Motion A

Health and Care Bill - Commons Amendments and Reasons – in the House of Lords at 3:58 pm on 5th April 2022.

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Lord Kamall:

Moved by Lord Kamall

That this House do not insist on its Amendment 11 and do agree with the Commons in their Amendment 11A in lieu.

11A: Page 138, line 35, at end insert— “(4) If the constitution includes provision under this paragraph allowing committees or sub-committees to exercise commissioning functions, the constitution must—(a) provide for the members of any such committee or subcommittee to be approved or appointed by the chair of the integrated care board, and(b) prohibit the chair from approving or appointing someone as a member of any such committee or sub-committee (“the candidate”) if the chair considers that the appointment could reasonably be regarded as undermining the independence of the health service because of the candidate’s involvement with the private healthcare sector or otherwise.(5) In sub-paragraph (4) “commissioning functions” means the functions of an integrated care board in arranging for the provision of services as part of the health service.”.

Photo of Lord Kamall Lord Kamall The Parliamentary Under-Secretary for Health and Social Care

My Lords, I start with the amendments on ICB membership, children’s palliative care, hospital discharge and adult social care.

On integrated care boards, I hope noble Lords will recognise that the Government have listened to both this House and the other place. We have proposed some changes to the drafting of Amendment 105 in the name of the noble Lord, Lord Bradley, which I am aware that the noble Lord has seen. We hope that he recognises that our amendment in lieu meets the original intent of his amendment.

On Amendment 11, we hope that Amendment 11A in lieu, proposed in the other place, meets the expectations of your Lordships’ House. To avoid a number of unintended consequences or implications, we proposed an amendment in lieu that will ensure that those who pose a threat to the independence of the health service are excluded from the ICB and its committees. We have applied the same test to committees as we have to the main board, and the conflict of interest provisions and safeguards in the Bill also apply. We are grateful for the discussions on this question that we have had with noble Lords, including with the Front Bench opposite, and we hope that this amendment will be satisfactory.

I now turn to one of the first areas where the other place has chosen to disagree with the amendments made by this House: hospital discharges. The Government listened to the strength of feeling expressed by your Lordships’ House, and I am grateful to many noble Lords —in particular, the noble Baronesses, Lady Pitkeathley and Lady Wheeler—for their insights and persistence in ensuring that we try to get this right. We are also grateful to Carers UK for working with the department to co-produce the new statutory guidance on hospital discharge.

The Government wholly agree that carers should be involved in discharge planning where appropriate. Our amendment in lieu achieves this in a way that can be implemented effectively and does not create unintended discharge delays. It introduces a new duty on NHS trusts and foundation trusts to involve both patients and carers in discharge planning. It explicitly states that they should be involved as soon as is feasible. Unlike Schedule 3 to the Care Act, this duty applies whenever the adult patient has care and support needs following discharge.

Existing discharge guidance stresses that discharge teams should consider carers’ preferences and ascertain whether they are willing and able to provide care and support post-discharge before an assessment of longer-term needs. This will be set out in the new statutory guidance, and because people should not be put under undue pressure to provide care, we will stress that no assumptions should be made about their willingness or ability to care. We anticipate that the new duty, supported by this statutory guidance, will promote a culture of including carers in decision-making while avoiding some of the unintended consequences.

We have heard the concerns expressed in this House about young carers being left out of discharge planning. This duty includes young carers, and statutory guidance will also highlight existing duties for hospitals to notify local authorities if they identify a young carer or have concerns. Local authorities must then carry out a young carer’s needs assessment if it appears that the young carer may have a need for support. Similarly, robust protections already exist in law for parent carers and sibling carers of a disabled child. We will continue working closely with the Department for Education to ensure that we use guidance to signpost existing rights and protections.

Existing carers’ rights to an assessment of their own needs will remain unchanged under the new arrangements. Guidance will make it clear that hospital staff should make carers aware of these rights and signpost them to relevant services. This should trigger local authorities to carry out assessments and put in place support for those who are eligible. I hope that noble Lords will feel reassured that this amendment achieves much of what Amendment 51 sought to achieve, while not putting barriers in the way of local areas adopting the discharge to assess model.

I turn to dispute resolution in children’s palliative care. We ask the House to support the amendment passed by the other place in lieu of Amendment 90. This requires the Secretary of State to commission a review of the causes of disagreements in the care of critically ill children between the providers of care and persons with parental responsibility, how we can avoid those disagreements and how we can sensitively handle their resolution. This report will be laid before Parliament with a set of recommendations, alongside the Government’s response.

We share the aim of the noble Baroness, Lady Finlay, to ensure that best practice is embedded across the system, but our efforts should be focused on working together to develop holistic evidence-based solutions. There are already a number of examples of best practice and work in this area, but more can and should be done. From the work already undertaken, it is clear that there needs to be a focus on making sure that everyone involved, especially families, understands the process and has their voices heard. No final decisions have been taken on how this independent review will be carried out or who will run it, but the department will engage with relevant stakeholders, including the noble Baroness, to develop its scope. The review will engage with a broad range of stakeholders to gather evidence. We expect this to include evidence from parents and clinicians who have been involved in children’s palliative care disputes, including disputes that did not progress to court.

Finally, we turn to the issue of the adult social care cap. We strongly recommend that the House consider accepting the settled view of the other place and retain the clause. The Government’s Motion also contains several crucial amendments to support the operation of charging reform. These changes were originally tabled in this House but were lost through the removal of the clause on Report.

The Government have announced their plan for a sustainable social care system. It is the only affordable plan on the table. It is also the only fair plan on the table, ending unpredictable care costs for everyone by introducing the £86,000 cap on an individual’s personal care costs. We heard the suggestion that the cap on care costs is somehow a target for everybody. That is absolutely not the case: it is meant as a protection, a backstop. It is also vital to recognise that where someone is drawing on care in their own home or is in a residential home, but has a qualifying relative such as a partner or child still living at home, their housing assets are not taken into account at all when working out how much they need to pay.

