payments, in particular, will have a clear legal status. Local authorities must act under this guidance. This means that they must consider and should follow it, unless they have a justifiable reason not to do so. This would seem to be the same status as is envisaged by noble Lords in their amendment. I hope therefore the noble Lord feels able to withdraw his amendment in light of the reassurance I have given on supporting local authorities to deliver the universal deferred payment scheme and the model agreement in particular.

My noble friend Lady Barker asked whether the scheme was a model for how local authorities manage the burden on themselves. This is not designed to be a scheme that makes a profit for local authorities. The interest rate is likely to be set at a rate which recognises local authority borrowing rates, and so ensures that the scheme is cost-neutral.

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, I thank the Minister for that reply. On the first two of the three legs of his argument, I am happy to support what he said. Through helpful discussions over the summer, I understood that he had meant to say “up to 40,000.” I make no criticism of him for misleading the House. Any misleading he did is on a tiny scale compared with the misleading that has taken place with the whole country through these repeated cuttings file references. History will now have on record in this debate the truth about these numbers. That is a form of progress, if not legislative progress.

Secondly, I should like to thank the noble Earl for what he said about advice. We are near to having another meeting before Third Reading on advice. We are all after the same things on advice with the same constraints. We have not quite cracked it yet, but I hope when the House comes back on Third Reading to the matter of advice, we shall do so, either in the form of an amendment, or of a shared understanding on where we are going which might take the form of regulation or guidance. On those two things, I agree with the Minister.

However the Minister did not confront my most important point. Let us be absolutely clear. This Bill does not provide a universal deferred payments scheme. It provides a deferred payments scheme only for people who have less than £23,250 in assets. There is no universal deferred payments scheme. Further, this has been done in a back-door manner which disgraces the Government. It was not in Dilnot. We have heard decisive testimony on that from my noble friend Lord Warner. It was not in the Government’s announcement of their response to Dilnot. It was not in the Second

Reading speeches. It came out between stages of the Bill in this consultation document. The noble Earl suggested that there would be people with more than £23,250 who could benefit from deferred payments so we did not have to worry. The relevant bit from paragraph 154 of the consultation document says:

“More generally, we also intend that authorities should have the discretion to provide deferred payments to people in residential care who do not necessarily meet all of the mandated criteria.”

Those criteria include the £23,250, so that sounds quite good. The next sentence says:

“For example, if someone has slightly more savings”—

I stress the phrase 5“slightly more savings”—

“than the £23,250 threshold but would qualify for a deferred payment soon, an authority might prefer to offer the option upfront.”

That is a tiny loophole. This is essentially a £23,250 threshold that the Government have smuggled in, telling nobody until they had to produce this document and hoping no doubt that by 25 October, nobody would have noticed. I shall tell you who will notice. The Daily Mail will notice. The Daily Mail and other newspapers which campaigned so that people would not have their houses seized—I applaud them and have applauded them before for doing so—are now going to learn that the Government have welched on the deal. The tsunami that will hit the Government in consequence will hurt not only this proposal but the Government as a whole.

I urge the Minister to indicate at the earliest possible opportunity that the Government will give this matter fundamental reconsideration. If he does not so indicate, I am afraid that the consequences for him and for the integrity of the whole Dilnot scheme will be considerable. The Government have got to look at it again. The House may wish to reconsider this matter—which, after all, has only come up this afternoon—at Third Reading, with appropriate amendments designed to undo what the Government are attempting to do. I shall not push the amendment for the reasons I have given and beg leave to withdraw the amendment.

Amendment 62A withdrawn.

Amendment 63

Moved by Lord Hunt of Kings Heath

63: Clause 35, page 30, line 12, at end insert—

“( ) The Secretary of State shall make available to all local authorities a model deferred payment scheme and all local authorities must follow this model unless they can show due cause not to.”

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords 5:45 pm, 14th October 2013

My Lords, I share my noble friend’s concern about what we have heard tonight. From what the noble Earl said, in essence the mandated scheme will be a scheme in which the person’s assets will have to come down below £23,250 before a deferred payment arrangement must begin. The noble Earl went on to say that he wanted to encourage local authorities to use a power more widely. That local authority power is discretionary. The great fear must be that the mandatory scheme will in essence turn out to be the scheme that all local authorities will adopt. That is why I link that concern to Amendment 63 for a model scheme. In the circumstances it is absolutely essential. A mandated model scheme does not guarantee a universal scheme, but at least sets the framework for one. The House should consider it very carefully. I beg to move.

Division on Amendment 63

Contents 202; Not-Contents 224.

Amendment 63 disagreed.

Division number 1

See full list of votes (From The Public Whip)

Clause 37: Notification, assessment, etc.

Amendment 63ZA

Moved by Baroness Campbell of Surbiton (CB)

63ZA: Clause 37, page 31, line 39, at end insert “with a view to securing, so far as reasonably practicable, the outcomes referred to in section 9(4)(b) or 10(5)(d)”

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench 6:02 pm, 14th October 2013

My Lords, I shall speak also to government Amendment 63A and my Amendment 63B. Before I begin, please forgive me for my speech going in stops and starts. This is the result of being an astronaut: we speak like this.

Noble Lords will know from my Private Member’s Bill, the Social Care Portability Bill, as well as my contributions to debates on this Bill, the depth of my concern about continuity of care when an older or disabled person moves to another local authority. It is a basic human right to move freely within one’s country, whether to pursue education or employment opportunities, to improve one’s family life or to seek personal support. The Government have said on several occasions that my Private Member’s Bill has informed the provisions of this Bill. It is true and I am grateful to have helped; I must say that I am also a bit flattered. We have collaborated well and I firmly believe that workable continuity of care is in sight.

The Minister for Social Care said to me in a letter last week:

“I believe that we are both of one mind and that neither of us wants a situation where there are no services in place on the day of the move, which could result in the person falling into crisis”.

I believe that too. Throughout the passage of this Bill, my two main areas of concern have been the need for a reference to outcomes in the continuity provisions and the risk of a gap in provision of care and support. We have made good progress on the second of these concerns since Committee. I am heartened by this.

Amendment 63ZA is about equivalence of outcomes. This goes to the heart of what continuity of care is about. The underlying purpose is to enable the person who moves to do the same kinds of things in their day-to-day life as they currently do. It may not always be possible and it may be through different means, but that is the aim. Certainly there are references linking plans to outcomes elsewhere in the Bill, and that is very welcome. However, signalling the intention in Clause 37 would send a clear and powerful message which could not be misconstrued by those providers who have an “I-know-what’s best-for-the-client” attitude. That is why I have tabled this amendment.

My second amendment addresses safe and seamless transition from one authority to another. The Bill says that if the second authority fails to deliver a new care package by the day of the move, it has to meet the needs that the first authority has been meeting until it has put the new arrangements in place. This is a temporary measure to ensure there is no gap in the provision of care.

I have been concerned that, just as the new care package may not be ready in time, as Clause 38(1) acknowledges, there may also be a delay in the temporary measures, which would mean a risky gap in care and support. My amendment proposes that, in those circumstances, the first authority would have to continue to provide care until the new arrangements were in place. I remain of the view that this would provide the strongest guarantee of continuity.

The Government, however, have proposed instead a new amendment, Amendment 63A, to improve co-ordination between the person moving and the two local authorities—in effect acknowledging the importance of a dialogue between all three parties. Certainly, both local authorities working together to prepare for the person’s move is a good template for success. The amendment will require the first authority to contact the second authority and maintain this relationship until the person moves. It will also require the first authority to keep the person involved so that they are fully aware of the arrangements in advance of their move. While this is not the solution I favour, I recognise that it will help to strengthen the process by bolstering the degree of collaboration and coordination between the authorities. That would go a long way towards reducing the risk of an interruption in care and support. It would also reassure and empower the person moving.

Throughout my campaigning life, “Nothing about us without us” has driven everything. This duty is a commendable endorsement of that approach. I believe that it would be enhanced by a further small change: that the first authority remain in contact with the second authority until the new care package is in place. This would ensure a smooth transition during any temporary arrangements, when the individual would be at their most vulnerable. Moreover, it would help the second authority, which has to meet the needs that the first authority has been meeting. I believe this fine-tuning of the Government’s helpful amendment would speed up the transition and support the way that Clause 38 is intended to operate.

After some negotiation last week, I believe I reached an understanding with the Minister and his officials that there will be a review of the continuity-of-care provisions after three years. These are new responsibilities for local authorities, and it is right that we should know whether they are working and take action if they are not. I look forward to the Minister’s confirmation of this in his response.

Moving house is one of the most stressful days of your life. Let us give disabled people the confidence to move and, hopefully, improve their circumstances. To do that, they require three things: first, knowing that support is there; secondly, the knowledge about the process to reassure them during a time of potential anxiety; and, thirdly, the certainty that they can live their lives in the same way with the same outcomes in their new environment.

I am pleased that the Government have travelled a fair way in tabling their amendment and have made significant progress in strengthening the transition process. I very much look forward to being involved in the next stage of the portability journey. I believe that we are about to have the portability celebrations but the cake has not yet been finished. If we get this right, I will feel free to chase my dream of moving to the Cornish coast when I eventually retire, which will not be yet. I beg to move.

Photo of Baroness O'Loan Baroness O'Loan Crossbench

My Lords, I support my noble friend’s amendments, particularly because of their implication for human rights. Care and support for many older people and for disabled people underpin and enable the enjoyment of those rights. They make possible a decent life of dignity; they make possible the ability to enjoy family life, for example. Ensuring that people can continue to pursue the life that they have and that they want, with no lessening of support when they move, is crucial. I therefore warmly support my noble friend’s amendment on equivalence of outcomes. When considering the process for people moving from one local authority to another, we must consider particularly the right to freedom of movement for older and disabled people. I believe that my noble friend’s amendment on the process for ensuring no gap in services during a move guarantees such freedom on an equal basis with others.

