I beg to move amendment No. 26, in

clause 4, page 3, line 34, leave out 'two days' and insert 'three working days, excluding Saturdays, Sundays, Bank Holidays and Public Holidays.'.

May I say what a pleasure it is, Mr. Conway, to have you chairing our proceedings. You said that we would be able to make steady progress this afternoon, but I am not altogether sure that I fully share your optimism. As you know, many of us, especially Opposition Members, regard the Bill as particularly pernicious, and clause 4 contains the mechanisms that drive the system of imposing fines on local authorities.

Clause 4 deals with what the Government rather euphemistically call a

''liability to make delayed discharge payments'',

but it is nothing short of a straightforward fining system. Whatever spin Ministers may put on it by using the words ''incentives'' or ''payments'', the bald fact is that it is a system to fine local government. The amendment would ameliorate the mechanisms of that procedure. As we said in earlier debates, we are against the system root and branch; we believe that it will not work, that it is unfair and that it will undo the steadily improving relationships between local authority social services departments and NHS bodies in patient care and the discharge of patients from hospital.

What the Government suggest in the Bill will undo all that good work by giving social services departments a liability in certain circumstances; in effect, they will carry the can. The system envisaged under clause 4 would mean social services departments having to pay a fine to NHS bodies in connection with delayed discharges. The procedure envisages that after a local authority has received notification that a patient is likely to need community care services, it will have two days in which to find a placement and make arrangements for that patient's care on discharge from hospital. That placement could be in domiciliary care, residential care, nursing care or through a home care package, whichever is most appropriate for the patient.

We have grave concerns about the time scale for that operation. What is often called a crisis in long-term care suggests that, in some parts of the country,

there may be problems in fixing deadlines. For example, as we heard in earlier debates, there is the choice directive; but what will happen under the time scale for discharge, once the notification has been issued, if patients do not choose or do not wish to go to the residential care home that the social services department may have identified?

What if the patient is incapable of taking a decision or voicing an opinion, but their family is unhappy? All too often the closure of beds in certain parts of the country—particularly the south-east and the south-west—means that appropriate beds are not available in appropriate homes. What will such things mean to the time scale? What happens if someone of the Jewish faith particularly wants to go to a Jewish residential home, but no bed is available? Such problems will put social services departments at an unfair disadvantage.

We have another problem with the arbitrary period of two days. What happens if it falls on a weekend? More often than not, there are particular problems finding places on Saturdays and Sundays, but subsection (3) takes no account of that. Nor does it take account of bank holidays, which will mostly fall on Mondays, although sometimes on Fridays. There might also be a public holiday. Such circumstances will place too much strain on the system and place social services departments in an unfair and exposed position.

There is also the danger that local authorities discharge patients too quickly to meet the time scale following notification and to ensure that they do not incur a fine. Again, that is a dangerous situation to put patients in. Over the past two years or so, several written answers from Ministers in the Department of Health have shown that readmission rates in the health provision system are escalating, and I am sure that hon. Members on both sides of the Committee agree that that is unacceptable. One does not want the clause, and subsection (4) in particular, to sanctify in law a system that seeks to avoid the problem of delayed discharge, only to increase premature discharge, such that the recovery of patients suffers a setback and they are readmitted to hospital.

The amendment would remove the two-day period, and include the three working days, excluding Saturdays, Sundays, bank holidays and public holidays. That would avoid the difficulties that I mentioned with providing services. It would also remove from local authorities the strain of having to fall in with the terms of the notification and the time scale in subsection (3) on weekends, public holidays and bank holidays.

I hope that the Minister will give sympathetic consideration to what is genuinely meant as a helpful amendment and an attempt to avoid problems. I assure her that the official Opposition—and, I suspect, the Liberal Democrats—will do all we can during the Bill's passage through Parliament to ensure that this muddled and wrongly aimed Bill fails to get on the statute book. If it does, however, and problems arise because the Government failed to budge on this issue, I do not want to be in the position of saying, ''I told you so.'' That would give me no pleasure. As we study and seek to improve the Bill, our priority must be to

anticipate and avoid pitfalls, and I hope that the Government recognise that. All too often, they reach a decision, and take the view that it is right, come hell or high water—they will not listen to anyone who tries to help improve a piece of legislation and avoid problems that many people fear will occur. In this case, problems may arise because of the narrowness of the time scale.

I, too, welcome you to the Chair, Mr. Conway.

In supporting the amendment, the Liberal Democrats are very concerned indeed about the effect that a minimum prescribed period of two days would have on joint working. Two days is perhaps a further indication that the Government do not understand the efforts that must be made in the discharge of some patients, given their complex circumstances. Consultation with carers, with the patient, with housing authorities, and with care homes were discussed earlier today. However, it is quite ridiculous for all those necessary consultations to take place in a two-day period.

The Liberal Democrats want to know if the Government are suggesting that a team consisting of social services, housing, and so on, should be standing by all the time in case they are needed. How big should that team be, and who should be in it? Are the Government suggesting that only one social services person could make the decisions for housing and the multitude of other matters, or will there be others?

I start by welcoming you to the Chair, Mr. Conway. I am sure that we will continue to make good progress this afternoon, as we did this morning.

As the hon. Member for West Chelmsford (Mr. Burns) rightly emphasised, we are moving on to the provisions that implement the framework of incentives on which the legislation is based. I think that it is worth reiterating some of the points that we briefly touched on this morning, but which are pertinent to the way that the clause works, and to the overall framework.

As Opposition Members have emphasised, there has been success in reducing the levels of delayed discharges from our hospitals. That has been due to significant improvements in both the way that agencies work together, and in the amount of investment that the Government have made to ensure that such things happen. However, we are not satisfied. When 5,000 people are still trapped in hospital when they would most appropriately be cared for elsewhere, the system is not yet working properly. A certain complacency was demonstrated this morning, and I hope that we will not see it this afternoon.

I assure the Minister that there is no complacency among Opposition Members about what is going on.

The Minister talks about a reduction in the number of delayed discharge patients. As she will remember

from earlier debates, the figure increased to over 7,000 in 2000–01. She also fails to mention the equally important increase of the large number of emergency readmissions of patients aged over 75. For the first quarter of 2001–02, the figure was 29,878 patients. By the fourth quarter of that year, it had risen to almost 31,500. There is a danger that that will increase as a result of fines.

Opposition Members have often referred to readmissions. In building a whole-systems approach, it is important to ensure that people leave hospital when it is safe for them to do so and that they will not need to be readmitted in an emergency. Readmission figures have been consistent since the beginning of 1999. Opposition Members often emphasise the number of readmissions. Part of the reason for the increase in readmissions even when the rate remains the same is that more people are admitted.

In the first quarter of 2002–03, 7.5 per cent. of elderly patients who had been discharged were readmitted as emergencies within 28 days. That compares with 7.3 per cent. in the same period last year. That is a small increase, and we are determined to ensure throughout the system that it does not worsen. Our target is to maintain a steady rate of emergency readmissions, while bearing down on delayed discharges.

Having given those figures, no doubt the Minister will want the Committee to know that for the same periods, readmissions within seven days rose from 2.9 per cent. to 3.2 per cent.

Actually, I believe that the rise was from 2.9 per cent to 3 per cent. If I am wrong, I apologise to the hon. Gentleman.

You are.

Nevertheless, the point remains that there is not, as Opposition Members frequently assert, an automatic link between reductions in the level of delayed discharge and emergency readmission. This morning I talked about the significant reductions in delayed discharge since 1997. There has not been a big increase in emergency readmissions during that time.

