Moved by Lord Low of Dalston
83: After Clause 47, insert the following new Clause—
“Human Rights Act 1998: provision of “care and support services” to be public function
(1) A person (“P”) who provides regulated “social care” is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature in doing so.
(2) This section applies to persons providing services regulated by the Care Quality Commission.
(3) In this section “social care” has the same meaning as in the Health and Social Care Act 2008.”
My Lords, I shall speak also to Amendments 138A and 138B, which are in my name in this group. I shall get those amendments out of the way first, as the debate is likely to focus principally on Amendment 83. Clause 75(6) says that anything done or not done by a third party authorised to carry out a particular function is treated as done or not done by the local authority. In effect, the local authority is solely responsible for the third party’s acts or omissions, subject to a couple of exceptions in subsection (7).
The Joint Committee on the draft Care and Support Bill recommended an amendment to make clear that a person with delegated authority is subject to the same legal obligations as a local authority itself. This reflected concerns that there should be a clear chain of accountability by which the individual could hold the third party, not just the local authority, responsible if their rights were infringed. The Government have contended that the clause already provides for continued accountability. They said that the local authority,
“will remain liable for the proper discharge of that function”.
This misconstrues what the Joint Committee was recommending. The Government are viewing accountability solely in terms of the relationship between the third party and the local authority. Subsection (6) precludes the possibility of the individual seeking redress from the third party, so it does not accord with the Joint Committee’s recommendation. The Minister in Committee said that care providers with delegated functions must carry them out in a way that complies with the Human Rights Act 1998 and that any failure to do so will be a failure by the local authority. That is not the same as the third party being subject to the Human Rights Act; the third party would be failing its obligations to the local authority, but to no one else. The Minister effectively conceded as much when she said:
“By that device, the Human Rights Act would end up having an effect on what those third parties could do, even if they were not themselves directly responsible”.—[Hansard, 29/7/13; col. 1587.]
The noble Earl, in his letter to Peers following Committee stage, confirmed that individuals will have recourse only to third-party dispute resolution procedures or the local authority’s complaints process.
Without these amendments the individual will have no remedy against, for example, a private care home delivering poor service, or a private company failing to carry out proper assessments. We therefore need these amendments to give effect to the Joint Committee’s recommendation that a person with delegated authority should be subject to the same legal obligations as the local authority.
On Amendment 83, I set out the arguments in detail in Committee and shall not repeat them at length here. The matter is really quite simple and straightforward and can be stated briefly. The Human Rights Act 1998 applies to all public authorities and to other bodies when they are performing functions of a public nature. That means that it should apply to all providers of care, given that the provision of care is a public function. However, the matter was thrown into doubt in 2007 by the case of YL v Birmingham City Council, which held that care home services provided by private and third sector organisations under a contract with the local authority did not come under the definition of “public function” for the purposes of the Human Rights Act. This meant that thousands of service users had no direct remedy against their care provider for abuse, neglect or undignified treatment. Though the public body commissioning the care remained bound by the Human Rights Act, that was of little practical value to the individual on the receiving end of poor or abusive treatment, or the person given four weeks’ notice to leave because they had antagonised their provider, about whom the noble Lord, Lord Warner, told us in Committee.
Accordingly, Section 145 was introduced into the Health and Social Care Act 2008 to clarify that residential care services provided or arranged by local authorities are covered by the Human Rights Act. There has been concern that this Bill would undo Section 145 by repealing Sections 21A and 26 of the National Assistance Act 1948, under which persons were placed in residential care and through which Section 145 has operated. However, the noble Baroness, Lady Northover, responding to the debate in Committee, set minds at rest on that when she provided the assurance that,
“there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation”.—[ Official Report , 22/7/13; col. 1118.]
However, there remains concern that Section 145 does not cover all care service users, or even all residential care service users. It only protects those placed in residential care under the National Assistance Act. That being so, it is anomalous not to treat residential care provided under other legislation and domiciliary care in the same way.
The noble Baroness, Lady Northover, reflecting the position put to the Joint Committee on the draft Care and Support Bill, further stated that the Government’s position is that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors,
“should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998 and not act in a way that is incompatible with a Convention right”.
However, there are two things wrong with this. First,
“should consider themselves to be bound”,
is not the same as “covered in law”. Secondly, the Joint Committee was not convinced. It concluded that, as a result of the decision in the YL case, statutory provision is required to ensure this. As I said in Committee, I have seen a letter in which it is stated that the Government’s position is that care providers are covered, and should not just “consider themselves to be bound”. However, the House of Lords in YL said that they were not and the Joint Committee was not convinced either. Given such uncertainty, it is surely essential that the matter is put beyond doubt in legislation and Amendment 83 would achieve this by deeming that all those providing social care services regulated by the CQC are exercising a public function for the purposes of Section 6 of the Human Rights Act.
The amendment would also include those who are eligible for care but who, due to means testing, have to arrange and/or pay for their own care—so-called “self funders”—and therefore currently lack the full protection of the Human Rights Act. To date, it has been the case, at least for those who were found to be eligible for care in their own home, that the obligation for the local authority to arrange care regardless of the person’s resources provided them with a degree of protection under the Human Rights Act. However, the changes to the system of arranging care to be introduced by the Bill weaken this protection. My amendment follows the approach of the Joint Committee and, if accepted, would provide equal protection to all users of regulated social care regardless of where that care is provided and who is paying for it.
The Government believe, as the Explanatory Notes to the draft Bill make clear, that protection under the Human Rights Act extends to care arranged by a local authority, even if it is self-funded, but the Joint Committee does not accept that this does not require explicit statutory provision. However, regardless of this view, it makes the point that it does not address the situation of self-funders, who arrange their own care and support. The Government, they say, will need to consider whether it is right that, of all adults in need of care, only this group should lack the protection of the Human Rights Act.
Given the manifold ambiguities and uncertainties surrounding this question, surely it is right to take this opportunity of putting the matter beyond doubt, as my amendment would do. What reason can the Government possibly have for resisting it, when all it does is to spell out in words of one syllable in the Bill that to which the Government have no objection—indeed, already believe to be the case—but which is subject to so much doubt in everybody else’s mind? I beg to move.
My Lords, I support Amendments 138A and 138B, but will not add to the excellent comments of the noble Lord, Lord Low. I speak in particular to Amendment 83.
I apologise to your Lordships for not having made any comments in Committee but, as I have pointed out, I was away from the House on the orders of my wife. In supporting Amendment 83, I acknowledge the excellent supporting brief from the Equality and Human Rights Commission. In particular, I thank my noble friend Lord Lester of Herne Hill, who sadly cannot be here today, for his considerable guidance.
The amendment stems from a failure by successive Governments to heed the recommendations of the Joint Committee on Human Rights and the Joint Committee on the draft Care and Support Bill to legislate to tackle the problem created by the majority decision of the Law Lords in 2007 in the case of YL v Birmingham City Council.
In YL, the issue was whether a care home, such as that run by Southern Cross Healthcare Ltd was performing functions of a public nature for the purposes of the Human Rights Act when providing accommodation and care to a resident such as Mrs YL under arrangements made by Southern Cross with Birmingham City Council under Sections 21 and 26 of the National Assistance Act 1948.
The Law Lords decided by three votes to two—the noble and learned Lord, Lord Bingham, and the noble and learned Baroness, Lady Hale, dissenting—that they were not performing a function of a public nature.
However, anyone reading the dissenting judgments of the noble and learned Lord and the noble and learned Baroness would understand why the majority ruling appeared contrary to the objective and purpose of the Human Rights Act. The previous Government thought that YL was wrongly decided and I assume that the present Government share that view. It would be useful if the Minister could confirm that that is the Government’s position.
The previous Government then sought to resolve the problem by intervening in test litigation to clarify or overturn YL, but that did not prove possible. The JCHR twice recommended remedial action, but the previous Government refused to take such action or to support the efforts of Andrew Dismore MP, as the chair of the JCHR, to do so by means of a Private Member’s Bill.
I am very grateful to the noble Lord for giving way and I hesitate to interrupt him, because I agree with almost everything that he is saying, but on a factual point he is wrong. The previous Government—and I was the responsible Minister—did not disagree. We were trying to find a way of resolving this and we ran out of time. It is not that we disagree with it; we were wholly in agreement with the efforts made by Andrew Dismore. We were simply trying to find a robust way of dealing with that particular problem and we ran out of time.
I thank my former honorary opponent for that clarification and I certainly would not wish to contradict him. The reality is that the previous Government did, in fact, try to find a way out of this judgment and to correct it in a way which they thought would be beneficial for the people of England and Wales. Instead, they introduced an amendment to the Health and Social Care Act 2008 to extend human rights protection to those receiving residential care arranged by a public authority. The amendment did not extend, as the noble Lord, Lord Low, rightly said, to home care services, even though they were provided under a similar statutory framework. It is that gap that this amendment is designed to fill. Surely there is precious little difference between a local authority securing care services of an individual in a residential care setting or in someone’s own home. That is the kernel of this particular problem.
The Department of Health has explained the Government’s position in Written Answers to the JCHR. It said that,
“all providers of publicly arranged health and social care services, including private and voluntary sector providers, should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998, and not to act in a way which is incompatible with a convention right”.—[Official Report, Commons, 17/7/12; col. WA 702.]
We are told that:
“The case law supports a broad application of Section 6(3)(b) and provides that individual factors should be considered in each case. As such YL was a case on the particular facts, and it does not necessarily follow that the reasoning in that case will be applied to other social care settings”.
I find that very difficult to understand. Can the Minister explain the department’s judgment in that way?
The factual settings in YL in favour of a finding that Southern Cross was indeed performing a function of a public nature could not have been stronger, and yet were rejected by the majority so that legislative intervention became necessary. The department says that all providers should consider themselves bound by a Section 6 duty, but the law is entirely uncertain as it stands whether they are required by law to do so.
The department continues in its letter to JCHR:
“The Government do not therefore consider that an amendment to the Human Rights Act 1998 is necessary.”
But Amendment 83 is not seeking to amend the general test in Section 6 of the HRA, but to make it clear that someone who provides regulated social care is to be taken for the purpose of Section 6 (3)(b) to be exercising functions of a public nature in doing so. It is hard to see how it could be otherwise. The department continues by saying that the government position remains that:
“Any amendment to the Human Rights Act in relation to third sector and private providers … risks casting doubt about the interpretation of the Human Rights Act”.
However, the uncertainty is created not by this amendment but by the decision in YL, and by the fact that the amendment made by the previous Parliament was too narrow.
The Joint Select Committee on the draft Bill, chaired by Paul Burstow MP, included strong membership from all sides of the House. The committee’s report, published on
I therefore hope that the Minister will have had discussions with his ministerial colleagues and officials and will be able to accept the amendment in the name of the noble Lord, Lord Low, without the need to test the opinion of the House.
My Lords, I will say a few words in support of Amendment 83 in the name of the noble Lord, Lord Low. Before I say anything I will follow the example of the noble Lord, Lord Willis, and apologise for not having taken part in proceedings on this Bill before. As the Minister may know, I have recently returned from a period of disqualification, which has now been lifted on my retirement from the UK Supreme Court, so I am now able to speak, which I was not able to before. I thought I might contribute just a few thoughts to this debate against the background of that experience.
My first point is that Section 6(3)(b) of the Human Rights Act is one of the few provisions in what was an excellently drafted Act which, in my experience, judges have found rather difficult to apply in practice. The reasons for this were explained by the noble and learned Lord, Lord Neuberger, in YL. He made the point that any reasoned decision about the meaning of that phrase,
“functions of a public nature”,
risked falling foul of—as he put it—circularity, preconception and arbitrariness. The words are quite imprecise, so one has to search for some kind of policy guidance as an aid to their interpretation. There may be a whole variety of factors in one case taken with another that have to be brought into account as one tries to reach an answer—and in practice, answers are quite hard to predict.
With great respect to the noble Lord, Lord Willis, it is not helpful to ask at this stage whether YL was wrongly decided; we have to take the decision as we find it. That is how the law works. Of course, it is always open to Parliament to take a different view and judges—and, I am certain, noble Lords in that case—appreciate that entirely, as the noble Lord, Lord Neuberger, did for a reason I will come to in a moment. We have to assume that the judges in the lower courts will follow the decision in YL if other cases come before them, and it may not be all that easy for the Supreme Court—if the issue comes back before it in some future case—to depart from the basic reasoning in YL. I therefore suggest that one has simply to approach these issues on the basis that YL is there, and proceed accordingly.
The solution to the problem which the noble Lord, Lord Neuberger, indicated in his speech, at the very end of quite a long judgment, was that if the legislature considered it appropriate that residents in privately owned care homes should be given convention rights protection against the proprietors, it would be right for the legislature to spell that out in terms and make it clear that the rights should be enjoyed by all such residents. The words “spell it out”, which I think the noble Lord, Lord Willis, used, make the point that one has to have something which puts the matter plainly on the record and which gets over the difficulty created by the very broad reach of the subsection in Section 6.
As we have heard—I do not need to go over the ground again myself—an amendment was made to the 2008 Act which did not extend to regulated home care services, so there is a gap. There are, therefore, two questions. First, should the gap be filled? Secondly, which is a question for the Minister, how should that be done?
As far as the first point is concerned, as I understand the progress of events, and my reading has indicated this, there is not really any dispute about this because the Department of Health’s position, as explained to the Joint Committee on Human Rights, is that,
“all providers of publicly arranged health and social care services … should consider themselves to be bound by the duty imposed by section 6 … not to act in a way which is incompatible with a convention right”.—[Official Report, Commons, 17/7/12; col. WA 702.]
I think it was also suggested that it would not necessarily follow that the decision in YL, which was about a care home, would apply to other social care solutions.
I see a difficulty with that approach. Comments of the kind that were made, that people should consider themselves bound by a convention right, however well intentioned, do not have the force of law. They could not be relied upon, for example, in a court to guide a judge about the meaning of Section 6(3)(b) in the particular context. Therefore, they leave the law in a state of uncertainty because they do not have the force of law, and they have no relevance to a decision that the court would have to take.
If one takes the example of a provider who is faced with a claim from a person who is in need of care and not receiving it or whose rights are being infringed, that provider will probably have to seek legal advice as to what should be done. Legal advice would take the provider back to YL, and we find ourselves once again faced with the gap to which other speakers have drawn attention. It is perfectly true that YL was a decision on its own facts, but I respectfully suggest that the implications of the decision go wider than that. If you read the judgments, there is a distinction between private, profit-making bodies on the one hand and state or government-owned bodies with public functions on the other. One can debate how far private and profit-making bodies may be caught by the section, but that is the area which is creating difficulty.
The fact that that body was regulated, which was the situation in YL, was not determinative. The fact that we are dealing with social care which is regulated is not the answer to the problem. That is where the gap now confronts us. I would respectfully suggest, in support of the amendment of the noble Lord, Lord Low, that the answer is to do as the noble and learned Lord, Lord Neuberger, urged us to do at the end of his judgment and to spell it out in terms that a person who provides regulated social care is to be taken to be exercising a public function.