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords)

My Lords, these are mostly technical amendments, which we support. We are especially pleased that the concerns and proposed improvements to the portability process put forward by the noble Baroness, Lady Campbell, are addressed in the amendments in this group. We need to do as much as possible to reduce the likelihood of the person not having services on the day of the move to the new authority.

Continuity of care is critical to portability, and the requirement placed on the first authority to keep in touch with the second in the period leading up to the move to ensure that services are in place and ready, and that the person is kept informed and up to date, is very important for a safe and risk-free move. They are also required actively to ensure continuity of care until the new assessment is in place. That is absolutely right, as is the second authority being required to have regard to the outcomes that the person wishes to achieve in the care and support plan that they had before the transfer.

I congratulate the noble Baroness on having finally achieved most of what she set out to in her own Private Member’s Bill. As she said earlier, workable continuity of care is within sight. Her tenacity and determination will mean that many people will now be able to make the move to different parts of the country, to be closer to their families or to care and support that they have not previously been able even to contemplate.

We support the government amendments dealing with cross-border issues with Wales. They follow extensive discussion and agreement with the Welsh Government. The Minister’s detailed correspondence to noble Lords explaining the purpose of the amendments in relation to such key issues as arbitration on cross-border disputes, responsibility for mental health aftercare and sorting out direct payments for this care and residential care to reflect recent change of practice in England was very helpful to the House in getting the full picture of the proposed changes.

In respect of the amendments on ordinary residence, NHS accommodation placements, cross-border hospital stays and the need to ensure that the Care Bill provides for accommodation provided under the Welsh, Scottish and Northern Ireland legislation, the Minister’s note of last week emphasises that all changes have been agreed with each of the devolved Administrations, and obviously that is as it should be. Are the provisions for four-way reciprocity on cross-border placement in England, Wales, Scotland and Northern Ireland now fully in place with these amendments to the Bill, or does more work need to be undertaken as the detail is worked through further?

Specifically on government Amendment 64, I understand that the LGA and ADASS are looking to model the impact of a person’s place of residence on the cost pressures within the social care system. To assist this work, which will be very valuable to the whole House, will the Government now publish the information that they have on the impact of cost pressures on extending the territorial reach of the Bill into Wales?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 6:15 pm, 14th October 2013

My Lords, the Care Bill will for the first time introduce a duty on local authorities to ensure that where a person is receiving care and support they can move home to another local authority area, confident that they will have services in place on the day of the move. The noble Baroness, Lady Campbell, has been a leading advocate in this area for some time, and I acknowledge that her Private Member’s Bill was a template for the provisions in this Bill.

The noble Baroness’s Amendment 63ZA looks to ensure that when the second authority is carrying out the assessment of the adult moving and, where appropriate, their carer, it meets the outcomes that they want to achieve. I reassure her that the provisions on assessment for the person needing care and their carer apply to when a person is being assessed for continuity of care. Assessments must look at achieving the outcomes that the person or carer want to achieve, and Clause 37(8) confirms that. I also give an assurance that we will emphasise this in the statutory guidance.

Amendment 63B proposes that the first authority is responsible for arranging services on the day of the move. I say immediately that I sympathise with the sentiment of the noble Baroness’s argument; neither of us wants a gap during which a person is left without services. However, our view is that the second authority is best placed to maintain continuity of care. Our reasoning is that the person will now be living in the area of the second authority and, as for anyone who has eligible care and support needs, the second authority has a duty to meet those needs. The second authority will also know its local market and will be far better placed to put in place arrangements that support the person and maintain their level of independence from day one.

My concern is that it would be difficult for the first authority to make such arrangements, particularly where the person moves a long distance away. In practice, if the first authority is responsible for making arrangements it would have to contact the second authority to discuss the local market, which raises the question of why the second authority is not responsible for putting in place services in the first instance.

For the reasons that I have explained, I believe that the second authority must be the one responsible for delivering services on the day of the move. However, in light of the concerns raised by the noble Baroness during Committee, I have looked again at the provisions in the Bill. My Amendment 63A will require the first authority to contact the second authority and maintain this relationship so that it is aware of where the second authority is with putting services in place. It will also require the first authority to keep the person involved with discussions about their services and informed of progress for putting these in place. In other words, the amendment will put the person at the centre of the process. Both ADASS and the Local Government Association have indicated that this amendment will strengthen the process.

The noble Baroness questions whether placing the responsibility on the second authority is the right approach. I believe that it is. However, I fully understand her concerns, and I commit now to my department reviewing how the continuity of care arrangements are operating three years following implementation. This will provide us with more information, which will help us to understand if the process can be improved.

We are already considering how we might implement the provisions in the Bill. The first step will be to develop the regulations and statutory guidance. Given the noble Baroness’s knowledge in this area, I hope that we can draw on her experience and that she will be able to advise us on the preparation of the regulations and guidance. I sincerely hope that in strengthening these provisions and in the commitments that I have given, I have been able to convince her not to press her amendments.

The amendments relating to ordinary residence will provide clarity in respect of three areas: the overall principle of ordinary residence; the principle of ordinary residence so that it applies to after-care under the auspices of the Mental Health Act; and finally, the cross-border placement of individuals so that service users can move between the four countries of the UK where this is deemed to be in their best interests.

The noble Baroness, Lady Wheeler, asked whether reciprocal agreements are now in place or whether there would be more changes in this area. The answer is that the basic structure is in place in terms of reciprocal arrangements on cross-border care. However, some small details remain to be finalised through regulations and statutory guidance. We will work closely with the devolved Administrations on this.

First, government Amendments 66 and 67 address a potential lacuna in respect of people who may live in England—and therefore be ordinarily resident in an English local authority—but who are treated entirely within the NHS of a devolved Administration. The amendments ensure that they would remain ordinarily resident in England. Secondly, Amendments 64, 65, 126 to128 and 132 to 136 apply consistent ordinary residence rules in England and Wales in respect of after-care under the Mental Health Act 1983, and reflect our agreement with Wales that Welsh Ministers or the Secretary of State will determine cross-border disputes according to agreed arrangements.

Thirdly, Amendments 68 to 75 relate to cross-border placements. The cross-border provisions in the Bill reflect the outcome of solid collaborative work with Scottish, Welsh and Northern Irish colleagues to remove legal barriers restricting the placement of an individual from one territory of the United Kingdom to another. These amendments make technical adjustments to those provisions, following further discussion with the devolved Administrations about the detail of the arrangements.

The purpose of the amendments on cross-border placements is threefold. First, they ensure that the established principle that the placing authority retains responsibility for the care of those individuals placed cross-border, is not interrupted should the individual receiving care require a period in hospital or other healthcare accommodation. Secondly, they enable regulations to provide for the cross-border placements provisions to apply to individuals who receive direct payments. Thirdly, they provide a regulation-making power that would allow our cross-border provisions to apply to individuals placed in a setting other than a traditional care home—for example, supported living arrangements.

The noble Baroness, Lady Wheeler, also asked about the impact of cross-border placement provisions on cost pressures. It is our understanding that the number of placements between countries of the UK is likely to be minimal, certainly in terms of the overall budget. However, we will work closely with colleagues in the devolved Administrations to further understand and bottom out the financial implications.

This group of amendments provides further necessary clarity to enable people to receive care and support in locations that suit their needs and I commend them to the House.

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench

My Lords, I thank noble Lords and the noble Baronesses, Lady Wheeler and Lady O’Loan, for speaking in support of my amendment. I warmly thank the Minister for his thoughtful reflections on my amendments and for tabling his amendments to meet some of my concerns—followed up at the last minute by a very good, timely review. Although I had hoped to see both my amendments on the statute book tonight, I am happy to acknowledge that the Government’s proposal is a ginormous step in the right direction to full portability. If it reduces the prospect of a cliff-edge scenario, it will achieve its purpose. I know that disabled people will feel encouraged to move instead of staying put.

Finally, I am grateful to the Minister and especially his officials for their positive approach to this issue, which I have raised in Committee and, quite frankly, over the past three years. We have burned a lot of midnight oil together and I have been very impressed by their efforts to find practical solutions. It bodes well for our continued collaboration on this landmark reform—and it is a landmark. Do not forget, we were tied to our local authorities since time began and this is the first time that disabled people will have the right to freedom of movement if they require support. I will be pleased to be involved in the regulations and of course I will be there. Frankly, you could not stop me. I beg leave to withdraw my Amendment 63ZA.

Amendment 63ZA withdrawn.

Amendment 63A

Moved by Earl Howe

63A: Clause 37, page 31, line 44, at end insert—

“(8A) Pending the adult’s move, the first authority must keep in contact with the second authority in order to ascertain the progress that the second authority is making in preparing to meet—

(a) any needs for care and support under section 18 or 19 in the adult’s case, and

(b) where the adult is proposing to have a carer immediately after the move, any needs for support under section 20 in the carer’s case.

(8B) The first authority must keep the adult (and, where applicable, the carer) informed about its contact under subsection (8A) with the second authority and must involve the adult (and, where applicable, the carer) in the contact.”

Amendment 63A agreed.

Clause 38: Case where assessments not complete on day of move

Amendment 63B not moved.