The Minister suggests that the assertion that there is such a link is made by hon. Members on the Liberal Democrat Benches. A survey conducted on two separate occasions over four years by Carers UK shows a marked increase in the number of carers who experienced a readmission as an emergency a short time after discharge. They considered that that was entirely due to premature discharge.

I accept that carers are quite often experts on the individual circumstances of those people for whom they care—that is why it is extremely important to involve them throughout the process—but if we examine the relationship between delayed discharge and emergency readmissions, we find that there is no correlation between those areas with few delayed discharges and those with many emergency readmissions. In fact, in more than one

third of areas, there are below average rates of both delayed discharge and emergency readmission, showing that it is possible to perform well on both indicators.

However, we take the risk seriously. That is why, first, the revised hospital discharge workbook that we shall issue shortly, and the statutory guidance that we will publish to accompany the Bill will make it clear that discharge must be properly planned and that patients must not be discharged until it is safe to do so.

Will the hon. Lady give way?

I shall finish explaining what we are doing, then hon. Members can intervene. Secondly, hospitals will be judged and therefore rewarded on the basis of their ability to control readmission rates. Thirdly, under the new financial flows, acute trusts will not receive funding for patients who are readmitted to hospital within a certain period, so there will be a financial incentive for them to ensure that a patient is genuinely ready for discharge before leaving an acute hospital bed. We do not take the matter lightly—we shall ensure that we tackle it through guidance, performance management and financial flows and incentives that are built into the system.

Two minutes ago the Minister said that under the new system the Government would ensure that patients would be—I think that her words were—properly assessed and discharged from hospital. I find that staggering; of course that is what should happen. Is the Minister suggesting that, because that is for the future under this legislation, it is not happening now? If so, how can she be confident that the new systems will work any better than the current ones?

The hon. Gentleman has made a slightly convoluted intervention. In many areas, there is already good practice in assessing people generally and their leaving hospital. Many areas also have good practice in putting alternatives in place. However, it is not yet good enough, or we would not have the present numbers of people delayed in hospital.

The Bill will not place new responsibilities on social services departments but it will ensure that, where there are responsibilities to assess and provide alternatives to hospital care quickly, there are incentives for that to happen effectively. I reiterate that those responsibilities already exist for social services departments. I expect that such departments will live up to their responsibilities. If they do not, it is not as though the cost of caring for a person would disappear. It would not; it would fall on the acute trust. We want to ensure that the charge will go to those responsible for caring for a patient.

I was very concerned when the Minister spoke about the complacency that she feels exists. What assessment has she made of the success or otherwise of the current special grant round for delayed discharges, which were allocated for 2002–03 and about which there was a statutory instrument in July? We seem to be going into something without any assessment having been made. Has the Minister made an assessment?

Order. I hope that the Minister will restrain herself from being tempted into ground that does not strictly concern the amendment. I am sure that the Committee will have a clause stand part debate in which wider issues can be addressed, but I would be grateful if we stuck to the amendment.

I was not accusing social services, acute hospitals or primary care trusts of complacency. I was accusing Opposition Members.

As the hon. Member for West Chelmsford spelled out, the amendment seeks to lengthen the time that local authorities have to assess and make services available to patients from what is virtually three days to three working days. Although that does not sound greatly different, in practice it will mean that when a weekend falls in that period of three working days, which will be quite often, the minimum compliance period will be five days.

Mr. Burns indicated assent.

The hon. Gentleman is harrumphing his approval for that, but I am not convinced that the Bill should state that it is acceptable for local authorities to take a minimum of five days to assess a patient and make services available for them. A patient's inappropriate delay in an acute bed when they are ready to leave does not become any more acceptable simply because it is the weekend or a bank holiday. They are not less likely to lose their confidence or gain an infection because it happens to be a bank holiday, a Saturday or a Sunday.

As the Minister will realise, the amendment does not give a blanket five days. It extends the time in certain circumstances, at weekends and bank holidays. It is not a blanket extension of the time in all circumstances.

Now the hon. Gentleman argues for some flexibility, and I will come to that in a moment. By stating a minimum in the Bill, we would be saying that it was acceptable, even if it were a weekend or bank holiday, for local authorities to take five days in all circumstances.

Part of the argument that he and the hon. Member for Cheadle (Mrs. Calton) used for extending the period is that, if we are to operate a system in which the minimum period for social services to assess a patient and provide services is three days, working practices might have to change. It might be necessary for additional services to be made available, or for people to work at the weekend, even if they have not done so previously. Working practices may need to change if we are to move to a system in which everyone is assessed quickly and people receive the care that they need in the right place and at the right time.

It is a bit rich for Opposition Members, especially Liberal Democrat Members, to complain—quite rightly, in some circumstances—that delays in assessment have led, effectively, to the rationing of community care services, and then to argue, when we are attempting to ensure that assessments are made as quickly as possible, that we should extend the time period again, presumably as another way of rationing services.

I thank the Minister for giving way on the subject of assessments. I want to ask her about the impact of the Care Standards Act 2000, an issue that we tried to touch on earlier this morning but which can appropriately be raised now. Care home owners are required to conduct their own assessments before granting admission. Will the Minister tell us what will happen if a care home owner is unable to complete an assessment in the required time scale? Will social services be fined or will an exclusion apply?

The hon. Gentleman misunderstands the nature of the standards relating both to care homes and to domiciliary care. Standard 3.2 provides:

''For individuals referred through Care Management arrangements,''—

arrangements that are the responsibility of social services departments—

''the registered person (that is the care home provider) obtains a summary of the Care Management . . . assessment and a copy of the Care Plan produced for care management purposes.''

If a patient is the responsibility of social services, social services and the care provider must ensure that, when they assess that person and consider where to place them, they ensure that the placement suits their needs. Social services must then give that care provider a copy of the assessment of needs. That fulfils the requirements of standard 3.2.

It would be different in the case of a self-funder because there would be no care management arrangements in place and it may be more appropriate for the care provider to carry out the assessment. However, as a self-funder would not be the responsibility of social services, social services would not have to pay a charge if the person was delayed in hospital.

Let us stick with the state-funded placement. I am not referring to the comprehensive assessment that would be carried out through the single assessment process, but to an assessment carried out before that—an interim, temporary or truncated assessment—which will facilitate discharge. As not all the information that needs to be passed on to the care home owner will be available at that point, how can the care home owner discharge his obligation under the standards?

We were beginning to talk a little earlier about the single assessment process, and if we had not digressed into other areas, I would have said that assessments under clause 3 should be governed by the same principles as those that govern the single assessment process. Those assessments will be part, but not necessarily all, of a single assessment process. However, many of the concerns that the hon. Gentleman raised could nevertheless be covered during that assessment period.

There may be complex cases in which it takes significantly longer than three days for an individual's assessment to be carried out and for services to be arranged. In that case, is it most appropriate for that person to wait in an acute hospital bed while the assessment is carried out? I do not believe that it is. That person should not be stuck on an acute ward. The NHS and councils need to—and, in many places,

already do—put in place a range of flexible, non-acute and other services so that people can be transferred to more suitable environments and receive care while their care planning continues.

It is worth emphasising that the minimum compliance period in the Bill is just that—a minimum. As I suggested, it is an appropriate minimum. We have taken powers to make regulations that will allow us to specify the minimum period. The number in the Bill should surely reflect best practice and be one that we would expect all local authorities eventually to achieve.