Removing the Government’s cap on care costs would be fundamentally unfair. It cannot be right that two people living in different parts of the country, contributing the same amount, should progress towards the cap at different rates based on differences in the amount their local authority is paying. If a less well-off person living in Hertfordshire got more of their care paid for by their local council than someone making exactly the same contribution to their care in Hartlepool, the person from Hertfordshire would hit the cap first, through something neither person had control over.

A final important point is that those who oppose the Government’s proposed approach to how the cap works may not have compared it in a like-for-like way with the parameters proposed in 2014, when the Care Bill was passed—proposals that were never implemented because they ended up being unaffordable. The analysis typically accepts the more generous elements of the Government’s plans before opposing the elements where we have had to make some very difficult trade-offs.

Reverting to the unfair form of metering in the Care Act, while keeping the more generous parts of the Government’s plans, would cost about £900 million per year by 2027-28. To make the same level of savings we would have to raise the cap, reduce means-testing support or expect people to make contributions towards their daily living costs that are unaffordable from most people’s income. None of these are desirable options. Opposing Motion G in my name and supporting Motion G1 would result in additional cost, plus the additional funding required to cover the cost of free care of people under the age of 40 with a disability.

Amendments 80P and 80Q, tabled by the noble Baroness, request a regulation-making power which would force trailblazer local authorities to implement a metering-at-cost policy. It would be wrong to trial and report on a policy which the Government are not implementing. This would clearly affect financial arrangements to be made by the other place. As such, we believe that these amendments involve financial privilege.

The Government have also previously considered this issue and concluded that the fairest system was for the cap to be the same for everybody, no matter their age, where they live in the country or the nature of the care and support they need to draw on. Younger adults will benefit from the announced charging reforms. From 6 April 2022, the social care allowances are being uprated in line with inflation to allow everyone to keep more of their income. The Government’s reform plan also includes a more generous means test, which means that more people will be eligible earlier for state support towards the cost of care, reducing the amount that people will have to pay for their care each week.

I am afraid that we will also be opposing Motion G2 in the name of my noble friend Lord Lansley. It seeks to amend a primary power and would enable the introduction of a percentage cap, which is currently not possible under Section 15 of the Care Act 2014. The Government considered a percentage cap previously, but even Sir Andrew Dilnot, after looking at the issue for some time, considered it unworkable.

People’s asset values fluctuate regularly, and regular assessments would have to be made to ensure that they are paying the right amount for their care. Such a system would be intrusive for people who must comply with full disclosure of all assets. The likely consequence is that some people would avoid approaching their local authority to seek the care they need. It would also mean that if somebody’s circumstances changed and the value of their chargeable assets changed significantly —for example, if they entered residential care or their spouse died—the level of their cap would change very significantly too. Nobody would be able to plan for what their future care costs might be, and, of course, far more people would need to have their assets assessed.

Therefore, after careful consideration, the Government decided against a percentage cap and in favour of a flat cap. The Government do not think it helpful to suggest through an amendment to primary legislation that something is workable and implementable when we know it is not in practice. Furthermore, this House cannot be expected to assess such a complex proposal at this late stage of the Bill.

We on the Government Benches must insist on Motion G and that this clause be restored with the necessary additional amendments to support the operation of charging reform. The other place has now voted on these clauses twice, and overwhelmingly. In opposing it, this House could be directly undermining the Government’s attempts to put social care on a sustainable footing for years to come and thwarting the clear will of the democratically elected Chamber. I gently urge noble Lords that this matter should not be returned to the House of Commons.

Finally, I am afraid we must also reject Amendment 81. While we agree on the need to make progress, it is not in the interests of good government to be forced to implement reform of this complexity and scale through a deadline set in primary legislation—and the other place shares this view.

We are getting on and implementing social care reform. We have operational guidance out for consultation. We have announced a small number of local authorities that will act as trailblazers to test the reforms from January 2023, but we must take time to engage with local authorities as they build the necessary infrastructure and use these trials to refine delivery systems and guidance ahead of a full national rollout. We must go through the learning process.

I remain grateful for all the work and consideration this House has given to the Bill and I hope that noble Lords will feel able to accept the Motions standing in my name.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Deputy Chairman of Committees 4:00 pm, 5th April 2022

I remind the House that we have three noble Baronesses beaming in. The first is the noble Baroness, Lady Brinton.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat Lords Spokesperson (Health)

My Lords, I declare my interests as a vice-president of the Local Government Association and vice-chair of the APPG on Adult Social Care.

I thank the Government for their Motion E relating to carers and safe discharge, which goes a considerable way to providing the reassurance that patients and their unpaid carers will be included in discharge planning. I am pleased to hear that Carers UK is working closely with the department on the guidance, and it is good to see that the guidance will be further updated when the Bill is passed and will include more mentions of carers and young carers—that is also welcome.

The guidance links to a number of background documents, such as action cards and the Home First documents, which are short, summary versions to help discharge from hospital but seem to be slightly out of step with the new provisions. So, while I am grateful for the Government’s amendment, will the Minister clarify whether these will also be updated?

I turn to Motions G, G1 and G2 on the social care cap. The Government’s changes to the care cap announced, late in the passage of the Bill in the Commons, that the amounts accrued towards the £86,000 cap are now based solely on the individual’s out-of-pocket expenses. Although individuals will still qualify for means-tested financial support if their assets fall below £100,000, in practice this will no longer act to protect people with more modest means and will simply see them contributing over a longer period. This is much more regressive and would leave poorer, older people and working-age adults with less protection from the catastrophic care costs than others who are wealthier.

I have been happy to sign previous amendments to remove the social care cap, and these Benches support Motion G1. The measures in Motion G1, especially in Amendment 80P, ensure that the original principles of the Dilnot commission recommendations are fully implemented. It is also important that the results of the trailblazer pilot schemes can be fully evaluated with an impact assessment and that Parliament has a proper opportunity to debate that review. The changes proposed by the Government just before the Bill came to your Lordships’ House are very different from those that Parliament understood right at the start of the Bill’s passage.