There is another point. A failure by Parliament to grasp this opportunity now and to make it clear will be noticed. There is a risk that, if that opportunity is not taken by Parliament now, courts may take this as a sign that Parliament is content with the law as it stands and may be understood to be on the basis of YL.
I absolutely appreciate that there is a question for the Minister whether this amendment would have wider implications. From my own experience, and having read the judgment in YL too, I am quite certain that thought passed through the minds of the judges. There is reference, for example, to schools and other institutions; the judges may have considered, “If we make a pronouncement about this, it may affect other circumstances and situations”. There is a difference, of course, between a judge making that kind of pronouncement and Parliament’s putting forward or putting into a measure a precisely targeted measure which deals with a particular problem. It is the difference between a sledgehammer, I would say, to crack a nut, and a rapier which deals with a particular issue. I do not see that there is any real risk that, by dealing with the matter in the targeted way that the amendment of the noble Lord, Lord Low, seeks to do, it will be taken as a signal in the courts that there is some wider reach in Section 6(3)(b) from that which was being discussed in YL.
It is a difficult issue, but I respectfully suggest that it has to be addressed now and that there is a real risk that, if we do not do it now, it will give rise to real problems later. I warmly support the initiative of the noble Lord, Lord Low.
My Lords, I will speak briefly in support of Amendment 83. I would have spoken on this in Committee, but unfortunately I was drowning in continuity of care. I feel that we are missing an important aspect in the debate: namely, the provider’s voice. I will give noble Lords an example from the Joint Committee on Human Rights. We ran an inquiry into Article 13 of the UN convention on the rights of disabled people. We took evidence from a range of providers, including private sector providers. We heard very good evidence from a private sector provider. When they were questioned about the Human Rights Act, it became evident that there was a great deal of confusion about when their homes were covered and when they were not. They erred towards saying, “No, we don’t think we’re covered because we haven’t been trained in that area”.
It became very evident to me that there was a crying need for clarification in this area. I asked a very simple question about what the witness thought that this meant for her private sector homes. She said, “Well, to be honest, we already do it. We allow our residents to go to bed at whatever time they like before 10 pm”. I feel that the misunderstanding of how the Human Rights Act covers private sector care homes was illustrated in that one moment. Therefore, the law needs clarifying—and this clarification would be welcomed not only by private sector care home providers.
My Lords, my name is on the amendment and, of course, I warmly support it. My noble and learned friend, Lord Hope of Craighead, analysed the situation in full, and in a way that in my view was absolutely correct and worthy of being followed. It is quite something for me to realise that my pupil has returned here as a result of his age, but obviously so far his acumen has been in no way affected.
The department says that people who provide this sort of care should consider themselves bound by the Human Rights Act. Why? Is that a mistake? No. So let us make it correct. Let us make sure that they are bound by the Human Rights Act. We are doing exactly what the noble and learned Lord, Lord Neuberger, suggested: where a particular function is to be regarded as of a public nature, the easiest thing to do is to say that. That is exactly what the amendment of the noble Lord, Lord Low, does.
I do not wish to get into the history of the previous Administration. The noble Lord, Lord Wills, came to the battlefront on that on previous occasions in my hearing. I do not know anything at all about that. However, there are two ways of approaching this. One is to consider amending the Human Rights Act, which I think was happening until the demise of the previous Government put an end to their considerations. The other is what the noble and learned Lord, Lord Neuberger, said: do not trouble with trying to provide a better policy in the Human Rights Act but say when you want it to apply. That is exactly what is required here.
I sincerely hope that the Minister will be able to accept the amendment—or that he will table his own amendment at Third Reading. I also hope that this will not be a matter on which we will have to test the opinion of the House, because we agree on the policy that the Human Rights Act should apply. The only question is whether the law has been properly framed to deal with that—and we can have no higher authority speaking on that matter in this House than a retired member of the Supreme Court.
I rise as a member of the Joint Select Committee to strongly support the amendment. I shall not go over the previous legal history, or repeat what I said in Committee, other than to emphasise a particular aspect of the case to which I drew attention then. That case related to an elderly woman in her 90s who was resident in a private care home and was totally self-funded. She had been a resident for some time and had the temerity to air her views on assisted dying, which did not please some of the home’s staff. She did not seek anybody’s help to commit suicide; she just expressed her views. The home’s management gave her four weeks’ notice to leave the home as a result. When her son raised the issue of her rights under the Human Rights Act with legal counsel, the opinion he was given was that she lacked protection under that Act because she was not in receipt of a service from a body providing a function of a public nature as her placement was neither publicly provided nor in a publicly funded home.
As a member of the Joint Select Committee I raised this matter when we were looking at the Bill and, after deliberation, the committee was unanimous in recommending that the Bill should be amended to clarify matters. This is what the amendment moved by the noble Lord, Lord Low, does. It covers all users of a regulated social care service. It is clear that there are differences of legal opinion on this matter when particular cases are raised. I consider that as parliamentarians, it is our duty to put the matter beyond doubt and provide self-funders with the legal certainty that other elderly people may have when they are in receipt of either domiciliary or residential care.
One of the most important new points that has been made on this issue since we debated it before was made by the noble and learned Lord, Lord Hope of Craighead, when he said that courts will notice if we do not take this opportunity to amend and clarify this legislation. That means that we cannot—as one of my children would say—faff around any longer on this issue. We have to make a decision; the amendment makes that decision, and we should all support it. Frankly, the Government should stop the legal equivalent of counting how many angels can be put on the head of a pin and accept the legal certainty that the amendment moved by the noble Lord, Lord Low, provides. They should be supporting people who are paying their own way by funding their care, not the reverse. There will be a lot more of them in the future so let us provide that protection now.
My Lords, I share, of course, the concern of all noble Lords that we should take all reasonable steps to protect vulnerable people who receive social care in whatever circumstances. I enter this debate for the first time with considerable trepidation, having regard to the great distinction of those, both present and absent, who support this amendment. I have to express some real doubts about it.
As far as I am aware this is the first time an attempt has been made to include, within the scope of the Human Rights Act, what may be a purely private function. Those who receive care may not be overly concerned with whether it is being provided by a public authority, a private provider, or in some hybrid arrangement. Nevertheless, this amendment is in effect extending the scope of the convention beyond the terms of the Human Rights Act.
It is important to consider what protection would be available anyway, in the absence of this amendment. If a poor standard of care is provided to an individual, it is likely that the provider will be in breach of an express term of any contract or in breach of a term implied by the Supply of Goods and Services Act 1982. There will almost certainly be a claim in tort, probably relying on the tort of negligence. There is, of course, a further safeguard in relation to all providers of publicly arranged care, in that all such providers have a duty imposed by Section 6 of the Human Rights Act, at least following what I would submit was the closing of the YL loophole by Section 145 of the Health and Social Care Act. The CQC, as a regulator and a public authority, is subject to the convention.
However, the amendment would, as I understand it, purport to provide some additional remedy; presumably some award of damages. The noble Lord should be aware of the relatively limited scope of damages awards under the Human Rights Act. As Lord Bingham said in the Greenfield case in 2005,
“the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official”.
The House of Lords also emphasised that the Human Rights Act was not to be regarded as a panacea. Indeed, Lord Bingham went on in Greenfield to say that the purpose of the Act,
“was not to give victims better remedies at home than they could recover in Strasbourg”.
However, that would be the position here if this amendment was passed. My conclusion is that the amendment amounts to an illegitimate extension of the Human Rights Act and would not, in reality, provide any significant extra protection for those who, quite understandably, we wish to protect.
The future of the Human Rights Act will have to await the outcome of the next election. However, amending the Act, which is what in effect this will do, would be inappropriate and, I have to say, unnecessary.
I understand that in the case to which the noble Lord referred, there was a private provider. There would therefore be the remedies I referred to earlier in my remarks—the normal remedies that those who receive services through a private arrangement would have. The Human Rights Act of course is concerned entirely with remedies against public authorities. I respectfully suggest that one must not lose sight of the remedies that exist, and have always existed, in relation to breaches or violations of anybody’s rights in the circumstances described.
Before the noble Lord sits down, can he just clarify something? Noble Lords will have to forgive me, because we have had some very learned legal arguments here and I speak as a simple clinician. Half of the patients in a place of care run by a private provider may be funded by, and have gone through assessments provided by, the NHS. They would therefore be covered by the Human Rights Act but the other half, who have to fund their own care because some official somewhere said that they did not fall within the bar for continuing care funding, would not be covered. The decision as to whether the cover, at the end of the day, applies or does not apply will be left to whichever person determines the funding bar for that individual, as opposed to our knowing that we have protection for those who are vulnerable across the piece.
The noble Baroness refers to protection. With respect, the assumption behind her question is that, whatever the arrangements, those people would lack any protection. The burden of my speech is that they would have protection anyway. There is, of course, a distinction between whether their care is a result of a publicly procured arrangement or a purely private arrangement. In the latter case, as the law is currently, there would not be any involvement of the Human Rights Act. But, with respect, the House should not be under any illusion that there is no remedy or no protection for people in the circumstances where there is a private arrangement.
The noble Lord sat down without answering the question that I asked him, which I am very keen for him to answer. My understanding is that this elderly lady was in a home and she was given full notice to leave; there was no question of any breach of contract or anything of that kind. Therefore, the sorts of remedies to which the noble Lord has referred would not be available, whereas under the Human Rights Act there is at least a very considerable probability that she would have some protection.
I am sorry that I did not answer the question adequately for the noble and learned Lord. My response is that actually the Human Rights Act remedies, which I endeavoured to deal with in my remarks, would not of themselves provide the sort of remedy that the noble Lord, Lord Warner, had in mind. As was outlined by Lord Bingham in the Greenfield case, the remedies are in fact very limited, very often amounting to a decision that there has been a violation, rather than the sort of practical remedy that I understand the noble Lord to have in mind. That is my response.
My Lords, just to clarify matters, if this lady had been covered by the Human Rights Act, the son would have been able to take legal action to try to prevent the home removing her. The mischief that was being committed was the forcible removal of a woman in her 90s from the place that she had lived in for a very long time. What the Human Rights Act—as I understand it; I am not a lawyer—would have provided protection for was the ability of a relative to seek protection from the courts that this home, in taking that action, was actually in breach of the Human Rights Act. I do not think that the noble Lord’s suggested remedies would have helped in this case or any other like it.
While I am on my feet, I say to the noble Lord that this Act changes the position anyway, because that lady, or a similar person in the future, might well have come up against the cap on her privately funded care and her care would then be paid for by the state, which would be performing a public function—or a function of a public nature—in paying for her care in that private provision. This Act changes the dimension from the past as well.
My Lords, I do not know whether I am permitted to speak again since we are on Report but perhaps I might just say for clarification that in my opinion the analysis by the noble Lord, Lord Warner, of the reach of the Human Rights Act is inaccurate. We have had a number of cases, in both the House of Lords Appellate Committee and the Supreme Court, dealing with the kind of problem where people say that they are losing their home because of steps being taken to remove them from premises that they occupy. It is that reach and the uncertainty that has been drawn attention to, where some people have the protection and some do not, that causes real problems.
In response to that, of course the Act provides that a court can give just satisfaction, and the remedy may include something of the sort to which the noble and learned Lord refers. However, if there is, as I think I understand the facts of the case, a violation of ordinary private law principles, the remedy should in those circumstances be available. But I think I have trespassed on the House’s patience for long enough.
My Lords, this debate seems to have degenerated into a recommittal stage, which the noble Lord on the Front Bench opposite called for at the very beginning of today’s proceedings. However, I do not think that he, or I, or probably anybody else, wants to recommit this particular clause which is, after all, a new clause.
My Lords, I support Amendment 83. I should also apologise to the House for not being present in Committee on this Bill. However, as the noble and learned Lord, Lord Mackay, has already said, I do have form on this particular issue.
This amendment deals with what is a long-standing anomaly in the scope of the Human Rights Act, which was created originally by the YL case. As the noble and learned Lord, Lord Hope, has said, it is not for politicians to determine whether cases are rightly or wrongly decided. It was the considered view of the previous Government—and it remains my own view—that that case produced a result that was not compatible with the original intentions of Parliament in passing the Human Rights Act. With respect to the noble Lord, Lord Faulks, and to all the discussion we have just heard, the intent of the Human Rights Act was not only to provide specific remedies in the sort of case that the noble Lord, Lord Warner, has just described.
Among other things, it was also to try to create a new culture in the delivery of public services—a culture of dignity and respect for the individual in relation to the state. It seems to me that this is precisely what this amendment sets out to do. As the noble Lord, Lord Low, said in introducing it, it seeks to extend, and to put beyond all doubt, the fundamental protections of the Human Rights Act to some of the most vulnerable members of our society. I support everything that has been said today in favour of this amendment; there have been very powerful speeches putting forward the argument far better than I can.
As we have heard, this anomaly is something that the previous Government wanted to address. We ran out of time before we could adopt the particular remedy that we thought was appropriate. It is an anomaly that your Lordships have debated before, but without finding a way of making progress. Today we have a real chance to make progress. It is significant that two of the proposers of the amendment—the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Lester—have in the past expressed concerns about previous attempts to deal with this particular issue. The fact that they are supporting this amendment suggests that their concerns have now been satisfied and that they do not feel that there are going to be unwelcome and perverse consequences from dealing with this issue in the way that this amendment proposes. For this reason, and for all the other reasons we have already heard, I hope your Lordships will take this opportunity to put this issue beyond doubt and extend these protections to some of the most vulnerable members of our society.
My Lords, this has been a very important debate and I am sure we are grateful to the noble Lord, Lord Low, for the persuasive way in which he moved his amendment. There was a lack of certainty about the scope of the Human Rights Act, arising from the YL case which decided that a private care home providing residential care services under contract to a local authority was not performing a public function and its residents were therefore excluded from the protection of the Human Rights Act.
The noble Lord, Lord Skelmersdale, was right to remind us that we are on Report, but I wanted to reflect on a point made by the noble Lord, Lord Pannick, in Committee. To an extent, it is an answer to the noble Lord, Lord Faulks. What the noble Lord, Lord Pannick, said is that the vulnerability of the person receiving care and the risk of abuse is the reason why he thought the law should impose duties on the provider under the Human Rights Act. In all those circumstances, it should encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases.
In Committee, we heard from the then Minister, the noble Baroness, Lady Northover, who relied on two defences of the Government’s position. The first was—as the noble and learned Lord, Lord Hope, has reminded us—that those providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves bound by the duty. I am sure that we should all consider ourselves to be bound by many things, but the fact that we consider ourselves to be so does not mean that we are bound by them.
The Government’s second defence was that the Care Quality Commission as the regulator is subject to the Human Rights Act and that may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. It is a duty that falls on the CQC itself, and I remind the House that we are talking about thousands and thousands of providers of services. I do not think that it is a sufficient defence for people who are caught in a vulnerable situation. The noble Lord, Lord Faulks, expressed doubts about including a private function and he pointed to a number of safeguards that already exist, including Section 6 and the CQC, but the vulnerability of so many of the people who we are concerned about seems to express a need for greater statutory provision.