Clause 39: Where a person’s ordinary residence is

Amendments 64 to 67

Moved by Earl Howe

64: Clause 39, page 34, line 1, after “authority” insert “in England or the local authority in Wales”

65: Clause 39, page 34, line 2, at end insert “; and for that purpose—

(a) “local authority in England” means a local authority for the purposes of this Part, and

(b) “local authority in Wales” means a local authority for the purposes of the Social Services and Well-being (Wales) Act 2013”

66: Clause 39, page 34, line 3, leave out “accommodation under the National Health Service Act 2006” and insert “NHS accommodation”

67: Clause 39, page 34, line 10, at end insert—

“(5A) “NHS accommodation” means accommodation under—

(a) the National Health Service Act 2006,

(b) the National Health Service (Wales) Act 2006,

(c) the National Health Service (Scotland) Act 1978, or

(d) Article 5(1) of the Health and Personal Social Services (Northern Ireland) Order 1972.”

Amendments 64 to 67 agreed.

Schedule 1: Cross-border placements

Amendments 68 to 75

Moved by Earl Howe

68: Schedule 1, page 101, line 42, leave out “in a case within any of paragraphs 1 to 4”

69: Schedule 1, page 102, line 17, leave out “within” and insert “where there is a dispute about the application of”

70: Schedule 1, page 102, line 19, at end insert—

“( ) After subsection (10) of that section insert—

“(10A) A person who, as a result of Schedule 1 to the Care Act 2013 (cross-border placements), is treated as ordinarily resident in an area in England, Wales or Northern Ireland (as the case may be) is to be treated as ordinarily resident in that area for the purposes of this section.

(10B) A person who, as a result of that Schedule, is not treated as ordinarily resident anywhere in England or Wales (as the case may be) is not to be treated as ordinarily resident there for the purposes of this section.”

71: Schedule 1, page 102, line 24, at end insert—

“Provision of NHS accommodation not to affect deemed ordinary residence etc.

7A (1) In a case where, as a result of this Schedule, an adult is treated as ordinarily resident in an area in England, Wales or Northern Ireland (as the case may be), the adult does not cease to be so treated merely because the adult is provided with NHS accommodation.

(2) In a case where, as a result of this Schedule, an adult is not treated as ordinarily resident anywhere in England or Wales (as the case may be), the adult continues not to be so treated even if the adult is provided with NHS accommodation.

(3) In a case where, as a result of this Schedule, no duty under a relevant enactment applies, the duty does not apply merely because the adult in question is provided with NHS accommodation; and for this purpose “relevant enactment” means—

(a) Part 2 of the Social Work (Scotland) Act 1968,

(b) sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003,

(c) the Health and Personal Social Services (Northern Ireland) Order 1972, or

(d) the Health and Social Care (Reform) Act (Northern Ireland) 2009.

(4) In a case where, as a result of paragraph 2(2), (4) or (7), an adult is treated as remaining within, or as remaining outside but ordinarily resident in, an area in Wales, the adult does not cease to be so treated merely because the adult is provided with NHS accommodation.”

72: Schedule 1, page 102, line 24, at end insert—

“Direct payments

7B (1) Regulations may provide for this Schedule to apply, with such modifications as may be specified, to a case where accommodation in England, Wales, Scotland or Northern Ireland is provided for an adult by means of direct payments made by an authority in another of the territories.

(2) The reference in sub-paragraph (1) to direct payments accordingly includes a reference to direct payments made—

(a) under section 34 or 36 of the Social Services and Well-being (Wales) Act 2013,

(b) as a result of a choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or

(c) by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.”

73: Schedule 1, page 102, line 24, at end insert—

“Particular types of accommodation

7C (1) Regulations may provide for this Schedule to apply, with such modifications as may be specified, to a case where—

(a) an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in the regulations,

(b) the adult is living in accommodation in England, Wales, Scotland or Northern Ireland that is of a type so specified, and

(c) the adult’s needs for care and support are being met by an authority in another of the territories providing or arranging for the provision of services other than the accommodation.

(2) In section 5 of the Community Care and Health (Scotland) Act 2002 (the title to which becomes “Local authority arrangements for residential accommodation etc. outwith Scotland”), in subsection (1), at the end insert “or for the provision in England and Wales or in Northern Ireland of a service or facility of such other description as may be specified in the regulations”.

74: Schedule 1, page 103, line 14, at end insert—

“( ) “NHS accommodation” has the meaning given in section 39(5A).”

75: Schedule 1, page 103, line 40, at end insert—

“( ) In paragraph 7B, the reference to sections 34 and 36 of the Social Services and Well-being (Wales) Act 2013 is to be read as a reference to section 57 of the Health and Social Care Act 2001.”

Amendments 68 to 75 agreed.

Amendment 76

Moved by Baroness Greengross

76: After Clause 40, insert the following new Clause—

“Appealing decisions taken by the local authority

(1) The local authority must have in place a procedure, which includes a review element that is independent of the local authority, by which adults or carers can appeal a decision made by the local authority about—

(a) whether an adult or carer’s needs meet eligibility criteria under section 13,

(b) whether to charge for meeting needs under section 14,

(c) the result of a financial assessment under section 17,

(d) the content of a care and support plan or support plan under section 25,

(e) the amount of a personal budget made under section 26 or independent personal budget made under section 28,

(f) the payment of an “additional cost” under section 30.

(2) Regulations may make further provision about any aspect of the appeals procedure mentioned in subsection (1).

(3) Wherever a decision has been made of a type referred to in subsection (1), the local authority must make the adult or carer aware of their right to appeal the decision and how to request details of the appeals procedure. Details of the procedure must be made available on request.”

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, I shall also speak to Amendment 124. Amendment 76 seeks to ensure that a clear process is in place by which adults and carers can challenge decisions that have been made about their care by local authorities, and to ensure that they are made aware of their right to challenge such decisions. I am grateful to Which?for supplying me with background information on this important issue.

Under the new care and support system, there are many decisions that local authorities will take that will affect an adult’s or a carer’s access to services and what they will be required to pay towards care. These decisions can fundamentally affect families’ quality of life and financial circumstances, as we have learnt. It is right that these decisions are subject to proper scrutiny in cases where families feel that they have been made unfairly, and that those receiving care and their carers are aware of their right to challenge decisions.

There is evidence that, in a lot of decisions made by local authorities about care, there is a certain amount of subjectivity and untransparent variation in the way they are made, both between and within local authorities. This includes decisions over eligibility, financial assessments, charging, local authority rates, top-up fees, levels of personal budgets and independent personal budgets. Under the new system, many more people will come into contact with and be assessed by their local authority, and a greater light is going to be shone on these decisions, as we debated earlier today. Currently the Bill does not contain any reference to appealing these decisions.

This has previously been highlighted, and in Committee amendments to establish a care and support tribunal were tabled. The Government’s response was to say that they recognised the need to review the current complaints arrangement, and they have included it in their consultation on funding reform, including the option of a tribunal. They pointed out that there are existing regulations under separate legislation about how local authorities handle complaints in relation to social care. However, these regulations relate to any complaint that a local authority receives about a care matter—for example, about the quality of care received by a provider acting on behalf of the local authority—but they do not include an independent review element. They are not specifically designed to deal with issues of eligibility, entitlements and payments where the challenge may be about the overall decision reached, rather than the process followed. Therefore, I believe that the mechanism for appealing these decisions should also be included in the Bill.

This amendment is designed to allow the Government flexibility over the exact format of the appeals procedure, which can follow in regulations, while ensuring that the principle is enshrined in the Bill. It also, rather importantly, requires local authorities to make individuals aware of their right to appeal a decision that has been made. Too often, care recipients feel done to rather than done with, as we know. They do not understand the basis on which decisions have been made, and they feel very powerless regarding challenging them. Awareness of an existing higher-level redress mechanism, such as the Local Government Ombudsman, is very low. People just do not know about it or how to approach that office. Making users aware of their right to appeal is therefore a key part of ensuring a redress system that works effectively.

Currently, people have limited access to an independent review of decisions regarding eligibility for continuing care. We know this is a huge problem for many people. Amendment 124 would provide access to an independent review process. I am grateful to the Alzheimer’s Society and the Care and Support Alliance for providing me with some background to this issue. NHS continuing care is a package of care arranged and funded by the NHS free of charge to the person receiving care. The decision about eligibility rests not on the person’s condition but on whether the need for care is primarily due to health needs. However, as care provided by the NHS is free but care provided by social services is means-tested, the outcome of any decision can have a significant financial consequence for people who self-fund their care. There are also significant financial consequences to the NHS if a person is eligible. These consequences leave NHS continuing care fraught with dispute, and there is little impetus for the NHS to make a decision quickly, given the budgetary implications. Many people give up or face another long wait to appeal a refusal. While there are just over 57,000 people in receipt of continuing care in England, it is unknown how many people eligible in law have failed in their attempts to be assessed properly for it. At both assessment and appeal stages, various tiers of the NHS remain—I have mentioned this before—both judge and jury on eligibility, and it is only once these stages have been exhausted that the Parliamentary and Health Service Ombudsman can be involved as a truly independent arbiter. It is unacceptable for so many people with extensive health needs, some nearing the end of their lives, to have to deal with a system that is riven with bureaucracy, delay and dispute. People receiving local authority care have some hope that a council will support their case to move on to NHS-funded care, spurred on by its own financial interest for them to do so, but for self-funders there is no such hope. Some may seek out a solicitor, but many, we know, just give up.