This is not just a problem for older people. Mencap has reminded us that the Government’s impact assessment shows that their proposals will benefit only around 10% of working-age care users and that there will be a limited impact on improving the funding spent on working-age disabled adults. It is still a disgrace that the arrangements for older people, which assume decades of working and earning, are also used for younger adults with disabilities, who we know are much more likely to be assets and savings poor and to need care and support for much longer, and who will therefore accrue much higher levels of cost than older people. These proposals from the Government are just not fit for purpose and need to be reviewed for this group of younger adults. That is why we support Motions G1 and G2.

Finally, on Motions L and L1 on the dispute resolution for children’s palliative care, I thank the Government for their amendment, which goes a considerable way towards achieving what the noble Baroness, Lady Finlay, sought. As one of the signatories to her previous amendments, I ask the Minister to give firm assurances to your Lordships’ House that the review will definitely take written and oral evidence from parents. In his speech he mentioned clinicians, other stakeholders and professionals, but it is important that parents are involved as well at an early stage, particularly making sure that what they are seeking with disputes achieves mediation rather than ending up in court.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Deputy Chairman of Committees 4:15 pm, 5th April 2022

My Lords, the second beaming Baroness is the noble Baroness, Lady Campbell of Surbiton.

Photo of Baroness Campbell of Surbiton Baroness Campbell of Surbiton Crossbench

My Lords, I wish to speak to and strongly support Motion G1 in the name of the noble Baroness, Lady Wheeler. These amendments will ease the catastrophic effects of the Government’s proposed charging cap reforms on the lives of those dependent on social care.

Disabled people who rely on social care just to survive, let alone thrive, are deeply disappointed that the Government’s charging proposals have been overturned by the other place and are now returning to this House. Amendment 80P would help to alleviate these detrimental effects by addressing the worst affected, particularly those under the age of 40. The trailblazer pilots are also very welcome, but evaluation is key. Crucially, it must assess the impact of charging reform on a variety of social care users, including younger adults, where there is so little current data, and should cover every aspect of their rights. These people are not statistics.

A further impact assessment is also vital. The current one is totally illogical. It needs to focus on the impact on younger adults and encourage proper mechanisms for data analysis: for example, the significant impact on the under-40s of having their contributions paid from benefits. The chronic financial hardship that long-term disabled people endure, with additional costs averaging £583 a month, remains a very worrying issue.

This is a bleak time to endorse charging for social care, capped at an extortionate £86,000. Hundreds of thousands of disabled people in Britain are in crisis because of the ever-increasing cost of living. Local authorities in England are imposing stricter charging policies for care because they are basically running out of money. Disabled people are already being referred to debt collection agencies because they cannot pay their care charges.

The Government talk about levelling up for disabled people, but really they are doing the opposite. These charging reforms force them to contribute to their care and stop local authority care costs counting towards the cap. They deny disabled people the life opportunities that others take for granted.

If Motion G1 is not supported, the Government will be defying the principles of the UN Convention on the Rights of Persons with Disabilities. The UK is signed up to the convention. Article 19 recognises the equal right of all disabled people to live in the community, with the same choices as others; it requires parties to the convention to ensure that they can enjoy full inclusion and participation in the community. Yet this Bill does not respect it.

Far from ensuring the rights enshrined by the convention, I fear the Bill will lead to increased poverty, ill health and poorer life outcomes for disabled people. Some will undoubtedly die. What does that say about our moral compass, especially when disabled people have already endured two years of disproportionate suffering and death during the pandemic?

This Bill provided a small opportunity to take action before it was too late, but it was squandered by the other place. I hope the Government will think again when the White Paper on social care integration is finally published, and address this deep injustice. For now, I urge noble Lords to support Motion G1.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Deputy Chairman of Committees

My Lords, the final remote participant is the noble Baroness, Lady Masham of Ilton.

Photo of Baroness Masham of Ilton Baroness Masham of Ilton Crossbench

My Lords, I will speak about disputes in the critical care of children.

First, I thank and congratulate the Minister, the noble Lord, Lord Kamall, on his hard work in trying to understand the enormity of the Health and Care Bill. I also thank my noble friend Lady Finlay of Llandaff for her persistence in including the importance of palliative care in this Bill, especially dealing with the heart-rending problems when there are disputes between parents or legal guardians responsible for critically ill children and their doctors and care staff.

To understand the anxiety and fear parents have, and their wanting to do the very best for their child, they need a sympathetic doctor in charge. Some treatments are available abroad, and desperate parents sometimes know better than the doctors if they are not experienced in the very rare conditions. There is a vital need now, in this difficult time of staff shortages, to listen and help solve the problems if there are disputes.

I will understand if my noble friend thinks that today, unfortunately, a bird in the hand is worth two in the bush. I also support many of the other amendments.

Photo of Baroness Wheeler Baroness Wheeler Shadow Spokesperson (Health and Social Care), Opposition Deputy Chief Whip (Lords), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government)

My Lords, I open this group from these Benches by speaking to Motion G1 on the care cap. My noble friend Lord Hunt will speak to Motion A on integrated care boards, my noble friend Lady Pitkeathley will speak to Motion E on carers, and we will leave the issue of palliative care under Motion L1 in the capable hands of the noble Baroness, Lady Finlay. I thank the noble Baronesses, Lady Brinton and Lady Campbell, for their support in respect of the social care cap.

I hope that my Motion G1 on social care will provide the opportunity that the Government so sorely need to think again about how the care cap is to be implemented—in particular, the impact that its proposed changes to the eligibility and charging rules before the cap kicks in will have on hundreds of thousands of lives across some of the most deprived areas of the country.

I remind the House that, despite the Prime Minister’s pledge that nobody should have to sell their homes, the fact is that somebody with assets of £100,000 will lose almost everything while someone with assets worth £1 million and over will keep almost everything. People with low levels of wealth will be exposed to the same care costs as the very wealthiest in society. They will end up spending the largest levels of their income on care. As my colleague, the shadow Minister Karin Smyth, succinctly put it:

“No wait for care will be shortened because of this Bill and nobody excluded from care will now receive it”.—[Official Report, Commons, 30/3/22; col. 941.]