The vast majority of local authorities will have longer than three days to assess patients and plan services because, as we heard this morning, the NHS will notify authorities as early as possible under the Bill. Furthermore, most patients who require community services on discharge are in hospital for longer than three days. Indeed, only 30 per cent. of patients over the age of 65 who are admitted as emergencies are out of hospital in three days. In reality, therefore, there will be longer than three days to carry out the planning. Nevertheless, where possible, planning should be carried out as quickly as possible. That is good practice, and it is right that we retain in the Bill the minimum of virtually three days for assessments. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

I am disappointed rather than reassured by the Minister's comments. She is being as inflexible as the clause will be towards local authorities. She is turning down the Opposition's genuine attempt to help the Government avoid a monumental muck-up should the Bill become law.

Given debates elsewhere, I realise that the Minister and her colleagues are in a perpetual state of denial about the crisis in long-term care. I was only mildly surprised that she failed to address my introductory points about the two-day period in subsection (3) and about what will happen in parts of the country where there are no residential beds because a disproportionate number have been lost following the closure of homes. Through no fault of their own, local authorities in those areas are unable to provide a domiciliary care package. The Minister has answered my parliamentary questions on this issue, so she will know that 100,000 fewer households have been getting domiciliary care over the past five and a half years, although, to be fair, those that do get help get more hours' worth on average. None the less, local authorities in some parts of the country are having real problems finding appropriate placements and care for some patients.

The Minister said that she did not want to accept the amendment, because it would make the Bill too flexible. The Bill specifies a period of at least two days, although she confirmed, and I accept, that it is probably three days in reality. However, as I said, local authorities still face the problem of weekends and bank holidays. It is a red herring for the Minister to say that our kind offer to help improve the Bill would lead to a minimum, automatic five-day period. That is

not the intention behind the amendment, and it would not happen in reality. The amendment would simply give flexibility to local authorities and, in some respects, the health service, at times when it is traditionally more difficult to carry out certain activities, such as weekends and bank holidays. It is not asking much to ask the Government to accept an amendment tabled in good faith to help them to avoid a pitfall of their own making.

Once again, because they are not heeding our warnings, the Government are heading for a ghastly situation. During debates on the care standards legislation, my hon. Friends the Members for Woodspring (Dr. Fox) and for Runnymede and Weybridge (Mr. Hammond) warned Ministers that commitments were being made that would place a burden on social services and the health service and would lead to a shambles. The Government did not heed our warnings and there was an utter shambles during the summer, because the Criminal Records Bureau had too much work to carry out from 1 April.

I fear that the Government are about to make a similar mistake over this amendment. If the Minister is not prepared, despite my eloquence in pleading the case, to change her mind now or even to give us hope that she will consider the matter and come back to it at another stage—I shall think no less of her if she does that—I shall have to ask my hon. Friends to join me in voting for the amendment to save the Government from themselves.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

I beg to move amendment No. 3, in

clause 4, page 3, line 38, leave out ', and only because,'.

With this it will be convenient to take amendment No. 11, in

clause 4, page 4, line 28, at end add—

'(10) No such payments shall be made where the reason for the delayed discharge is not the responsibility of the responsible authority.'.

I shall speak briefly about amendment No. 3, which is a probing amendment to tease out of the Minister what is meant by the words ''and only because''. I suspect that the answer is that it is, in a helpful way, narrowing the reasons why an authority could be liable for a fine. If that is correct, I would not want to remove it from the Bill—the amendment was tabled in order to receive clarification and to place the correct interpretation on the record.

Amendment No. 11, however, is more significant and is not a probing amendment. It would add a new subsection 10 to clause 4, which would say:

''No such payments shall be made where the reason for the delayed discharge is not the responsibility of the responsible authority.''

Payment is a euphemism for fines.

We wish to ensure that local authorities and their social service departments are not fined for delayed discharge when the fault is with another body, or for other reasons. The fault might be with an NHS body. Difficulties might be caused by, for example, lack of suitable health support in the community. The lack of a visiting nurse to a patient's home, or the shortage of GPs, could restrict the ability of care homes to admit new residents. There may be a significant shortage of funds, particularly at the back end of a financial year, when a local authority may not have the funds to provide appropriate domiciliary care. The causes may be no fault of the national health service bodies or the social services department in the area—for example, a lack of capacity in a care home, or the unavailability of the appropriate care for a patient in the immediate locality. There may be a problem with the patient, or with the patient's family.

In the circumstances that the hon. Gentleman outlined, who would pay for the costs of that person?

I am slightly puzzled by the hon. Gentleman's question. If he asking who would pay for the patient's care, in cases in which the patient has been discharged from a hospital and then placed in appropriate care—

I am sorry; I did not make myself clear. If the hon. Gentleman is saying that someone cannot be discharged from a hospital for such reasons as the unavailability of facilities in the community, who should be responsible for paying for that person's care in hospital?

The straight answer to the hon. Gentleman's question is that, for a simple reason, the status quo must exist, however regrettable that is from a financial point of view. It is totally wrong for the social services department to incur a fine for failing to comply with the procedures for the discharge of a patient if, through no fault of that department, the appropriate care, whatever its form, cannot be found immediately. Regrettably, we have seen that if there is not appropriate care for the discharge of a patient on a given day, that patient usually remains in hospital. That happens today, as it happened a year ago, two years ago, and, if one wants to be totally non-political, five and six years ago. I do not think that that is satisfactory. If the patient cannot leave hospital to go to appropriate care, there is, sadly, no alternative.

Will the hon. Gentleman give way?

Just a minute. Given the problems that the residential care home sector has with domiciliary care in certain parts of the country, and the funding problems that some local authorities have, usually at the back end of the financial year, I do not believe that the Bill will solve the problem of delayed discharge 100 per cent.

I appreciate that the hon. Gentleman is wrestling with a problem, but will he explain why he thinks it appropriate for the acute health sector to pay for the care of people in such circumstances?

I am not quite sure—

I am certain.

It is very nice of the Minister's Parliamentary Private Secretary to contribute from a sedentary position. He is like a Greek chorus. If he and certain other new Labour individuals feel that there is a problem, they will shout out, usually in unison in the Chamber.

That is a problem for the hon. Gentleman.

It is not a problem for me.

Logically, patients have remained in hospital in the past. That is not the right or best system; we all agree that it is the wrong approach, and that we must seek means to enable patients to leave hospital to the appropriate care as soon as soon as it is right for them to be discharged. Because in recent years we have lost more than 60,000 care home beds and because more than 100,000 households receive less domiciliary care, there are problems with the provision of appropriate care beyond hospital.

Clause 4(4) contains the tight rules and bureaucracy of the punitive fining system that the Government have concluded is the only way forward. In many cases, it will unfairly penalise social services departments that, frankly, have better things to spend their money on in providing appropriate care for delayed discharge patients than being fined under the system in the clause and subsection. For that reason, we need an approach as outlined in amendment No. 11. It proposes a new subsection (10) to clause 4 that would protect local authorities, so that they would not always be blamed under the Bill for problems over which they sometimes had little or no control.

Ministers will regret the fact that they will create a blame culture for social service departments. There will be times when it is not the fault of the local authority that someone cannot be discharged from hospital when one would expect and hope that they could. The Bill's fining system gives no leeway to take account of that, which is why we tabled amendment No. 11. It would bring in some protection for social services departments when such problems were not their fault. Under the Bill, they would be fined for things that were perceived as their failings, but that are not.