The Joint Committee of which I was privileged to be a member felt that the Care Bill provides an opportunity to explore the Government’s intentions towards a much more effective system of complaint, appeal and redress for social care and NHS continuing care. This amendment is to probe the Government further on how they will address the lack of a truly independent arbiter early in the NHS continuing care process. I remain convinced that an initial refusal to award NHS continuing care at assessment should lead directly to an independent review body or procedure, rather than another tier of the NHS, so that people do not have to wait years until an independent body can review their case.

Photo of Baroness Meacher Baroness Meacher Crossbench 6:30 pm, 14th October 2013

My Lords, I rise to speak to Amendment 123. In doing so, I add my support to Amendments 76 and 124, which were tabled by my noble friend Lady Greengross. Indeed, a few of my comments slightly overlap hers.

As the Bill stands, local authorities will be given many complex duties and will be required to make many decisions which will have a substantial—you could say devastating—impact on the lives of elderly and disabled people, but there is no statutory provision for any appeal or independent review process, even if decisions are made on the basis of factual or legal errors. That is the point of the comments I want to make.

I understand that the Government have committed themselves to consider a process of redress or appeal and that they recognised in their response to the Joint Committee that it is,

“vital that people have an effective way to complain and seek redress”,

but there is no assurance in the Bill that such a system will be put in place and, if one is, what its characteristics will be. As my noble friend Lady Greengross said, regulations under other legislation do not appear to do the job. I hope the Minister will comment on that situation.

For example, local authorities decide whether an elderly or disabled person should continue to receive care support. Many will lose that support as a result of cuts to local authority budgets. The impact of losing care support—an entire care package in some cases—can be catastrophic, according to Leonard Cheshire Disability and others directly in touch with disabled or elderly people. Many years ago, I worked with these people, and I find the very idea that a care package could simply be removed very frightening, even as an onlooker, let alone as somebody experiencing such a thing. People become trapped in their homes, unable to work and unable to get out. They become depressed and, in some cases, suicidal—and not surprisingly in my view. There can also be risks to people’s health. As they try to undertake tasks for which they are not well suited or which they are unable to perform on their own, they fall. Has anyone estimated the likely cost to the health service of increased falls, accidents and problems of this kind? What is the Government’s view of the economic costs to the country if family carers have to give up work in order to step into the breach when the state withdraws? The problem is that the local authority may save money but the DWP and the Treasury are likely to pick up the tab. I am not quite sure what the Minister in the other place would think about that.

It is easy for the state machinery to underestimate the incredible vulnerability of many elderly and disabled people. Applicants for care support will inevitably feel nervous and fearful of the consequences of upsetting the very people on whom they depend so heavily. It is terribly important that an appeal or review process is not only user-friendly and accessible but really is independent of the people making decisions about the person’s care. Can the Minister honestly say that care decisions will in future not vary across the country? Can he say that decisions will be made without error and always be based on the law? I do not think so. In preparing this amendment we have been mindful of the cost constraints and the need to allow Ministers flexibility to create a system that will be proportionate and sustainable. I hope the Minister will recognise this in his closing comments.

Having said that, I draw your Lordships’ attention to the fact that Leonard Cheshire Disability has specifically asked me to ensure that a full tribunal service be considered, although we did have a discussion about the financial implications of that. It argues that if such a system exists to deal with conflicts about school places, a decision to deny social care is equally as devastating. The Law Commission recognised the importance of a fair, independent and accessible system of redress.

I know that the noble Earl has discussed this issue with key stakeholders and perfectly well understands the points I am making. I hope he can give the House an assurance today that, if he is unable to accept the precise wording of the amendment, the Government will table an amendment at Third Reading that will guarantee that a suitable appeal or review process will be in place when the Care Bill comes into effect.

Photo of Lord Warner Lord Warner Labour

My Lords, I support these amendments—not necessarily the specific wording but the principles behind them. I remind the House of a real difference between many of the appeals under the new framework for adult care and support and what has gone before. We are now talking about a set of arrangements with considerable financial implications for people and their families. In the social security system we set up a tribunal system to arbitrate, which has worked pretty well for a long time. Many of these issues are more akin to the social security system than to complaints about process. There will be complaints about process but many of the things covered in these amendments are about a failure to get a resource from the public purse to which people think they are entitled and have evidence that they are. This is much more akin to the arrangements in the social security system for people who have their claims rejected. It is much nearer to that than complaints about poor processes of work by a public body. The Government should think long and hard about this issue because they are in grave danger of ending up with the whole system being overwhelmed by the number of complaints. Without a convincing system for resolving appeals in the framework of the Care Bill we are heading down a path where judicial review will start to feature quite strongly.

I remind the noble Earl of some of the other issues where there could be appeals. The Joint Committee looked at some of the friction points where there was scope for dispute. There is a raft of areas for dispute over assessment of carers and service users and a whole range of areas for dispute about ability and whether you are going to be charged or not. After the previous debate on deferred payment I can think of another fruitful area for complaints—an inability to get on to some kind of deferred payment scheme. Another area, important to patients and service users, is setting the price for contracts to providers. Clearly, the price-setting mechanism may be disputed between the providers of services who may claim that the price offered by the commissioning agent will be bad for service users and patients. I am not suggesting that these could all come together under one process, but we want more convincing architecture in this Bill to give confidence that there is a sensible way of resolving and arbitrating areas for dispute and for the service user and their carers to secure redress without going through an excessively complicated process.

Amendment 124 deals with the knotty problem of the boundary between health and social care—the continuing care issue. We looked at this in the Dilnot commission and found the assessment process monumentally opaque. It was extremely difficult to be sure that you would have consistency of assessment in different parts of the country. So much seemed to depend on individual professionals’ judgment about dependency in a very complicated set of arrangements. It is interesting that the Law Commission recommended that it would be desirable to put NHS continuing healthcare on a further statutory footing. The Dilnot commission report on page 58 said:

“We are strongly supportive of the Law Commission’s recommendation to put NHS Continuing Healthcare on a firmer statutory footing. Furthermore, as we are recommending a new national eligibility framework for social care, which is aimed at being more transparent and consistent, the Government may want to consider how this will work alongside the assessment process for NHS Continuing Healthcare”.

This is highly disputed territory. The changes in adult social care are likely to make it very disputed territory again. We have a whole raft of issues coming out of this Bill ripe for dispute between the citizen and the state without a convincing architecture to resolve them. The Government need to think again about this issue and look at putting some more convincing architecture in the Bill to make clear to the public what they can expect, both in statutory guidance and in any regulations the Government chose to make.

Photo of Baroness Hollins Baroness Hollins Crossbench 6:45 pm, 14th October 2013

My Lords, briefly, I support all the amendments in this group, particularly Amendment 124 to which I added my name. There were a number of voices calling for an appropriate system of redress for disputed decisions. Many people do not really understand social care systems and why decisions are taken and they feel powerless, often at a time when they are facing enormous challenges and may fear that complaining is going to lead to even more negative changes to their support. It seems to be a matter of justice to have a very clear and understood route to redress and I hope these amendments will be considered seriously.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I support these amendments requiring a system of adjudication able to deal with the whole raft of matters dealt with under the Care Bill, including the borderline with continuing healthcare. The local authorities—152 or something of that sort—will administer the care system. It is quite easy to see that the same problems may arise in different local authority areas. Having a respected system for dealing with these matters would simplify a good deal of this area. I therefore strongly urge the Government to have in place a system which would provide reasonably rapid adjudication of all these issues. The social security commissioners provide a kind of example. One possible solution would be to extend the jurisdiction of the social security commissioners to include this area. Social security arrangements are certainly different from the care arrangements, but there may be sufficient similarity to make that possible. Something along the lines of the social security commissioners would be necessary for dealing with this and bringing into effect a system which local authorities right across the country would respect when one local authority’s decision was dealt with by this adjudicating authority.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords

My Lords, I have added my name to Amendment 76 of the noble Baroness, Lady Greengross. I also support Amendments 123 and 124. Leonard Cheshire Disability put it so well when it said that it was concerned that the Bill, in placing a number of important and complex duties on local authorities, will have a substantial impact on the lives of older and disabled people without providing appropriate routes for appeal against unjust or factually inaccurate decisions. It says that there is a compelling case for the Government to set up a system to resolve cases where there are disagreements between the local authority and the individual.

When we think of the various ways in which local authorities can impact on individuals who have come within the care system—support eligibility criteria, financial assessment, operation of the cap, charges, personal budgets and the boundary between NHS continuing care and means-tested social care—surely there have to be opportunities for a person to appeal against decisions of the local authority. In Committee, the noble Earl relied first on the current complaints system of local authorities and, secondly, he went on to point out that if a complainant was not satisfied with the response from the local authority, they were then able to refer the case to the Local Government Ombudsman.

However, a complaints system is not really what noble Lords are calling for. Anyone who has seen responses from local authorities to complaints will know that they tend to find in favour of themselves and rarely reopen a question of substance. Noble Lords want an opportunity for a person concerned to put their case and for that case to be considered by a group of people who may be said to be independent of the local authority. Like the noble and learned Lord, Lord Mackay, and my noble friend Lord Warner, I am keen on the tribunal approach which deals with social security cases; I have witnessed these cases. Although the noble Earl felt in Committee that these would be expensive, I believe that it is a cost-effective way of allowing people to put their case and for that matter to be decided. I am sure that in the long term it will be more expensive if there is no proper decision. I suspect that we will see lots of judicial reviews being initiated against local authorities. They do not and will not have a proper system for dealing with appeals.