I also remind noble Lords that many of the people we are talking about will move in and out of private care and public care, and at some point under this legislation will actually be in receipt of public support as well as contributing to the cost of their care. We know that when the cap comes in, people will then be entitled to public support, but that does not cover the hotel costs which are estimated at around £12,000 a year. Many people will be in receipt of public support while also having some form of private contract and top-ups, which we have discussed. It would ensure that people had a relationship both in terms of public support and a personal relationship with their private providers. For all these reasons, the argument put by the noble Lord, Lord Low, is very persuasive indeed.
In Committee, the noble Baroness, Lady Northover, said that she thought that talks would be undertaken. I am not aware of those talks and certainly the Opposition have not been invited to them. I hope that the noble Earl will be able to report on what discussions have taken place. At this point, however, we should note the arguments that have been put and I have great sympathy with the noble Lord, Lord Low.
My Lords, noble Lords have spoken eloquently in support of these amendments and I appreciate the strength of feeling across the House. This is an important issue that is fundamentally concerned with the safeguarding of vulnerable people. While I always hesitate in the extreme to disagree with so many distinguished noble Lords, including noble and learned Lords, I have to say to the House emphatically that these amendments are neither necessary nor an appropriate way to achieve the objectives that are being sought.
As I said before on this issue, the Human Rights Act is about public functions; in other words, it is legislation that concerns the interface between the individual and the state. This philosophy underpins the European Convention on Human Rights and therefore also the Human Rights Act. The noble and learned Lord, Lord Hope of Craighead, to whom I listened with great attention, referred to the case of YL in response to my noble friend Lord Willis, and he urged that the judgment in that case should be accepted and that we should essentially move on. I respectfully agree with that, but I suggest that the key point in this context is what the previous Government did through the Health and Social Care Act 2008. The Act strengthened the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements that are in line with the relevant provisions of the European convention, and this applies to all providers of regulated activity, which includes personal care whether publicly or privately funded.
I hope that the House listened to my noble friend Lord Faulks. Amendment 83 would represent an unprecedented change to the scope of the Human Rights Act. For the first time, it would capture purely private arrangements, such as a privately arranged social care contract between a private care home and a private individual—an arrangement in which there is no state involvement.
The European Convention on Human Rights and the Human Rights Act, which gives further effect to the convention rights in our domestic law, impose public law obligations that apply separately from, and in addition to, the duties and obligations on the private sector.
However desirable it might appear to be, it is obviously difficult to draw a crisp dividing line as to whether a function is of a public or a private nature. Ultimately, the legislation has to bear the test of time. The courts have acknowledged that there is no single test to determine whether a function is of a public nature and have pointed out that there are “serious dangers” in trying to formulate such a test.
In determining whether a function is a public function for the purposes of Section 6, our courts undertake a factor-based approach which is fact-specific in each case. Consequently, it is neither appropriate nor desirable to introduce amendments bringing specific categories of person within the Human Rights Act which do not reflect the factors that have been applied by our courts.
Difficult as it may be to do so, it is important to take a wider view of how the Human Rights Act applies outside the immediate context of social care and to see whether the amendment would have any unfortunate unintended consequences, such as calling into question whether other groups are covered.
It is clear that the amendment seeks to expand Section 6 of our own domestic Human Rights Act. However, as I have already noted, the Human Rights Act is not free- standing legislation. Its purpose is to give effect in our domestic law to the rights in the European Convention on Human Rights. Arguably, the proposed amendment would mean that, for the first time, we would be legislating for an expansion in scope of the Human Rights Act that included claims that cannot be brought before the European Court of Human Rights.
I would not want the Minister to pray in aid the previous Government’s approach to this. The measures that we took, and which he seems to suggest have sorted out this problem, were in our own minds an interim measure while we tried to work out what any consequences would be not of expanding the scope of the Human Rights Act but of making clear the original intent of Parliament. The Minister suggests that there would be perverse consequences of accepting the amendment. In which areas of public policy does he think those consequences will manifest themselves?
My Lords, I have just described one of those perverse consequences: that we would purport to be giving rights to people which could not be pursued before the European Court of Human Rights. If I could correct the noble Lord, I was not seeking to suggest that the previous Government had addressed the issue that I have been talking about. They addressed part of the issue in the Health and Social Care Act 2008, but there is another dimension to it, as I have said. The amendment would risk creating an asymmetry, which once again risks creating legal uncertainty and confusion.
What people using services and their families want and need is reassurance that they will be treated with care, compassion, kindness and skill. This amendment would not provide any of those things. People are not, surely, really exercised about which route of redress they have if things go wrong so long as they have one, which they do; what they expect is for things not to go wrong in the first place.
I do not accept the argument that putting this measure into legislation will deter those who abuse or neglect, or galvanise providers into preventing those things. It would not send some kind of message that should not otherwise already be amply clear to all providers of care and support: that poor-quality care is unacceptable.
What I think will make much more of a difference are the stronger measures to improve care that the Government are proposing: the emphasis the CQC is placing on individual experience as opposed to paperwork, the improvements in commissioning and the safe routes for whistleblowers. We are amending the requirements that providers have to meet to enable the CQC to take effective action against providers that do not provide acceptable levels of care. With these things in place, it is my view that when things go wrong we will have a strong and effective mechanism for dealing with the situation. For all these reasons I say to the House that the amendment should be decisively and emphatically rejected.
I now turn to Amendments 138A and 138B, also in the name of the noble Lord, Lord Low. Their effect would be that, where a local authority delegates a function, in addition to the local authority remaining subject to all of its legal obligations in the way the function is discharged, the person authorised under the delegation would also be directly subject to those same obligations. These would include, for example, obligations arising under the Human Rights Act. The amendments are unnecessary because when it delegates its functions, Clause 75(6) is clear that the local authority remains responsible for the way that that function is discharged. The person using care and support will therefore always have a route of redress against the local authority even if the local authority has delegated the discharge of the function to a third party.
Furthermore, these amendments could prove unhelpful because, by making both the local authority and the contractor liable, they could create a lack of clarity about who is ultimately responsible for complying with the local authority’s statutory obligations when a function is delegated. We believe strongly that it must remain absolutely clear that the ultimate responsibility lies with the local authority and that it cannot absolve itself of this in any way. This is an important principle of allowing local authorities to delegate their functions and we do not want to cast any doubt on this.
The underlying intent of these amendments is unexceptionable as they are about protecting the rights of people using health and care services. However, I am absolutely and firmly resolved that these amendments will not achieve what we all want, which is that everyone receives safe, dignified and respectful care and that we must prevent abuse in the first place. With that, I can only express the hope that the noble Lord will think again and decide to withdraw Amendment 83.
Before the noble Earl sits down, can he clarify something from his earlier remarks about the Human Rights Act? I ask with a certain amount of humility but also from the perspective of one of the people who wrote the Labour Party’s policy in 1996 on the incorporation of the European Convention on Human Rights into what became the Human Rights Act in this country. When that Act was framed, the definition of a public function, or the nature of a public function, was one which did not to a great extent anticipate the move over the next 10 to 15 years in which public services would actually be undertaken and provided by private and voluntary bodies. It simply did not do that. However, the terminology was wide enough at the time to embrace an organisation like Channel 4, which had a mix of public and private functions. It was incorporated, as I recall, into that legislation on the basis of its partial role in performing public functions.
The noble Earl seems to accept that, over time, case law can change the definition of the nature of a public function. He seems to be saying that we have to plod through the courts, case by case, to change the definition. I rather lost him when he then tried to argue that you cannot do it by groups of cases, which is effectively what this amendment does. Is the noble Earl saying that the definition of the nature of a public function—in the law as it is—cannot be changed by cases and can only be changed by amending the primary legislation itself?
I think that I covered that point when I said that the courts have ruled that there is no single test to determine whether a function is of a public or a private nature. They have also pointed out that there are serious dangers in trying to formulate such a test, which is what the amendment is trying to do, in its own way. If we go back to the noble Lord’s example of the 90 year-old lady in the care home and even if the Human Rights Act were to apply, it is impossible to predict the outcome of an application to a court for—let us say—an injunction to prevent her removal, because each case is fact-specific. It may be found that the lady’s human rights were not violated, but it is not possible to predict that in advance. I hope that clarifies the position and answers the noble Lord’s question.
My Lords, I thank the Minister for his response, although it obviously leaves me a little disappointed. I do not propose to respond on Amendments 138A and 138B, because I do not propose to press them to a Division when we finally reach them. However, I should like to say something in response to what has been said about Amendment 83.
First, I thank all noble Lords who have spoken, especially those who have spoken in support from all quarters of the House. It has been a high-calibre debate which does credit to a House noted for characteristically engaging in debate of a high calibre. This one was, I think, particularly authoritative. Without wishing to be invidious in any way, I particularly give thanks for the exceptionally thoughtful, careful and authoritative analysis to which we were treated by the noble and learned Lord, Lord Hope of Craighead.
I also observe that we were deprived of the analysis of two of my other supporters who attached their names to the amendment, the noble Lords, Lord Pannick and Lord Lester, who were unable to be here. In those who added their names to the amendment, those who have spoken and those who would have spoken had they been here, we could not have had a more authoritative and heavyweight line-up in support of the amendment in this House.
There has been general agreement that the matter should be put beyond doubt. Indeed, as the noble and learned Lord, Lord Hope, pointed out, it would actually be dangerous if we were not to do so. If I understood the noble Earl correctly, he said that we should stick with the position that was arrived at as a result of Section 145 of the Health and Social Care Act. As the noble Lord, Lord Wills, made clear, when he said that noble Lords should not pray in aid the position arrived at by the previous Government, this is unfinished business. No one can pretend that we have reached a final resolution of these matters with Section 145 of the Health and Social Care Act. That is why it is so important that we should take the opportunity presented by the Bill to take the further steps necessary to put the matter beyond doubt.
We have heard what the noble Earl had to say in response to the debate, but I confess that I am baffled. Between Committee and Report, the Government seem to have executed a complete volte face and completely changed their position. The position explained to us in Committee was that the Government did not believe that the amendment was necessary because the matters that it sought to put beyond doubt were already provided for. Today, the noble Earl tells us that he must urge the House to reject the amendment because the matters should not be provided for. The Government need to make up their mind what their position is.
The Minister also made the point that we should not take this step because it would deliver to service users rights over and above those available under the ECHR. I am sorry, but I simply do not understand that point. The amendment simply delivers to service users rights which are available under the Human Rights Act, which is predicated upon the ECHR. Even the noble Lord, Lord Faulks, agrees, I think, that we should put the matter beyond doubt; he just does not think that we should put it beyond doubt in this way or that the Human Rights Act should be extended this far. Having listened to all the debate, I submit that the noble Lord, Lord Faulks, and of course the Minister in adopting his remarks, are on their own in this matter in the House. There is general agreement not only that we should put the matter beyond doubt, but that we should put it beyond doubt in the manner which this amendment secures. Indeed, until today this agreement used to include the Government.
I think we should put the matter to rest, as the Minister has said, decisively and emphatically in the terms this amendment provides for and which the Government, until very recently, supported in substance, so I wish to test the opinion of the House.
My Lords, I shall speak also to the other amendments in my name in this group. I thank the Minister for the government amendments, which go a considerable way towards helping the arrangements for the transition of children to adulthood. My amendments are intended to strengthen that. I thank my noble friend Lady Finlay for putting her name to the amendments.
Amendment 83A is one of a series of amendments which I have tabled with the intention of bringing about better outcomes for young people who need to transition from child to adult palliative care services. These young people are represented by the Transition Taskforce, a partnership of organisations which includes Help the Hospices, the National Council for Palliative Care, Marie Curie Cancer Care and Together for Short Lives. All these organisations support these amendments.
I have spoken previously at other stages of the Bill about the 40,000 children and young people—these are the numbers we are talking about—aged from 0 to 19 in England who live with long-term health conditions, which for most of these children will eventually end their lives and for which they may require palliative care. Medical advances mean, however, that young people with a range of different conditions now live to adulthood—some 10% of the 40,000 children now live beyond 19 years.
Good planned transition, when it works, changes the lives of these young people. Unfortunately, for the majority that is not happening. I will give the example of one young girl, Lucy Watts, who is 20 years-old, and has Ehlers-Danlos syndrome, which means that Lucy has a number of inherited conditions which were diagnosed by the time she was a teenager and is unable to eat normal food. Her system does not digest food and she is fed intravenously all the time. While she is able to sit up for a few hours a day, Lucy spends most of her time in bed. Lucy’s mum, who has a full-time job, carries out the majority of her care and all of her day-to-day medical care.
However, Lucy is fortunate, because her transition to adult service was excellent because there was joint working between children’s and adult services over the course of a whole year. That is the important point. It takes a long time for transition arrangements to be put in place for these children. Lucy is quite a feisty young lady. She said:
“Transitioning from children’s to adult in the medical and social world is a huge step ... The people involved in my care have been very supportive and were brought in before I started the transition”.
Lucy’s case demonstrates how important it is for young people and families that their transition is planned well in advance of their 18th birthday and why our amendments to stipulate a timeframe for a child’s needs assessment are so important.
I very much welcome the fact that the Government have amended the Bill to ensure that when it appears to a local authority that the child or their carer is like to have needs for care and support after the child becomes 18, the local authority must assess them. I appreciate, too, the Government’s stated position that the needs of very young people are different and that their care needs can change between the ages of 14 and 18 in a variety of ways. However, our amendments would provide flexibility by ensuring that assessments could be initiated before the age of 14 if requested by the child or parent or if it appears to the local authority that an assessment is necessary and appropriate. Local authorities would have until the age of 16 to assess the child’s needs. They would not be prevented from reassessing a young person if their needs changed before they reached 18. They would also enable local authorities a period of two years to assess the child’s needs in cases where their care needs become apparent only after the age of 14. Without these important thresholds, it is feasible that a local authority may leave it too late to carry out a child’s needs assessment.
Setting the age threshold for a child’s needs assessment at 14 is also based on the existing statutory requirement for every young person in year 9—that is, aged 14 to 15—with a statement of special educational needs to have a transition plan. Our amendment would ensure that transition planning correlates with that requirement and reflects best practice in exemplary palliative care services in England. It is entirely reasonable that some young people with life-limiting conditions, including those with conditions such as Duchenne muscular dystrophy and cerebral palsy, could be expected from an early stage to live beyond 18. Assessing and planning for their future needs should therefore begin at the age of 14. Our amendments would ensure that this is the case without disadvantaging young people with other disabilities, which is the concern that was expressed. The Bill already stipulates that where a local authority deems a child’s assessment not to be in the best interest of the young person or the young person does not consent to being assessed, an assessment will not take place.
Amendment 89B, which is a long amendment, corrects the anomaly of the transition and the duty on local authorities. While the Bill currently makes provisions to enable local authorities to carry out a child’s needs assessment, there is no duty on local authorities to use the assessment to create a transition plan for the young person. Amendment 89B would ensure that, if a child’s needs assessment finds that a young person is likely to need health or social care when they reach adulthood, a statutory five-year rolling transition plan should be prepared by the time they are 16.