Since the Government’s announcement of the £86,000 cap last year, and then, two months later, the body blow of not allowing local authority contributions to people’s care to accrue towards the cap, designed to save £900 million, the evidence for all this has been stacking up every day, and it is overwhelming. Extensive modelling and evidence by stakeholders such as Age UK, Mencap, the Alzheimer’s Society, and from the King’s Fund, Nuffield Trust and Health Foundation expert think tanks, prove just how badly older people and working-age disabled adults with no assets or with modest means will fare under the current charging proposals.

Even the Government’s own impact assessment figures show more than one in five older people will not see the benefits of the cap at all, and poorer care users are much more likely to die before they reach the cap than others with the same care needs. Alzheimer’s Society research shows that, without means-tested local authority funding counting towards the cap, only 21% of people with dementia will reach it, and it could take people drawing on care double the amount of time to get there, compared to the original Dilnot proposals.

On top of this—and particularly alarming in light of the Government’s professed levelling-up ambitions—the joint research from the Institute for Fiscal Studies and the Health Foundation clearly demonstrates that, among older people, those affected and worse off will be the ones with modest assets and wealth living in the north-east, Yorkshire and the Humber, and the Midlands. Regionally, just 16% of people with dementia in the north-east and 19% of people with dementia in the east Midlands would hit the cap, compared to 29% in the south-east. The Minister’s repeated claim that no one will lose out when compared to the current system, or face unpredictable care costs, flies in the face of all this. As the Health Foundation says of the new charging basis,

“the changes are poorly conceived and a step in the wrong direction”, taking protection away from poorer home owners and working-age adults with care needs.

The Government must therefore look closely at the evidence and think again. My Motion provides a structured way of enabling them to do just that. We are calling for: regulations to be drawn up that define how the costs accrued to meeting eligible needs are determined, as well as specifying the timescale for care cap implementation; ensuring that local authority care contributions, as well as individual private contributions, count towards the care cap; ensuring that the results of the much-vaunted, but little explained, five local authority care cap trail-blazer pilots that have just been set up are evaluated and open to parliamentary scrutiny before the cap is implemented; and, just as important, ensuring the completion of a further impact assessment that provides a detailed regional analysis and breakdown of eligibility for social care and the effect of the cap on working-age, disabled adults under 40. The final point in the Motion concerns this, and the noble Baroness, Lady Campbell, has again spoken very movingly on this vital issue, which any plan to fix social care—and particularly this one—has to address.

The five trail-blazer councils—Wolverhampton, Blackpool, Cheshire East, Newham and North Yorkshire —are developing and testing the new charging system, and they will be early implementers of the cap in January 2023 before rollout in October. I noticed the DHSC fanfare press release announcing them claims that they will,

“implement a new and improved adult social care charging reform system”.

Can the Minister explain how a system which has already started cutting costs at the expense of some of the poorest people in our society can be “new and improved”?

The press release also says of the pilots that the

“insight … and lessons learned … will be useful to providers and authorities … allowing the Department of Health and Social Care to test key aspects of the reforms … The initiative will generate valuable evidence and insight to help the Government to monitor progress, identify challenges and improve understanding.”

In the light of the growing evidence of the impact that the charging proposals will have in some of the most deprived areas of the country, can the Minister explain why the trail-blazers’ remit has not been widened to look closely at these vital issues too? These pilots must focus not only on systems and implementation but also on the vital work and analysis that the impact of the revised charging arrangements will have on the communities they cover and on people desperately in need of social care support.

We must ensure that we understand the full impact of the changes before they are implemented. That is why the further impact assessment on regional eligibility and other issues such as the impact on working-age disabled adults, called for in my Motion, is also important. These are all issues not addressed in the Bill’s current impact assessment.

The savings that the Government are aiming to make by reducing eligibility for the care cap and not allowing local authority costs to accrue towards the cap will result in older and poorer people in some of the most deprived areas of the country, and working-age disabled adults, paying more towards the cost of their care, particularly those with life-long conditions. My Motion provides a structured way forward for the Government to look closely at the mounting stakeholder and independent evidence and think again.

My hope is that every MP, particularly in areas where this expert research is showing the changes will have the most serious impact, knows what is happening and who will be affected. That is what levelling up means, and it also means addressing these issues. As the Nuffield Trust has summed up, the Government have an opportunity to make real changes to the broken social care system. The cap is not the solution to all the problems but as one component it is important that it is designed to be as fair as possible and protect those with the least. I will move Amendment G1 and test the opinion of the House at the appropriate time.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 4:30 pm, 5th April 2022

My Lords, in very much welcoming my noble friend’s introduction to her amendment, I refer to Motion A, to which the Minister referred in his opening remarks and to which he has brought Amendment 11A in lieu. This relates to potential conflicts of interests within membership of committees or sub-committees appointed to exercise commissioning functions on behalf of integrated care boards. This is important because those committees will form the basis for what is widely described in the NHS as place-based decision-making.

The Minister in Committee—which must seem a long time ago to him—referred to his hope

“that the ICB will exercise functions through place-based committees, where a wider group of members can take decisions”.—[Official Report, 20/1/22; col. 1852.]

This was in relation to the series of amendments from the noble Lord, Lord Crisp, about primary care and the need for it to be round the table. I see the potential of that, but as they are given increased responsibilities, there are questions about how placed-based committees are to be held to account. It is important that they are transparent, have robust governance arrangements in place and are properly held to account. Equally important is to ensure that potential conflicts of interest are avoided —particularly that members with private sector interests who could undermine the independence of decision-making should not be appointed to such bodies.

I welcome the Minister’s amendment in lieu but there are a couple of points I want to raise with him. First, in Lords Amendment 11, to which the Commons disagreed, there is in proposed new subsection (c) a reference to members of a committee or sub-committee of the integrated care board obtaining

“information that might be perceived to favour the interest or potential interest” of that member. However, in the noble Lord’s amendment in lieu there is no reference to access to information which could undermine the independence of the health service. Is this point regarding information implicit within his own amendment? Can he assure us that the issue must be covered when each ICB sets up its governance arrangements?