The noble Earl said in Committee that the Government were consulting on processes for providing redress. Although he thought that the results of that review would be available before the Bill had concluded its passage through Parliament, I suspect that that will be too late for your Lordships’ consideration. I therefore hope that the noble Earl might be able to give us some comfort that he will in fact give further consideration to this. I hope that we might return to this point at Third Reading.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, at the heart of these amendments is an important issue: the voice of older and disabled people. I hope that I can give some reassurance to the House.

Amendments 76, 123 and 124 would include in the Bill provisions for an appeal system that allows individuals to appeal against decisions of, first, the local authority relating to their needs for care and support and, secondly, the relevant NHS body relating to their eligibility for NHS continuing healthcare. Of course, those are quite separate matters.

On the amendments relating to local authority decisions on care and support, I will briefly run through the current, essentially complaints-based, arrangements. These arrangements were reformed via the 2009 regulations, which require local authorities to publish arrangements for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedures, which may of course result in varying user experiences. If, having raised a complaint with a local authority, a person is not satisfied with the response, they can refer the complaint to the Local Government Ombudsman. The ombudsman is independent of the local authority. It can investigate whether the decision-making process has been conducted appropriately and make a recommendation to the local authority.

As has been said, the Bill will result in many more people being brought into contact with their local authority, so it is appropriate that we are reviewing the current arrangements regarding appeals via a public consultation. If that is consistent with what the noble Lord, Lord Hunt, regards as the Government having a second look, I believe that we are doing so. Through the consultation we have heard from user representatives a concern voiced this evening by the noble Lord, Lord Warner: that current arrangements are not sufficient to withstand the additional pressures of the Bill reforms.

While our initial view is that it is likely that some changes are needed, we really need to wait for the consultation to close before making any judgments. I will be in a position to update noble Lords about that in December. Although I acknowledge that this is a work in progress, the Government are on the case. I hope, with that assurance, that the noble Baronesses and the noble Lords will therefore be content to withdraw Amendment 76 and not to move Amendment 123.

In response to the noble Baroness, Lady Meacher, who asked whether we would consider a formal tribunal, our current assumption is that a tribunal process would be likely to slow down the process of resolving complaints and would add significant costs which would, in turn, produce a further burden on the system. There is a range of approaches to resolving complaints and providing redress. It is advantageous to have a flexible system that works well and efficiently at a local level, in a manner that is proportionate to the type of complaint.

The noble Baroness also asked whether we might consider an independent panel rather than a tribunal, although I was not sure whether those two were the same thing in her mind. The funding reform consultation that covers this issue will close late in October. Following this review, should we decide to make a change we expect we could do so through secondary legislation. Of course, we are not ruling anything out in the consultation. If it transpires that we wish to make changes that require primary legislation we would ensure that proposals were brought forward at the earliest opportunity. However, if changes were desired—for example, to introduce a requirement whereby a decision was reviewed by an independent panel—in this case we would do that by amending existing regulations.

The noble Baroness asked whether I could assert that decisions in this area will not vary across the country and that there will not be errors. Of course, there is scope for errors to take place and for variation. I can say that we would want the following principles to underpin the mechanisms for redress and resolving complaints: clarity, local accountability, fairness and timeliness. Lastly, there should be an independent element. I hope that that is helpful as a guide at this stage.

I will now turn to Amendment 124, which relates to NHS continuing healthcare eligibility. This amendment seeks to make provisions in regulations that set out a system for the appeal or review of decisions made about NHS continuing care, independent of the NHS, on a question of fact or law. I can assure noble Lords that such a provision is not necessary. Decisions as to whether someone is eligible for NHS continuing healthcare are, of course, taken by the relevant NHS body. We have a well established process for the review of such decisions, which is well understood by the NHS and local authorities. It is set out in the 2012 regulations addressed to CCGs and the NHS Commissioning Board, and in the National Framework for NHS Continuing Healthcare. The regulations and the national framework prescribe a three-step process that involves independent scrutiny.

The first step is for an individual to request a review of an eligibility decision; this would be undertaken by the relevant body itself, usually the clinical commissioning group. In the second step, NHS England arranges for an independent review panel to review the process undertaken and the decision reached by the relevant body. The panel will have an independent chair and will include NHS and local authority representation—not, incidentally, the bodies responsible for the original decision. The relevant body should accept and action the recommendation of the panel in all but exceptional circumstances. The third and final step involves taking the case to the Parliamentary and Health Service Ombudsman for an independent review.

There is, therefore, sufficient independent scrutiny already within the current review process. However, I understand that the level of independence in this process is not always adequately communicated. We are therefore happy to explore how we might improve this, outside the legal framework. I hope that the noble Baroness, with those reassurances, will feel able to withdraw her amendment.

The noble Baroness said that in her view, individuals are left waiting too long for a decision on CHC eligibility and a panel decision. The national framework sets out that in most cases CCGs should make eligibility decisions within 28 days of receipt of a checklist or other notification of potential eligibility. However, in March last year, we issued good practice guidance to CCGs, which states that there should be a timeframe for the responsible NHS body to deal with a request for a local review, which should be within three months of receipt of a request, and a timeframe for the independent review to be conducted, which should be within three months of the request. I hope that that information is useful to the noble Baroness, and that it will guide her decision.

Photo of Lord Warner Lord Warner Labour 7:00 pm, 14th October 2013

Before the Minister sits down, I will ask on a point of clarification. He made a lot of reassuring noises about the ability at the end of the consultation process to deal with some of the outcomes of that process under secondary legislation. Can the Minister clarify whether that also included—if the Government have had a Damascene conversion to a tribunal-type arrangement—that secondary legislation could introduce a tribunal-type of arrangement for adult social care?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I may need to answer that question later. However, my understanding is that, yes, we can do it through secondary legislation. If I am wrong on that, I will correct myself before the end of today’s proceedings.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

Again, before my noble friend finally sits down: he mentioned the principles that would seem applicable to local authority decision-making and appeals from that. I wonder whether one of the principles that should be given effect might be consistency across the country—in other words, fairness between people who live in X and people who live in Y. I suspect that there is a possibility that different local authorities will take different decisions in very similar cases, and consistency across the country would be an important element in the fairness of this new system.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I take the point made by my noble and learned friend. We cannot iron out every kind of disparity, but we should aim for the kind of fairness that he talks about.

I have misled the House: we would not be able to establish a tribunal by secondary legislation—it would require primary legislation. However, as I said earlier, in the consultation that we are carrying out we do not rule out any solution. Clearly, if it transpires that we want to make changes for which primary legislation is needed, we would need to ensure that proposals were brought forward for consideration at the earliest opportunity. In general, we hope that the consultation will flush out any concerns in this area, not least in the area of fairness, as referred to by my noble and learned friend.

Photo of Lord Warner Lord Warner Labour

Just to finish off this discussion, I have another point for the Minister to consider, which was made by the noble and learned Lord, Lord Mackay. The whole point about a tribunal system is that you build up case law, so you spread consistency across the country through the case law that individual tribunals have made. Without that structure of a tribunal system I suggest that it is very difficult to achieve the objective that the noble and learned Lord is seeking. Might the Minister ponder on that before we discuss this again?

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, I thank all the noble Lords and noble Baronesses who have supported these amendments. I am encouraged that the issue is being taken so seriously by the noble Earl. In a way it is a shame that the timing of the consultation is as it is, and that we will not get it through until December. I have always been worried about certain aspects of

NHS complaints procedures, when the body that looks at those procedures is the NHS itself. I have felt for many years that that is unfortunate. I am very pleased that the Minister has agreed to look again seriously at all this. We need to protect these extremely vulnerable people from not getting the best level of service that they can because of a decision that could be to the detriment of their care, which could leave them feeling that their situation is hopeless and that there is nothing they can do.

I therefore thank the noble Earl. I am pleased that he is prepared to look at all this again and I hope that we can have some discussions on the outcome. This was a probing set of amendments—I did not intend to do anything other than probe—but I thank him and hope for better news about this or for more detailed decision-making in the near future. In the mean time, I beg leave to withdraw the amendment.

Amendment 76 withdrawn.

Amendment 77

Moved by Baroness Greengross

77: After Clause 41, insert the following new Clause—

“Power of access for confidential interview

Adult safeguarding access order

(1) An authorised officer may apply to a court for an order (an “adult safeguarding access order”) in relation to a person living in any premises within a local authority’s area.

(2) The purposes of an adult safeguarding access order are—

(a) to enable the authorised officer and any other person accompanying the officer to speak in private with a person suspected of being an adult at risk of abuse or neglect,

(b) to enable the authorised officer to assess the mental capacity of a person suspected of being an adult at risk of abuse,

(c) to enable the authorised officer to ascertain whether that person is making decisions freely, and

(d) to enable the authorised officer properly to assess whether the person is an adult at risk of abuse or neglect and to make a decision as required by section 41(2) on what, if any, action should be taken.

(3) When an adult safeguarding access order is in force the authorised officer, a constable and any other specified person accompanying the officer in accordance with the order, may enter the premises specified in the order for the purposes set out in subsection (2).

(4) The court may make an adult safeguarding access order if satisfied that—

(a) the authorised officer has reasonable cause to suspect that a person is an adult who is experiencing or at risk of abuse or neglect,

(b) it is necessary for the authorised officer to gain access to the person in order to make whatever enquiries thought necessary and to make a decision as required by section 41(2) on what, if any, action should be taken,

(c) exercising the power of access conferred by the order will not result in the person being at greater risk of abuse or neglect.

(5) An adult safeguarding access order must—

(a) specify the premises to which it relates,

(b) provide that the authorised officer may be accompanied by a constable,

(c) specify the period for which the order is to be in force.

