Care Bill [HL] — Third Reading

– in the House of Lords at 3:12 pm on 29th October 2013.

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Votes in this debate

Clause 1: Promoting individual well-being

Amendment 1

Moved by Lord Hamilton of Epsom

1: Clause 1, page 1, line 10, after “emotional” insert “and spiritual”

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative 3:19 pm, 29th October 2013

My Lords, I am a great supporter of the Care Bill, and my disagreement with my noble friend the Minister is on an extremely small point. When I went to see my noble friend the Chief Whip and stated my intention to press this amendment to a Division if it was not accepted by the Government, she said that she was very unhappy about people pressing Divisions at Third Reading. I have a lot of sympathy with her on that issue, but the problem is that when my noble friend Lady Barker tabled her amendment, it had a fantastic amount of support from all over the House—although not unanimous support, as the noble Lord, Lord Warner, had reservations. If he does not mind, I shall come back to those in a minute. My noble friend the Minister said that he would look at this matter again and come back at Third Reading—and that is where we are now.

I am a little naive and overoptimistic, and as the amendment tabled by my noble friend Lady Barker referred to spiritual well-being, I assumed that any amendment tabled by my noble friend the Minister would also include references to spiritual well-being. Instead, the government amendment would merely add the words “and beliefs”, so that local authorities would have to take into account,

“the individual’s views, wishes, feelings and beliefs”.

I do not regard that government amendment as meeting the legitimate desires of the noble Baroness, Lady Barker—with my support and that of many others—even half way. If anything, it takes us about a third of the way. It is a compromise, but it does not go very far towards meeting our original desire.

The problem is that the provision as amended would continue to deny the role of spirituality for carers and those facing chronic illness. The South West Yorkshire Partnership Foundation Trust says:

“Spiritual care can help you make the best use of all your personal and spiritual resources in facing and coping with the doubts, anxieties and questions which can arise in a health setting or when you are ill.”

That illustrates the problem that faces the Minister. The whole concept of spiritual well-being has not just been dreamt up recently by people who want to influence the Care Bill; it is a concept that has been adopted by the National Health Service since 2002, and it is already incorporated in NHS guidance for professionals and patients.

At the risk of boring the House, I shall read out some NHS advice:

“Provider units, including NHS trusts should make adequate provision for the spiritual needs of their patients and staff”.

That comes from NHS Management Executive, HSG(92)2. Here is another quotation from the NHS:

“NHS staff will … be sensitive to and respect your religious, spiritual and cultural needs at all times”.

That comes from Your Guide to the NHS,dated 2002.

“All NHS Trusts should ‘Make provision for the spiritual needs of all patients and staff from all faith communities’”.

That is from New Guidance DOH on NHS Chaplaincy, also dating from 2002. Indeed, my noble friend the Minister paid tribute on Report to the hospital chaplains, who perform an important role in the spiritual context. We have to ask why, if spiritual well-being is a commitment by the National Health Service, it cannot also be a commitment for local authorities.

I now turn to the concerns of the noble Lord, Lord Warner, who is chairman of the All-Party Humanist Group. He was concerned on Report that the clause might be discriminating against humanists. There is no question of that at all. The clause is focused on individual well-being. If an individual desired to have their spiritual well-being promoted, the local authority would be required to do that. On the other hand, if the individual expressed no desire to have their spiritual needs attended to then they would not get any form of spiritual counselling. That works well in the NHS, where you do not hear of an atheist’s interests being overridden. There is no reason why it should not work equally well with local authorities. Indeed, the Home Care Association, the London Borough of Hillingdon and the Social Care Institute for Excellence have all made reference to the importance of people’s religion and spiritual needs.

My amendment would not wreck the Care Bill. It is a tiny amendment that would make no difference whatever to the main purpose of the Bill. I am not asking the Minister to go the extra mile—merely the extra yard. Surely it is right to bring the local authorities into line on the question of spiritual well-being with the NHS. Surely it must be right to give solace to those many people who believe that there is a spiritual dimension to their lives. It would be particularly important for those in their declining years.

The Minister has rightfully won himself a reputation for dealing with your Lordships’ House with courtesy, politeness and understanding. I ask him now to show courtesy and understanding and to support my amendment.

Photo of Lord Cormack Lord Cormack Conservative

My Lords, I support my noble friend, which is why I put my name to this amendment. I spoke briefly when it was first debated a couple of weeks ago and I am delighted to add my voice now.

I hope that the House will feel that what we are discussing is an important matter, but one that does not in any sense reflect on the Bill and would not impede the Bill’s limitation. All that it would do is give a degree of solace to many people for whom the spiritual dimension of life is crucially important. That is very simple but very profound. It behoves this House, of all places, to put this in the Bill.

I accept, without any reservation whatever, the good intentions of the Minister, for whom we all, in all parts of the House, have very high regard. He is a man of diligence and sensitivity, and he always tries to meet the legitimate concerns of his colleagues in all parts of the Chamber. I say to him today, with the greatest possible respect, that while he has tried to meet us, he has not quite succeeded on this occasion. The phrase “feelings and beliefs” is not a substitute for the word “spiritual”.

As my noble friend Lord Hamilton said, this would in no sense damage the concerns or interests of humanists and others. If someone did not wish to have spiritual care or to have their spiritual needs taken into account, then so be it. However, there are many people, especially, as my noble friend said, those in the evening of their lives, for whom this is an exceptionally important dimension of those lives. I urge colleagues in all parts of the House to recognise the profound importance of this simple amendment and, if my noble friend feels inclined to test the opinion of the House, to react sympathetically. I hope that that will not be necessary, however; my noble friend has referred to the misgivings of the Chief Whip over Divisions on Third Reading. Like him, I understand those reservations, but the fact is that the Minister said that this was a matter to which we would return at Third Reading, and that he would try to table something. He has been as good as his word in tabling it, but I do not believe that he has quite met the points that concerned my noble friend Lord Hamilton and I, and many others. Therefore, the best possible solution to our dilemma this afternoon would be for the Minister to accept this modest amendment. I hope that he will do that and avoid the Division which the Chief Whip would so regret.

Photo of Baroness Warnock Baroness Warnock Crossbench 3:30 pm, 29th October 2013

My Lords, I support this amendment because I think that the reason that the noble Lord, Lord Warner, for example, objects to it is that he associates the word “spiritual” entirely with religious belief. As a matter of fact, I think the word has a much wider meaning that has nothing to do with religious belief, although of course for many people it does refer to religious belief. However, there are many people who are not religious who would nevertheless accept the word “spiritual” as covering what, in a sort of 18th-century sense, might be referred to as matters of sentiment; not belief, but a deep and profound romantic sentiment connected with the concept of nature and man’s place in nature. These are thoughts that come into one’s head in one’s declining years.

Therefore, it is partly through a misunderstanding, and a narrowing of the concept of “spiritual” that people may object—indeed, the Government may object—to its inclusion in this clause. For my part, and I think I speak for many people, it is a much wider word and it is a matter of enormous importance and great comfort to suppose that it is in the Bill.

Photo of Baroness Emerton Baroness Emerton Crossbench

My Lords, I support the amendment in the name of the noble Lord, Lord Hamilton, and agree with the views just expressed by the noble Baroness about spirituality. I ask for the forgiveness of your Lordships’ House for this late intervention on the subject. I speak as a retired nurse, but I am nevertheless aware of the situations that nurses are placed in concerning this issue.

Let me start at the beginning. The Nursing and Midwifery Council, places a requirement on every new graduate that each nurse, in partnership with the person, their carers and their families,

“makes a holistic, person centred and systematic assessment of physical, emotional, psychological, social, cultural and spiritual needs, including risk, and together, develops a comprehensive personalised plan of nursing care”.