I also want to ask him about the chair of an integrated care board committee or sub-committee. His Amendment 11A follows the approach of the Bill and prohibits the chair of an ICB appointing someone who would undermine the independence of the health service. Can the Minister confirm that no chair would be appointed if they were also someone who would undermine the independence of the health service because of their involvement with the private healthcare sector?

I conclude by reiterating to the Minister that there are clearly more general conflicts of interest within integrated care boards that are going to prove challenging in the future. With NHS healthcare providers playing an increasing role in the commissioning and funding of local services through ICBs, there is a blurring of the line between those procuring a public service and those being paid to deliver it. It is very likely that conflicts of interest issues will emerge, with decisions potentially taken to benefit providers, with limited due process and transparency.

It is vital that, alongside the Bill, there are very strong governance arrangements to ensure that ICBs and their committees and sub-committees make decisions in the best interests of local populations. I hope the Minister agrees.

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

My Lords, I rise to express support for the Motion in the name of my noble friend on the Front Bench but principally to comment on Motion E. I know that the Minister and his officials listened carefully and took note of the strength of feeling about unpaid carers expressed on all sides of your Lordships’ House in Committee and on Report. I am most grateful for that strength of feeling and the wise advice given by this House, which has resulted in what I would describe as a satisfactory outcome in the form of a new amendment.

The other place has replaced the amendment passed by a large majority in your Lordships’ House and put forward its own, which was accepted there and brought to us today. I am most grateful to the Minister and all his officials for the work that they have put into drafting this amendment, and for the understanding shown for the position of unpaid carers and the importance of involving patients and carers in discharge planning, as soon as is feasible in that process.

I seek the Minister’s further assurance on a couple of other points. The first is that parent carers are not excluded when a disabled child is discharged from hospital. This is referred to in the guidance when their own discharge is happening but not when the child they care for is being discharged. We need to ensure that services across different disciplines are married up. I know that other Lords and colleagues will be seeking assurances about this and about young carers.

My second point is that the guidance contains references to checking that a carer is willing and able to care. I hope that the Minister may be able to enlarge on this a bit. There will be occasions when the carer’s own situation makes caring impossible: they may simply be too ill to take on the responsibility, for example, however willing they may be. We need to ensure that no pressure is brought to bear in such a situation and that no assumptions are made in the discharge process about the carer’s ability. We have all seen too many examples of where this was not acknowledged, inevitably leading to the readmission of the patient.

We all seek to make hospital discharges as safe and efficient as possible, while not exerting undue pressure on the most important components: the patient and their carers. Of course, we shall need to monitor carefully how the guidance is applied, and we have to be sure too that carers are informed about their rights. I hope that the Minister’s department will promote suitable publicity as the reforms are implemented. I assure him that I, Carers UK and, I am sure, other Peers will be constantly on the case to ensure that carers and patients can trust the discharge system to support them.

Photo of Lord Lansley Lord Lansley Conservative

My Lords, I want to contribute to this group and speak to Motions G1, G2 and H. As context, I say that my noble friend, the Front Bench team and their Bill team have gone to enormous efforts to try to reach a number of compromises; at this stage it is incumbent on us to recognise that. If we were to send further amendments to the other place, we should confine ourselves to doing so only in circumstances where we believe that there is a realistic prospect of reaching a compromise on them.

I was a signatory to Amendment 80. There was a compelling reason to send that to the other place and ask it to consider again the question of excluding local authority contributions from the calculation of the social care cap. The reason was, very straightforwardly, that it was introduced in the Commons at a late stage in the passage of the Bill. At that point—on Report—MPs themselves complained vociferously that they had not had an opportunity to consider it for any period of time, so it has gone back. In sending it back, we have done our job, but I am afraid I see no evidence that the Government, given their majority in the Commons, are going to reconsider the central question of excluding local authority contributions from the cap. I think they are wrong but, particularly given the substantial financial consequences it would entail, it would be wrong for us to think that we could insist—and if we cannot insist, we should not send it back.

Where Motion H is concerned, I am grateful to the noble Lord, Lord Warner, who kindly moved my amendment—which was entirely in my name— as at that point I was down with Covid for the first time. I would not now insist on that provision, not least because it entails financial privilege. From my point of view, it was to say, “Would you please get on with it?” My noble friend said in his introduction that the Government are getting on with it. I can promise him that, if they do not get on with it by the latter part of next year, we will be complaining and will be right to do so.

I turn to Motion G. Why have I tabled Motion G2? I confess that I have done it not in the expectation that we will send it to the other place because, as my noble friend said, that would be to intervene with quite a significant argument at this very late stage. However, I think the development of these arguments on the part of the Government has been quite interesting. First, they said, “Well, we are doing something and something is better than nothing.” Indeed, something is better than nothing, but it is not necessarily the best thing. So we said, “Hang on a minute. You said you would do this last September and introduce the cap.” We thought they were doing something that was very much in line with the Dilnot recommendations, even if the cap was set at a higher level, but it then turned out that they were not and that they were excluding local authority contributions.

On the financial implications of that, as the noble Baroness, Lady Wheeler, set out very well, if it saves £900 million, from whom principally is that saving to be derived? It is from those who are otherwise the beneficiaries of local authority contributions and who, as a consequence, are not asked to pay towards the cap. As the noble Baroness said, particularly if they have dementia and long-term care needs, over the years their assets will be substantially more depleted than would otherwise have been the case. I do not think we should kid ourselves: the Government are planning to do something which, in my view, exacerbates significantly the inequitable characteristics of the way the cap works. It is regressive in its effects.

Curiously, when they were debating this at the other end, they looked at the risk that incorporating local authority contributions would mean that, in different places across the country, different local authorities would provide different levels of contributions and therefore people would end up with some inequity in the amount they had to pay. This is no doubt true, but it feels like the Government shrieked at the mouse of inequity that would result from that and ignored the elephant of inequity that is in the removal of the local authority contribution to the cap.