I hope, but I am not confident, that the Government will be more lenient towards local authorities, which will certainly try their best to minimise delayed discharges. However, because of factors in the real world, they sometimes cannot overcome those problems, particularly under the limited time scale set out in subsection (4).

I shall speak briefly in support of amendment No. 11. It

seems so eminently reasonable that it is difficult to see why it should be resisted. It states:

''No such payments shall be made where the reason for the delayed discharge is not the responsibility of the responsible authority.''

The responsible authority is now the social services department, because an amendment that we debated this morning that would have included other responsible authorities was not accepted.

Amendment No. 11 tries to put some parameters around that rather one-sided deal. Before we rise on Thursday, will the Minister tell the Committee whether there is a precedent for the unilateral imposition of fines by one section of the public sector on another section, when there is no mutually agreed contract? I can think of no precedent for the principle enshrined in clause 4. It is entirely one-sided; the NHS can impose costs on social services, but there is no reciprocal right for them to send a bill to the NHS. It is entirely one way.

In the previous debate, the Minister spoke movingly about people who were ''trapped in hospital''—those were her words—or who were ''stuck in acute wards''—her words again—and she spoke of the imperative of getting them out. We agree, but clause 4 does not cover all the situations in which people could be stuck in acute wards, when another part of the NHS might be responsible. For instance, a patient might not be able to move for their post-operative treatment from a hospital in Winchester to one in Southampton because the latter did not have a bed. They would be stuck in an acute hospital, but there would be no sanction on the part of the NHS that was responsible, namely the Southampton hospital, to compensate Winchester. Only in certain circumstances, when a bed is ''blocked'', is the rather punitive regime of fines, invoices and notices activated.

The Minister moved some way this morning when we debated what would happen if a housing authority was responsible for a delay. It was clear from the Minister's response that she understood the potential injustice of that, and she hoped either that it would not arise or that the regulations would cover it. Having listened to my hon. Friend the Member for West Chelmsford, I have to say that I can see situations when the social services department has done all that it could. For example, a patient may refuse to go to the care home identified by the social services department, or a carer acting on behalf of the patient may say, ''I am very sorry, but I do not agree to that either.'' That may be the result of a disagreement about top-up fees; or there may be a vacancy at the preferred residential care home or nursing home seven days later, and it makes sense not to serve a notice and fine social services for those seven days.

Clause 4 imposes a legalistic, mechanistic approach to what ought to be a partnership, with give and take on both sides. Once the process has been activated under clause 2(3) and once notices have been served under clause 3(7), there will be no stopping that legal bandwagon unless there is some flexibility. There should be flexibility to allow social services to be told, ''All right, you have served the notice; but after two days the patient has not left and it is not your fault.

However, it makes sense to wait another seven days for a vacancy in the preferred nursing home, and in those circumstances we will not fine you. We will not impose the penalty.'' I cannot see such flexibility in the Bill.

Social services departments would be relieved if the Minister could say that the principle enshrined in amendment No. 11 is perfectly fair, and should be written into the Bill because it is not the Government's intention to penalise responsible authorities that have done all that they can and the reason for the delayed discharge does not lie with them.

I am pleased to have the chance to take part in this debate. I was imagining the case of a private residential care home owner, perhaps in the constituency of the hon. Member for West Chelmsford. The owner would undoubtedly be a responsible person carrying on a responsible and important business.

One of the home's users, perhaps someone who has lived there for some time, becomes increasingly needy and requires a more intensive form of care, such as nursing—they need a resource that is not available, which makes it inappropriate to for them to stay in the residential home. That person goes to his local authority and explains the situation. A thoroughly professional assessment is made of the client's needs and another placement is sought. That placement is not available, and the social services department say that it cannot find anywhere else for this very needy person, so he will have to remain in the care home, which will have to bear the whole cost of his care. That is what the hon. Gentleman is proposing for the national health service.

No.

The hon. Gentleman protests, but that is a fact. Not only is he proposing that the carer—the highly responsible person or organisation looking after the needy person at the time—should pick up the whole cost of the care, he is saying that the organisation involved should be the acute sector of the national health service, which is the most highly skilled, most expensive and, for acutely ill people, most necessary form of care possible.

May I turn the question round? What would the hon. Gentleman do in the short term with a patient who was in hospital, waiting for discharge, and the social services department, through no failing of its own, could not help because there was no appropriate care in the region where the individual lived?

I would expect the social services department not to be fined but to pay for that person's care. That seems to be reasonable. It would not only be a commonsense version of the way in which the contract would operate, but focus the minds, the ingenuity and the co-operative efforts of all elements of the social care system involved. The money coming from social services departments will not be lost to the system; it will remain in the system to pay for the care of such people.

I want to explore another aspect of that scenario. I hope that the hon. Gentleman would

agree that, where a package of care was offered but not accepted, there would need to be informed consent, from both the potential carer and the patient. In a sense, the patient would be negotiating with social services about what an appropriate package should be. Who should pick up the cost of the fine while that discussion—to enable the carer and/or the patient to have a chance to give informed consent—took place?

The way and the language in which the debate has been conducted have not been helpful. We are in no sense talking about a fine.

Of course it is.

Plainly, the hon. Gentleman regards the fees that private residential home owners in his constituency charge to be fines on the local authority. I hope that he will go along and explain that to them.

Will the hon. Gentleman give way?

Will the hon. Gentleman allow me to finish answering the point made by the hon. Member for Sutton and Cheam (Mr. Burstow)? The other mistake that has been made in this debate has been to imagine that we start with a blank sheet of paper—as if the Government have not made the investments that they have made and are continuing to make, and have not introduced significant legislation and serious policy development to deal with the issue, as if there is not a national service framework for older people, and as if we have not made the progress that those on the Opposition Benches have attested that we have made in co-operative working.

I admire the hon. Gentleman's nerve. Without wanting to be unpleasant, one suspects that he would do anything to get a red box. He is doing well. Can he explain, however, why he does not describe these sums as fines but Sir Jeremy Beecham, the Chairman of the Health Select Committee, and a number of his other hon. Friends, like us, do so? Why are they wrong?

I honestly disagree with those excellent gentlemen.

But why are they wrong?

I think that I have explained—in no sense are these fines; they are charges that are levied on local authorities for the care of people who are inappropriately placed in the acute health sector. If the local authority does not pick up the bill, for which it is responsible, the acute sector of the national health service will be obliged to pay for a place that is urgently needed by somebody in acute medical need. There are no grounds for the series of amendments and the Opposition should withdraw them.

The Bill is not intended—as suggested by the hon. Member for West Chelmsford and others—to be punitive to local authorities. It is intended to provide them with an incentive to fulfil the responsibilities that they already have. I shall return to those responsibilities later. We have therefore been clear that local authorities will become liable for a reimbursement payment only when the delay is solely

their responsibility. I therefore hope that I can reassure the hon. Gentleman that it would be completely unfair to require a local authority to reimburse the NHS where the delay had happened not only because a community care service was not available, but because the NHS had failed to provide an essential part of the care package.

Mr. Burns rose—

The hon. Gentleman is very eager. I might have been getting to his point, but I shall give way.

If those exemptions apply, in certain circumstances a patient will be in hospital as a delayed discharge. I assume that the body picking up the bill will be the NHS, which rather undermines the killer question that the hon. Member for Lancaster and Wyre (Mr. Dawson) thought that he was asking.