When I was taught in the preliminary training school, holistic care was described as the physical, mental and spiritual well-being of the patient, as in the 1950s, language was not so sophisticated to call it holistic care with all the ingredients that the NMC spells out. Nevertheless, the principles were well rooted. As a student, I clearly remember the description of today’s holistic care likened to a three-legged milking stool: when one leg breaks, it affects the whole stool. Likewise, if there is a physical condition, the whole person requires attention, be that psychological or spiritual.

It became necessary in 2010 for the Royal College of Nursing to commission a survey on spirituality. It revealed that members wanted more education and guidance about spiritual care, clarification about personal and professional boundaries, and support in dealing with spiritual issues. Within the survey it emerged that there was agreement that spiritual care is a fundamental part of nursing currently much neglected through ignorance and misunderstanding. A pocket book was prepared for the use of nurses, which states:

“The practice of spiritual care is about meeting people at the point of deepest need. It is about not just ‘doing to’ but ‘being with’ them. It is about our attitudes, behaviours and our personal qualities … It is about treating spiritual needs with the same level of attention as physical needs”.

In 1988, as Hitchens quoted:

“Often it is not until a crisis, illness … or suffering occurs that the illusion of security is shattered. Illness, suffering … and ultimately death … become spiritual encounters as well as physical and emotional experiences”.

Spiritual care is not just about religious belief and practice or about imposing belief and values on another using a position to convert. It is not a specialist activity or the sole responsibility of a chaplain. It is about hope and strength, trust, meaning and purpose, belief and faith in self and others. For some, this includes a belief in a deity and a higher power, people’s values, love and relationships, morality, creativity and self- expression.

Eighty per cent of care is delivered by nurses in hospitals and hospices. Nursing homes and care homes are less well supported by registered nurses but again support workers need to understand the relationship between physical, mental and spiritual needs in order to gain the right support for the person being cared for. However, this can be achieved only if nurses have enough time to be with the patient to establish a relationship and to pick up where there is a need. It cannot be done in 15 minutes, but in 15 minutes a registered nurse may pick up the need and be able to pass it on to someone who can give the help that is needed.

I hope the Minister will feel able to support the amendment before us as the words “spiritual well-being” are more explicit about what is required than the word “beliefs”. I hope this short explanation of the depth and breadth in which the nursing profession has explored this subject reflects the enormous amount of work that is required by all caring staff in whatever capacity to understand that the need for holistic care to meet the needs of those being cared for and their families is not restricted to physical or psychiatric treatment but includes spiritual well-being covering many innermost personal needs at often the most vulnerable time in their lives.

Photo of Baroness Barker Baroness Barker Liberal Democrat

My Lords, I thank the noble Lord, Lord Hamilton, for his kind words about the work I did on this issue. On Report, I tabled the amendment which stands in his name today because at that point the Government were working to a definition of well-being which was about emotional well-being, and it was my view that it did not sufficiently encapsulate the matters we would define as spiritual. My name is not on the amendment today because over the past few weeks I have discussed this at some considerable length with a number of people, not least with the Minister and the noble Lord, Lord Warner, on BBC Radio 4 at some unearthly hour a couple of Sundays ago.

I think the Minister has met us where we need to be because his amendment refers to “feelings and beliefs”, which is a fairly wide and inclusive term. It is important that we take his words, not the wording proposed by the noble Lord, Lord Hamilton, because most of the discussion this afternoon has been about health and healthcare in healthcare settings, such as end-of-life settings, but this Bill is about social care at its widest in the community. Therefore we are perhaps not talking about the well-being of people at the end stage of their life, and it is important that we stick to a wider definition of a person’s beliefs because we are not talking just about medical matters.

The way the Government have framed the argument is sufficiently wide to include spiritual beliefs. I think in the normal course of conversation, when we talk about beliefs, we have almost a hierarchy of them. Religious beliefs perhaps come fairly high at the top; then people would secondarily think about spiritual beliefs. They might go on to talk about political beliefs being important to a person’s well-being. That is why I think that this time the Government have got this right. It is sufficiently clear and sufficiently inclusive to reflect all the concerns that remain legitimate on behalf of people backing my noble friend Lord Cormack’s amendment.

On this occasion the belt and braces are unnecessary and the noble Earl, Lord Howe, has got the House to the point where it wants to be. I will be quite happy to support that, not least because I think if we reform it we go with that formulation of words. Then we will be able to do the one thing which I think the law has to do, which is to be there as a backstop for those people who believe that their feelings and wishes are not being acknowledged and are being abused. That is the primary purpose of this legislation. Therefore, it should be as wide as possible.

Photo of Lord Elton Lord Elton Conservative

What the noble Baroness has just said prompts me to point out a difficulty. We are in an age when there is controversy about spirituality, when people can actually lose their jobs over issues of spirituality. If there were to be a case arising under this legislation in which such a matter arose and spirituality was not mentioned in the Bill, the position of those people would be a great deal weaker than if the Bill was amended as my noble friend suggests. Like the Chief Whip, I know that it is contrary to our normal custom to divide at this stage, but it seems that this is an issue of sufficient importance on the one hand and of narrowness of scope on the other to make it both necessary and painless.

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

My Lords, as this is a new stage I will just declare my interest as chairman of an NHS foundation trust, president of GS1, and a consultant and trainer with Cumberlege Connections. With the noble Baroness, Lady Barker, I, too, was very interested in this discussion at an earlier stage of the Bill. Our concern is that the original Government view is that spiritual issues would be embraced by Clause 1(2)(b) under the words “emotional well-being”. The noble Baroness, Lady Barker, and I did not feel that that was sufficient. Indeed, we had some worries that spiritual well-being could actually be subsumed under the terms “emotional well-being”.

The noble Earl, Lord Howe, has, I think, met our concerns. As he said in his letter to us, adding “beliefs” to Clause 1(3)(b) enables spiritual beliefs to be encompassed within that term without excluding any other forms of belief that may not be described as spiritual. I think that meets the concerns that I had about this matter. I would like the noble Baroness, Lady Barker, to draw a distinction between the specific issue that noble Lords have raised in relation to the health service, which is clearly designed to ensure that the NHS employs a chaplaincy service and which I absolutely subscribe to. Indeed, I would tribute to the chaplaincy service up and down the country. However, this Bill is about a different set of circumstances. To the noble Lord, Lord Elton, I say that employment issues do not arise in this regard. We are talking about Clause 1 of the Bill, which is about promoting the individual well-being within the context of the Care Bill. I I understand the point that he raised, but I do not think it arises in this context.

I would, though, say to the noble Lords, Lord Hamilton and Lord Cormack, that, reading the Companion, they are definitely right to bring this issue up on Third Reading. It is quite clear that an issue was raised in the debate on Report and the noble Earl agreed to look into it. He has now brought forth an amendment, and the Companion is absolutely clear that amendments on Third Reading are,

“to enable the government to fulfil undertakings given at earlier stages of the bill”.

It is surely perfectly proper for noble Lords, who have seen a government amendment and who feel that it does not meet their needs, to bring an amendment and to have a vote on it. The fact that we on this side of the House think that this is a matter of conscience and have no Whip on this matter, and that I do not agree with the noble Lord, Lord Hamilton, does not mean that he does not have every right to raise it. If he wishes to put it to the vote, he should jolly well do so.

Photo of Lord Elton Lord Elton Conservative 3:45 pm, 29th October 2013

My Lords, on the noble Lord’s response to me, if an employee is able to point to statute and say that they are carrying out a requirement of statute, that has a very considerable bearing on tribunal cases and should not be brushed aside.