(6) Other conditions may be attached to an adult safeguarding access order, for example—

(a) specifying restrictions on the time that the power of access conferred by the order may be exercised,

(b) providing for the authorised officer to be accompanied by another specified person,

(c) requiring notice of the order to be given to the occupier of the premises and to the person suspected of being an adult at risk of abuse.

(7) A constable accompanying the authorised officer may use reasonable force if necessary in order to fulfil the purposes of an adult safeguarding access order set out in subsection (2).

(8) On entering the premises in accordance with an adult safeguarding access order, the authorised officer must—

(a) state the object of the visit,

(b) produce evidence of the authorisation to enter the premises, and

(c) provide an explanation to the occupier of the premises of how to complain about how the power of access has been exercised.

(9) In this section “an authorised officer” means a person authorised by a local authority for the purposes of this section, but regulations may set restrictions on the persons or categories of persons who may be authorised.”

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, I am sorry to be popping up and down. This amendment and the others are about elder abuse. I have been involved in the issue of elder abuse for very many years—it is something that I am very familiar with. It is an issue which we have not, as yet, focused on nearly enough in this country. We have recently learnt, from data from the Health & Social Care Information Centre and Age UK, that there has been a “disturbing” rise in the number of reports of possible abuse of vulnerable elderly people in England. Unfortunately, the majority of this abuse is, as we know, by people who are close to the person—that is, family, carers and friends living in the same household, because the majority of abuse happens in people’s homes.

We have seen a 4% rise in the number of cases of alleged abuse referred for investigation in the past year. I urge the Government to do more to protect vulnerable adults. It is a serious issue and, in my view, the danger might unwittingly be increased as a result of some of the positive things that we are doing; for example, personal care planning, which gives people the opportunity to give money to relatives and to use the money for care which has not been planned in the way it used to be. There are many more doors for abuse opening than there used to be, so we have to prevent abuse even more effectively than we did in the past.

In response to the situation, the BBC has reported a Department of Health spokesman as saying:

“No-one should suffer abuse or neglect in a place they are meant to feel safe in, whether this is in their own home or in a care setting”.

Nobody is going to argue about that, but we must put this principle into practice and seek out abuse rather than passively wait for victims to appear. Sadly, some of those victims will never appear. We know why: people are not going to report their son or daughter who is hitting them, being violent or stealing their money because this might make them appear a bad mother or bring the family into disrepute. There are all sorts of reasons why very few people complain.

I am aware that new measures are being considered to make directors of care homes and hospitals personally and criminally accountable for failures in care if they allow neglect or abuse to take place. However, this will not really help people who are being abused in their own homes.

Figures from the Health & Social Care Information Centre have shown that the number of cases referred for investigation by councils in England rose from 108,000 in 2011-12 to 112,000 in 2012-13. While 45% of these cases took place in a care home, 38% of the alleged abuse took place in the older person’s own home. Physical abuse and neglect were the most common types of abuse reported. In 6% of cases the abuser was the older person’s partner; in 16% it was another family member; and in 37% it was a social care worker. Three-fifths of the referrals were for vulnerable adults—those described in the report as people who may be in need of community care services because they are elderly or suffer mental illness, disability or another ailment and are aged 65 or older.

I endorse the expressed views of Age UK and Action on Elder Abuse in that any abuse of older people is unacceptable. We need a zero-tolerance approach to any abuse, whether through neglect, financial manipulation or physical or mental cruelty. My greatest fear is that there are still many cases that are not reported. This amendment would assist the authorities in gaining access to such victims where their abusers may naturally be the very individuals preventing legitimate access.

In my first proposed new clause, I seek to support Action on Elder Abuse in its claim that there are situations where victims of abuse are imprisoned in their homes by a perpetrator who subsequently denies access to adult safeguarding staff. In such circumstances there are no current legal means by which access can be achieved. There is need, therefore, for a power of access for confidential interview, but to occur only where the reasonable suspicion of a social worker or another practitioner is tested by application to a court, which would consider whether to authorise such access. This is available in the Scottish Act and it is proposed in the Welsh Bill through application to a justice of the peace.

In my second proposed new clause, I seek to rectify the fact that there is also currently no duty on agencies to notify a local authority if they believe that an adult is at risk of abuse. Local authorities cannot be expected to identify all abused people by themselves, or to rely on the goodwill of others to make referrals. There is a need to underline the responsibility of all agencies to report if they reasonably believe that an adult is at risk.

My third proposed new clause seeks to create a specific offence to protect adults with capacity who are the subject of neglect or abuse but who are not covered by the Mental Health Act or the Mental Capacity Act. In such circumstances, they can be covered by the inherent jurisdiction of the courts. That is the only way and is time-consuming, costly and not widely used in such circumstances.

Safeguarding adults review team should also include a social worker with substantial experience of safeguarding work. We really want an experienced social worker, with the support of the local police when there is not a sufficiently senior social worker, to be able to access the person in their own home. Unless we achieve that, we are not going to protect these vulnerable people, who will not report the abuse for all sorts of reasons—it may be a family history of abuse; it may be revenge on a parent for what they did in the past; it may be all sorts of reasons. If people cannot get into their home, we are not going to deal with this problem.

I know that there is a huge reluctance to demand access—we had the same story with children many years ago—but we have to have it; we have to get access in these circumstances, with the support of the judiciary. I beg to move.

Photo of Lord Rix Lord Rix Crossbench 7:15 pm, 14th October 2013

My Lords, I lend my support to Amendment 77, tabled by my noble friend Lady Greengross. I would also like to express astonishment that we seem to have reached the target for tonight before the dinner hour.

My interest, of course, is with people with a learning disability and what is increasingly referred to as mate crime. This is where someone has befriended a person with a learning disability and is exploiting or abusing them in some way. In some cases this person may be living with them and, for example, concerns may have been raised by neighbours that the person may be being abused. Currently, the local authority would be unable to speak to the adult with a learning disability to establish if they are all right as the other person, the third party, always answers the door and will not let them in. This power would change that. I understand that the power on the statute book in Scotland is being used sparingly, and I believe that it is used appropriately.

I now turn to Amendments 79A and 81A, which are tabled in my name, on strengthening the safeguarding clause. Currently only financial abuse is defined in the Bill. However, there are of course many other types of abuse, such as physical, psychological and sexual abuse, as well as neglect. The amendment seeks to rebalance the definition. I understand that there has to be a definition of financial abuse in the Bill as there is not a legal definition elsewhere. However, limiting the definition to financial abuse, suggests that there are no other forms of abuse or that professionals and agencies should focus on financial abuse alone.

Although I do not doubt that people with a learning disability suffer financial abuse, other forms of abuse are far more common. Indeed, statistics on the number of safeguarding referrals detailed in the Abuse of Vulnerable Adults in England report for 2012-13 show that physical abuse and neglect were the most common. We would not wish inadvertently to elevate financial abuse above and beyond other forms of abuse. Of course, I understand that there is a reluctance to list types of abuse in case the list appears to be exhaustive and never-ending. The amendment adds the option to specify other forms as detailed in guidance, which I hope will allay such fears.

Amendment 81A, the second amendment tabled in my name, places a duty on safeguarding adults boards to send a copy of their annual report to the Secretary of State. These reports are important in that they detail the findings from safeguarding adult reviews that have been carried out. In addition, a welcome government amendment has added that these reports must now show the actions that boards have taken to implement the findings.

At the moment Schedule 2 says that a copy of the annual report must be sent to the CEO and leader of the local authority, the local policing body, the local Healthwatch and the chair of the health and well-being board. It is important that lessons are learnt nationally and sending these annual reports to the Secretary of State will allow us to understand the national picture and issue guidance as appropriate. People with a learning disability are some of the most vulnerable people in our country and not to monitor and respond to abuse at a national level is quite unacceptable.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, I support Amendments 77, 80 and 82, to which I have added my name. I will also comment on Amendment 79.

I strongly support the need for adult safeguarding access orders and applaud the noble Baroness, Lady Greengross, for tabling the relevant amendments. As we discussed last week, as local authority resources shrink further—the Minister referred to a 5% reduction so far—the reality is that care will be left more and more in the hands of relatives, many of whom may themselves be elderly and frail; or indeed they may be younger, with childcare responsibilities and have great difficulty in providing support in all directions. Inevitably, many family carers will find it extremely hard to cope, and there will undoubtedly be situations when elderly or disabled people are neglected or in some way abused. I fear that the only way in which family carers will get the help they need will be if adult safeguarding access orders are available, so that following an alert the local authority can become involved, assess the situation and, where appropriate, prioritise further support.

As public services shrink, the neglect of elderly and disabled people—even gross negligence in some cases—will become a growing problem that could very easily become a national scandal. Having said all that, I part company with my noble friend Lady Greengross when it comes to Amendment 79. We have the criminal law. It may not cover absolutely everything but I would not want to see any increase in the likelihood that an overburdened family carer could face criminal charges if they reach the point where they cannot continue to care appropriately for a relative. For me, the purpose of adult safeguarding access orders is to ensure that problems are identified—they certainly need to be—and support is made available in order to enable a carer to cope in the style they would wish to provide.

Photo of Baroness Hollins Baroness Hollins Crossbench

My Lords, I support the amendment in the name of my noble friend Lady Greengross on the duty to report adults at risk, which replicates a duty within the Welsh Bill. I spoke to a similar amendment in Committee.

Providers, together with other partners, will often be best placed to identify abuse and neglect, and it makes sense for them to report to the local authority. At Winterbourne View there were 40 safeguarding alerts, 29 incidents where the police were involved and 78 attendances at A&E but agencies did not take any action. They believed it was someone else’s duty to report and take action. Putting this duty in the Bill would emphasise its importance and would be a vital step in ensuring that the local authority is notified so that it can then take the appropriate action. Leaving this to guidance and local protocols is not a satisfactory solution.