I am always rather amused when the Minister is briefed—this happened at the other end as well—to tell us about what happened in 2012 or 2014 on the Care Act. Yes, Andrew Dilnot looked at whether the cap should be expressed as a percentage of people’s assets and did not recommend it, but that is not what is proposed in Motion G2. The model that was rejected was that there would not be a cap figure and that the cap would simply be expressed as a percentage—the so-called limited liability model. We did not support it, but the Dilnot model also had a lower cap and its structure, with the changes in the means test, would have had the effect that nobody would have lost more than about 45% of their assets. The structure the Government are now bringing in will mean that people with relatively few assets will continue to lose, in effect, 100% of their assets. As the noble Baroness, Lady Wheeler, correctly said, people who have substantial assets will only ever lose a modest proportion of those. It is not fair.

I am going to retreat, but I tell my noble friend that I think the Government should say, and I hope he will say in response, that if this turns out to be inequitable, which I believe it will, and the Government want to find the money to do something about it, they have the means to do so. I think that using the concept of a percentage of one’s assets is a legitimate way of doing it. Finally, just to put this on the record, my noble friend said that we cannot do that and that it is unworkable because people’s assets are constantly changing. No: if you do it in the context of the cap, people whose assets are significantly in excess of the requisite calculation of the amount of relevant assets would never have to be checked again. It is therefore perfectly possible to do it in relation only to those people whose financial means have to be regularly assessed for the purposes of the local authority means test in any case.

It is entirely workable; it could be done. Frankly, I think that with the passage of time the Government will realise that it is a better way of managing the cap; saying, for example, that 50% or 60% of one’s assets may be required to meet the cap but never as much as 100%. So I am retreating, and I encourage noble Lords not to insist on something that has substantial financial implications and on which the other place—as was quite clear from the debate—is not willing to shift. I hope my noble friend will say that, if this or indeed any future Government were to decide that they wanted to ameliorate the regressive effects of the exclusion of local authority contributions, there are other routes to doing so. Setting a percentage of the assets of people who are subjected to the means test as their contribution to the cap would be an effective way.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords) 4:45 pm, 5th April 2022

My Lords, as others have spoken fully to other amendments in this group, I will confine my remarks to Motion L1 in my name. I thank the Minister for the open-door policy that he has had and for his willingness on many occasions to discuss with me the problems for parents who can feel completely overwhelmed in the face of not being listened to by clinicians. I am also particularly grateful to the noble Baronesses, Lady Brinton, Lady Masham and Lady Stowell, for their helpful comments and advice behind the scenes, and to the noble Lord, Lord Balfe, who has shared with me his extensive experience on mediation.

In drafting my amendment to the amendment, I was particularly concerned that we must take evidence directly from parents, including parents whose dispute has not necessarily progressed to court. While it is quite extreme to progress as far as court, there seem to be a lot of parents who have felt completely overwhelmed in the face of personal tragedy. In an interview, Rob Behrens, the Parliamentary and Health Service Ombudsman, said about mediation:

“We’ve got to get better at communicating with complainants, better at learning from bad experiences, and better at using early resolution and mediation so that sometimes we don’t have to use adjudication at all.”

He went on to point out some of the cultural characteristics of the health service that make these encounters hard. He listed professional dominance, clinical hegemony, hierarchy and defensiveness as characteristics that make it particularly difficult.

I am grateful to the noble Baroness, Lady Pitkeathley, for flagging up parent carers. They often feel deeply disempowered because they are completely dependent on the help of others to manage a very difficult situation and so particularly inhibited in the face of any professional dominance; of course, there have been some stories in the press.

In response to the Minister, I will gladly be involved in developing the scope of this review. I hope that he will rapidly put me in contact with the official who will be responsible for it because we need to start as soon as possible. The government amendment stipulates a year—actually a very short time to run an inquiry—so it needs to happen quickly. I hope that there will be funding resources attached to this; it cannot be done on thin air or a shoestring. I hope also that there will be support for it to be done properly so that we can take evidence. Developing the scope of the review will be very important and I think there are parent groups who would particularly wish to be consulted at that early stage as well.

In the letter that we were sent, I note that the Government said:

“Should the review make recommendations for legislative change, and the Government agrees with those recommendations, we would seek to bring forward legislation where parliamentary time allows.”

I see that the Government have left themselves a small out, but, if this is to be a properly conducted review with clear recommendations, I hope that they will listen to that evidence and will not shirk at taking whatever steps are necessary.

I conclude simply by thanking the Minister, the Bill team and the other officials who have engaged in many hours of discussion on this issue. I look forward to working with speed on getting this review up and running.

Photo of Lord Bradley Lord Bradley Labour

My Lords, I will speak very briefly to Motion Q: Amendments 105 and 105A. I declare my health interests as in the register, particularly my role as a trustee for the Centre for Mental Health.

I was disappointed that the Government did not accept my Amendment 105, which was passed in this House on Report, regarding mental health membership on integrated care boards. I repeat my thanks for the support I received for the amendment from Labour and Liberal Back-Benchers, particularly the noble Baroness, Lady Walmsley, some Cross-Benchers, and from my own Front Bench, my noble friends Lady Wheeler, Lady Merron and especially Lady Thornton, who has been tremendously supportive throughout. I am also extremely grateful for the continuing and unstinting support of organisations outside Parliament, such as the Centre for Mental Health and the Mental Health Foundation.

However, I am satisfied that the Government’s amendment in lieu, Amendment 105A, captures the essence of my amendment: that the voice of mental health should be at the board table at the inception of the 42 ICBs, and play a crucial part from the start in determining service priorities, budget and resource allocation, workforce growth and development, and commissioning arrangements, among other things. The chairs of ICBs will now have responsibility for the appointment of mental health representation and will be held accountable for their decisions. This House, the other place, external bodies, the public and I will all scrutinise these appointments very carefully.