The amendment has a number of other important features. It would ensure that children, parents and carers were involved in the transition planning process and that transition plans are maintained until the young person reaches the age of 25, which 10% of these children would probably reach. Further, one of the provisions included in the Children and Families Bill is to introduce an integrated education, health and care plan—or EHC plan—for young people who have special educational needs. This will include many—but, crucially, not all—young people who need palliative care. Where a young person stays in education or training, they will be eligible for an EHC plan until the age of 25. I recognise that an EHC plan could fulfil the functions which I intend the transition plan in my amendment to fulfil. An optimal position would be for EHC plans to be available to all young disabled people up to the age of 25—but that is not the case. Our amendments will provide similarly joined-up transition provision for young people who need palliative care but do not have SEN.
Amendments 93A, 94A and 94B would amend and address the carer’s needs. In considering young people who need to transition from children’s to adult services, it is also important that we address the needs of those who care for them. I welcome the Government’s aspiration to do so and the amendment that the Government have already tabled to strengthen the Bill. However, as with the clauses relating to planning for young people’s needs on transition, we need to go further in order to ensure that planning for carers also happens in a timely fashion. Amendment 93A would introduce an age threshold of 14 at which a local authority would be duty-bound to undertake a child carer’s needs assessment.
I hope that I have persuaded the Minister that his amendments, excellent as they are, need a bit more tweaking to make it possible to streamline the process of transition of children to adulthood. My amendments merely help to do that. Some children may of course begin to need long-term health or social care after they are 14. In such cases it may not be reasonable to expect a local authority to complete a child carer’s needs assessment before the child reaches the age of 16. I hope that the Minister will be persuaded enough to add to his excellent amendments a few more to fulfil these needs. I look forward to hearing his response.
My Lords, I am most grateful to my noble friend Lord Patel for the way in which he has introduced our amendments. I greatly welcome the Government’s amendments in this area of transition. The reason that our amendments are written as they are is because this group of children are different to adults who are terminally ill. They have life-limiting conditions, but their prognosis may be years. However, during that time they know that they will deteriorate, as do their parents. We are therefore looking at completely different timeframes, and with completely unpredictable prognoses, except for the likelihood that they will live through into adulthood. Some of them, of course, live surprisingly long periods of time and may live several decades into adulthood. They tend to have the inherited disorders of metabolism. They are a different cohort from those who have terminal illnesses such as cancer. There are also those children who, for example, have had very severe sudden injuries, such as a severe head injury, and then develop epilepsy, which can then become so severe that it is life threatening. Many of the children also have learning difficulties and educational needs.
Our amendments, I hope, will create the triangulation that is required between health, education, and social care in the context of this Bill so that many of the young people can carry on having their educational needs provided for. This group of young people often describes leaving paediatric care and entering adult care as “falling off a cliff”. They feel that they are going into an enormous chasm. They have been under the care of one service in paediatrics, but there is not a neat fit for adult services with the different specialities. That creates a major difficulty for them. That is why we feel that the assessments have to happen early. It is important for the young person to develop confidence in the assessment process in order to disclose what their needs are and to develop confidence in those doing the assessment.
The other reason that it is important to do it early is for the sake of the parents. These parents are getting older. They know that their lives may not carry on. They may well be outlived by their child. That is an enormous worry to many of them. Often the families have already split apart; many marriages break up with the strain that caring for some of these young people has imposed. The remaining parent really needs to know that the plans are in place and will be maintained. The reason for continuing to 25 is precisely that. Most educational services for these children stop at 21. It is very unusual for them to have anywhere to go after that. They have housing needs and care needs. However much one hopes that they may live independently, not all of them achieve that.
Placing them for care can be very complex. A young person with all the needs of a young person and all the emotional needs and sexual-development needs does not want to be placed in an institution which is full of people over 85, some of whom have got dementia, where the staff are not comfortable even discussing with them some of their more intimate needs and desires. These young people want to discuss contraception; they want to discuss sexual experience; they may want to drink alcohol. In an older person’s environment, that is not always the atmosphere. As the parents get older, they know that the physical strain of providing care is becoming too great, and they will not be able to do it anymore. That is why we feel strongly that the government amendments are fantastic, as far as they go, but having an extension with clear timelines to make sure that this is a gentle process is particularly important. I hope that the Minister might have some words of comfort for us, if it is not to accept the amendment but certainly within regulational guidance later, that this period of transition will be looked at because it is so difficult for both the young people and for their parents or carers.
My Lords, I particularly wish to speak on Amendments 83A and 84, but I could just as easily have spoken on any one of these amendments—there is such a big group of them—because the issue that I wish to raise is my concern over this care issue falling down between this Bill and the Children and Families Bill. The timing of these two Bills makes it very difficult unless the Minister, having heard all these debates that everyone will give now, and the comments on these issues, gives us an undertaking that he will liaise with the noble Lord, Lord Nash, and that between them they might try and sort out where it is going to go. This is what worries me: that it will end up going nowhere or come up from the noble Lord, Lord Nash, in a form that will make it too late to bring back here, unless the Minister says that he will look at everything said today and bring back an amendment—or at least accept an amendment if we could all agree on one.
So much of what has been said made sense. The comments of the noble Baroness, Lady Finlay, were fascinating, and the noble Lord, Lord Patel, put it all very clearly. The noble Baroness spoke more on issues about which I am particularly concerned. My eldest grandson is a Down’s child. His Down’s is fairly severe. He has been fortunate in having wonderful care at a Mencap home. He is 22 and this is his last year of receiving full support. He was very happy at the home for some years, until a glitch appeared in the past year. In his unit, a number of residents are put together to live a normal life and to learn how to go out and live in society. Unfortunately, a very aggressive boy was put into the group. No one knew that he was aggressive. He attacked the staff quite violently. As a result, others—I do not know whether it was just my grandson, or whether it was others as well—copied him. This is a terrible risk. If we do not supervise people and have continuing care and assessment of them, how do we know that they will not meet a violent person who behaves in this way, either deliberately or for some other reason—for example, because they are violent and cannot help trying to impose violence on everyone else? It is a real worry not only for the person but for society and the community.
The noble Baroness, Lady Finlay, spoke about the parents who care so much. The parents of this boy are both very clever doctors. One of his siblings is just starting medicine and the other hopes to in the next year or so. So he has siblings who would be able to care if his parents die before him. However, people with Down’s syndrome can live to a considerable age. I have met people of 50 and 60 who have the syndrome. In many cases, their parents will not be alive. It is a huge responsibility to pass on to siblings. Therefore, it is important that, as far as possible, these people should be brought into society to live as normally as they can. As they grow older, they usually grow bigger and stronger. Therefore, they are more of a worry to themselves and to other people. It is terribly important that the assessment of cases for continuing care should be made, and should continue to be made—and not just at 25. If people are going to live to 50, they may need support until then.
A number of the amendments put down by the noble Earl, Lord Howe, cover that issue, but without defining it clearly. This is why I am speaking in general on the amendments in this group. It is important that this should be clear. I have added my name to an amendment of the noble Lord, Lord Rix, in the Children and Families Bill. It is in response to the implication that the Government are thinking of taking out care completely: that once education finishes, nothing more will follow. That is why it is so important to be assured in this Bill that something else will follow.
My daughter tells me—and she has sent me a letter from another parent—that there is great concern that parents are not listened to nearly as much as other people are. The noble Earl’s Amendment 84 does not really cover anyone except a remote person in a local authority who will be responsible for needs. There is nothing to say that they will consult, or even consider the views of, parents or the person who is doing most of the caring for the person concerned. None of the amendments in this group quite reaches what is necessary to cover the issue. I hope that when the Minister sums up, he will give an assurance that will leave the way open for this to be considered at Third Reading. The rules on what can be brought back at Third Reading are very specific. If today we all ended up either winning or losing on some particular thing, it would not necessarily mean that we could modify it in a way that we all thought was better and brought a better answer. I support Amendment 83A and probably quite a number of others, but I will not go into the details because my argument applies both for and against so many of these amendments and I do not want to waste the House’s time by speaking more than once.
My Lords, I am pleased that I have been able to table amendments that significantly strengthen these important provisions, and I am grateful to noble Lords for acknowledging that. Currently, assessment under the transition provisions has to be requested and I sympathise with the concern that in some instances, people who are unaware that they can request an assessment may lose out.
Amendments 84, 87, 89, 92, 94, 96, 98, 102, 103, 106, 108 and 113 remove the need to request the assessment. I have also tabled Amendments 85, 95, 99 and 104. They will replace provision that local authorities may assess a child, a child’s carer or a young carer when it appears to them that it will be of significant benefit to the individual to assess and where they are likely to have needs once they turn 18, with a duty that a local authority must assess in these circumstances.
Amendments 110 and 111 reflect an amendment to the young carer’s amendment to the Children and Families Bill. This is an example of the detailed work undertaken to ensure that the two Bills work together. I want to reassure my noble friend Lady Gardner in that context that we have done a great deal of work over the summer to make sure that that is indeed the case. Amendments 83A, 84A, 89A, 93A, 94A and 94B, tabled by the noble Lord, Lord Patel, and the noble Baroness, Lady Finlay, reflect concern that a local authority may leave it too late to carry out an assessment. I need to be very clear about this. The amendments I have tabled place a duty on local authorities that they must assess at the time where it appears to them that there is likely to be a need when the young person turns 18, and it is of significant benefit to that individual to assess at that time. My noble friend Lady Gardner was worried that the government amendments might not be sufficiently precise or prescriptive. The clauses are formulated in this way precisely so that assessments happen at the right time, whether that is before or after the age of 14, depending on the individual. The Bill approaches transition planning with a firm focus on assessing at the right time for the individual by the new duty to assess where it would be of significant benefit to the individual. I am not persuaded that the interests of young people are best served by prescribing when assessment should take place.
I understand what the noble Earl is saying: it is difficult to prescribe in legislation. However, does he take the point that experience suggests that in the main assessments do not take place early enough, so when the young person is a little older it is often too late to put in the necessary arrangements? Behind the stricture of saying that it should be done at that age lies a real concern about how it works out in practice.
My Lords, I accept that that is a problem in many cases and it needs to be addressed. It should be addressed satisfactorily by the government amendments in combination with guidance, which I am about to refer to.
To prescribe the age thresholds proposed would run the risk of failing young people and their families by creating a system that is run according to the age of an individual, rather than according to what is best for the individual at a given time in their life. I remain absolutely committed to ensuring that the question of when to assess a child, carer or parent carer is further addressed in guidance. This will do justice to the broad range of needs and circumstances of young people and their families at the point of transition. Guidance will be developed with the involvement of stakeholders.
I turn to Amendment 89B, which concerns a number of elements of transition planning. In response to proposed new subsection (8), I simply say that provision that the plan must run until the age of 25 is not appropriate because it does not take account of whether this is appropriate for each individual and would create a blanket rule irrespective of the individual’s needs and wishes. We agree that information and planning are crucial. They form the cornerstone of these provisions. Clauses 59, 61 and 64 already provide that the information provided will include an indication of whether they are likely to be eligible, and advice and information about what can be done to meet any needs and about what can be done to prevent or delay the development of needs.
The noble Lord and the noble Baroness seek additional detail in the Bill. The clauses, as drafted, are focused on the outcomes that the individual wants to achieve. I will address some of the particular concerns in turn. First, I can give a commitment, as I confirmed in Committee, that outcomes may include employment, education or housing. Further, the Bill already specifies that the individual must be involved in the assessment. However, details about the name of the document arising out of this assessment, what its contents should be and the practicalities of its preparation should not be prescribed in the Bill but will be addressed in guidance. Statutory guidance will provide clear direction to local authorities about how we expect them to exercise this function.
The noble Lord and the noble Baroness are concerned about co-operation between agencies and about the link to education, health and care plans. My noble friend Lady Gardner also expressed concern around this. The Bill and the Children and Families Bill include provision that assessment can be joint, including for joined-up assessments in relation to an education, health and care plan. Practical questions about how to achieve a joined-up approach will be addressed by the guidance supporting the Care Bill, informed by learning from the pathfinders that have been exploring how best to streamline the assessment process, putting families and young people at the centre.
I reiterate that where a young person over the age of 18 has an EHC plan and, as such, the “care” part of that plan is provided under this Bill, we expect co-operation between adult and children’s services in relation to any review of the plan. Co-operation with the preparation, maintenance and review of the EHC plan, as provided for by the Children and Families Bill in respect of children, would be required by Clause 6(3), which sets a clear duty on the local authority in this respect, and by Clause 6(5)(c), which underlines that this duty relates to transition cases. Guidance can be used to ensure that this is clear.
I add that requiring a local authority to make arrangements to secure provision for children and young people with a transition plan is not appropriate or necessary. Services to children cannot, and should not, be provided under this Bill—children’s legislation provides for this. Services to young people over the age of 18 would be provided, if necessary, under provisions earlier in Part 1.
I am keen to respond to my noble friend Lady Gardner, who asked me whether the local authority has to consider the parent carer in the kind of situation that she outlined. Yes—Clauses 60 and 61 provide the duty to assess this group of people in a similar manner to young people with needs and young carers. I have a note setting out the clear links between this Bill and the Children and Families Bill. If it would help my noble friend, I would be happy to send it to her. However, it is rather lengthy and I hope that she will forgive me if I do not read them all out.
I trust that I have provided some reassurance on these issues and that the noble Lord will feel able to withdraw his amendment.
I am grateful to the Minister for his comments. If I had known before I started speaking that he was going to produce the guidance to cover all these issues, I might have said that I would not move this amendment. But having heard him say that there will be guidance in statute to cover all these issues, I am extremely grateful. I thank the other noble Lords and noble Baronesses who spoke. I thought for a minute that the Opposition were going to remain silent on this amendment but I am glad that the noble Lord, Lord Hunt of Kings Heath, felt obliged to intervene, and I am grateful to him for that. I withdraw the amendment.
Amendment 83A withdrawn.
Moved by Earl Howe
84: Clause 58, page 47, line 5, leave out from “Where” to “after” in line 7 and insert “it appears to a local authority that a child is likely to have needs for care and support”
Amendment 84 agreed.
Amendment 84A not moved.
Amendments 85 to 89
Moved by Earl Howe
85: Clause 58, page 47, line 8, leave out “may” and insert “must”
86: Clause 58, page 47, line 16, leave out subsection (3)
87: Clause 58, page 47, line 19, leave out from beginning to “the” in line 20
88: Clause 58, page 47, line 25, at end insert—
“( ) Where a child refuses a child’s needs assessment and the consent condition is accordingly not met, the local authority must nonetheless carry out the assessment if the child is experiencing, or is at risk of, abuse or neglect.”
89: Clause 58, page 47, line 26, leave out from beginning to “must” and insert “Where a local authority, having received a request to carry out a child’s assessment from the child concerned or a parent or carer of the child, decides not to comply with the request, it”
Amendments 85 to 89 agreed.
Amendment 89A not moved.
Amendment 89B not moved.