No. I have been on Committees with my hon. Friend the Member for Lancaster and Wyre previously and he is not always so supportive; he is very challenging and knowledgeable when it comes to social services. The hon. Gentleman made the point that responsibility for payment should lie where responsibility for provision lies. The problem with the current system is that the incentives are such that, effectively—my hon. Friend is right—there is a cross-charge, a fine, on the acute sector because it picks up the cost of the care of those who are delayed in hospital because alternatives are not in place.

The hon. Gentleman raises the important point of where are the incentives if the delay is in the national health service. What is important is the way in which we will develop financial flows in the NHS. As we develop the way in which primary care trusts commission care in acute hospitals, for example, we will ensure that they pay solely for the acute episode of care in those hospitals. They have responsibility for the patient pathway after that, and they will have an incentive to ensure that alternatives are in place and that people can leave the acute sector, because they will want to use the beds for other people whom they want treated. Financial incentives will therefore be put in place in the NHS. The Bill ensures that the same incentive—payment that follows responsibility—exists across the interface between social services and health.

Is there not an important distinction, in that the Minister is describing a mutually agreed contract between the primary care trust and the trust that provides the hospital? We are talking, however, about a unilaterally imposed contract, not a mutually agreed one. There is no direct parallel.

The matter would be dependent not on a contract, but on the structure of responsibilities for payment and for provision within the financial flows of the NHS.

Let me return to the point about when and where the provisions might be unfair. I tried to reassure the hon. Member for West Chelmsford that where a package was the responsibility of both the NHS and

social services, but the NHS did not fulfil its responsibility, it would not be fair to make social services pay the charge, because they would not be solely responsible. We have used clear and unambiguous language in the Bill to describe the circumstances in which the local authority will be required to make a payment. Clause 4 states:

''If by the end of the relevant day . . . it has not been possible to discharge the patient because, and only because, the local authority has not made available for the patient a community care service which it decided under section 3(3)(b)''—

that relates to the assessment that was carried out—

''to make available for him, the responsible authority must make a payment of the amount prescribed in regulations''.

That means that the authority cannot be held liable for payment where any part of the care package that is not its responsibility has not been arranged, regardless of whether it failed to put services in place. If those services are in place, there would be no charge, even if a patient were delayed in hospital for other reasons.

Amendment No. 11 tries to offer local authorities some protection by stating that no delayed discharge payments shall be made where the delay is not the responsibility of social services. However, as I outlined, that is unnecessary, because clause 4(4)(b) clearly states that that is the case. Indeed, the new subsection that the hon. Gentleman proposes would arguably offer local authorities considerably less protection than the existing wording. The amendment says that social services cannot be required to make a payment unless they are responsible for the delay, but it takes no account of circumstances in which the local authority and the NHS might be jointly responsible for the delay.

As on other amendments, several hon. Members have mentioned the need to guarantee choice for people in hospital. I can assure them that prospective care home residents, whether in hospital or not, have a right to the home of their choice, subject to practical considerations, including cost, suitability and availability. Equally, however, the direction on choice has never allowed people to occupy an acute hospital bed indefinitely while they make a choice or wait for a care home place to become available. Patients should be offered alternatives, perhaps on a short-term basis, so that they can reach a decision about their accommodation. In offering alternatives, however, local authorities are still required to ensure that they offer the same standard of care. The Bill will not alter councils' responsibilities to fulfil their duties under the direction on choice.

The Minister correctly said that it could not be right for patients to remain indefinitely in hospital seeking to exercise choice, but am I right to assume that they will be able to stay in hospital for a short time? If the answer is yes, presumably, the NHS will pay the costs of them remaining in hospital, which turns on its head the question asked by the hon. Member for Lancaster and Wyre.

No. Clearly, the time during which the assessment takes place—and, as we have already discussed, the first assessment may take considerably longer than three days—is a period during which the patient's choices and preferences can be considered. In

the case of elective admissions, because the hospital will have to notify social services, much of the discussion can take place even before admission.

It is worth considering what we know about best practice, and we highlight that in the hospital discharge workbook. In some places, people are very clear about what is likely to happen on discharge, including what sort of options are available and the choices that people will have to make. In those areas, people do not wait in acute hospital beds while they exercise their choices. They recognise their responsibilities and the responsibilities of the system towards them. We need to promote such best practice through the Bill and through the work that will stem from it.

On responsibility more broadly, which was emphasised by the hon. Member for West Chelmsford, I have made it clear that where something is not the legal responsibility of a social services department, it would be unreasonable to expect social services to pay a charge. However, as I made clear earlier, the Bill does not alter the responsibility of social services departments; it aims to ensure that everyone lives up to their responsibilities.

Another important point, touched on by my hon. Friend the Member for Lancaster and Wyre, is the context in which we are introducing these changes—a context of considerably increased investment in social services departments. I have some sympathy with the hon. Member for West Chelmsford because I have no doubt that, when he was a Minister, social services departments would often reach the end of the year and have insufficient money to be able to afford to implement packages—they had insufficient funding. That would not be surprising given that, from 1992 to 1997, he presided over a 0.1 per cent. real-terms increase in funding to social services authorities.

Is the Minister aware that, as a result of the Government's announcement on the future allocation of grants, social services in East Sussex will take a real-terms cut in funding of £400,000, despite the fact that the Government's own social services inspectorate says that significant additional funding is required to ensure the necessary improvements in services for older people? The Government are giving with one hand and taking away with the other.

Of course, like all social services authorities, East Sussex has received at least a 3.5 per cent. increase in funding in real terms. What priorities local politicians in East Sussex decide to set is up to them. The hon. Gentleman is waving a sheet a paper. If he had listened to the statement of my hon. Friend the Minister for Local Government last week, he would have heard him spelling out clearly the guarantees that there will be an increase in resources.

Opposition Members argue for flexibility and local decision making, but when they are given a 3.5 per cent. increase they complain that they will not be able to prioritise social services within it. We have made available considerable extra resources for the next three years—a 6 per cent. real-terms increase from next

year. The aim must be to ensure that that money is used to develop the sort of services that we need for older people.

I acknowledge that there are issues about care home capacity and staffing capacity in some parts of the country. I do not accept that capacity issues are beyond the control of any council. That is where we differ—[Interruption.] Conservative-controlled Worcestershire county council might have problems, but I still argue that the responsibility for capacity rests with local government. If hon. Members would like to make a case for removing responsibility for community care provision from local authorities, let them make it.

The Minister mentioned Worcestershire county council. I was slightly surprised—as she represents Redditch—that she did not mention Birmingham, which I think is a Labour-controlled council. The crisis in care and in private homes as a result of Birmingham city council's actions is putting long-term care in dire straits. Birmingham care home owners and those providing long-term care have desperately implored the Minister to help them to sort out the mess that is penalising vulnerable, frail and often confused elderly members of society.

That is a good example of social services departments taking their responsibility. Birmingham has not always performed in the way in which we might hope. That is why, under the Government's performance assessment, it is a zero star social services department. We have been able to send in considerable extra support—for example the change agent team—[Interruption.] The hon. Gentleman is wrong. We have ensured that it receives extra support through the building care capacity grant that we have made available over the last two years. The effect has been that there are fewer delayed discharges and there is better joint working between the health service and social services. Care home representatives who came with representatives of Birmingham city council to see me said that they felt reassured that a better relationship was developing between care home providers and Birmingham city council. That is not to say that everything is right. However, it brings us back to the argument about where responsibility lies.