The Government’s amendment, devised by the noble Baroness, Lady Walmsley, and passed on Report, will put a double lock on mental health representation because of its intention to review the skill mix and expertise of ICB membership in the future. We had further assurance in the Minister’s letter to all noble Lords, which said:

“We strongly agree with the principle underpinning Lord Bradley’s amendment and with his view that ICBs will be strengthened by having at least one member with knowledge of Mental Health on the Board. As it stands, however, the current drafting would create significant legal ambiguity, which is why we tabled an amendment in lieu in the Commons to ensure that the principle is maintained in a legally robust way”.

I am grateful to the Minister for this assurance, and I believe that in taking it together with the two amendments, the ambition for parity of esteem between physical and mental health will, as a result, take a further significant step forward.

The Government’s amendment in lieu of my amendment should ensure that the voice of mental health is heard clearly on ICBs and in the wider integrated care system, and that the mental health and well-being services needed and demanded by the public are at the heart of integrated health policy in the future.

Photo of Lord Balfe Lord Balfe Conservative

My Lords, I rise to speak to Motions L and L1. Where we have got to today is a good example of what the House of Lords is for. When this Bill came to the Lords it had nothing in this area—but by working together, particularly with my friend, the noble Baroness, Lady Finlay, we have produced an acceptable clause. I would have liked more, but it is acceptable.

My skill, so to speak, was mediation, not health. What I hoped to do was to alter subtly but importantly the power relations in the hospital setting. The aim of compulsory mediation is that the patient would be given some power, although only the power to ask for mediation, which is, after all, a system whereby both sides have to agree. None the less, it would give them a way of articulating an issue. One of the jobs of a mediator is to make sure that both sides of any case are understood not only by the other side but by the side presenting it. I did the odd mediation in my time, and when we got down to it, it was clear that the people asking for it were not quite sure what they were asking for. So mediation is a way in which to calm things down, and that is what I was hoping to do. In the middle of all this, the Ministry of Justice came forward and said that it would cover certain legal costs. My aim was actually to reduce costs on the NHS by producing a rather cheaper way—but I am sure that that is something to be welcomed.

I will make just two or three small points. First, when this review is done, it is important that the mediation system that comes out is capable of being enforced. There are basically two types of mediation—what in lay man’s terms we used to call family mediation, and commercial mediation. The weakness with family mediation was that it was non-binding. I never did family mediation, but I belonged to a group with both sides in it, and one of the most distressing things was the huge amount of time that could be put in, and then the mediation agreement was just renounced and set aside. That has to be avoided; we cannot be in a situation where there is an NHS mediation and, let us say, the senior consultant says, “I’m not having that—I refuse to agree.” There has to be something equivalent to what in commercial mediation is known as the Tomlin order, which is the order whereby the court underwrites the mediation; it does not intervene in it but it gives it the force of law so that it can be enforced.

The detailed points that I would like to make to the Minister are as follows. First, in the clause that he has tabled, the department refers to

“the carrying out of a review into the causes of disputes”.

It needs to go a bit wider than the causes; it needs to be a review into the causes and the ways of solving disputes. It is no good having a catalogue saying, “This is where there are disputes.” It has to actually provide a solution to the disputes.

My second point is about where the provision refers to

“a report on the outcome of the review, within one year beginning with the date on which this section comes into force.”

It is a very simple question here: when does the Minister envisage that the section will come into force? There are things in Acts that have been around for years and which have never actually come into force. When will this come into force? I also hope that he will be able to give us a favourable answer on Motion L1, and the additional amendment, tabled by the noble Baroness, Lady Finlay. It adds a couple of very important points to this amendment, and I hope that it will be accepted.

My final point is that I have been struck by the imbalance of power in the health service. As some noble Lords will know, I am, among other things, the president of BALPA, the airline pilots’ union. It has the doctrine of “every flight a safe flight”, and it encourages people, right down to the most junior staff, to say what is wrong. There is too much hierarchy in the health service. I recall with some happiness, since I am still here, going into hospital two-and-a-bit years ago for a heart bypass operation. I said something casually in passing to one of the nurses, “Do you think you could tell the doctor?”—the rest does not matter—and she said, “Oh no, I’m sorry, sir, we’re not allowed to talk to the doctors, we can only talk to the staff nurse.” I took this up with the staff nurse, who said, “Yes, well, it is very important that we have these things because we don’t want the doctors getting mixed messages.” I said that it might not be a mixed message, but rather an alternative or a complaint. It could be something which has been spotted, and junior nurse speaks to staff nurse, and staff nurse thinks, “Oh, God, we must not let the doctor know about that; we better sort that out.”

One of the principles of “every flight a safe flight” is that even a steward or stewardess who is on their very first flight, if they see something wrong, can go to the captain—or anyone else—because there is no hierarchy of complaint. Every time I read a report from the NHS where it says that lessons will be learned, I generally think, “My God, you’re slow learners, aren’t you?”, because we have seen it time and again. When looking at this area of disputes, I urge the Minister to look also at the hierarchy within the health service. I do not think that he is 100% happy with this clause, but I think that his officials were not too happy with the idea of “mediation” which might go into a hospital and start making some recommendations which could have the force of law and could uncover things which they would rather have hidden.

I ask the Minister to please give this resolution godspeed and bring the clause into action as soon as he can. Let us try and move this forward so that—maybe by the time we have gone a year or 15 months from now—we have a real opportunity of making a change which will benefit many parents, and which will not produce adversity but help produce consensus by giving parents a real say in the level of treatment.

Photo of Baroness Tyler of Enfield Baroness Tyler of Enfield Chair, Children and Families Act 2014 Committee, Chair, Children and Families Act 2014 Committee 5:00 pm, 5th April 2022

My Lords, I wish to comment extremely briefly on Motion E, in relation to unpaid carers and hospital discharge, and to ask the Minister one question. I want first to pay tribute to the noble Baroness, Lady Pitkeathley, for her unstinting leadership on this issue. I very much welcome the amendment in lieu which the Government have brought forward to ensure that carers and patients are properly involved in discharge decisions.