Clause 59: Child’s needs assessment: requirements etc.
Amendments 90 to 93
Moved by Earl Howe
90: Clause 59, page 48, line 6, leave out paragraph (d)
91: Clause 59, page 48, line 14, at end insert—
“( ) When carrying out a child’s needs assessment, a local authority must also consider 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 child wishes to achieve in day-to-day life.”
92: Clause 59, page 48, leave out line 16 and insert “child”
93: Clause 59, page 48, line 24, at end insert—
“( ) But in a case where the child is not competent or lacks capacity to understand the things which the local authority is required to give under subsection (3), that subsection is to have effect as if for “must give the child” there were substituted “must give the child’s parents”.”
Amendments 90 to 93 agreed.
Clause 60: Assessment of a child’s carer’s needs for support
Amendment 93A not moved.
Moved by Earl Howe
94: Clause 60, page 48, line 38, leave out from “Where” to “after” in line 40 and insert “it appears to a local authority that a carer of a child is likely to have needs for support”
Amendment 94 agreed.
Amendments 94A and 94B not moved.
Amendments 95 to 99
Moved by Earl Howe
95: Clause 60, page 49, line 1, leave out subsection (2)
96: Clause 60, page 49, line 10, leave out “or (2)”
97: Clause 60, page 49, line 11, at end insert—
“(3A) Where a child’s carer refuses a child’s carer’s assessment, the local authority is not required to carry out the assessment (and subsection (1) does not apply in the carer’s case).
(3B) Where, having refused a child’s carer’s assessment, a child’s carer requests the assessment, subsection (1) applies in the carer’s case (and subsection (3A) does not).
(3C) Where a child’s carer has refused a child’s carer’s assessment and the local authority concerned thinks that the carer’s needs or circumstances have changed, subsection (1) applies in the carer’s case (but subject to further refusal as mentioned in subsection (3A).”
98: Clause 60, page 49, leave out lines 12 and 13 and insert “Where a local authority, having received a request to carry out a child’s carer’s assessment from the carer concerned, decides not to comply with the request, it must give the carer—”
99: Clause 60, page 49, line 17, leave out subsection (5)
Amendments 95 to 99 agreed.
Clause 61: Child’s carer’s assessment: requirements etc.
Amendments 100 to 102
Moved by Earl Howe
100: Clause 61, page 50, line 10, leave out paragraph (f)
101: Clause 61, page 50, line 21, at end insert—
“( ) When carrying out a child’s carer’s assessment, a local authority must also consider 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.”
102: Clause 61, page 50, leave out line 23 and insert “carer”
Amendments 100 to 102 agreed.
Clause 63: Assessment of a young carer’s needs for support
Amendments 103 to 108
Moved by Earl Howe
103: Clause 63, page 50, line 44, leave out from “Where” to “after” in line 1 on page 51 and insert “it appears to a local authority that a young carer is likely to have needs for support”
104: Clause 63, page 51, line 2, leave out “may” and insert “must”
105: Clause 63, page 51, line 10, leave out subsection (3)
106: Clause 63, page 51, leave out line 13
107: Clause 63, page 51, line 20, at end insert—
“( ) Where a young carer refuses a young carer’s assessment and the consent condition is accordingly not met, the local authority must nonetheless carry out the assessment if the young carer is experiencing, or is at risk of, abuse or neglect.”
108: Clause 63, page 51, line 21, leave out from beginning to “must” and insert “Where a local authority, having received a request to carry out a young carer’s assessment from the young carer concerned or a parent of the young carer, decides not to comply with the request, it”
Amendments 103 to 108 agreed.
Clause 64: Young carer’s assessment: requirements etc.
Amendments 109 to 114
Moved by Earl Howe
109: Clause 64, page 52, line 7, leave out paragraph (f)
110: Clause 64, page 52, line 14, leave out “whether” and insert “the extent to which”
111: Clause 64, page 52, line 16, leave out “whether” and insert “the extent to which”
112: Clause 64, page 52, line 23, at end insert—
“( ) When carrying out a young carer’s assessment, a local authority must also consider whether, and if so to what extent, matters other than the provision of support could contribute to the achievement of the outcomes that the young carer wishes to achieve in day-to-day life.”
113: Clause 64, page 52, leave out line 25 and insert “young carer”
114: Clause 64, page 52, line 33, at end insert—
“( ) But in a case where the young carer is not competent or lacks capacity to understand the things which the local authority is required to give under subsection (3), that subsection is to have effect as if for “must give the young carer” there were substituted “must give the young carer’s parents”.”
Amendments 109 to 114 agreed.
Clause 65: Assessments under sections 58 to 64: further provision
Amendments 115 to 117
Moved by Earl Howe
115: Clause 65, page 53, line 6, leave out subsections (2) and (3) and insert—
“(2) A local authority may combine a child’s needs assessment or young carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the consent condition is met in relation to the child to whom the child’s needs or young carer’s assessment relates and—
(a) where the combination would include an assessment relating to another child, the consent condition is met in relation to that other child;
(b) where the combination would include an assessment relating to an adult, the adult agrees.
(3) A local authority may combine a child’s 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 child’s carer’s assessment relates agrees and—
(a) where the combination would include an assessment relating to another adult, that other adult agrees, and
(b) where the combination would include an assessment relating to a child, the consent condition is met in relation to that child.
(3A) 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.”
116: Clause 65, page 53, line 24, leave out from “in” to “, the” in line 25 and insert “relation to the person to whom the assessment relates or in relation to a relevant person”
117: Clause 65, page 53, line 30, at end insert—
“( ) A person is a “relevant person”, in relation to a child’s needs, child’s carer’s or young carer’s assessment, if it would be reasonable to combine an assessment relating to that person with the child’s needs, child’s carer’s or young carer’s assessment (as mentioned in subsections (2) and (3)).”
Amendments 115 to 117 agreed.
Amendments 118 and 119
Moved by Earl Howe
118: After Clause 66, insert the following new Clause—
“Independent advocacy support: involvement in assessments, plans etc.
(1) This section applies where a local authority is required by a relevant provision to involve an individual in its exercise of a function.
(2) The authority must, if the condition in subsection (4) is met, arrange for a person who is independent of the authority (an “independent advocate”) to be available to represent and support the individual for the purpose of facilitating the individual’s involvement; but see subsection (5).
(3) The relevant provisions are—
(a) section 9(5)(a) and (b) (carrying out needs assessment);
(b) section 10(7)(a) (carrying out carer’s assessment);
(c) section 25(3)(a) and (b) (preparing care and support plan);
(d) section 25(4)(a) and (b) (preparing support plan);
(e) section 27(2)(b)(i) and (ii) (revising care and support plan);
(f) section 27(3)(b)(i) and (ii) (revising support plan);
(g) section 59(2)(a) and (b) (carrying out child’s needs assessment);
(h) section 61(3)(a) (carrying out child’s carer’s assessment);
(i) section 64(3)(a) and (b) (carrying out young carer’s assessment).
(4) The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—
(a) understanding relevant information;
(b) retaining that information;
(c) using or weighing that information as part of the process of being involved;
(d) communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).
(5) The duty under subsection (2) does not apply if the local authority is satisfied that there is a person—
(a) who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement, and
(b) who is not engaged in providing care or treatment for the individual in a professional capacity or for remuneration.
(6) For the purposes of subsection (5), a person is not to be regarded as an appropriate person unless—
(a) where the individual has capacity or is competent to consent to being represented and supported by that person, the individual does so consent, or
(b) where the individual lacks capacity or is not competent so to consent, the local authority is satisfied that being represented and supported by that person would be in the individual’s best interests.
(7) Regulations may make provision in connection with the making of arrangements under subsection (2); the regulations may in particular—
(a) specify requirements that must be met for a person to be independent for the purposes of subsection (2);
(b) specify matters to which a local authority must have regard in deciding whether an individual would experience substantial difficulty of the kind mentioned in subsection (4);
(c) specify circumstances in which the exception in subsection (5) does not apply;
(d) make provision as to the manner in which independent advocates are to perform their functions;
(e) specify circumstances in which, if an assessment under this Part is combined with an assessment under this Part that relates to another person, each person may or must be represented and supported by the same independent advocate or by different independent advocates;
(f) provide that an independent advocate may, in such circumstances or subject to such conditions as may be specified, examine and take copies of relevant records relating to the individual.
(8) This section does not restrict the provision that may be made under any other provision of this Act.
(9) “Relevant record” means—
(a) a health record (within the meaning given in section 68 of the Data Protection Act 1998 (as read with section 69 of that Act)),
(b) a record of, or held by, a local authority and compiled in connection with a function under this Part or a social services function (within the meaning given in section 1A of the Local Authority Social Services Act 1970),
(d) a record of such other description as may be specified in the regulations.”
119: After Clause 66, insert the following new Clause—
“Independent advocacy support: safeguarding enquiries and reviews
(1) This section applies where there is to be—
(a) an enquiry under section 42(2),
(b) a review under section 44(1) of a case in which condition 2 in section 44(3) is met or a review under section 44(4).
(2) The relevant local authority must, if the condition in subsection (3) is met, arrange for a person who is independent of the authority (an “independent advocate”) to be available to represent and support the adult to whose case the enquiry or review relates for the purpose of facilitating his or her involvement in the enquiry or review; but see subsections (4) and (6).
(3) The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—
(a) understanding relevant information;
(b) retaining that information;
(c) using or weighing that information as part of the process of being involved;
(d) communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).
(4) The duty under subsection (2) does not apply if the local authority is satisfied that there is a person—
(a) who would be an appropriate person to represent and support the adult for the purpose of facilitating the adult’s involvement, and
(b) who is not engaged in providing care or treatment for the adult in a professional capacity or for remuneration.
(5) For the purposes of subsection (4), a person is not to be regarded as an appropriate person unless—
(a) where the adult has capacity to consent to being represented and supported by that person, the adult does so consent, or
(b) where the adult lacks capacity so to consent, the local authority is satisfied that being represented and supported by that person would be in the adult’s best interests.
(6) If the enquiry or review needs to begin as a matter of urgency, it may do so even if the authority has not yet been able to comply with the duty under subsection (2) (and the authority continues to be subject to the duty).
(7) “Relevant local authority” means—
(a) in a case within subsection (1)(a), the authority making the enquiry or causing it to be made;
(b) in a case within subsection (1)(b), the authority which established the SAB arranging the review.”
Amendments 118 and 119 agreed.
Clause 67: Recovery of charges, interest etc.
Moved by Lord Lipsey
120: Clause 67, page 57, line 17, leave out from “person” to “in” in line 18 and insert “fraudulently or negligently misrepresents or fails to disclose any material fact that they might have reasonably been aware would have a bearing on expenditure incurred by the local authority”
My Lords, I hope that this can be a short, sharp debate because it is about a very clear matter of principle.
Clause 67(4) provides that councils can recover money paid out on claims for any benefit in Part 1 of the Bill which are made in error—and here are the operative words—“whether fraudulently or otherwise”. My amendment would substitute a longer form of words whereby councils can recover where a claim,
“fraudulently or negligently misrepresents or fails to disclose any material fact that they might have reasonably been aware would have a bearing on expenditure incurred by the local authority”.
That is designed to narrow the scope of the “otherwise” that allows councils to recover in all circumstances. In other words, as the Bill stands, someone who applies for a benefit who inadvertently errs in their application can be pursued to repay the full resulting cost to the council, including the cost of the council’s action, I think. My amendment preserves the recovery if the claim was fraudulent but otherwise allows it only if the old person was negligent. In a sentence, it protects the claimant who makes a slip.
I will give an example of what could happen under the Bill as it is worded. An old person applies for a deferred payment loan on their house so as not to have to sell it. Unfortunately, they make a slip in declaring their assets: they forget some bank account or other. If they had declared it, their assets would have exceeded the £23,250 limit, which the House discovered to its surprise now applies to anybody who wishes to apply for a loan; they cannot apply for a loan if they have more than £23,250. The local authority later finds out and demands its loan back; it perhaps forces the house to be sold to pay it back. I do not suggest that this is going to happen regularly or often but we should not allow the possibility that it should happen at all.
I raised this matter in Committee and subsequently discussed it, with the Minister’s encouragement, with his officials. My aim was to find a compromise that protected the old person who had made a mistake in applying for the benefit while enabling the local authority to go after somebody who was deliberately trying to get something they were not entitled to or who had behaved extremely stupidly and should have known better than to claim.
I thought we were making headway in those discussions but last week the Minister sent me a note refusing to change the Bill. I must say that this is wholly out of character for the noble Earl, Lord Howe, who is usually the most humane of men, and I beg him to think again. If he does not like my wording, that is fine; I am quite happy to consider any other wording that he and his officials may put forward that avoids the pitfalls I suggested. What I will not accept is anything short of an amendment to the Bill.
I know, because he said so in his note to me, that the Minister may claim that he can provide guidance which stops this sort of illegitimate recovery of a debt incurred through error. To that I say two things: first, a bird in the hand is worth two in the bush and I would rather change the Bill now than to rely on promised guidance, which we have not seen and could not later amend; secondly, it is not only the people the council would prosecute or seek to get their money back from that we need to worry about. A lot of old people are quite nervous about handling financial affairs—quite rightly, given the complexity of these affairs. They might be thinking of applying for a benefit but if they learn that, under a Bill passed by this Parliament, if they make a slip they can have their assets seized to repay it, many of them will simply decide not to apply at all.
I think I have a pretty thick skin but I was a bit surprised when I read in the newspapers this morning a Conservative spokesman quoted as saying that this was a politically motivated amendment. Just to set the record straight: it was not my idea to amend the Bill in this way. This amendment was put forward by Age UK, which sent a note to all noble Lords explaining why it believes it to be necessary. We all know Age UK: it is a splendid group working for old people. The noble Baroness, Lady Greengross, used to run its predecessor. A less political organisation than Age UK is hard to imagine, so I hope that the Minister will apologise for the inadvertent—I am sure—slur that has been cast on Age UK.
I should add that Age UK believes that the Bill may be in breach of Article 6 of the European Convention on Human Rights. In a House which earlier on displayed such expertise on the subject of the European Convention on Human Rights, I am certainly not going to express my own opinion on whether that view is right or wrong. Nothing could be more stupid than for us to pass this Bill in its present form and later on to find it challenged in the courts, and perhaps overturned.
My argument does not rely on the convention on human rights. It relies on what seems to me to be a simple fact, obvious to anybody who reads this clause in the Bill. This is not the kind of legislative provision that you would expect in a democracy. It is a provision which enables authorities here, in Britain, to punish the innocent and, in the process, to terrify people who might otherwise apply for benefits to which they are entitled. I beg to move.
My Lords, I support my noble friend. In our debates, both in Committee and on Report, we spent a considerable time talking about some of the complexity of the decisions that have to be made when it comes to the financial affairs of many people who require long-term care. In our debate on Clause 4, we talked about the need for regulated financial advice, because these issues are so complex. It is quite likely that people who are providing information to a local authority will make slip-ups. The kind of forms that have to be filled in can be very difficult. Clause 67(4) states:
“Where a person misrepresents or fails to disclose (whether fraudulently or otherwise)”.