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

My Lords, I do not seek to brush it aside. However, this clause relates to the responsibility,

“of a local authority, in exercising a function under this Part … to promote that individual’s well-being”.

Spiritual issues are subsumed under the amendment moved by the noble Earl, Lord Howe. With the greatest of respect, this does not relate to an employment law issue between an employer and an individual. This is very much around the kind of support that should be given to an individual by the local authority. There is a distinction between the situation that the noble Lord raised, and the issue that is set out in this clause.

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

My Lords, before I move to the matter in hand, I thank noble Lords for the tremendous dedication that they have shown to the scrutiny of the Bill during its passage through the House. It is a landmark piece of legislation, and I hope that the House will agree that the changes that the Government have made in response to the debates that we have had have strengthened the Bill so that it will pass to the other place in an even better state. Many noble Lords across this House have dedicated impressive time and energy to improving the provisions in all parts of the Bill, but time does not permit me to thank all noble Lords individually, as I would like to. However, I thank again those noble Lords who played such an important role in improving the Bill as members of the pre-legislative scrutiny committee.

I turn to my noble friend’s amendment. Under Clause 1, local authorities must promote individuals’ well-being and must also have regard to individuals’ views, wishes and feelings. As I set out during our debate on Report, we consider that these provisions mean that a local authority would take a person’s spiritual views, wishes and feelings into account in promoting their well-being. However, in response to concerns raised by a number of noble Lords on Report, I have now tabled an amendment to make it absolutely clear that these matters should be considered where they are of importance to the individual.

My amendment adds “beliefs” to the matters to which a local authority must have regard when exercising care and support functions. Having regard to someone’s beliefs includes their spiritual beliefs; for example, ensuring access to an appropriate figure of religious authority during palliative care. This approach achieves the same aim as Amendment 1 in the name of my noble friend Lord Hamilton, but I suggest to him and to the House that the government amendment is preferable, for two reasons.

First, my amendment quite deliberately does not refer specifically to “spiritual” well-being, but applies instead more widely to beliefs, which was the point made very effectively by my noble friend Lady Barker. That is because we do not wish to exclude those who may not consider themselves to have “spiritual” beliefs. That issue was raised by the noble Lord, Lord Warner, on Report, in relation to humanists.

Secondly, despite the comments of the noble Baroness, Lady Warnock—to whom I listened as always with great attention—spiritual well-being is not a well understood or defined concept. It carries a risk because it may confuse the practical application of the well-being principle on an individual level. There is another problem here. My noble friend’s amendment would effectively mean that local authorities had a duty to promote an individual’s spiritual well-being or beliefs. It is not appropriate to require a local authority to promote spiritual matters, except in so far as they affect the emotional well-being of a person.

Photo of Lord Cormack Lord Cormack Conservative

This is a question not of local authorities promoting but of their protecting. There is surely a real difference there.

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

I hope that my noble friend will on reflection agree that promotion is very much a part of the local authority’s role here. However, subsection (2) makes adequate provision as regards the emotional well-being of a person.

My noble friend Lord Hamilton compared what we are proposing in the Bill to the situation in the National Health Service. The NHS does not have a duty to promote spiritual well-being and, if it did, that potentially would have the negative consequences that I outlined. Having said that, the noble Baroness, Lady Emerton, is of course right—the NHS must take a patient-centred approach when planning and delivering services, and that would naturally include having regard to an individual’s beliefs where relevant. It is exactly this position that the Bill will replicate for local authorities when they plan and deliver care and support. To support the NHS in fulfilling its functions the Department of Health has produced best-practice guidance on NHS chaplaincy but I struggle to understand how that can equate to a duty in primary legislation on local authorities to promote spiritual well-being as my noble friend would have it.

Photo of Lord Framlingham Lord Framlingham Conservative

I am minded to vote for the amendment but perhaps the Minister can explain why there is a great deal of difference—or any difference —between the National Health Service and local government in terms of patient care.

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

I tried to explain that there is none. There is no primary duty in statute on the National Health Service to promote spiritual well-being, which is why we are trying to make the Bill entirely consistent with that position. We have aimed for a system built around individuals and I have tabled my amendment to make absolutely clear that a person’s beliefs, spiritual or otherwise, should be taken into account in this personalised approach to care.

As noble Lords may expect, I asked my officials to consider my noble friend’s proposal and whether anyone could benefit under his amendment who would not do so under the Government’s amendment. The advice that I received is clear that no such example can be found. I struggle to understand why my noble friend might feel it necessary to divide the House on this matter if he is minded to do so.

Photo of Baroness Knight of Collingtree Baroness Knight of Collingtree Conservative

Does my noble friend appreciate that only very recently we were given a sharp lesson? Unless a law is clear in its wording for those who have to live by it, any interpretation can be put on it. He will well remember what has happened regarding the Abortion Act. Because it was not thought necessary at the time to put certain wording in, it is assumed that it is legal to ignore it.

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

I agree with my noble friend, which is precisely why I am resisting the word “spiritual”. I do not think that that is a concept that is well defined in law and I think that it could give rise to enormous confusion. It is for that very reason that I am resisting the suggestion of my noble friend.

I hope that noble Lords will agree that my amendment achieves the aim of ensuring that a person’s beliefs, including those of a spiritual nature, are taken into account where that is important to the individual concerned. I propose that local authorities may promote an individual’s spiritual well-being by taking their beliefs into account, while avoiding any negative consequences. I hope that the House will agree not to follow my noble friend in this instance.

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative

My Lords, I must say that my noble friend has put before us a rather fine argument. It strikes me that if we are saying that spiritual needs cannot be named, but that on the other hand they are covered under the expression of taking into account “beliefs”, that does not hold a lot of water. I very much take my noble friend’s point—we must make this absolutely clear. People must understand the legislation. I do not think that just putting in “beliefs” will necessarily mean much to people. I am sure that “spiritual well-being” would mean something to people. As I said in my opening remarks, I think that it would give great reassurance. In the circumstances, I must test the opinion of the House.

Division on Amendment 1

Contents 96; Not-Contents 271.

Amendment 1 disagreed.

Division number 1 Care Bill [HL] — Third Reading

Aye: 94 Members of the House of Lords

No: 269 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Amendment 2

Moved by Earl Howe

2: Clause 1, page 2, line 9, leave out “and feelings” and insert “, feelings and beliefs”

Amendment 2 agreed.

Clause 4: Providing information and advice

Amendment 3

Moved by Lord Lipsey

3: Clause 4, page 5, line 5, at end insert—

“( ) Regulations must set out how local authorities should facilitate access to financial advice regulated by the Financial Conduct Authority for those adults likely to benefit from it.”

Photo of Lord Lipsey Lord Lipsey Labour 4:11 pm, 29th October 2013

My Lords, I remind the House of my interest as the unremunerated president of the Society of Later Life Advisers. Why has this matter come up again at Third Reading? It is because there were discussions in progress between the Minister, the two co-signees of this amendment and me, which had not yet concluded and the Minister generously agreed that we could bring it up at Third Reading. I think that the time has been well used. Certainly on the principles of the matter there is now complete accord between the Minister and ourselves. We are all agreed that taking financial advice must not be compulsory but equally we are agreed that it is not enough for the local authority just to hand over a list of names of advisers and say, “Take it from there”. In the fashionable words of today, we are agreed that they have to be nudged into doing what is invariably in their own interests as well as that of the council.

We are agreed that there is an important role for independent, regulated financial advisers in this field. We are agreed—despite the fact that I have tabled an amendment—that there is no need to put this in the

Bill: it makes very good sense to spell it out in regulations. However, we are also agreed, and the Minister will confirm this, that it would be valuable, not only for this House but for outside interests, if he were to spell out in a little more detail the Government’s intentions in this regard. We have reached a position of great harmony. I thank him for all the time he and his officials have devoted to it and the sooner the House hears from the Minister, after one or two comments, the quicker this issue will be seen to have been satisfactorily resolved. I beg to move.