I do not accept that capacity issues are beyond the control of any council. That has been demonstrated by the fact that councils such as Camden and Croydon succeed in achieving lower levels of delayed discharge despite suffering much the same capacity-related problems as the rest of London and the south-east. The challenge is that we expect councils to use their extra funding creatively to invest in the range of services needed to ensure that people can be promptly discharged from hospital. In many cases, councils are doing that, providing not only residential and nursing home care but intermediate care—in which there has been considerable growth—and home care packages, which have also grown considerably, as well as adaptations and extra care housing.

The Minister is developing a case around capacity and local authorities' responsibility

for it. Will she accept that, in taking responsibility for building capacity, local authorities still have to grapple with staff shortages that require training and recruitment exercises to get people on board? There are also time lags in commissioning and setting up new services and, in the case of residential services, building new facilities in areas where capacity has been lost. Surely those factors are not entirely in the local authority's control.

I accept that staffing is important. Part of the responsibility lies with the local authorities, as employers, to use the extra investment that has been made available to them. In particular, they must use the considerable extra investment for training. Some responsibility must be taken nationally, which is why we are undertaking a national recruitment campaign, and why we support and have invested significantly in the establishment of an infrastructure to develop national vocational qualifications through the Training Organisation for the Personal Social Services.

I accept that it takes time to build capacity. That is why we come to the legislation after the past 18 months, during which £300 million has been invested to help local authorities develop capacity. We must put next April in the context of a considerable increase in investment in social services departments. We need to ensure that incentives are in place so that extra money is spent on developing capacity and providing alternatives for people trapped in hospital. That is what the Bill will do. On that basis, I hope that the hon. Gentleman will withdraw the amendment.

To terminate the conversation about Birmingham, I must say that I do not know which care home owners the Minister met but they are not typical of most care home owners from Birmingham. Out of fairness to her, I will draw her interpretation of what is going on there to the attention of care home owners who frequently contact me about the dire crisis there. As she is a Member of Parliament for a constituency in the region, I imagine that they will not be as thrilled by her comments as were the individuals who came to see her. I do not know who picked those individuals to see her, but I suspect that picked is the right word.

I have also spoken to care home owners who did not accompany Birmingham city council. I have listened carefully. Care home owners argue for more investment, and that is what the Government are delivering.

That is an interesting concept. When I met Birmingham and Redditch care home owners in Redditch in late September, their views were not as relaxed as the Minister's. They kept asking why the Minister and the Government did not do more to stop the behaviour of Birmingham city council, which is a Labour-controlled city council. I will pass on her comments, so that we can see what those care home owners think of her ex cathedra announcement about their situation. I will share their response with her when it arrives at my office.

The amendment is very much a probing amendment. I probed, the Minister responded and I

am satisfied with her response. That cheered me up and confirmed what I thought. I do not want to press the amendment.

Amendment No. 11, though, is a different matter. I listened carefully to her response to it and was not as convinced as, no doubt, the hon. Member for Lancaster and Wyre and her other hon. Friends were. That said, it does not take a lot to convince a hand-picked Committee to support Government Bills and to dislike Opposition amendments, however constructive those amendments are. I will ask my hon. Friends to vote for amendment No. 11 because I believe, notwithstanding the Minister's reassurances, that it is important to include in the Bill protection for local authorities in situations in which they could be unfairly penalised. Many Opposition Members, many organisations, many labour local authorities and others involved in local government, from Sir Jeremy Beecham down, believe that the Government simply seek to penalise local authorities with a punitive fining system.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I have noted what the hon. Gentleman said with regard to amendment No. 11. When we reach the relevant point, he will called to move it formally, and, although it will not be debated again, the Committee will then have an opportunity to divide.

I beg to move amendment No. 74, in

clause 4, page 3, line 39, leave out 'local' and insert 'responsible'.

This is a drafting amendment, which simply seeks to make the Bill consistent.

In the spirit of co-operation, an Opposition Member has at last proposed a helpful amendment. On that basis, I am happy to accept it.

Amendment agreed to.

I beg to move amendment No. 112, in

clause 4, page 3, line 43, leave out 'subject to subsections (6) and (7)'.

With this it will be convenient to discuss the following amendments: No. 75, in

clause 4, page 4, line 2, at end insert—

'(5A) Where the NHS body gives notice after 5.00 pm on the relevant day, that notification will not take effect until 10.00 am on the following day.'.

No. 113, in

clause 4, page 4, line 3, leave out subsection (6).

No. 27, in

clause 4, page 4, line 8, leave out 'with that day' and insert 'at 12:00 noon or 12:00 midnight of that day with the final day's reimbursement applied pro rata.'.

No. 114, in

clause 4, page 4, line 9, leave out subsection (7).

No. 4, in

clause 4, page 4, line 19, leave our paragraph (d).

This group of amendments deals with issues to do with delayed discharge and when the clock starts ticking, in respect of when the penalty starts to accumulate. Through the amendments, we seek to

explore further the reasoning behind the framing of the Bill, as currently drafted. We would also like the Minister to consider the circumstances in which a person could be discharged in the evening or late at night, because of the way in which the Bill is drafted. We want to make sure that that could not occur, unless patients wish to be discharged then. It is unlikely that care packages would be available late in the evenings.

Our concern is about timing of discharge, the question of whether it is appropriate to discharge later in the day and the question of whether it is appropriate in such circumstances to penalise the local authority. The amendments are fairly simple, and are intended to address those issues. I hope that the Minister can clarify the Government's intentions on inappropriate discharge late in the evening or on a Friday, when services are sometimes not available, and on circumstances in which the discharge fine starts to accumulate but the person has not been discharged because of those difficulties.

I want to speak to amendments Nos. 27 and 4, which deal with the issue of the time of the patient's discharge in the day. If my understanding of the Bill is correct—no doubt the Minister will correct me if it is not—the time of day at which patients are discharged has an impact on fines. The provisions allow local authorities to be charged for an extra day of delayed discharge if the patient is discharged late in the afternoon. The Minister is looking quizzical, so perhaps I have misunderstood. She will have the opportunity to correct me when she responds, but my understanding is that the social services department will be charged for a whole day if a patient is not discharged until 5 pm. That causes me some concern, and we hope that the amendments will solve the problem by specifying more exact time scales for fining local authorities and by introducing a pro rata charging system in place of the current simplistic, flat-rate, per-day approach to fines.

The amendments also draw out the somewhat underhand manner in which most of the Bill's detail will, once again, be provided in regulations. We have not seen those regulations, which may be part of the reason why there is some confusion about the exact intentions behind parts of the Bill. I shall not discuss the issue at length now, because the selection of amendments will provide us with a more appropriate opportunity later. However, this is an ongoing problem. We basically have a skeleton of a Bill, which will be fleshed out later through regulations.

In some ways, we are hampered because we do not have the small print, which will set out what the Government will actually do if the Bill becomes law. I hope that the Minister will discuss the issue of when fines kick in and whether there is an opportunity to move to a pro rata basis if a flat rate is indeed a problem. I will listen carefully to what she says.

Just before the Minister replies, I should make it clear that we shall deal with the amendments tabled by the hon. Members for Sutton and Cheam and for West Chelmsford as a group. If the

hon. Member for West Chelmsford wants to divide the Committee on any of his amendments, which have been grouped with those of the hon. Member for Sutton and Cheam, it would be helpful if he indicated his intention to the Clerk. Otherwise, we shall deal with the amendments collectively.