That does seem a very wide definition of when a local authority can demand sums. My noble friend has come up with a compromise. He has tried to narrow the circumstances in which a local authority can require sums to be paid back to that authority.
I understand the concerns of the Government. They believe that completely to change this would lead to some perverse incentives in that people would deliberately give false information. My noble friend has met those concerns with his amendment because he has clearly drawn a distinction between fraudulent activity and claims, and slips and mistakes which are inevitably going to be made. Even at this late stage, it would be helpful if the noble Earl could reconsider this matter. I think my noble friend has put his finger on an important matter here. We are talking about very vulnerable people who will find the information required to be given to a local authority very complex. We need to make sure that we are as sympathetic as possible to those people.
My Lords, I wish to address the one word “otherwise”. I come under that category of otherwise. Since arriving in the House—let me see now, when was it? I am getting quite old; I can put the wrong statistics down on pieces of paper. Yes, I think it was 2011. I have in the course of the time since then turned up at the House on the wrong day. I got it wrong—not deliberately, not fraudulently, but for “otherwise” reasons—because I am old. I forget to have my post redirected during the Recess and come back to a mountain of post which I have not been able to answer, all because I get the dates wrong. That is because I am old.
As people get older, life gets more threatening. The bureaucracy weighs down on us more and we are frightened of authority. That is why I choose to support my colleague in—which amendment is it? Yes, Amendment 120.
My Lords, it occurs to me that the problem has been created by the use of the word “fraudulent”. It tends to suggest that the word “otherwise” is in some way connected with that. I wonder whether one could not take out that whole phrase in brackets. The idea is that, because of some mistake, something extra has been paid out. Ordinarily, it might be perfectly all right to recover that. You do not need to look into the detail of why it was wrong. The person in question—vulnerable people particularly, and those who are not so vulnerable, more recently arrived—may fall into error. The error may result in extra payments out by the local authority which, in ordinary circumstances, it should be able to recover. “Fraudulently” gives an idea of people trying to put something over on someone, and “otherwise” tends to be coloured by the same adverb. Perhaps this problem could be dealt with in that way.
My Lords, we agree with the general view expressed by noble Lords that we must ensure that vulnerable elderly people are protected and are not discouraged from seeking help when they need it. However, I do not agree with the conclusions reached by the noble Lord, Lord Lipsey, and I regret to have to say that the manner in which he has expressed his concerns risks causing unnecessary worry to people who need care and support. Let me be clear: this power is not there to punish people, as the noble Lord put it, and should be used by local authorities only as a last resort, as I shall explain. Its purpose is to ensure that any charges that should have been paid can subsequently be recovered. It is not to penalise people unduly. But neither should the system reward mistakes or prevent unpaid charges being recovered. This would not only undermine the principle of personal responsibility, it could also result in local authorities having less money to provide care and support to those who need it the most. In practice, it means in some cases a licence to subsidise the better off at the expense of the worse off. Is that really what the noble Lord wants? The use of this power is to recover a debt and is not intended to imply a judgment about the person’s culpability. It does not look for the mens rea; it exists to ensure only that charges not paid can be recovered, as the equivalent current powers do now.
The principle of this provision is not new; the power is 60 years old. The noble Lord likes to make out that we are doing something radically new, but that is not the case. We recognise that there may be a number of reasons why someone has not paid the full amount of the charges due to the local authority, including misrepresentations of their assets which were entirely unintentional. But even where the reason is an accident or a mistake, local authorities still suffer a loss and must be able to recover that loss if there is no other means of doing so. This is public money.
One of the objectives of the Bill is to make access to care and support easier and more focused on people with care and support needs and their families. We expect local authorities to help and support people with care and support needs, discussing any concerns they have and providing advice and assistance as appropriate. This would include advice to help people understand the process of financial assessment and their responsibility to disclose financial assets. I absolutely fail to see why the noble Lord thinks it is socially just to allow people who misrepresent or fail to disclose their assets, whether intentionally or not, to receive more than their fair share of financial support. I reiterate that to do so would reduce the resources available to other people with care and support needs. That is what his prescription amounts to. I am concerned that this amendment would risk making it much easier for people to take advantage of the system and avoid charges and subsequent legal action. What the noble Lord is suggesting is that people could be as careless as they liked when filling out the form. Is that what he wants? The high evidential burden that local authorities would have to meet to recover debts risks making this power largely useless in practice. It would leave local authorities facing costly and uncertain legal action if they chose to pursue the matter.
Let me be clear on another point. A local authority should not, as a matter of course, use these powers to recover debts without first having discussed other options with the individual concerned. In most cases, especially those where the failure to pay the correct charges was inadvertent, there would be other simpler routes to follow, such as agreeing a repayment plan which allows for recovery over time in a way that is manageable. The noble Lord suggests that local authorities may exercise these powers in a way that will drive people out of their own homes. Quite aside from the fact that we have no evidence that local authorities behave in that way and have used their existing powers like that, I have to say that I find that assertion particularly unconvincing.
Local authorities are bound by the public law principle of acting reasonably at all times and must act in accordance with human rights legislation, as well as the well-being principle, which we have already debated. That alone should prevent a local authority using this power to force someone out of their home. The noble Lord is stretching our credulity if he is asking us to imagine a set of circumstances in which a court would make an order in favour of a local authority knowingly to evict a person from their home in this kind of situation. It would be counterproductive in the extreme. Should there be any possibility of this happening, we would use statutory guidance to make the position clear. Indeed, where I do think further action is needed is in the form of guidance. We will use statutory guidance under the Bill to set out the steps that we expect local authorities to take. For example, we would expect a local authority to discuss the situation with the cared-for person and their family when appropriate to establish what, if anything, is owed to the local authority; if there is a debt, to establish whether it is appropriate to recover it, because the local authority does not have to recover it—it can choose not to do so; and, lastly, if money needs to be recovered, to find an affordable way for the money to be repaid. As I have said, whether or not the person could have been reasonably aware of something that needed to be included in the financial assessment is one of the factors that the local authority should consider when deciding whether it is appropriate to recover a debt.
We plan to engage with local authorities in the wider sector on what happens at present and how this could be improved. I accept the need for effective communication about financial assessment and the recovery of charges. This highlights the importance of high quality information and advice, including financial advice, which was debated last week, and the importance of the new duties we are placing on local authorities in this regard. Should mistakes be made, people will not be criminalised, nor will any punitive charges be imposed, but ultimately it is right that mistakes are rectified so that individuals do not benefit from any errors they make, whether they were intentional or not. Neither local authorities nor those who rely on their services should be disadvantaged, but the amendment as it stands runs the risk of failing on all these counts.
I hope that I have reassured noble Lords that the debt recovery power, while to be used only as a last resort, remains important. There is nothing that people should fear from its use. I therefore hope that the noble Lord, on reflection and at this late time, will feel able to withdraw his amendment.
My Lords, I thank the Minister for that reply and I predict that in the handbook which all civil servants use to train themselves in their art, his reply will figure as an example of how best to argue an indefensible case, because that is what I think he has just done. “Resent” would be too strong a word, but the argument that by raising this matter I am creating a problem and raising the fears of old people is not plausible. This is what Governments do the whole time: they try to do something wicked, but when that is pointed out to them, they say, “Oh no, it is you who is causing the trouble because you are pointing out that it is wicked”. The fears are raised not by my speeches or interventions; they are raised by the words in the Bill to which the Minister has put his name.
The Minister also said that this power is all right because it is 60 years old. To that I have two things to say. If a power like this has been lurking around in legislation for 60 years, it is about time we took a little look at it, and I hope the noble Earl will start some such operation. Wherever that power exists now, this is a different case because here we are dealing with elderly people. As my noble friend Lady Bakewell so graphically pointed out, with the best will in the world, older people can make mistakes. Whether it applies to other social security legislation, I cannot say. It may do so, but I do not think it is appropriate to this legislation.
The Minister then rightly said that if a local authority goes to court, the court will not grant the order. But before the local authority goes to court, it will have to deliver a letter to the old lady saying that it is going to do so. What will be the impact of that? Is she going to say, “Oh, that is fine. The court will turn it down. I will see my solicitor or my son and get this defeated”. No, the old lady will be thrown into a panic as a result of what the local authority is doing. I agree totally with the Minister that most of the time, most local authorities act perfectly reasonably. That is not what is at issue here. What is at issue is whether on the face of primary legislation there should be the scope for the odd authority to act unreasonably and thereby cause terrible fear and distress to older people. That is what the noble Earl, I am sure inadvertently, is doing.
Finally, I turn to the most powerful of the Minister’s arguments. He said that this would be very unfair because people would get away with it and they would gain at the expense of others who are also claiming benefits. But I beg the Minister and the House to study my amendment. It does not say, “Well, if you fill in the form inattentively and get it totally wrong, you will get away with it”. That would come under the phrase in my amendment, “they might have reasonably been aware”. In most conceivable circumstances, my amendment would allow recovery in just the same way as the Government’s drafting, but it would do so without that frightful “or otherwise”. It is a sword of Damocles being held over the heads of many innocent older people, and they should be spared from that.
The Minister has made his speech and the House has heard both sides of the case. I think that it is time to test its opinion in the Division Lobbies.
Moved by Lord Hunt of Kings Heath
121: Before Clause 69, insert the following new Clause—
“Initial funding assessment
Before enactment of Part 1, the Secretary of State must ask the Office for Budget Responsibility to complete by the end of 2014 a review of the funding of adult social care that assesses—
(a) the adequacy of current public funding of these services;
(b) the proposals for funding the provisions in this Act;
(c) the implications of the Act and its funding for the NHS over the next five years; and
(d) in particular the short and long term costs of setting the eligibility criteria at the level set out in regulations.”
My Lords, as I said on Monday, the principles which underpin this Bill are widely supported, although recent revelations around deferred payments have put a considerable damper on that. We have been concerned in our debates mostly with trying to improve the Bill. A major feature of discussions has been the capacity of local authorities to do what is required, including responsibilities around assessment, providing information, preventing needs for care and support, promotion of integration, provision of information and support, direct payments, promotion of diversity and quality in the provision of services, and dealing with provider failure. Another concern has been about the amount of resources that will be available to make the Bill effective—the more so when one considers the number of self-funders who will in the end receive support as a result of the introduction of the cap.
This is done in the context a very tight funding situation for health and care generally. The Minister will be aware of reports from both the King’s Fund and the Nuffield Trust, and, more recently, from the NHS Confederation, which talked of the problems in healthcare and of there being basically no growth in real-terms funding in the next few years, together with a big increase in demand.
This is matched, and more so, by the additional costs which it is clear will fall to local authorities to meet the extra care responsibilities that they have been given. The Explanatory Notes to the Bill are rather disarming. They state:
“Most of the costs to the public sector associated with Part 1”— which is what we are discussing—
“arise from introducing and funding a cap on care costs and from the proposed increase to the capital threshold. These are partly offset by consequential reduction in costs of attendance allowance and disability living allowance”.
The Minister cannot be in ignorance of the widespread concern among local authorities that, in essence, the Bill places many additional financial responsibilities on local authorities for which they have little confidence they will receive proper support from the Government. Let me give one example. We know that the settlement for 2013 provided £335 million so that councils can prepare for reforms in the system of social care funding, including the introduction of a cap, and a universal offer of deferred payment agreements from April 2015—this was in the guidance issued by CLG. That money was intended to cover assessment and reviews, capital investment in systems, capacity-building in individual councils, information and advice, and introduction of deferred payments from April 2015. However, my understanding from the Local Government Association is that that £335 million was not new money; indeed, it was top-sliced from the local government settlement. So the cost associated with funding reform should be seen as a new burden and funded as such. If that is only associated with the introduction—essentially with helping local authorities prepare for the provisions in this Bill—how much more will the additional funding responsibilities be when it is actually up and running?
There is widespread concern and doubt about local authorities’ capacity to set up the infrastructure to do the job, but the funding issue is even more important. That is why my Amendment 121 suggests that the Secretary of State asks the Office for Budget Responsibility to complete a review of the funding of social care that assesses the adequacy of current public funding of these services, the proposals for the funding of provisions in this Act, the implications of the Act and its funding for the NHS over the next five years and in particular the short- and long-term costs of setting the eligibility criteria at the level set out in the regulations.
The Office for Budget Responsibility has been established and we see many uses for it. This would be a very good way of getting an impartial view of the future costs resulting from the Care Bill and of the likely consequences for local authorities and the Bill’s funding. In the spirit of harmony and consensus which has prevailed over much of our discussions, I think it would be very good if the Government agreed to do this. It would provide us with a very good foundation and also help in taking forward the Bill and in terms of local authorities’ actual ability to implement the provisions. I beg to move.
I have tabled this amendment because of my continuing concern that the Government are sleepwalking into the introduction of the new arrangements in this Bill without adequate funding provision and they do not really appreciate the parlous state of adult social care funding. I think my noble friend was being rather generous in his remarks. The situation is very bad. I have a cutting about the Equality and Human Rights Commission’s report into home care, published last week, in which the commission made it clear that council cuts could be affecting the human rights of older people. This is a serious situation.
People are very supportive of the basic architecture of the Dilnot and the Law Commission’s proposals enshrined in this Bill, and are very supportive of the Government bringing this Bill forward, but they simply do not believe that the funding is in place effectively to implement the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding and I think this is hardly surprising because the Government’s social care funding strategy seems almost designed to confuse. We have Eric Pickles signing up to quite swingeing cuts to local authority grants which inevitably reduces social care funding substantially. We then see Health Secretaries having to scrabble around to slip NHS cheques to local government to mitigate some of the Pickles cuts. Of course I do not want to be ungenerous to Health Secretaries, and these cheques are better than nothing, but they do not make good the shrinking base budget of adult social care that has been taking place over many years.
People like to claim and use bits of the Dilnot commission’s report that they favour and fancy. I would like to draw attention to pages 14 and 15, where we said:
“We know that the funding of social care for older people has not kept pace with that of the NHS. In the 15 years from 1994-95 to 2009-10, real spending on adult social care increased by around 70% for older people while, over the same period, real spending in the NHS has risen by almost 110%”.
We showed in this report that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding was going to need to change. It has changed, but not quite as we had expected or intended.
Adult social care will start the next financial year with a base budget about £3 billion lower in real terms than in 2010. So the base budget for social care is underfunded. That is where we start from. Most of the discussion that has taken place about the implementation of the Bill takes no account of the base budget deficit from which we are starting. That deficit is due only to get worse because there is another set of proposals under the DCLG settlement in Spending Review 2013 for another 2.3% cut in the budgets of local councils, which can only take even more money out of the local government budget for adult social care.
I have no doubt that the noble Earl will say much the same thing as he did in Committee about the Government’s proposal for a £3.8 billion pooled budget for 2015-16 to join up health and social care services. I welcome that. Most people welcome that. However, as the Minister acknowledged in Committee, only half of that £3.8 billion is new money, and only half of the new money will be paid upfront to local authorities as they start to implement the proposals under the scheme. The assurance that that new money will be in place takes no account of the further reduction of 2.3% that I mentioned in the spending of local councils in 2015-16.