Photo of Lord Sharkey Lord Sharkey Liberal Democrat

My Lords, I will speak very briefly in support of the amendment. The noble Lord, Lord Lipsey, spoke with his usual clarity in moving the amendment and I shall not repeat his arguments, which seem to me to be compelling. However, I will point out that the amendment now before us is in effect the last remaining part of a discussion that started at Second Reading, continued in Committee and on Report and in private meetings with the Minister and his officials. At the start there were, broadly speaking, two concerns about information and advice. The first was about the Dilnot recommendation that there should be an extensive public awareness campaign about the facts and the implications of the cap. Our concern was essentially about the leadership, the scale and the monitoring of this campaign. I am very grateful to the Minister and his officials for all the discussions that they have had with us over this issue.

I am pleased that we appear to have arrived at a satisfactory understanding. The Minister has confirmed in writing that the department has a vital role to play at national level. He has also confirmed that the department will co-ordinate the message to ensure a simple, coherent campaign. He has made it clear that the campaign will require concentrated effort and resource over a period of time. As to monitoring the effectiveness of the campaign, the Minister has again made it clear that the adult social care outcomes framework and the English Longitudinal Study of Ageing will contain the appropriate measures and questions.

I was enormously encouraged that the department has begun work on new questions for the annual health survey for England to enable us to track public awareness of these measures over time. The fieldwork for this, I understand, will be carried out in 2014 and the results will be available to us at the end of 2015, in time to establish a baseline for the information campaigns which are due to start in 2015 and 2016. However, as the noble Lord, Lord Lipsey, has said, we are still left with a concern over the provision of financial advice, and in particular over the provision, where appropriate, of independent financial advice. That is the issue addressed by the amendment. As the noble Lord, Lord Lipsey, has said, our discussions seem to indicate that there is not much, if any, real difference between the proposers of the amendment and the Government. I hope that that is the case and that the Government may be prepared to accept our amendment today or to give us reassurance that its objective will be fulfilled by other means.

Photo of Baroness Greengross Baroness Greengross Crossbench 4:15 pm, 29th October 2013

My Lords, I was the third member of the delegation, so to speak, with whom the noble Earl met and I thank him for the time he put in to clarifying the issue through our amendment and his response.

I was worried about the same points as those raised by the noble Lords, Lord Lipsey and Lord Sharkey, particularly for the people who need rather different kinds of advice from that which we take for granted in financial advice. I refer to those people who might need additional advice on their housing or other needs that are broader than or slightly different to pure financial advice. The word “facilitating” is key. Local authorities must enable people, as well as they possibly can, to get the correct financial advice they need for their particular circumstances. I believe that we have arrived there and I thank my colleagues, and in particular the noble Earl, for meeting our requirements so well.

Photo of Lord Best Lord Best Crossbench

My Lords, speaking as president of the Local Government Association, I can confirm that the LGA supports this amendment and underlines the importance of sound professional advice before people, particularly elder people with care needs, make major financial decisions, not least in relation to the use of their homes as a source of finance for meeting care costs.

Facilitating access to such advice, of course, will add to the duties and burdens on local authorities. That must be recognised, as with the implementation costs for the so-called Dilnot arrangements, in the financial settlement that central government makes with local government. The costs involved for local authorities may not be very great but they should nevertheless be acknowledged. With that point in mind, I am delighted to give firm support to the amendment. I am sure that, as always, the noble Earl will respond helpfully and wisely.

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

My Lords, perhaps I may raise a couple of points with the noble Earl, Lord Howe, on this. First, to reinforce the point made by the noble Lord, Lord Best, about the cost falling on local authorities in providing facilitation to independent, regulated financial advice, there is a much more general point about the capacity of local authorities to implement the measures in this Bill. The Bill leaves us, albeit with many amendments, with an underlying concern about whether local authorities will have the wherewithal to implement a raft of new responsibilities over the next few years.

Secondly when the noble Earl argued against similar amendments on Report, he spoke of the concerns of local authorities that they might be held liable if they referred a person who comes under the Act to a financial adviser who subsequently gave poor financial advice. We have heard from the noble Lord, Lord Best, that the LGA supports the general thrust of my noble friend’s amendment. Can the noble Earl confirm, first, that a regulated financial adviser will be subject to FCA requirements and come under its disciplinary and regulatory codes? Secondly, can he reassure local authorities that they can offer names of regulated financial advisers in the way that I understand a number of local authorities do at the moment without fear of subsequent action being taken against them? I was puzzled by the argument put forward on Report and it would be good to have this cleared up at this stage.

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

My Lords, Amendment 3 brings us once again to the important matter of financial advice. As we have covered this subject at some length previously, and in the interests of time, I will endeavour to keep my response reasonably short. At the same time, I do not intend to make brevity a substitute for substance.

My discussions with the noble Lord, Lord Lipsey, my noble friend Lord Sharkey and the noble Baroness, Lady Greengross, and my officials’ discussions with the financial services industry have persuaded me that we are all seeking the same end point for financial information and advice. I believe that any apparent distance between the positions of the Government and noble Lords on this issue reflects only the way that I have expressed our intentions thus far. We want to ensure that when people take decisions about how to fund their care it is done in a considered and informed way. We agree that the local authority has a pivotal role to play in ensuring that this happens. I want to set out what I see that role as being in the hope that noble Lords will agree that we are indeed in concordance.

We believe that the local authority should take a proactive role. What does that mean in practice? Under the new system we expect many more people, a large number of them self-funders, to approach the local authority to start their meter running. This provides an invaluable opportunity for local authorities to reach out to these people and tell them about the support that is out there to help them better plan, prepare and provide for the costs of their care. It is particularly important for self-funders that this includes the relevance and the availability of regulated independent financial advice. To pick up the word in the noble Lords’ amendment, this should be a facilitative role for the local authority, providing a nudge in an appropriate direction.

In trying to define what we mean by facilitation, I wholeheartedly agree that handing out a leaflet or placing a page on a website is not sufficient. Instead, local authorities should talk to people and use the opportunity of contact with self-funders and others to give them individually tailored advice that suits their personal circumstances. They are likely to know something about a person’s financial situation and so will be able to tell them about the range of information and advice that might be most relevant to them in considering their care options, whether that is light-touch budget planning or advice from a regulated organisation. It would not be sufficient for local authorities just to tell a person about the types of information and advice available. They will also have to explain how it could be accessed and provide information to enable them to do so.

There is more work to be done before we can finalise what the guidance will say. To get it right, we will need to work collaboratively with stakeholders, including the financial services industry. We have begun to do that already and have had initial discussions and workshops involving representatives from the finance industry. They have confirmed what we all know of some of the necessary complexity in the system, so how and at what stage a person or their family is facilitated to take up regulated financial advice will depend on how and where they have made contact to obtain information and advice. We will gather examples of best practice to inform statutory guidance to help local authorities identify the types of information and advice that different people may need, inform them of those options at the right time and help them to access them.

In addition to the call for evidence and responses to the consultation on funding reform, background work has already been undertaken over the summer that supports the development of statutory guidance. Work commissioned through the Think Local Act Personal partnership has resulted in two publications on information and advice, principles for the provision of information and advice and an interactive map evidencing the difficult pinch points in people’s typical journey through the care system.