My one point is that the cost of living crisis is a reality and life is getting tougher for many people. Involving carers at the point of discharge gives them the opportunity to say that they are unable to care, or unable to get the support they need for caring because they are juggling work and care—for example, if it is impossible for them to give up work fully because they need to feed the family or pay the bills. Can the Minister give me assurance that carers’ needs to juggle work and care will be both properly covered and explored in the guidance which I know that the Government are committed to producing, and which I am very much looking forward to seeing?

Photo of Baroness Walmsley Baroness Walmsley Co-Deputy Leader of the Liberal Democrat Peers

My Lords, I shall make a few brief comments about Motions A, E, G1, L1 and Q. On Motion A, we very much welcome the Government’s amendments in lieu, to make it clear that no commissioning organisation within the ICS can have a member appointed to it who could reasonably be regarded as undermining the independence of the health service because of their involvement in the private sector. The Government have listened to the concern expressed by the noble Lord, Lord Hunt of Kings Heath, whom I congratulate for spotting the loophole, and that is very good and welcome.

On the matter of carers and safe discharge in Motion E, we on these Benches were concerned that unpaid carers would not be sufficiently consulted and their own health and well-being might not be sufficiently taken into account. I am grateful to the Minister for spelling out, at my request, how the impact on carers will be assessed before a patient is discharged into her or his care. However, at the moment, when there is an outbreak of Covid-19 in a hospital ward, the carers are not allowed to visit the patient. Therefore, those conversations are not taking place. I should be very interested to know what the Minister will suggest about how those conversations can take place in that situation.

It is very important that appropriate action is taken to address the carer’s needs as well as those of the patient. Indeed, if those needs were not addressed, it would affect the ability of the carer to look after the patient, so both would suffer. I know this is a big responsibility for local authorities, which are strapped for cash, but it is vital that these needs are catered for, especially in light of the fact that those many thousands of unpaid carers save the public purse a massive amount of money, as well as looking after their loved ones with the loving care and attention that it would be very difficult for professionals, however dedicated, to give.

On Motions L and L1, I have listened carefully to the concerns of the noble Baroness, Lady Finlay, and she is quite justified. Governments have a habit of promising action but then moving on to something else, so we on these Benches, like the noble Baroness, will be looking out very carefully for the results of the review and the actions which we hope will follow.

We very much welcome Motion Q and congratulate the noble Lord, Lord Bradley, on achieving what he has. We particularly welcome the mention in the amendment in lieu of the word “prevention” of mental ill-health, as well as diagnosis and treatment.

Finally, as my noble friend Lady Brinton said, we support Motion G1 from the noble Baroness, Lady Wheeler. I want to add just two comments to those of my noble friend. We should support the amendment because the government savings will be paid by the poorest and most vulnerable, and 80% of those with dementia who have very long-term caring needs will be worse off under the Government’s proposals, and that is not right.

Photo of Lord Kamall Lord Kamall The Parliamentary Under-Secretary for Health and Social Care

I thank all noble Lords who took part in this wide-ranging and interesting debate. Perhaps I can deal quickly with some of the issues. On mental health membership of the ICBs, I thank the noble Lord, Lord Bradley, for his persistence, but also for accepting the amendment that we produced in lieu.

On conflicts of interest, I thank all noble Lords for acknowledging the work that the Government have done, and I shall try to answer a couple of points. The noble Lord, Lord Hunt, asked about the chairs of the ICBs. They are appointed by NHS England, with the Secretary of State’s approval, which is the route by which the Department of Health and Social Care can ensure that the chair does not undermine the independence of the NHS. NHS England and the Secretary of State will want to appoint people who meet the highest standards and will not undermine the interests of the NHS. On the second question, ICBs will have to make arrangements to manage conflicts of interest to ensure that they do not affect, or appear to affect, the integrity of ICBs’ decision-making. This would implicitly include data sharing and access to information. I hope that that meets with the noble Lord’s approval and addresses his concerns.

On palliative care, I once again thank the noble Baroness, Lady Finlay, for all her work and for teaching me so much about the subject. Indeed, the officials in my department are very grateful for what they have learned about the whole palliative care process: the noble Baroness has definitely put it right on the agenda for consideration.

It is clear that the views of parents are very important, and it is essential that their voices are heard. That is why we expect the review to include evidence from both parents and clinicians who have been involved in disagreements in the care of critically ill children.

I also thank my noble friend Lord Balfe for the points that he made and I hope that we will have further conversations. I would be happy to put my noble friend in touch with officials in my department, so that they can benefit from his wisdom and many years’ experience of mediation.

There are already robust duties to involve parent carers in hospital discharge planning. Parent carers of a disabled child are covered by the right, under the Children and Families Act 2014, to request a carers assessment at any time. We will continue working closely with the Department for Education to ensure that, in guidance, we signpost to existing rights and protections for these individuals. The existing guidance stresses that discharge teams should ascertain whether the carer is willing and able to provide care and support post discharge, before an assessment of longer-term needs. No assumptions should be made about their willingness or ability—that includes all forms of ability—to care. This will be set out in the new statutory guidance. As the noble Baroness rightly knows, we will be working with Carers UK on the guidance.

I will finish on the adult social care cap. I understand the concerns that many noble Lords have expressed. In the current system, individuals with more than £23,500 face unlimited costs. The cap is not a target to work towards; it is a backstop to make sure that people are not liable for unlimited costs of care. There are a number of different issues and views on this, but we believe that our proposal is better than the current system. Although I understand the concerns of this House, I once again urge noble Lords to consider that the other place has considered this and rejected noble Lords’ amendments. The Government Benches will be opposing Motions G1 and G2.

I am also grateful to my noble friend Lord Lansley for the points he raised. We will look at all aspects of the trailblazer schemes; it would not be wise to limit what we look at. We want to get the best from that discovery and learning process, and perhaps spot with the trailblazing and piloting any unintended consequences. So we will look in a holistic way at how the trailblazer schemes are working before we roll them out nationally. We believe that that is wise and prudent.

I think that completes my points.

Motion A agreed.