We have a situation where the base budget is highly deficient, further cuts are coming out of local government expenditure by councils, which can only have a further impact on that base budget in 2015-16, when the new legislation is due to be implemented, and we have no guarantee that the lion’s share of that £3.8 billion pooled budget will be in the hands of councils when they start to implement the scheme. That is not a situation to fuel people outside with confidence that they will have successful implementation of the legislation.
The Government can protest as much as they like but, at the end of the day, we need public documentation —preferably, I would say, by someone as independent as the OBR, but I would even settle for the Institute of Fiscal Studies. If I cannot have that, I would settle for legislation requiring the Secretary of State to put some of that information in the public arena and before Parliament before the Bill is put into full operation. People who are to implement it and the public need far more convincing than they have received so far that all will be well financially, to give people a reasonable chance to implement this highly desirable, on the whole, well constructed Bill, successfully when the time comes.
My Lords, I have listened with care to noble Lords as they have introduced their respective amendments and I am confident that we can all agree that the issues that they raise are vital to the successful implementation of government policy and are essential parts of good policy-making. Let me first address the questions about the cost and funding of these reforms. We have taken and will continue to take a robust, evidence-based approach to assessing the cost of the reforms. We are working closely with local authorities to help them to understand the costs at a local level, and we will use this knowledge to refine our national modelling further. Funding of care and support, including the reforms in Part 1, will be reviewed regularly as part of the spending review process, and the core elements of the capped-costs system will be reviewed within each five-year period.
Turning to the specific issue of the short and long-term costs of the national eligibility threshold, I can assure noble Lords that we have published an impact assessment fully setting up the costs and benefits of the policy. We have comprehensively assessed and funded those provisions. We have published impact assessments for all elements of the Bill and, in line with the Government’s approach to all new burdens on local authorities, those costs were fully funded in this year’s spending round. Those estimates are based on the best available evidence in the area. They have been produced in co-operation with academic experts and officials from across government.
Similarly, I can assure the noble Lords and the noble Baroness that we have fully considered the wider impact of the reforms, including the impact on the NHS. It really would not be productive to ask the OBR to repeat that analysis in 2014. That would simply repeat what has already been done, and it would have no further evidence on which to base its work, even if it were to do it. Nor would that be an appropriate role for the OBR, which is independent and has complete discretion to determine the content of its publications and its programme of research and analysis.
The noble Lords and the noble Baroness are of course absolutely right that it is essential that sufficient funding is made available for the successful implementation of these reforms. In addition, when allocating funding for its policies, the Government need to take a broad overview of activity across all public services so that we can make the best possible decisions. That is the purpose of the spending review process and why a spending review is the best place to make funding decisions. I struggle to see how a separate official process considering funding for care and support in isolation is either appropriate or desirable.
The noble Lord, Lord Hunt, also suggests that we review the adequacy of public funding for social care services, a point reiterated by the noble Lord, Lord Warner. I can assure them that we have done precisely that in the recent spending round. As a response to the increasing demand for care and support, we have taken steps to ensure that adequate funding will be available. We have increased the NHS contribution to care and support with the health benefit by £200 million in 2013-14, taking the total amount to £1.1 billion and have gone further in 2015-16 by creating a £3.8 billion pooled budget for health and social care, which will provide the resources to protect care and support services and break new ground in driving closer integration.
However, of course, spending decisions for care and support will ultimately be taken by local authorities. Perhaps I could deal with the point raised by the noble Lord, Lord Hunt, when he suggested that the £335 million to which he referred had been topsliced from the local government settlement. That funding will be allocated by DCLG in 2015-16 as part of the local government settlement. That was agreed as part of the spending round, which reviewed all government spending, as I mentioned. There was no pre-existing settlement for 2015-16 before the spending round, so it is not true that this money has been topsliced.
I turn to the suggestion of the noble Lord, Lord Warner, that the Government should publish a review of the working of the reforms ahead of the first five-yearly review. Reviewing and evaluating those reforms is indeed essential; I agree with him on that. That is why we will conduct post-legislative scrutiny, as the Government have committed to do across the board for all new Acts. The agreement we have with the House Liaison Committee in another place is that that should be done between three and five years after Royal Assent. The joint programme and implementation board, which we have set up in collaboration with the Local Government Association and the Association of Directors of Adult Social Services, will also assure implementation, and we will work with local government on continuing assurance and improvement
I truly do not believe that it would be necessary or desirable to supplement those arrangements with further reviews, either by government or by other bodies. Such additional oversight would cut across the scrutiny conducted by the Health Select Committee and cross-government planning on spending through the spending round. I am sure the noble Lords will agree that it is only right that decisions on care and support are taken at the same time as spending plans are set for all areas of government.
I hope that noble Lords will be somewhat reassured and convinced by what I have said. I have a sinking feeling, looking at noble Lords opposite, that they may be intent on dividing the House. I ask them not to, and ask the noble Lord, Lord Hunt of Kings Heath, to withdraw the amendment. Their underlying concerns are perfectly reasonable, but I believe that their prescription is misplaced and quite unnecessary.
My Lords, I am grateful to the Minister, although I am disappointed by his response. He argues that the cost and funding elements in the Bill have been subject to a robust, evidence-based approach and are reviewed regularly, and he prays in aid the spending reviews. However, there is often a distance from ministerial assurances about well-being and the reality on the ground floor, and I have to say to him that the experience up and down the country is of a health and social care system under huge pressure. The Bill brings more pressures and many local authorities do not see how they will be able to find resources in order to pay for the extra demands and responsibilities the Bill places upon them. That is the reality up and down the country.
The noble Earl does not like the referral to the Office for Budget Responsibility. This is a remarkable institution set up by the Government with a great fanfare; now they seem very reluctant to use it. That is a great pity. My noble friend suggests the Institute for Fiscal Studies, another organisation to which we might refer it.
It would have been of great benefit to all of us concerned to see some independent work that could be published and would inform the Bill’s implementation, but I fear the noble Earl is not going down that path. It is probably time to move on to another debate, so I beg leave to withdraw the amendment.
Amendment 121 withdrawn.
Tabled by Lord Warner
122: Clause 69, page 59, line 10, at end insert—
“( ) In advance of the first five-yearly review, the Secretary of State must prepare and publish a review of the working of Part I and its funding before the date in subsection (4) and after consultation with interested parties.”
I am not going to detain the House. I remain unconvinced about the direction of travel that we are taking and I learnt long ago in Richmond House not to believe everything I was assured of which came to me in my Red Box. I hope that the Minister is right, but I have a terrible feeling that I shall be saying, “I told you so” in a few years’ time.
Amendment 122 not moved.
Amendments 123 and 124 not moved.
Schedule 3: Discharge of hospital patients with care and support needs
Amendment 125 not moved.
Amendments 126 to 128
Moved by Earl Howe
126: Clause 71, page 59, line 24, at end insert—
“(aa) if, immediately before being detained, the person concerned was ordinarily resident in Wales, for the area in Wales in which he was ordinarily resident; or”
127: Clause 71, page 59, leave out lines 25 to 27
128: Clause 71, page 59, leave out lines 30 to 33 and insert—
“(4) Where there is a dispute about where a person was ordinarily resident for the purposes of subsection (3) above—
(a) if the dispute is between local social services authorities in England, section 40 of the Care Act 2013 applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of Part 1 of that Act;
(b) if the dispute is between local social services authorities in Wales, section 164 of the Social Services and Well-being (Wales) Act 2013 applies to the dispute as it applies to a dispute about where a person was ordinarily resident for the purposes of that Act;
(4A) The Secretary of State and the Welsh Ministers shall make and publish arrangements for determining which of them is to determine a dispute under subsection (4)(c); and the arrangements may, in particular, provide for the dispute to be determined by whichever of them agree is to do so.”
Amendments 126 to 128 agreed.
Moved by Lord Patel of Bradford
128A: Clause 71, page 59, leave out lines 35 to 42 and insert—
“(5) In this section, “after-care services” means services that reduce the risk of a deterioration of the person’s mental condition (and, accordingly, to reduce the risk of the person requiring admission to a hospital again for treatment for mental disorder).”
We had an extensive debate on this clause in Committee and as a result the Government have tabled their own amendment. I am grateful to the Minister for Care and Support, Norman Lamb, and his officials for taking time to meet me and discuss my concerns about this clause. During the debate in Committee, I highlighted the importance of Section 117 in providing a comprehensive care package of health and social care services to a very specific and extremely vulnerable group of patients when they are discharged after detention in a psychiatric hospital. Without appropriate community health and social care support they may relapse, come to harm or even present a risk to others.
In recognition of the inherent vulnerability of these patients and the risks involved, and to encourage take-up by them, after-care services under Section 117 have required local authorities and clinical commissioning groups to provide after-care services free of charge and are deliberately not defined in statue, as there is a wide range of services that a detained patient might need in order to leave hospital and live in the community. Mental health professionals need to have the widest flexibility possible to devise creative care packages to keep patients who have been detained well and prevent them relapsing. The concept appears well understood by both health and local authorities and has been for over 30 years.
There is also a clear public health policy purpose behind Section 117, which is to help get vulnerable people out of hospitals and back into the community. No one should remain in hospital any longer than they need and after-care services should be provided to enable a safe discharge and to avoid all the emotional harm and exposure of a deterioration. This is vital to prevent our hospitals being bedblocked—I am sure that all noble Lords saw the news headlines this morning about the severe lack of in-patient psychiatric beds. So what does this clause do and why?
Clause 71(5) proposes to provide the first ever statutory definition of after-care services, but it is a narrow definition which I and many others believe will be detrimental to patients’ welfare. For example, an after-care package may include daytime activities, welfare benefits and financial advice, residential accommodation and medication. However, if the proposed definition is introduced, after-care providers may argue—I think they will argue—that it is only the provision of psychiatric medicine that meets,
“a need arising from … the mental disorder”,
of the person.
I accept that the Government have made some concessions on this issue. For example, concerns were raised that the definition in the Bill refers to, “the mental disorder”, which might refer only to the medical treatment of a single diagnosis, rather than looking at a person holistically. In response to these concerns, amendments have been tabled by the Government to make it clearer that Section 117 after-care services are to meet needs,
“arising from or related to the person’s mental disorder”.
That can mean one or more mental disorders, and not necessarily the mental disorder for which the person was detained in hospital for treatment. While this concession is, of course, welcome, and the current proposed definition is wider than that set out in the draft Bill, I still remain extremely concerned about the risk of confusion, litigation and delays, which is why I have tabled my amendments.
Noble Lords will be very relieved to hear that I will not repeat the many reasons I have for tabling Amendment 128A; I simply want to give two very clear reasons why this amendment should be accepted. First, I want to challenge the basis on which the Government have introduced this definition and say why it is wrong. Secondly, I think that the definition, even with the Government’s amendment, remains problematic and harmful to patients.
The Government have clearly stated that they have put this definition into the Bill following the recommendation from the Law Commission’s report Adult Social Care, a recommendation that is based on the Law Commission’s concerns around one case, Mwanza v the London Borough of Greenwich in 2010. I am not a lawyer, but I had a nasty feeling about this case, so I contacted the counsel, Nicholas Armstrong from Matrix Chambers, who actually represented Mr Mwanza in this case, to get his views. I am extremely grateful for his time and the explanation he gave me. Suffice to say he was very concerned to hear that the case is being used in this way. He informed me that there were a number of issues that make this case unique and unrepresentative, explaining that,
“this is a very unstable basis on which to disturb a provision of primary legislation that has benefited many and operated largely without difficulty for 30 years (rather a long time in these areas of law and, some might feel, a testament to its success)”.
I have shared the full contents of the communication from Nicholas Armstrong with the Department of Health so that it can clearly see the issues and concerns that Mr Armstrong has raised about his own case. Most importantly, he states:
“Mwanza was highly unusual and complex. First, it is critical to recognise that it was a migrant case. The family had no immigration status and so were cut out of mainstream benefits and sources of support, including housing. Their possible routes to support and, in particular, accommodation were therefore very limited. Normally, accommodation is not an issue because people get it from any number of other routes. Not so here . . . Second, the Section 117 issue had to be addressed here, despite how difficult it was, because of the way the other possible route to accommodation (Section 21 of the National Assistance Act 1948), works. That provision cannot provide accommodation if there is an alternative. Hence, to resolve where a Section 21 duty was owed, the court had first to decide whether Section 117 applied . . . We were, in other words, only in Section 117 at all because of the way the migrant exceptions work.”
The situation was then complicated by the detention under Section 3 many years earlier—about eight to nine years prior to this case—and it looked like the duty had not been discharged properly by the local council. Nicholas Armstrong continued:
“It is critical to recognise that it was a disabled migrant case where another local authority wanted to avoid liability under Section 21 of the National Assistance Act 1948, and we had to resolve the Section 117 question because we could not get to Section 21 unless Section 117 was definitely not in play . . . That was a pretty rare set of circumstances. So far as Section 117 is concerned, Mwanza is a permission decision only. It was fully argued but it is not binding, even on courts below the High Court”.
As Nicholas Armstrong says, I am not convinced that this is a very stable basis on which to disturb the provision of primary legislation that has benefited many and operated largely without difficulty for the last 30 years. I accept that some effort has been made to address the issue by devising the Care Bill’s Explanatory Notes, but I do not think that goes far enough. In fact, this just highlights for me how unclear and confusing the proposed definition is—if you need Explanatory Notes to clarify something in the Bill, why are you doing it?
Even putting Mwanza aside, I have consulted widely on the proposed definition, and I must say that so far only the Department of Health officials and the Law Commission believe that this is the way forward. No one operating in the mental health field that I have spoken to, no experts or professionals, agrees that this is the right way forward. I have had discussions with, among others, representatives from Mind, the national mental health charity, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association, all of which have reached a consensus that, even with the extended Explanatory Notes, they still believe that the best outcome would be to remove Clause 71(5)(a). The Care and Support Alliance, representing over 70 organisations, after having taken extensive legal advice, firmly believes that paragraph (a) is too restrictive.
The reasons for this are that, first, the proposed definition as it stands is too restrictive and will not clarify the purpose or content of aftercare packages; rather, it will narrow and limit the services that can be regarded as aftercare services, so it runs the risk of imposing a medical model. Secondly, it opens the way for legal disputes and conflicts about whether or not a service is directly linked to a person’s mental disorder, and there is a real risk that aftercare services will be narrowly interpreted, encompassing only health provision.
I have a whole batch of real case examples provided by Mind and others although, again, I will not share them with the House today. Given all these points and all the consultation that I have done, my preference would be for the Government to delete Clause 71 altogether. However, if a definition is to be introduced, it must retain a broad, flexible approach. Therefore, in the spirit of co-operation, which I know that the Minister always aims for, and in trying to reach a way forward, I propose Amendment 128A, which once again I urge the Government to consider seriously. I beg to move.