We have commissioned detailed work with six local authorities chosen from 40 examples of current practice collected earlier this year to draw together evidence on benefits and effectiveness in developing information and advice services. A number of those examples, including West Sussex, involve directing people to regulated independent financial advice. Helpfully, the ABI has invited my officials to participate in a workshop on access to financial advice being held on 14 November, which we expect further to support the development of guidance.

I am confident that no further amendments are needed to effect what I believe is a shared ambition. The Bill sets out the framework, the skeleton if you like, but it is the statutory guidance and implementation support that will put meat on those bones. What I have set out today is what we will put into practice through guidance. This guidance will be developed in co-operation with all interests, including the Association of British Insurers and the Society of Later Life Advisers, SOLLA, which will build on the good practice that already exists in many areas. We really want this to be the product of co-development which achieves the aims that I firmly believe that the noble Lord and I share.

The noble Lord, Lord Hunt of Kings Heath, expressed concern about what I said on Report about the possibility that local authorities could be held liable in the event that a regulated financial adviser gives poor advice. He pointed out, quite rightly, that such an adviser would be covered under FCA codes, and so on. The issue here is about the local authority making a recommendation to an individual adviser. We do not consider that there is any problem with local authorities providing a list of advisers from whom a person could choose.

On the impact of local authority responsibilities, we have established a partnership with the Local Government Association and the Association of Directors of Adult Social Services and have set up a joint programme and implementation board. We have a lot of ground to cover, and I think that no one would deny that we have our work cut out over the next few months, but I can tell the noble Lord that, together, we are absolutely committed to providing the support that is needed by local government to enable it to fulfil its functions. I hope that we have achieved a meeting of minds on this matter and that what I have said today will give the noble Lord, Lord Lipsey, sufficient reassurance to withdraw his amendment.

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, I could not have put it half as well myself. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Clause 17: Assessment of Financial Resources

Amendment 4

Moved by Earl Howe

4: Clause 17, page 17, line 10, leave out second “levels” and insert “descriptions”

Photo of Earl Howe Earl Howe The Parliamentary Under-Secretary of State for Health 4:30 pm, 29th October 2013

My Lords, it will probably be of assistance if I speak to these two amendments. In moving Amendment 4, I shall speak also to Amendment 6. These amendments are designed to correct minor drafting errors in the Bill.

Amendment 4 concerns Clause 17, which relates to financial assessment. Subsection (10) clarifies that the regulation-making power to set a financial limit allows for regulations to provide for different financial limits for different types of care and support—or support, in the case of carers. Paragraph (b) states that the regulations may set,

“different levels for different levels of support”.

The amendment would correct this erroneous repetition and ensure that it reads instead:

“different levels for different descriptions of support”.

This ensures that the regulation-making power in subsection (10)(a) mirrors the regulation-making power in subsection (10)(b).

Amendment 6 relates to transition assessments of a young carer’s needs for support in Clause 64. The other provisions containing duties to carry out transition assessments—Clauses 59 and 61—require there to be “significant benefit” to the person in question. However, this clause only talks about “significant benefit” with no mention of the individual and so is quite abstract. This was an oversight. The amendment would therefore clarify that the significant benefit must be “to the young carer”, to bring it into line with the other similar provisions.

I hope that noble Lords feel able to support these minor and technical amendments, which will help ensure that the Bill is clear and works as intended. I beg to move.

Photo of Baroness Tyler of Enfield Baroness Tyler of Enfield Liberal Democrat

My Lords, I rise briefly indeed to welcome Amendment 6 and what I see as the further strengthening and joining-up between this legislation and the Children and Families Bill in relation to young carers. I particularly welcome the greater rights it gives to all young carers. I am really pleased to see the entitlements to both assessment and support for young carers as they reach that very critical age of transition at age 18. This will help because these young people often face additional barriers at that age as they are trying to access further education, employment and training, which is so important to their wider well-being and outcomes. I welcome it very much.

Amendment 4 agreed.

Clause 35: Deferred payment agreements and loans: further provision

Amendment 5

Moved by Lord Lipsey

5: Clause 35, page 31, line 20, at end insert—

“( ) The regulations may not specify any threshold of other assets above which a person is not eligible to receive a deferred payment loan.”

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, I am afraid that I cannot be so succinct this time. I might be acquitted of exaggeration if I say that the House's discovery on Report of the Government's proposed £23,250 limit on the non-housing assets people could have to qualify for the deferred payment scheme has caused something of a furore. I am not sure that Norman Lamb, the care Minister—a Minister for whom I genuinely have huge respect—will think that it was his finest hour when he described people with £23,250 in non-housing assets as quite wealthy. They may not be poor, but they are not likely candidates for the Chipping Campden set either.

My amendment would prevent the Government imposing such a limit. I have moved it in this form because we want to have a free-ranging debate this afternoon. I do not say that the matter will necessarily be resolved in this House this afternoon, and I make it clear that I am not an absolutist in this matter. The £23,250 figure is out for consultation—and following the furore a lot of people out there now know that it is out for consultation, which they did not know when it appeared in paragraph 150 of the consultation document. If at the end of that consultation, as I hope and expect, the Government decide to set a much higher figure, I shall reckon that a result.

Let us remember who this scheme is intended to help. It is not aimed at poor people who own their own homes, because they would not be sensible to avail themselves of its provisions. If they kept their homes under the scheme, they would have virtually no money in the bank and could not afford the little things that make life in a care home tolerable: presents for the grandchildren, a newspaper, sweets. At current interest rates, someone with £23,250 would have no more than £700 a year in income from that capital sum. They might have other bits of income but they are not going to be living a life of luxury in a care home off an income of £700 a year.

In arguing for the cap, the Government have tried to argue that it will not exclude most people. They claimed—or at least newspapers have reported that they claimed—that 35,000 of the 55,000 homeowners who enter care each year have assets of less than £23,250. These figures are contestable, as all asset figures are. A very good analysis in the

Sunday Telegraph showed that the average 75 year-old had around £100,000 in other assets—a much higher figure than the Government were putting forward. However, that is not the main point I wish to make about the claim that most people have less than £23,250. My point, which I have been raising throughout, is not that the limit would exclude most people but that it would exclude most of the people who would sensibly take advantage of the Government’s proposal. That is why I have said, and maintain, that a £23,250 cap would kill the scheme stone dead and that if that figure remains unchanged, there will be practically no takers for it.

As I have already said, it makes no sense for the poor to do it. If they went down this line, they would be left with so little cash that they would not be able to afford the luxuries of life. But let us be equally clear that it would not make any sense for anybody at the top end of the scale to do it—the Chipping Campdens with millions in the bank who Norman Lamb rightly said would be excluded. If they go into a care home they do not have to sell their home anyway—they can pay the fees out of their investment income or by selling a few shares. They could follow the famous advice that Nicholas Ridley, as Environment Secretary, gave to people who were having difficulty paying the poll tax, to sell a few pictures. A cap excluding them will do no harm since they were not going to take advantage of the scheme anyway.

I can quite see why the Government might wish to avoid promoting a scheme that could easily be portrayed—wrongly, as it happens—as giving a handout to the rich. However, the scheme as devised by Dilnot, as accepted by the Government and as amended, sadly, by the consultative document, is not aimed at the poor or at the rich. It is aimed to help people on middle incomes who have worked all their lives and saved a modest sum. That is why the Daily Mail and the Telegraph—which have appointed themselves, fairly enough, as the spokesmen for such people—have mounted their admirable campaigns against the Government’s proposed cap.

Therefore, the question is, “What cap will ensure that these people benefit?”. The answer is not—I repeat, not—£23,250. When we look for another figure, there is a logic that points us in the right direction. Why £23,250? It is an odd little figure and not something which you would dream up overnight. It happens to be the present upper limit for getting help under the means test. If you have more than £23,250 in assets, you get no help under the means test; if you have less, you get some help.

