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National Health Service Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) (Amendment) Regulations 2019 - Motion to Regret

Part of the debate – in the House of Lords at 7:21 pm on 10th June 2019.

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Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health) 7:21 pm, 10th June 2019

My Lords, first, I declare my interests as outlined in the register.

If ever a statutory instrument were crying out to be discussed on the Floor of the House, this one must rate pretty highly for a number of reasons, not least the instability in this sector and the lack of, and disgraceful delay in bringing forward, a long-term strategy for the social care sector. I might do the parliamentary equivalent of a scream if the Minister uses the words “soon” or “imminent” with regard to the strategy.

The somewhat dry words of a statutory instrument, particularly this one, conceal a reality—the lives and security of people for whom we have a responsibility as a society, as family members and in our communities, and this is the reason for my Motion to Regret. Each threat to a care home that houses the oldest and most vulnerable people in our community means, literally, that people will die. They will die when they are moved or they will become ill from the stress of not knowing what the future holds for them or where they might end up living. They wonder whether the people who look after them will be kind and caring.

At the beginning of Carers Week, this seems an appropriate debate. Carers care for their loved ones in their home, but there are also many carers who support their loved ones in residential care when caring at home becomes impossible and too demanding, particularly for older carers.

This instrument increases the rates that the NHS pays to care homes to cover the costs of services that must be carried out by a registered nurse, called the FNC rate. As noble Lords know, accommodation and social care costs are the responsibility of either the local authority and/or the individual, subject to the outcome of a needs assessment and financial assessment.

The 4.7% increase this year is influenced by the outcome of a Supreme Court case on the Welsh FNC rate and by a subsequent review by LaingBuisson. Information about this is helpfully included in appendix 1 of the Secondary Legislation Scrutiny Committee report that goes with this statutory instrument. The rate that has been set includes a 3.1% “efficiency expectation” of nursing home providers. Given the recent reports in the press about financial instability in the care home sector, it begs the question of how realistic that assumption is. These changes took effect on 26 April 2019, rather than 1 April as is usual, and the Department of Health and Social Care published a statement on 5 April saying:

“The findings of the study were delayed, following requests to improve the robustness of the data collected and an increase to the sample size of surveyed nursing homes. With an overall budget of approximately £675m for NHS-funded Nursing Care in 2018-19, any changes to the NHS-funded Nursing Care rates have significant financial consequences for both the NHS and nursing home providers”.

The background to the additional information that the Department of Health and Social Care has provided is that in August 2017 the Supreme Court ruled against the Welsh local health boards on how they had set the FNC rate in Wales. The administration and operation of the Welsh FNC rate is separate from the rate in England. However, the basis for FNC in legislation is very similar in Wales and England, and the judgment of the Supreme Court also impacts on how the Secretary of State for Health and Social Care must set the FNC rate in England.

The Supreme Court judgment set out an expanded definition of what constitutes nursing care by a registered nurse and stated that the FNC rate should pay for the costs of everything within that definition—that is, direct and indirect time on nursing care; paid breaks; time receiving supervision; stand-by time; and time spent on providing, planning, supervising or delegating the provision of other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to, closely connected with, or part and parcel of the nursing care which the nurse has to provide.

That definition is being applied to the FNC rate in the context of the LaingBuisson study, which has shown that FNC costs have continued to increase at a sustained and above-inflation rate since the last full study of FNC in 2016. Since 2016, the pay component of the national tariff has been used to apply inflationary uplifts to the FNC rate, so it is believed to be appropriate to accompany this with an efficiency factor. I fail to see how that is justified.

I thank the department for that explanation. However, I looked in vain for a sign of any upgrading for the care staff who work in care homes. Of course, there is none. Why is that? When do the care staff who carry out such important and personal work get the pay, training and recognition that they deserve? When will the funding for residential care be resolved? How can the NHS long-term plan possibly be delivered if the funding of social care is not also resolved?

The truth is that the UK is running out of care home places and care home operators are collapsing. The Guardian published an article on 6 June detailing concerns about care homes collapsing under financial pressure and the impact that this is having on vulnerable people. The British Geriatrics Society has warned that,

“soon there will not be enough”,

care homes,

“to look after the growing number of vulnerable older people needing specialist care”.

More than 100 care home operators collapsed in 2018, taking the total over five years to more than 400 and sparking warnings that patients in homes that close down could be left with nowhere to go but hospitals, and we know what that means in terms of costs and bed blocking.

Three out of five MPs say that people in their constituencies are suffering because of cuts to social care, with three-quarters saying that there is a crisis in care in England. That is according to a recent poll by the NHS Confederation, which leads Health for Care, a coalition of 15 organisations. In other words, there is a rising demand for social care but the cost of care is rising far more quickly than the money that local authorities pay for it. In some cases that money is being cut and in many others it is not rising at all.

The Association of Directors of Adult Social Services has shown that councils had £700 million of social care cuts planned in 2018-19, despite growing demand. I do not see how that is consistent with the regulations before us today. Major operators to suffer financial difficulty include Four Seasons Health Care, which was put up for sale after rescue talks failed, seven years on from the high-profile collapse of Southern Cross Healthcare. It was reported that a care home which was part of Four Seasons Health Care had left a patient without medication for two days.

These are our most vulnerable members of society and we have a duty to care for and protect them. However, they are being let down by an underfunded sector that is under constant and growing strain. Care England has called for the Government to put more money into social care to avoid a shortage of beds in a sector that provides care and accommodation for more than 400,000 residents. The future of funding for the sector is due to be laid out this year in a much delayed government Green Paper intended to address a £3.5 billion shortfall expected by 2025.

So, with care homes already crumbling under the pressure of an underfunded sector, it becomes a greater concern that the increase in charges may exacerbate the existing situation. There is concern that these charges will leader to further shortfalls in social care funding. Furthermore, these regulations come at a time when there is a lack of clarity surrounding the long-term care plan, which is needed to alleviate financial instability in the care home sector. Can the Minister confirm the impacts that these regulations may have on an already struggling care home sector? How do the Government plan to keep people in appropriate care settings with the recent care home closures, and when will we see an appropriate care plan? I beg to move.