My Lords, it is vital that people with mental illness have adequate aftercare. I ask the noble Lord, Lord Patel of Bradford, if his Amendment 128A would cover such cases as the tragic case of the schoolgirl who was travelling by bus to school and was killed by a person who was mentally ill. There should be more protection for the public, who are at risk of mentally ill people who are let loose in the community without adequate aftercare and supervision. It is vital that people have aftercare, otherwise we will have more and more disasters.
I thank the noble Baroness for her question. I would not like to associate mental health patients leaving hospital with the case that she has outlined, but clearly it is true that if we do not provide good quality aftercare services and encourage people to take them up but rather leave people in hospital anxious about whether they will have to pay for some of these services, then that is a potential result that we will have to live with, in circumstances where people do not have accommodation, health and social services provided or someone coming in and saying to them, “Deal with your accommodation and social care issues as well as your medication”. This is a real anxiety.
My Lords, I commend the amendment by the noble Lord, Lord Patel of Bradford. I shall not say much more than that other than that he commented on the risk that the current situation could lead to more likelihood of a more medical approach to aftercare. Noble Lords might think that as a retired psychiatrist I would support that, but I do not; it is incredibly important that people who have a history of mental illness and need aftercare services receive the broadest possible support so that admission to hospital is not simply because there is inadequate support for them in the community. I commend his proposal.
My Lords, I wish to indicate my support for the continuance of Section 117, as I have done on many occasions before, not least during the passage of the most recent Mental Health Act—when various people, whom I shall not embarrass now by saying who they were, did indeed stand up to defend some of it—because it works.
When the Law Commission first made this proposal in its report, I had occasion to talk to that body. The noble Lord, Lord Patel, is right; the commission relies very heavily on the Mwanza case, and there is a great deal of dispute about the advisability of doing that. The question that I had when I first met the Law Commission still remains: when everything else in the legislation is geared towards enabling health and social care to work together to enable the transfer of people from acute health settings back into the community, why rip up the one piece of legislation that has been there doing that for 30 years? It is not just that some of us see Section 117 as being important with regard to the individuals whom we might know or come across; rather, we see it as an important means of bringing about the transfer that some of us have long hoped would happen in mental health services whereby, instead of having patients who revolve between acute and the community, we could have proper care planning in which people’s mental health needs were addressed by some of the same people, whichever setting they were in. It is not just about trying to preserve a pot of money; it is about trying to keep open a pathway to good and better practice. That is why the noble Lord, Lord Patel, as he always does in this area, has presented the House with a very persuasive argument. I have not yet fully understood why the department feels the need to make the changes that it is making.
My Lords, we fully support my noble friend in his valiant efforts once again to try to get this important issue on mental health aftercare sorted out. We recognise the Government’s concession in removing “the” from subsection (5)(a), but my noble friend is right that there still remains the very real risk that leaving the rest of the subsection in place could lead to local authorities arguing that,
“a need arising from or related to a mental disorder”,
was the requirement only to provide psychiatric, medical and follow-up services.
The statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising from the person’s mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. My noble friend’s amendment would instead define aftercare services as those services that reduce the risk of deterioration in the person’s mental condition and the likelihood of the person requiring readmission to hospital.
It is right that the definition of aftercare services focuses on reducing the likelihood of hospital readmission and does not lead to confusion or legal disputes about a local authority’s role in this or what services should be provided under Section 117 of the Mental Health Act. It is also right that aftercare continues to be viewed as a comprehensive range of generic services across healthcare, social care and other services such as suitable accommodation and community support.
Amendment 128A is a compromise offered by my noble friend that I hope the Government will take up because, as he said, he would prefer to delete Clause 5 entirely, so that the current position in relation to Section 117 remains unchanged. Mind, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association all consider that the best way to avoid confusion over the definition of aftercare is to remove Clause 71(5)(a) altogether.
I hope that the Minister will have some good news for my noble friend and for other Lords who, too, are very frustrated that the mental health aftercare issue has not been laid to rest in the way we thought it had under our discussions as far back as on the Health and Social Care Bill.
My Lords, I first would like to echo the comments made by my noble friend Lady Northover during Committee, when she paid tribute to the excellent work of the noble Lord, Lord Patel of Bradford, in the mental health field.
I think we can all agree that setting out a definition of mental health aftercare in legislation is important. A clear legal definition will mean that the scope of aftercare will no longer be entirely open to interpretation by the courts, whose views have varied over time. The question is what that definition should be. As updated by government Amendments 129, 130 and 131, our proposed definition contains a carefully framed duty that reflects the Government's policy on the appropriate scope of the duty to provide free aftercare services for a very small group of patients who have been detained for treatment under certain sections of the Mental Health Act. It has carefully drawn limits because the Government do not consider that it would be appropriate for the Mental Health Act to impose a duty on local authorities to commission services that are based on needs which neither arise from, nor are related to, a mental disorder.
Therefore we believe that the amendment tabled by the noble Lord, Lord Patel of Bradford, goes too far and would create an inequity between this group of people and others with equivalent needs for care and support who are not eligible for free aftercare, either because they have been detained under other provisions of the Act or not detained at all. They will be means tested and will have to meet eligibility criteria for the social care part of their aftercare package, so may not receive any social care from the local authority. In addition, with an ageing population, local authorities will have to be able to differentiate “mental health aftercare” in order to know when the “aftercare” finishes and ongoing support for other reasons begins.
The noble Lord suggested that the case of Mwanza was not a stable basis for primary legislation. He said that it is, after all, only one case. There is a bit of a misunderstanding around this. The Mwanza case merely triggered a debate; the issue is whether the definition is a good idea and, if so, how it can most helpfully be drafted. The Government’s definition of mental health aftercare services builds on the definition recommended by the Law Commission. The Government accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. We propose a wider definition than that suggested by the Law Commission, including that Section 117 services may relate to as well as just arise from the person’s mental disorder, and that the aftercare should prevent deterioration as well as readmission to hospital.
Because our definition is more precise, I feel that it will be more helpful than the noble Lord’s in ensuring that clinical commissioning groups, local health boards and both English and Welsh local authorities more easily agree on the aftercare services to be provided, so that these services can be put in place promptly.
I reassure the House that the definition we are now considering is the result of extensive consultation. In consequence, we have added a positive objective to prevent deterioration as well as preventing readmission to hospital, and have further changed the clause to remove the definite article when referring to “the mental disorder”, for which the noble Lord made the case in Committee. This is intended to remove any doubt about our intention that the scope of aftercare covers more than just one form of mental disorder, and is not necessarily limited to the specific disorder or disorders for which a person was previously detained under the Act and which gave rise to the right to aftercare.
We will also clarify these matters in revised Explanatory Notes for the Bill. Lawyers from Mental Health Alliance have told us that this would be of considerable value in resolving disputes at a local level. In addition, we will further explain these issues when we revise the Mental Health Act 1983 code of practice in 2014. We have given a commitment to work with all interested stakeholders when revising that.
My noble friend Lady Barker asked why we should rip up the legislation that has promoted joined-up care. We are not ripping up this section; we are making the scope of the duty clearer. We are not changing the joint duty to commission Section 117 services, nor are we trying to introduce charging.
I hope that with the number of clarifications made to the clause and the commitments I have given, I have assured the noble Lord, Lord Patel of Bradford, that the Government’s position is the right one.
My Lords, the protection of the public is of great importance, as I need hardly say; but we are dealing here with quite a narrow point of definition about who should be entitled to free mental health aftercare. To expand the scope of that definition to include others would not be fair on many people, which is why I have argued that I believe we have positioned the definition in the right way. The noble Baroness’s question is a very relevant one in the broader context of how we look after those with mental illness, but I would like to think that this amendment should not affect her concern one way or another.
My Lords, I am clearly disappointed at the response. I was expecting at least a halfway point at which we could meet and perhaps change the definition once again. I will not detain the House for very long. The noble Baroness, Lady Barker, very clearly and succinctly put the benefits of Section 117 and the joint working that takes place. That is probably the only piece of legislation that has encouraged joint working really well and has worked.
The noble Earl talked about the Government’s definition, and that is what it is: a Department of Health definition. However, it does not ride with everybody else out there. Everybody that I have spoken to clearly says that this is the wrong way. I fear that the department has got itself in a corner because it has accepted the Law Commission’s recommendation on this point. It did not accept the other three recommendations, which clearly shows, to me, that the Law Commission does not understand Section 117 services properly. Although the department has accepted this recommendation, I think it has realised that the basis on which it has done so is not appropriate; the case is unique and unrepresentative.
We have talked about inequity. These people have their liberty taken away: they are locked up against their will. They have been in and out of mental health services; they have had a raw deal. That is why they are there. This is a reciprocal duty on behalf of society to make sure that we give them free aftercare services. Yes, other patients may not get that, but this group of patients is extremely vulnerable. There is also the issue of public safety. We should give them the services they require.
I could go on, but I will not. I am really disappointed. This matter deserves that the House makes its views known, so I want to test the opinion of the House.
Amendments 129 to 134
Moved by Earl Howe
129: Clause 71, page 59, line 35, after “services”” insert “, in relation to a person,”
130: Clause 71, page 59, line 37, leave out “mental disorder of the person concerned” and insert “person’s mental disorder”
131: Clause 71, page 59, line 41, leave out “the” and insert “mental”
132: Clause 71, page 60, line 28, after “purpose” insert “Part 1 of”
133: Clause 71, page 60, line 29, at end insert—
“(7A) In section 37 of the Social Services and Well-being (Wales) Act 2013 (direct payments: further provision), at the end insert—
“(11) The ways in which a local authority may discharge its duty under section 117 of the Mental Health Act 1983 include by making direct payments; and for that purpose Schedule A1 (which includes modifications of sections 34 and 35 and this section) has effect.”
(7B) Before Schedule 1 to that Act insert the Schedule A1 contained in Part 2 of Schedule 4 to this Act.
(7C) In section 163 of that Act (ordinary residence), after subsection (4) insert—
“(4A) A person who is being provided with accommodation under section 117 of the Mental Health Act 1983 (after-care) is to be treated for the purposes of this Act as ordinarily resident in the area of the local authority, or the local authority in England, on which the duty to provide that person with services under that section is imposed.”
(7D) In consequence of subsections (7) to (7B), in subsection (2C) of section 117 of the Mental Health Act 1983—
(a) in paragraph (a), for “regulations under section 57 of the Health and Social Care Act 2001 or” substitute “—
(i) sections 31 to 33 of the Care Act 2013 (as applied by Schedule 4 to that Act),
(ii) sections 34, 35 and 37 of the Social Services and Well-being (Wales) Act 2013 (as applied by Schedule A1 to that Act), or
(iii) regulations under”,
(b) in paragraph (b), after “apart from” insert “those sections (as so applied) or”.”
134: Clause 71, page 60, line 33, at end insert—
“( ) In section 145 of the Mental Health Act 1983 (interpretation), for the definition of “local social services authority” substitute—
““local social services authority” means—
(a) an authority in England which is a local authority for the purposes of Part 1 of the Care Act 2013, or
(b) an authority in Wales which is a local authority for the purposes of the Social Services and Well-being (Wales) Act 2013.””
Amendments 129 to 134 agreed.
Schedule 4: After-care under the Mental Health Act 1983: direct payments
Amendments 135 and 136
Moved by Earl Howe
135: Schedule 4, page 111, line 13, leave out paragraph 2
136: Schedule 4, page 111, line 21, at end insert—
“Part 2Provision to be inserted in Social Services and Well-Being (Wales) Act 2013Schedule A1Direct payments: after-care under the Mental Health Act 1983General
1 Sections 34 (direct payments to meet an adult’s needs), 35 (direct payments to meet a child’s needs) and 37 (direct payments: further provision) apply in relation to section 117 of the Mental Health Act 1983 but as if the following modifications were made to those sections.
Modifications to section 34
2 For subsection (1) of section 34 substitute—
“((1)) Regulations may require or allow a local authority to make payments to an adult to whom section 117 of the Mental Health Act 1983 (after-care) applies that are equivalent to the cost of providing or arranging for the provision of after-care services for the adult under that section.”
3 In subsection (3) of that section—
(a) in paragraph (a), for “who has needs for care and support (“A”)” substitute “in respect of the provision to the adult (“A”) of after-care services under section 117 of the Mental Health Act 1983”, and
(b) in paragraph (c)(i), for “of meeting A’s needs” substitute “of discharging its duty towards A under section 117 of the Mental Health Act 1983”.
4 In subsection (4) of that section—
(a) in paragraph (a), for “who has needs for care and support (“A”)” substitute “to whom section 117 of the Mental Health Act 1983 applies (“A”)”, and
(b) in paragraph (d)(i), for “meeting A’s needs” substitute “discharging its duty towards A under section 117 of the Mental Health Act 1983”.
5 In subsection (5) of that section—
(a) in paragraph (a), for “A’s needs for care and support” substitute “the provision to A of after-care services under section 117 of the Mental Health Act 1983”, and
(b) in paragraph (b), for “towards the cost of meeting A’s needs for care and support” substitute “equivalent to the cost of providing or arranging the provision to A of after-care services under section 117 of the Mental Health Act 1983”.
6 In subsection (6)(b) of that section, for “A’s needs for care and support” substitute “the provision to A of after-care services under section 117 of the Mental Health Act 1983”.
Modifications to section 35
7 For subsection (1) of section 35 substitute—
“((1)) Regulations may require or allow a local authority to make payments to a person in respect of a child to whom section 117 of the Mental Health Act 1983 (after-care) applies that are equivalent to the cost of providing or arranging the provision of after-care services for the child under that section.”
8 In subsection (3)(a), (b) and (c) of that section, for “who has needs for care and support” (in each place it occurs) substitute “to whom section 117 of the Mental Health Act 1983 applies”.
9 In subsection (5)(a) of that section, for “meeting the child’s needs” substitute “discharging its duty towards the child under section 117 of the Mental Health Act 1983”.
Modifications to section 37
10 In subsection (1) of section 37—
(a) in the opening words, for “34, 35 and 36” substitute “34 and 35”,
(b) omit paragraphs (a), (b) and (c),
(c) in paragraph (i), for “a local authority’s duty or power to meet a person’s needs for care and support or a carer’s needs for support is displaced” substitute “a local authority’s duty under section 117 of the Mental Health Act 1983 (after-care) is discharged”, and
(d) in paragraph (k), for “34 to 36” substitute “34 and 35”.
11 Omit subsections (2) to (8) of that section.
12 After subsection (8) of that section insert—
“((8A)) Regulations under sections 34 and 35 must specify that direct payments to meet the cost of providing or arranging for the provision of after-care services under section 117 of the Mental Health Act 1983 (after-care) must be made at a rate that the local authority estimates to be equivalent to the reasonable cost of securing the provision of those services to meet those needs.”
13 In subsection (9) of that section—
(a) for “, 35 or 36” substitute “or 35”, and
(b) for “care and support” substitute “after-care services”.
14 In subsection (10) of that section, for “care and support to meet needs” substitute “after-care services”.””
Amendments 135 and 136 agreed.
Consideration on Report adjourned until not before 8.32 pm.