However—this is quite curious, but I can only explain the facts—the £23,250 cap is going to increase dramatically. Under the Dilnot recommendations, as embraced by the Government, the upper limit will increase to £118,000 in 2016, when the new cap on care costs comes into force. Many more people will get help with their care costs, and there will not be the current precipice whereby people who have a small amount of money—although Norman Lamb describes them as being quite rich—will be disqualified. Instead there will be a much longer plateau stage, when people lose a little bit of money if they have more money in the bank.

If the limit is to be £118,000, it seems that the logical thing would be to say, “Let’s forget £23,250. If the new means-test limit will be £118,000, let that £118,000 also be the limit for the deferred payment scheme”. At a stroke, that would deal with the problem of middle-income people who have worked hard all their lives, while excluding the rich people who do not need help. Job done. That may not happen in this House this afternoon, but I am sure that it will be done when the Bill reaches another place.

This is all quite new stuff, which was only discovered in the past couple of weeks, and I want to make two points in conclusion. Some people worry that if we do as I suggest the scheme would impose a high cost on the state. They need not worry. Loans will be repaid in full with interest when the old person dies, and the average time in a care home is about two and a half years. So the Government’s cash flow will hardly be adversely affected for long, and the scheme certainly will not be loss-making.

The second reason why the scheme will not cost much is that not very many people would be well advised to take advantage of it. For most people it would mean either leaving their former home empty—with the roof rotting and the price that it will eventually fetch for their family, out of which the debt will have to be repaid, declining—or letting it out, which would not be easy for somebody in a care home to manage. For some people—those, for example, who have always had the dream of their children living in their house—it will be a huge comfort to see that dream realised when they go into a care home. I speak with some feeling, because my own mother, who is in a care home, has been able to give her home to her other son and that gives her, as well as him, huge pleasure.

This scheme would prevent forced sales at bargain prices when the market is particularly depressed. It would also give the old person, who might initially have said, “Well, maybe I might return home one day”, time to come to terms with the fact that that may not be so. That can take a bit of time—and some people, miraculously, can return home. The scheme would protect some people, but there will not be very many of them. I would expect the take-up to be in the low thousands, if that, and any cost to be exiguous.

Finally, some noble Lords have come up to me in the Lobby and said, “But surely it’s right that old people should use some of the assets they have accumulated in their lives to pay for their care”. This thought is reflected in the reported remarks of the noble Lord, Lord O’Donnell, about the benefits that we give to old people. I empathise strongly with that school of thought. Indeed, it is what has, entirely unexpectedly, led me to spend the past 15 years trying to stop the feeble-minded proposal of the majority on the Royal Commission on Long Term Care for the Elderly that the state should pay for free care for everybody, and then—with my noble friend Lord Warner—tackling the Government and succeeding in stopping the insane proposal of the Brown Government that care at home should be free for all when care in homes should be paid for. I remember the stout support that I had from the Minister for that successful campaign.

I want people to contribute to the cost of their care, but I believe profoundly that a deferred payment scheme will make that easier, for it will remove an injustice from the present system and therefore pave the way to a new public-private partnership in paying for care—a stable basis on which people can plan for their old age, freed at last from fear.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Shadow Spokesperson (Health), Shadow Deputy Leader of the House of Lords 4:45 pm, 29th October 2013

My Lords, I am looking forward to the response of the noble Earl, Lord Howe, and hope that he can reassure the House on this point. It is important that the House should be reminded that the universal deferred payment scheme was discussed on pages 65 and 66 of the Dilnot commission report, which set out an analysis and evidence supporting its recommendations. It explained why the current arrangements and deferred payment schemes were not widely used, and why in the main report the commission recommended extending the current system to a full universal offer across the country.

In its arguments, the commission accepted that local authorities should be able to charge interest and recover their costs and that a scheme would be cost-neutral to the state, although it might require an initial cash injection. Dilnot also made it clear that the Government needed to strengthen and standardise the deferred payment scheme in the light of their decision on the level of the cap, means-testing and the contribution to general living costs.

I accept that the scheme was not intended to be generally available to the very wealthy and asset-rich. As my noble friend Lord Lipsey has so convincingly argued, though, being required to spend your assets down to £23,250 seems far too restrictive to deliver a viable scheme. Indeed, as it would be of no use whatever to people of middle income, it is very difficult to see if anyone at all is going to use the scheme. My question is: why have the Government been consulting on such a figure? Does that actually mean that they do not want the scheme to succeed? Do they recognise that it cannot possibly succeed if you have to get down to such a low figure before the scheme can apply?

My only reading of why the Government have consulted on this low figure is because of Treasury concern about the initial cash injection. Is that so? Will the Minister also acknowledge that there is a question about whether in the long term—or indeed in the short term, because the scheme will begin to pay for itself within a very short time—his department thinks that there is going to be a cost-neutral scheme? It will be interesting to hear from him about why the Government seem so cautious and have been consulting on what seems to be such a low figure.

For the reasons that my noble friend has persuasively put forward, although in the end the number of people who will use the scheme may be counted in their thousands rather than their tens of thousands, there is no doubt that having a scheme available will provide a great deal of comfort to many people and their families, and it would be a great pity if this was going to be stillborn. We need to see a scheme that will be practical and will not squeeze middle-income people. I hope that the Minister will be able to reassure the House that the Government are having second thoughts in this area.

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

My Lords, Amendment 5 returns us to the issue of deferred payments. I begin by saying that I welcome the opportunity to debate this subject again. Unfortunately, the Government’s position on it has been fraught with misunderstandings, and I would like to take this opportunity to dispel at least some of those.

First, I remind the House that a consultation on funding reform has been running over the past three months, and it closed last Friday. During these three months, officials have travelled across the country explaining our proposals and seeking people’s views. What we have put forward so far are proposals—something for people to consider. These are not set in stone. We will listen to what we have heard through our consultation, and indeed in this Chamber, as we develop our policies over the next few months.

The purpose of this amendment, as the noble Lord, Lord Lipsey, has explained, is to ensure that anyone—even people with assets of great monetary worth in addition to their main home—can have a deferred payment agreement. I have to make it clear that if one takes this amendment literally, I disagree with that principle. I do not think the public purse should be helping people who do not need financial support to pay their care fees. This would seem a long way from the Dilnot commission’s view that deferred payments should be used to support people who,

“would be unable to afford care charges without selling their home”.

For a person with a substantial sum in their bank account or substantial liquid savings, a deferred payment agreement might be a cheap loan—a convenience, one might say—but it would not be serving its core purpose.

I hope that we can therefore agree that the principle of having an upper threshold for non-housing assets is a sound and a necessary one. If we agree that this is a sound principle, all that is left to do is agree on an amount. Our consultation sought views on that amount. The noble Lord, Lord Lipsey, asked what was wrong with an asset threshold of £118,000. From April 2016, we are extending means-tested support for people with up to £118,000 when the value of a person’s home is taken into account in the financial assessment. This determines when an individual may be eligible for local authority support with their care costs. Deferred payment agreements are designed to help people to pay for their care costs; their ability to meet these costs in the short term will be dependent on their liquid non-housing assets rather than housing wealth. I can say to the noble Lord that we are happy to consider using a threshold of £118,000 as we analyse the consultation responses. We are happy to consider a range of figures.

The noble Lord, Lord Hunt, asked why we proposed the £23,250 threshold. We were seeking to identify those people most at risk of having to sell their home to pay for their care. The reason we proposed £23,250 specifically is because it provides consistency with the threshold for means-tested support when the value of someone’s home is not taken into account, and with the principle that people with non-housing assets under that amount are likely to need state support to pay for their care costs. Indeed this is the same figure and the same reasoning that the previous Government applied in their White Paper. Therefore, from that point of view if no other, it is a little surprising to hear the noble Lord, Lord Hunt, arguing against it.