I also support my noble friend Lord Rix’s Amendments 79A and 81A on safeguarding. My noble friend has highlighted how abuse comes in many different forms. The breakdown of the nature of referrals is set out clearly in the Abuse of Vulnerable Adults in England 2012-13 report. The most common was physical abuse at 38,500. There were 24,500 referrals for financial abuse, the third highest. It seems an eminently sensible amendment to add some balance to this clause.

My noble friend’s amendment on safeguarding adults boards sending copies of their annual report to the Secretary of State also seems eminently sensible. Looking at safeguarding annual reports across the country would allow the Secretary of State to see the national picture as well as to monitor what works and what does not. Guidance can be issued where worrying trends are observed and good practice shared. This is about leadership at a national and strategic level, which could help to tackle the abuse and neglect of the most vulnerable members of our society. I do not think it is about extra bureaucracy.

Photo of Lord Warner Lord Warner Labour

My Lords, I rise briefly to support Amendment 77 and to ask the noble Earl whether his department has actually looked at the legislation that protects children to see whether this is in line with that legislation.

My child protection legislation knowledge and expertise are a bit rusty but the basic rule of child protection is that you see the child in their home environment. That is rule number one. If you look at many of the cases that have hit the headlines after going wrong, it is due to a failure to secure entry early on in the proceedings to see the child in their home environment. The noble Baroness, Lady Greengross, has highlighted a very important issue. I am still struggling to understand why the Scots and the Welsh think it is important to retain this kind of approach but we in England do not. There does not seem to be a consistency of purpose across the borders.

Lastly, with regard to neglect, if you look at the data on child protection, I think the fastest growing area in which courts are authorising care orders and approving care proceedings for children is neglect. We should not shy away from the fact that when times are hard this may be a growth area. I am very pleased that the noble Baroness, Lady Greengross, has included abuse and neglect in her amendment.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I support the noble Baroness, Lady Greengross, particularly on Amendment 77 about powers of access and entry. She and I were both there at the birth of Action on Elder Abuse, which grew for a reason: people had identified and begun to codify the many different forms of elder abuse.

I absolutely sympathise with what the noble Lord, Lord Rix, is trying to do. Indeed, I had the same thought myself but I will defend the Bill by saying that other forms of abuse—physical, sexual, whatever—are set out in different pieces of legislation. What this Bill does is define financial abuse for the first time. That is really important because we know that very many older people are financially abused by relatives and until now the financial services industry has been pretty hopeless about dealing with it. That is why that is there.

A power of access is important precisely for the reasons identified by the noble Lord, Lord Warner. What we are talking about here is the right of a social worker with a police escort, having got permission via a legal document, to go into somebody’s house, where there is a suspicion that criminal activity may be taking place. That is the magnitude of what we are talking about.

That leads to my second point, which is that it is right for us to anticipate that, just as in Scotland where these powers have been put into law, they will be used very sparingly. There will not be many cases. However, these types of cases are awful, with people suffering truly horrendous abuse. Therefore, it is important that we act.

In the lead-up to this debate, at an earlier stage of the Bill, noble Lords argued against the proposals of the noble Baroness, Lady Greengross, for two reasons. One was that we have legislation already in place that is sufficient, and that it is simply a matter of practitioners not knowing about it. That is not a defence of existing legislation. If it is ineffective and does not work, it should be redrawn and redefined.

The Minister said—I think in Committee—that the police know what they are supposed to do. They may well do, but members of the general public do not know what to do if they suspect that an older person is being abused. They probably do know what to do if they think that a child is being abused, but not if an older person is being abused. Therefore, that would be another benefit of having clear law on statute.

In Committee, the noble Lord, Lord Patel of Bradford, said that people from mental health organisations were very much against the proposal to grant powers of entry because they believed that it would weaken the necessary trust between mental health service users and the staff with whom they work. We discussed this when community treatment orders were coming into being under the Mental Health Act. I understand those fears, but with older people we are talking about something different; we are talking about a third party, usually a relative or close friend, deliberately keeping other people out of somebody’s home in order to go on perpetrating abuse. That is a completely different situation from a mental health professional dealing with a client. Therefore, I support the amendments.

I say to the noble Baroness, Lady Meacher, who opposes Amendment 79, that the first time anybody talked to me about elder abuse—I was sitting in a hall with a bunch of colleagues—they impressed on us above all that there is carers’ stress and there is elder abuse, and that they are two completely different things. We are not talking about penalising carers who are stressed; we are talking about taking proper action against people who are perpetrating criminal abuse on vulnerable people. That is a wholly different thing. That is why the noble Baroness, Lady Greengross, is right.

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords) 7:30 pm, 14th October 2013

My Lords, in addressing these amendments I once again emphasise that we very much welcome the placing of safeguarding on a statutory footing in the Bill, and the establishing of statutory safeguarding adults boards. This builds on the legislation, regulations and advice on principles and frameworks for safeguarding for both adults and children that we established up to 2009, which are now being taken forward in the Bill.

The noble Baroness, Lady Greengross, and other noble Lords, again made a comprehensive case for granting the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. The noble Lord, Lord Rix, spoke of “mate” relationships among people with learning difficulties. It was a powerful example of what we need to address.

We know that there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions, and patients and user organisations on this sensitive and complex issue. However, we have to remember that the Government's consultation had a relatively low response, particularly in terms of local council and NHS trust participation. On top of that, many of the consultation responses appeared not to have fully understood the limited nature of the change that was being proposed: namely, that the new power would apply only to situations where it is the third party who is denying access, not the individual.

The noble Baroness’s amendment sets out tough limitations and restrictions that would apply to such a power. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone was in danger of abuse. The power of access would be to enable the local authority to access the person and speak to them alone to assess the situation. It is clear that it is intended as a last-resort power to address third-party denial of access to a vulnerable adult, for use after all other efforts and mechanisms have failed.

Getting the balance right between proactively intervening in the lives of individuals in this way and limiting the extent to which this interferes with their rights to freedom and family life is the challenge that we face. Certainly there is widespread acceptance that the existing powers to intervene under government legislation are not being fully utilised and are not addressing the issues, and that the training of specialist staff needs urgently to address this. Will the Minister explain to the House how the Government intend to deal with this?

As we said in Committee, on balance we support the case for inclusion in the Bill of the power of access by a social worker or the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment of the noble Baroness, Lady Greengross. We recognise that safety should be paramount in this instance. However, we recognise the strong concerns of Mind on this issue, and of the Royal College of General Practitioners, which would prefer to use other powers, such as working with the sector to co-produce best-practice guidelines. Will the Minister explain how the Government propose that denial of access by a third party to a potentially vulnerable adult will be addressed if the issue is not dealt with in the Bill?

I support the intention of Amendment 79A, tabled by the noble Lord, Lord Rix, to include in the Bill a definition of abuse that reflects other types of abuse besides the financial abuse currently included in the Bill. The noble Lord has the very real concern that this would encourage hard-pressed local authorities to narrow their focus to financial abuse alone. The Confidential Inquiry into Premature Deaths of People with Learning Disabilities published its findings in March 2013. It looked at the deaths of 233 adults and 14 children with a learning disability in the south-west and found that 20% of the people concerned had experienced safeguarding concerns. While some of these may have been due to financial abuse, it is more likely that they concerned other forms of abuse: in particular, neglect. The study showed that 37% of deaths would have been potentially avoidable if good-quality healthcare had been provided. Neglect is undoubtedly one of the reasons, and thus the definition in the Bill should be broadened. I ask the Minister to look again at this and come back with a more balanced clause reflecting other types of neglect and abuse. It is important, for example, that hospital safeguarding leads should be clear that the definition is broad, and should take appropriate action.

The noble Lord’s Amendment 81A would also be a welcome alteration to the Bill. It is a small but important matter, because sending SAB annual reports to the Secretary of State will ensure that safeguarding is given the high level of oversight needed, particularly over areas that might be failing.

We also support the amendments to Schedule 2 contained in Amendment 81 from the Government, and Amendments 80 and 82 from the noble Baroness, Lady Greengross. The SABs would benefit from professional social worker representation, as would safeguarding adult review teams from having a qualified social worker supervising the review.

The two final amendments of the noble Baroness, Lady Greengross—Amendments 78 and 79—raise the important issue of establishing a new duty of care on a local authority or its relevant partner to report to the authority if they suspect that there is a failure of care, and to set out the terms of conviction for any person guilty of neglecting or ill treating an adult at risk of abuse. We share some of the concerns of the LGA, for example, on these amendments: namely, that there would need to be clarification of exactly what the care quality, professional practice and safeguarding concerns would be under the new duty, and how the duty would relate to other partners involved in service delivery. We also share concerns that while the criminal conviction provision may present the way forward in cases of neglect, it might unintentionally create a lower order of offence and tariff for older and disabled victims of crime.

Finally, I underline the vital need, when so much care now is contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister tell the House how the Government intend to ensure that this will happen?