I genuinely hope that I will be able to reassure hon. Members on their detailed points. The amendments relate to various aspects of delayed discharge payment and particularly to time periods. I accept, as the hon. Member for West Chelmsford said, that much of the detail will be in regulations, and I hope to spell out how it will be identified. Including it in regulations will provide precisely the flexibility for which the hon. Gentleman argued.

Amendment No. 4 would remove subsection (7)(d), which gives a power to make regulations to define when a patient should be regarded as having been discharged on anything other than the day of discharge. From what Opposition Members have said, I suspect that they are keen to be clear about how we intend the power to work. It is intended to work in favour of local authorities in circumstances where, for example, they are ready for a patient to be discharged in the morning on a day after the proposed discharge day. We would not want that day to count as part of the delayed discharge period, which would be unduly harsh on the local authority. If, on a day after the proposed discharge day, the person is discharged up to, let us say, 11 o'clock in the morning, that day would not be one on which a charge would be payable.

As for the delayed discharge payment, it would be treated as if the patient had been discharged on the day prior to the day of his actual, physical discharge. That was our intention in taking that power.

On amendment No. 27, spoken to by the hon. Member for West Chelmsford, I do not believe that making a pro rata payment, so that local authorities would pay only for part of a day, is the solution to the issue that he rightly identifies. The Bill proposes clear rules, and we intend to spell out in regulations the times before or after which a day will count as a day. As a result, there will be no need to work out pro rata payments.

The hon. Member for West Chelmsford asked what would happen if someone was discharged very late in the day. The action that ends the delay period is social services having all the services ready to allow discharge, and not the discharge itself. For instance, if at 11 o'clock in the morning the social services department is able to say to the hospital, ''We have our part of the package in place'' it is the fact that those services are in place that ends the delay period, even if the discharge happens later. Many hospitals run a discharge lounge, and we would not wish there to be arguments over whether the discharge occurred when the patient left the bed or left the hospital. That may have been why the hon. Gentleman claimed that it would be fairer to have a pro rata payment. However, if the local authority puts services in place so that an individual can be discharged when ready, a payment will not need to be made. That will be fair for the patient and for the local authority.

I am grateful to the Minister for beginning to clarify matters. However, she said that the regulations would contain far more detail about the system, and I assume that she has quite a lot of knowledge of what those regulations will do. Given that this seems to be a relevant time—it will help us better to understand what is a rather sparse Bill, which is quite confusing for some—would she like to share that information with us now?

That is what I thought I was doing.

Yes, but what about the nitty-gritty?

I was pretty nitty-gritty about the fact that ''until 11 o'clock the next day'' implies a discharge the day before, and so on, but I have a bit more nitty-gritty to go.

Amendment No. 75, tabled by the hon. Member for Sutton and Cheam, seeks to ensure fairness for social services departments, particularly in relation to notification of discharge. As he said, we will all have heard stories of hospitals trying to clear their wards late in the afternoon, especially on a Friday, when it is not possible for social services to put services in place that day. The system of notification—of the need for services, which we discussed in relation to clause 2, and of the proposed discharge day, introduced in clause 3—go a long way in protecting social services from that sort of behaviour, as it ensures proper assessment of when someone will be discharged. We had already had the same thought as the hon. Gentleman. Under subsection (7)(c), regulations will provide for that. They will cover the day of the original notification of a needs assessment. It is our intention that any notification after 2 pm will count as notification on the next day to enable social services properly to start their assessment. We have provided for something similar in the Bill, so that notifications made after 5 pm will be deemed to have been made at 9 am the next morning.

We also need to remember that, under clause 3(8)(a), social services will have 24 hours from notification to put the services in place before the patient is delayed. Therefore, if notification that a patient is to be discharged were given after 5 pm, social services would have all the next day to put services in place. If no services were in place on the first day after that, that would count as the first day of delay, and so on until the services are made available. Therefore, the point raised in the amendment will be covered in our regulation-making powers.

Just to ensure that I understand the position regarding notification made late in the day, is it correct that the social services department has a whole day's leave in order to organise the provision of services, and that the clock starts ticking on the day after that? In previous parts of the Bill, it appeared that a little more time would be available. Is the Minister saying that the social services department could be notified in the evening of one day and have only 24 hours in which to put together the package? That seems like a very short time.

The hon. Gentleman is confusing the two ways in which charging may be triggered. First, there is notification by the hospital to the social

services department of the need for assessment. Supposing the notification were made before 2 o'clock on Monday, the assessment would have to be carried out within two days, which takes us to Thursday. The hon. Gentleman was talking about another notification; notification of the day of discharge. When someone is due to be discharged, the hospital must give a day's notice to the social services department. The latter of the two will prompt the start of the charging period. If, therefore, in the particular case that I mentioned, the hospital notified social services before 5 o'clock on Wednesday that the person was going to be discharged on Thursday, charging would not start until Friday. If the notification was made after 5 o'clock, charging could not start until Saturday. I hope that that clarifies the situation. There are two sorts of notification; notification for assessment, which triggers the minimum periods for assessment, and notification of discharge.

In subsection (6) of clause 4, which amendment No. 113 would remove, we have sought to ensure that liability for delayed discharge payments comes to an end when the local authority has completed an assessment of the patient's needs and put in place every community care service that the patient needs. We have done that in order to protect the local authority from a situation in which it might have fulfilled its responsibilities but when discharge has been delayed by a failure on the part of the NHS. The effect of removing subsection (6) would be that the local authority would continue to be liable for the delayed discharge payment until the day of actual discharge, which could be unfair to the local authority. That refers back to a point that I made earlier to the hon. Member for West Chelmsford. It is the provision of services that ends the charging period.

Amendment No. 114 would remove subsection (7) of clause 4. I spoke about our intentions in subsections (7)(c) and (7)(d) when we discussed amendments Nos. 4 and 75. Under subsection (7)(a), regulations will specify days after the relevant day that are not to be treated as part of the delayed discharge period. Of course, we could use that regulation-making power effectively to extend the minimum compliance period, should that be appropriate.

The local authority would have a certain number of days above the minimum set out in the Bill before being required to make a payment to the NHS. Given the points made by the hon. Member for West Chelmsford, it would be inappropriate to remove the provision, as that would remove our ability to respond flexibly to changing circumstances.

Subsection (7)(b) was intended to deal with unforeseen circumstances in which it might be deemed necessary for the delayed discharge period to come to an end. Those circumstances could include the patient unexpectedly relapsing; we would not want the local authority to be liable for a payment in those circumstances.

In conclusion, the Bill is drafted in such a way that local authorities will only be required to make payments when it is fair for them to do so. The regulation-making powers that we have taken will

allow many different circumstances to be considered. On that basis, I hope that hon. Members will withdraw the amendment.

Having listened to the Minister's clarification, I think that the amendments have been useful in enabling us to cast light on the issue, and in giving the Minister the opportunity to share some of the fine detail of the regulations. I look forward to hearing more of the nitty-gritty as we proceed through the remaining sittings on the Bill. We now need to study the text to be clear about what she has said. On that basis, I am willing to withdraw the amendment.

I thank the Minister for what she has said. It is a complex subject, particularly because the Bill is somewhat imprecise in the absence of the regulations. I appreciate the fact that she shared her knowledge of what she anticipates will be in the regulations. That has clarified a number of areas and, in some areas, has reassured me. On that basis, I would wish to withdraw my amendments.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move, amendment No. 5, in

clause 4, page 4, line 25, leave out 'responsible NHS body' and insert 'Primary Care Trust and spent according to local decision'.