There is an interesting point about people with more than £23,250 in savings. About 60% of people entering residential care are state-supported, meaning that they have only limited assets. Of the remaining 40% who enter residential care as a self-funder, less than half have liquid savings of more than £23,250. This means that the proposed threshold of £23,250 excludes only the richest 15% of people entering residential care. By increasing the liquid savings threshold to £118,000, the scheme would be available to all but the richest 5% of people entering residential care. I hope that that is a helpful contextual analysis. However, I reiterate—particularly to the noble Lord, Lord Lipsey—that we are not wedded to the figure of £23,250. We will analyse the responses to the consultation before making any further decision.

To answer the question posed by the noble Lord, Lord Hunt, about whether the scheme will actually be cost-neutral, we intend and believe that in the long run, the scheme will be cost-neutral. We have committed £330 million to fund the implementation of the cap cost system, and deferred payments to cover the initial set-up costs.

I hope that in the light of what I have said the noble Lord will, on reflection, agree that his amendment would be undesirable as drafted and that he will be content to withdraw it.

Photo of Baroness Oppenheim-Barnes Baroness Oppenheim-Barnes Conservative

Before the Minister sits down, will he confirm that if a house has to be sold, after the repayment of the debt, the proceeds remain the property of the person whose house was sold? Would it be possible for the potential beneficiaries to pay the debt in advance so that the house does not have to be sold?

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

My understanding is that the short answer is yes. There is no reason why potential beneficiaries should not use other moneys to pay the debt, in which case the legal charge over the house would be released by the local authority.

Photo of Lord Lipsey Lord Lipsey Labour

My Lords, I thank the Minister for his reply. It is tempting to go further into the minutiae of these issues, but I think I have been in politics long enough to recognise when a Minister is elegantly preparing for a government retreat. Believing that we have just heard an exemplar of such a speech, I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Clause 64: Assessment of a young carer’s needs for support

Amendment 6

Moved by Earl Howe

6: Clause 64, page 53, line 34, after “benefit” insert “to the young carer”

Amendment 6 agreed.

Clause 75: Prisoners and persons in approved premises etc.

Amendment 7

Moved by Lord Patel of Bradford

7: Clause 75, page 68, line 14, at end insert—

“( ) Within one year of the coming into force of this section, the Secretary of State shall report to Parliament on the discharge by probation trusts of their responsibilities for safeguarding adults residing in approved premises.”

Photo of Lord Patel of Bradford Lord Patel of Bradford Labour

My Lords, I once again thank the Minister for taking time to speak to me last week about my continued concerns in respect of ensuring that adults detained in prison or residing in approved premises have the same protection and care as all other vulnerable adults when it comes to safeguarding inquiries by local authorities.

Clause 75(7) expressly excludes adults detained in prison and those residing in approved premises from the Section 42 duty on local authorities to carry out safeguarding inquiries. I spoke about this on Report believing that it is a serious gap in the Bill in providing safeguards and protection to some of the most vulnerable people in our communities and prisons. On Report, I sought clarification about who would be responsible for carrying out safeguarding inquiries in prisons and approved premises, such as bail hostels. The response I received from the Minister was:

“Prison governors and directors, and the probation trust in the case of approved premises, are responsible for safeguarding prisoners … Her Majesty’s Chief Inspector of Prisons and the Prison and Probation Ombudsman require assurance that safeguarding procedures are in place and their implementation provides equivalent protection to that available in the community”.—[Hansard, 16/10/2013; cols. 623-4.]

In response to my specific question about approved premises, the Minister said that probation trusts have responsibility for carrying out safeguarding inquiries. I was a bit concerned by that response, but I accepted it. I decided to seek further clarification about how it would work in practice in local areas. What I found raised more issues and questions which I shall briefly outline. I should say that I am very grateful to Jenny Talbot and her team at the Prison Reform Trust for their continued support and expert guidance on this matter.

I fully support the concept that all prisons and approved premises should have their own arrangements for safeguarding that include a comprehensive policy understood by all staff and should ensure that vulnerable adults are identified and given appropriate support within the local authority safeguarding process. I remain uncertain about what the Minister said about probation trusts having the responsibility for carrying out safeguarding inquiries in respect of adults residing in approved premises, so I sought further expert legal advice from people in the field. I was categorically assured that local authority safeguarding duties and, indeed, other community care duties extend to approved premises within the local authority area.

While this is not explicitly settled in statute, it follows from the policy that the primary responsibility for safeguarding adults is with local authorities, as clarified in No Secrets, the Department of Health guidance document on protecting vulnerable adults in care. Therefore, in relation to safeguarding inquiries in approved premises, the local authority should be the lead co-ordinating agency working with the relevant probation trust and any other appropriate agencies to investigate cases and co-ordinate action.

I initially proposed that the Care Bill should formalise that position with an explicit clause imposing a duty on both prisons and probation trusts to co-operate with the statutory safeguarding lead local authority. However, in response to the Minister’s statement about probation trusts having this responsibility, I have tabled an amendment to ask that the Secretary of State report to Parliament within one year of this clause’s coming into force how probation trusts have discharged their responsibilities for safeguarding adults residing in approved premises.

Since tabling this amendment, I have learnt that the Government may be introducing measures to abolish probation trusts as early as 2014. This clearly poses another issue and lots more uncertainty. I would be very grateful if the Minister could comment on what would happen to vulnerable adults living in approved premises who are being abused or are at risk of being abused if no agency has a clear mandate for carrying out a safeguarding inquiry, or if staff in that agency are preoccupied by the proposed changes and anxious about their future.

I also want to put on record my continued concerns and anxieties with respect to safeguarding inquiries for vulnerable adults in prison. When I sought advice from a range of experts, what I discovered was extremely worrying. The Prison Reform Trust informed me that it could not find any PSI or PSO related to adult safeguarding that specified prison responsibilities. There does not appear to be explicit identification of the role of prison in adult safeguarding outside the general expectation to develop appropriate policies and procedures. The Prison Reform Trust also reported that, although most health and social services have an adult safeguarding policy, most prisons lack a cohesive, whole-prison approach to identify vulnerable adults and lack the training skills and local links with the safeguarding adults boards to carry out effective safeguarding inquiries.

I strongly argue that denying people in prison and people in approved premises the benefit of an inquiry by a local authority when safeguarding concerns are raised places an already vulnerable group of individuals at even greater risk. We must ensure that all people living in the community, including people in approved premises, must have this equivalence of care. I ask the Minister to accept my amendment if my concerns are not justified or, better still, to impose a duty on probation trusts and local authorities to share the specific responsibility for providing safeguarding inquiries for people in approved premises. I also ask that he extend that to prisons. I beg to move.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 5:00 pm, 29th October 2013

My Lords, I support the noble Lord, Lord Patel, because I agree that this is an extremely worrying issue. Focusing on prisons, there are an increasing number of elderly prisoners, as has been reported, and it is quite clear that the prison medical authorities are not capable of looking after all their needs. For example, people have talked about dementia and other problems of increasing age, and it is of concern that those people are not being properly looked after.

I am also very concerned about the use of the words “probation trusts” because they are about to go. According to the Transforming Rehabilitation agenda, which the Ministry of Justice has released, they are to be replaced by directors of rehabilitation in various parts of the country and/or private companies acting as rehabilitation companies responsible for services. What we do not know from the Ministry of Justice is exactly how many people are to stay with the existing probation service, which has been given a lot of responsibilities that do not include running probation hostels, which is currently a probation responsibility. Nor have I seen any mention of this accommodation in the transforming rehabilitation agenda that has been produced. Therefore, this matter needs following up. Within a year would be a very useful timeframe, because it would allow a follow-up of what is happening in the Ministry of Justice to be conducted.