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

My Lords, for the first time the Government will, through this Bill, place adult safeguarding in primary legislation. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. This sends a clear message that safeguarding is not the sole responsibility of one agency but requires the very best of partnership working and information sharing. Amendment 77, which would introduce a power of access to a person for a confidential interview, runs counter to that message. Having said that, I am well aware of the strength of feeling in relation to this matter, both inside your Lordships’ House and elsewhere. Whether there ought to be a power of access or entry is a sensitive question. That is precisely why the Government launched a three-month consultation in 2012 to gauge the opinions of professionals and the public. The consultation revealed no clear consensus. Of 212 respondents, 50% backed a new power, with 40% opposed. However, among individuals, 77% disapproved. The majority of respondents in favour of a new power of access were health and care professionals, yet it was very noticeable that their responses revealed the painstaking weighing of potential benefits against unforeseen consequences.

The mental health charity Mind said:

“A power of entry risks being seen as a quick solution, in place of greater focus on community engagement, co-operation and a preventative approach that can be truly empowering to the people involved”.

This was a theme found in many responses. I stumble over the consequences of what the noble Baroness seeks to do. Here I respectfully but fundamentally disagree with my noble friend Lady Barker who said that there was no real comparison with the situation in mental health. A power such as this might well ensure access but the central issue will remain—how will the professionals then work with the situation to achieve the best outcomes? Trust will have been compromised and, short of a power of removal, which we certainly would not want to see, the options for action seem pretty limited.

Our consultation revealed no compelling evidence for further legislation. Even those respondents in favour pointed to how rarely a new power might be applied and identified potential unforeseen consequences. Proposed new Subsection 4(c) of the amendment states that an access order should be granted only if doing so,

“will not result in the person being at greater risk of abuse or neglect”.

I have to ask how a court could ever reliably make such a judgment in these circumstances.

The other key point which I would like to believe may sway the House is the following. There exists no legislative vacuum preventing care or other professionals accessing those in urgent need of assistance. Under the Police and Criminal Evidence Act 1984, the police have the power to enter premises if harm has occurred or, indeed, is likely to occur. The Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 and, for those lacking capacity to make decisions, the Mental Capacity Act 2005, provide a wealth of powers for use at the front line, and the inherent jurisdiction of the courts to intervene provides a secure safety net. Therefore, it is not the lack of legislation; rather, as safeguarding lead directors at ADASS have put it, it is a question of a “lack of legal literacy” within the social care and other professions. What is needed is greater knowledge of existing legislative options. If they have that, professionals will be fully equipped to support people to be safe. The core role of an adult social worker is to support people. Further legislation for a new power of access risks undermining this approach, sending the message that legal intervention takes primacy over negotiations and consensus. I stress that legal intervention, on those rare occasions when it is needed, is already possible under the law. For those reasons, I cannot accept this amendment.

I understand the concerns behind Amendment 78, tabled by the noble Baroness, Lady Greengross. It is, of course, imperative that anyone, but particularly local authorities and their relevant partners such as those in the NHS, who suspects someone is at risk of abuse or neglect knows what action to take. Our best chance of ensuring that relevant partners take action when they suspect abuse or neglect has occurred will be through the adult safeguarding boards which comprise the local authority and relevant representatives of the NHS, police and anyone else the board considers appropriate. The duties in Schedule 2 provide a clear foundation for boards to produce and refine their own protocols for dealing with suspected abuse or neglect.

Existing regulations and guidance are clear that partners and staff are required to report abuse and we will be issuing new guidance on safeguarding under the powers in the Care Bill. Professional codes of practice, regulators’ requirements and employers’ policies should provide clarity in this respect. Furthermore, the changes we propose to its registration requirements would make it easier for the CQC to take action against registered providers in cases of abuse.

A fundamental truth at the heart of all this is that no amount of legislation will prevent abuse of adults vulnerable to abuse. Rather, it is through developing effective partnerships and ensuring the active engagement of the community that we can best protect individuals.

On Amendment 79, I agree with the noble Baroness, Lady Greengross, that people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution where an offence has been committed. However, civil law already provides redress for cases of neglect, and criminal law prohibits assault, which would include much of what is sought by this amendment. Further specific offences exist under health and safety legislation which would enable employees in care establishments and agencies to be prosecuted for failing to take reasonable care over the health and safety of others while CQC registration requirements would enable providers of regulated activities to be prosecuted for neglect or acts of omission which cause harm or place service users at risk of harm. Where an adult lacks capacity, there is an existing offence of ill treatment or neglect by a person who has care of the adult, or is authorised to act for the adult under the provisions of the Mental Capacity Act. A specific offence is justified here because of the evidence that such people are highly vulnerable to abuse or neglect.

I turn to Amendment 79A, tabled by the noble Lord, Lord Rix, which seeks to make a statutory definition of “abuse”. Our decision not to do this reflects a desire not to restrict the scope of local authorities’ inquiry duty. It seems to us inevitable that creating any list of types of abuse risks excluding something which a local authority or its partners may wish to inquire into. I think that is a real danger. We have made an exception regarding financial abuse to be absolutely clear on our intention for financial abuse to be included within the scope of the duty when it may not necessarily be considered as falling within the natural meaning of “abuse”. It is worth reminding ourselves that the Joint Committee which carried out pre-legislative scrutiny on the draft Bill agreed that “abuse” is an ordinary English word, capable of being understood without being defined.

Amendments 80 and 82 emphasise the need for involvement of social work-qualified staff—

Photo of Lord Rix Lord Rix Crossbench 7:45 pm, 14th October 2013

I fully understand the argument that the Government do not want a great list of what constitutes abuse. However, the Minister said earlier that it would be possible to give local authorities a batting order, as it were, of what is in legislation. I realise that abuse is covered in legislation, but would it be possible at least to make sure that local authorities do not suddenly think that only financial abuse is to be considered when they look at this Bill? That is all I am asking for.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

I will gladly look into that point. I am sure that it is possible to do that but, as the noble Baroness, Lady Barker, said, many provisions on the statute book are designed to protect individuals from abuse in one form or another and make criminal offences of those actions. Nothing has changed as regards those criminal provisions. If they need to be underlined, however, and if there is scope for misunderstanding of what the Government are doing here, then I take the noble Lord’s point, and will gladly reflect and come back to him on that.

Amendments 80 and 82 emphasise the need for involvement of social work-qualified staff in boards and reviews. In Schedule 2 we make it clear that chairs and members of boards must have the “required skills and experience”. It would be impracticable to put into primary legislation every possible type of expertise and professional knowledge that might be needed. We must allow boards the flexibility to appoint members as they see fit. We will, however, ensure that the importance of social work is recognised in guidance, which will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.

Government Amendment 81 responds to an amendment tabled in Committee by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins. On reflection, I see merit in placing a duty on safeguarding adults boards to publish an annual report. This amendment will increase the transparency and accountability of boards.

Finally, Amendment 81A tabled by the noble Lord, Lord Rix, requires that safeguarding adult boards provide their annual reports to the Secretary of State. With a duty on boards to publish their annual report, we can be assured that they will be publicly available. We would expect the local Healthwatch and health and well-being boards to monitor the safeguarding adult board’s progress and report to the Secretary of State if there are particular matters of concern. To require the board formally to submit a report to the Secretary of State would, if nothing else, undermine the primacy of local accountability, which is at the heart of our approach to safeguarding. I hope that, on reflection, the noble Lord will agree with me.

I hope that I have convinced your Lordships that we have done all that we properly can to provide the right legislative framework for safeguarding and, in consequence, that noble Lords will feel able not to move their amendments.

Photo of Baroness Greengross Baroness Greengross Crossbench

My Lords, I have to say that I am extremely disappointed that the noble Earl cannot in some way meet the requirements that I put forward in my amendments. Unfortunately, the number of older people who suffer abuse is growing all the time. The sort of personal plans for care that we now want to introduce for everyone just make such abuse a greater risk than it was before. We know that an awful lot of older people are shoved in a room, the door is closed, they get their meal and no one does anything else. Over a long period, those people’s conditions can get worse and worse. When and if they are eventually discovered, it is too late to do anything to help them.

The sort of care that we want to provide for people might be damaged by a refusal to look at this issue in greater detail. I am really disappointed. I understand the noble Earl’s views but disagree with them. I thank all noble Lords who supported what I have said and I assure my noble friend Lady Meacher that I was not intending to persecute carers. My intention related to people who, I am afraid, inflict real harm and hurt on some of the most vulnerable people in our society. I have worked on this issue for years; that is why we set up Action on Elder Abuse, the only specialist agency to look at this. Its view is strong and has not changed. We must have some sort of protection for these very vulnerable people. I hope that one day we can get this matter looked at again and I hope that the Minister will consider it in the future. In the mean time, I withdraw my amendment.

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health

Before the noble Baroness makes a final decision, I hope that I have been clear that I have reflected on her amendment. I cannot give her false hope that I will reflect further between now and Third Reading; so if she wishes to test the opinion of the House, she should do so now.

Photo of Baroness Greengross Baroness Greengross Crossbench

I am hesitating only because of time and I know that a lot of people have gone home. I thank the noble Earl for his advice and, on that basis, I seek to test the opinion of the House.

Division on Amendment 77

Contents 72; Not-Contents 143.

Amendment 77 disagreed.

Division number 2

See full list of votes (From The Public Whip)

Amendments 78 and 79 not moved.

Clause 42: Enquiry by local authority

Amendment 79A not moved.

Schedule 2: Safeguarding Adults Boards

Amendment 80 not moved.

Amendment 81

Moved by Earl Howe

81: Schedule 2, page 105, line 34, at end insert—

“( ) what it has done during that year to implement the findings of reviews arranged by it under that section, and

( ) where it decides during that year not to implement a finding of a review arranged by it under that section, the reasons for its decision.”

Amendment 81 agreed.

Amendment 81A not moved.

Clause 44: Safeguarding adults reviews

Amendment 82 not moved.

Consideration on Report adjourned.