Photo of Baroness Wheeler Baroness Wheeler Opposition Whip (Lords)

My Lords, from what my noble friend Lord Patel has said, it is clear that the issue of safeguarding inquiries is not at all sorted. He has highlighted a substantial gap in the Bill that could have a very serious impact on some of the most vulnerable people in our communities and prisons. He rightly seeks equivalence of care and protection for adults detained in prison and those residing in approved premises such as bail hostels—care and protection that all other vulnerable adults have when it comes to safeguarding inquiries by local authorities. We take on board his deep concerns about prisons and what appears to be a lack of co-ordinated and clear responsibilities in respect of safeguarding inquiries. I ask the Minister to look further into the matter, as my noble friend suggested.

My noble friend raises some key issues on whose responsibility it is to carry out a safeguarding inquiry for adults living in the community in approved premises. Given all the uncertainty about future service delivery as a result of the Government’s major reorganisation and break-up of the probation service, if that responsibility is currently with the local probation trust, this amendment, which calls on the Secretary of State to report to Parliament within one year of this clause of the Bill coming into force, becomes even more necessary.

To require the new community rehabilitation companies or their successor bodies to account for how they have discharged their responsibilities for safeguarding adults residing in approved premises is an acceptable way forward.

I look forward to hearing from the Government about how they intend to deal with the matter in the light of the serious concerns expressed by my noble friend today and in previous discussions on the Bill, and in light of the huge confusion that will result from the proposed changes to the probation service. I very much hope that the Minister will be able to support my noble friend’s endeavours to fill what is potentially a serious gap in the Bill, and to ensure future adequate protection of these vulnerable adults.

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

My Lords, I will begin by making absolutely clear that we agree that all prisons and approved premises should have arrangements for safeguarding the adults in their care. They should have a comprehensive policy that is understood by all staff and which ensures that vulnerable adults are identified and given appropriate support. I hope that we also agree that we cannot relieve prisons and probation providers of their duty of care by imposing a duty on a local authority to make safeguarding inquiries into suspected abuse or neglect in a prison or approved premises.

We need clear guidance for prisons, probation providers and local authorities to ensure that the procedures within prisons and approved premises are informed by best practice and local expertise. My officials will work with the Ministry of Justice and the National Offender Management Service, together with the Association of Directors of Adult Social Services and other stakeholders, such as the Prison Reform Trust, to develop instructions and guidance for prisons, probation providers and their local authorities. Those instructions and guidance will be in place by the time the Bill is implemented and will give improved clarity about the Prison Service and probation providers’ roles and responsibilities in safeguarding adults in their care, including the need to have a whole-institution approach to safeguarding, and cover their relationship with the local safeguarding adults board.

The Ministry of Justice encourages prison and probation staff to be involved with local safeguarding adults boards. The guidance on how safeguarding should be carried out in conjunction with local authority partners can draw attention to the duty in Clause 6 that local authorities and their partners must co-operate in the exercise of their respective functions relating to adults with needs for care and support. The guidance will be consistent with the broader advice and guidance on safeguarding adults in the community to ensure that good practice on safeguarding policies and inquiries is routinely shared.

In addition, the guidance will set out clearly the need for locally agreed relationships with local safeguarding boards, including clear local protocols around the circumstances for involvement of local SABs. The guidance will also make clear how prison and probation staff can benefit from the expertise of social services and local authority safeguarding teams.

For approved premises, the probation provider has a clear responsibility in relation to safeguarding but there is nothing to prevent it seeking advice from either the safeguarding adults board or the local authority safeguarding team. This already happens in many areas. Since a local authority’s duties in relation to safeguarding would not extend to safeguarding adults who are at risk of abuse or neglect by reason of their detention or their offence, a joint approach would be much more effective where there is a particularly difficult safeguarding challenge in an approved premises.

Her Majesty’s Inspectorates of Prisons and Probation and the Prisons and Probation Ombudsman will take account of the guidance and local agreements and make recommendations for improved practice, if relevant, when inspecting services and investigating complaints within the prison and probation services.

I wish to be clear in answering the noble Lord, Lord Patel of Bradford, who said that the document No Secrets said that local authorities have responsibility for safeguarding in approved premises. Local authorities do not have a statutory duty at the moment. It is the duty to conduct inquiries that will not apply—not that local authorities cannot conduct an inquiry if invited to by the probation trust or provider. Guidance and probation instructions will provide further detail on how local authorities and probation trusts, as they currently are, can work together at a local level. The guidance will go to all probation providers who run approved premises. Probation services will be contracted out in due course, so these will be approved premises provided by the probation service and by voluntary or private providers. The guidance will make it clear that the provider running the accommodation has a duty of care and a safeguarding responsibility.

I hope that, with those assurances and clarifications, the noble Lord will feel able to withdraw his amendment.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, how will the Government ensure that the guidance is carried out? Would a report not be useful?

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

My Lords, the Ministry of Justice will want to ensure that the guidance is adhered to and the department will have oversight of the way that this works in practice, as the noble Baroness might expect. As I say, there is best practice already out there; we want to build on what we know works, with joint working across the prison and probation services and local authorities.

Photo of Lord Patel of Bradford Lord Patel of Bradford Labour

My Lords, I thank the noble Earl for taking time to talk to me about these concerns and providing a comprehensive response. I am really pleased about the guidance that is going to be produced and shared. The noble Earl said that comprehensive policies and procedures are in place, and I should say for clarity that I have no argument with that. A number of institutions do not have them in place and that is where the guidance will come in handy.

However, I have no desire to see the local authority relieving the prison or probation trust of any duty of care. What I was saying—although it is probably a play on words—was that the No Secrets guidance seems to suggest that a local authority is probably the only agency that would investigate or inquire into a safeguarding issue. I am not saying that probation trusts will not do so but the feeling is that that duty falls on the local authority at the moment. My big anxiety is that Clause 75(7) expressly states that Section 42 should not apply. The Bill therefore actually states that local authorities should not carry out a safeguarding inquiry for people in prison or approved premises. The fact that it says in the Bill that they should not do it, but at the same time we are giving guidance to say that if everybody works together it should be okay, leads me to ask the Minister how we square that circle. It gives an awkward flavour to the debate. I hope that the noble Earl is willing to go back and have a look at both the guidance and the clause, as I believe that that is where the problem lies.

As regards safeguarding adults boards, I am very pleased that the noble Earl has said that prisons and probation trusts should join the safeguarding boards. Initially the Bill said that they should not be forced to do so. Then it was drafted to say that they “may” do so. I suggest that they should. This is crucial, as the noble Lord, Lord Ramsbotham, said, as otherwise their skill base is missing.

Those two areas are crucial. I do not know what will happen if and when the probation trusts are abolished, and what problems that will cause, but at least the amendment requiring that there is a report within a year will give us that information.

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

I am most grateful to the noble Lord. For clarification, the provision that he has cited says that the duty to conduct an inquiry does not apply. It does not say that local authorities should not conduct an inquiry. I think that that is an important distinction.

Photo of Lord Patel of Bradford Lord Patel of Bradford Labour

The fact that we each have looked at that provision in a different light suggests that it may be useful to look at that again when the guidance is produced, so that we are very clear and we give local authorities the confidence to play the lead in co-ordinating this.

I again thank the Minister for taking away all the issues and re-examining them. I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

A privilege amendment was made.

Bill passed and sent to the Commons.