With this it will be convenient to take the following:

Amendment No. 117, in

clause 4, page 4, line 26, at end add 'and spent according to an agreement drawn up locally.'

Amendment No. 116, in

clause 4, page 4, line 27, leave out subsection (9).

Amendment No. 36, in

clause 4, page 4, line 28, at end add—

'(10) All payments made under subsection 4 shall be applied to the care of qualifying hospital patients.'.

I hope that when I have explained the amendment it will be attractive to the Minister, because she will see that the tail end of it seeks to enhance local decision making, and her Secretary of State talks—as, no doubt, does the Minister from time to time—the rhetoric of decentralisation and more power to the people on the ground. Subsection (8) of clause 4 explains where the payment of any fine should go. It says that they should

''be made to the responsible NHS body''.

Clause 1 defines an ''NHS body'' as either a national health service trust or a primary care trust or local health board in England and Wales respectively; so, the fines go to an NHS body. In one way, that is imprecise because it could be an NHS trust or a PCT in England or a health board in Wales, or it could go in part to either or both of those bodies. That causes me some concern, which is why I suggest amendment No. 5 as a better way of tackling the problem of being landed with a fining system if the Bill reaches the statute book. My concern is that if the money generated by fines were to go to an NHS trust, it

would almost certainly be an acute trust. That presents us with the risk that the system is rewarding acute hospitals for possibly poor practice. They will benefit through the fines that they will, in effect, generate from social services departments' having to pay them for incurring penalties under other parts of clause 4. It is not clever or sensible to put more funds into the acute sector rather than into services that promote admission avoidance.

We have talked about emergency readmissions and delayed discharges, but we have not mentioned the whole area of appropriate admissions to hospital in the first place. This is the relevant amendment on which to raise that subject. As the Minister would accept, there are too often inappropriate admissions into hospital when other care would be better. Giving the money to the acute sector will cause problems.

Under the system that the Government have set up, money will go from social services to the NHS. It would be far better to place the money with the commissioning side of the NHS, the primary care trusts. To put things crudely, they could plough it back into patient care through their commissioning of such care. In that way, one could at least try to rescue something from a deeply flawed system and a rather cock-eyed proposal.

The hon. Gentleman's logic seems to be flawed. The acute trust will incur the cost of the patient being in a bed for longer than it expected them to be. How will directing the payment to PCTs compensate the acute trust for the loss of income from that resource being unavailable?

I accept the logic of what the hon. Gentleman says, but he is somewhat missing the point. To plough the money back into the acute trust is a negative procedure, especially if that trust does not provide the best practice. The system of taking money from social services and giving it to the health service in such a manner is wrong and flawed; however, if the Government have their way they will get the system.

Let us try to make a virtue of a rotten system and give the money to the PCTs, as a spur and incentive to improve and enhance the system. Then they can use their power as commissioners of services to seek to enhance and improve the provisions and practice of acute hospitals. That will benefit patients, as they will be using the money to commission care.

The hon. Gentleman is making an important point about the role that PCTs can play. He has also talked about inappropriate admissions to hospital. Does he agree that a consequence of this part of the Bill is that those who wait at home for assessments will now wait longer? The priority of social services will be to facilitate the speedy discharge of those already in hospital. Increasingly, the only way to get an assessment will be to have oneself admitted to hospital in the first place.

The hon. Gentleman makes a powerful point. He is right. That is another flaw in the system put before us by the Government. If they catch your eye, Mr. Conway, I expect that he and the hon. Member for Cheadle will elaborate on that important point. Its significance and its possible impact—it will

be a by-product, and not something that the Government foresaw or intended—are further incentives for the Minister to think again. Having worked on many Committees with Health Ministers, I am not confident that she will, but we can at least draw attention to the problem, and hope and prey that she does.

The other important point about giving PCTs the money is that they, as commissioning agents, could use it to incentivise appropriate integrated services. That would be a plus, given the pooled budgets of PCTs and social services. Giving money exclusively to PCTs would also be an improvement over the possibility set out in the Bill. I say that it is a possibility, because subsection (8) does not say exactly whether or how the money will be divided up between NHS bodies. It simply says that it is to be made available to ''the responsible NHS body''. One could argue that that means that it must go to acute hospitals because they provide the care.

I am following my hon. Friend's comments carefully, but he will he confirm that there is every possibility in the standard situation that the money will go back from the PCT to the acute trust, if that is the equity of the situation? Whatever people's views about PCTs and about whether they are up to the massive tasks that the Government have given them, they are the natural choice to decide where the money should end up. They will not put it in their building society accounts, but use it for something.

My hon. Friend is right. If the money went from social services departments exclusively to PCTs, it is almost certain that it would return to the acute hospital. However, the important point is that if it goes through PCTs, rather than straight from social services to the acute trust, the PCTs can use their commissioning power. When placing money for patient care with an acute trust, they can bring pressure to bear to encourage the trust to improve its best practice, its patient care and its efficiency and effectiveness in providing health care for the local community. They would presumably try to ensure that the acute trust did all it could to minimise the problem of inappropriate admissions. The Minister mentioned all the plans that she and the health service have for discharges and PCTs would, I hope, ensure that discharges were handled appropriately and did not lead to emergency re-admissions shortly after patients had been discharged.

For those reasons, it is important to specify exactly where the money will go, and amendment No. 5 does that. We should specify not only that the money should go to the PCT, but that it should be spent according to local decisions. That would improve and strengthen the Bill, and I hope that the Minister accepts and recognises the reasonable and positive nature of the amendment.

I should like to pick up the point made by the hon. Member for West Chelmsford about the lack of capacity, which is already leading to patients being admitted to hospitals as emergencies. Giving priority to discharge will create a vicious circle,

making things even worse. With amendments Nos. 5 and 117, which are in sympathy, we seek to ensure that funding stays with the patients who require it and that it does not simply disappear into other areas of the health service. Widespread concern was expressed by consultees that the payments would disappear into the acute trust. Given the current state of national health service finances, and the lack of an audit trail, more of us would worry that the funding would disappear and not be put to good use.

Amendments Nos. 5 and 117 would provide an opportunity to redress the damage done by the Bill and to ensure that local decision making brought the partners together to spend the funds in a way that would help mitigate the problem. It would provide an incentive to encourage partners to get together. I completely agree with what the hon. Member for West Chelmsford said about decision making, about the importance of being able to base decisions locally and about avoiding admission. This part of the Bill and the fines and payments that are being introduced simply do not address those issues.

My hon. Friend the Member for Sutton and Cheam and I are concerned about amendment No. 36, tabled by the right hon. Member for North-West Hampshire (Sir G. Young); we feel that it would put the money straight back into the acute trust. I reiterate the state of NHS finances is such that it would be difficult to see whether that money had been addressed entirely to the patients concerned.

I find myself somewhat embarrassed that the hon. Lady should criticise amendment No. 36, because it seeks to redirect the money that has been taken in a fine from the social services department and reapply it to qualifying hospital patients. It has exactly the opposite intention of that attributed to it by the hon. Lady; it would not allow the money to filter out of the system as she said.

I live in hope that before the Committee ends I will get an answer to the question of whether the Minister can find any precedent for what will be done under clause 4. Can she find any regime under which one bit of the public sector passes a law that allows it to fine another bit of the public sector—unilaterally and with no contract? I hope that before the Committee finishes its deliberations she will be able to say that there is a precedent for what the Government seek to do.

This debate is about what happens to the money. It is a paradox that those who represent the NHS do not want that money. Representations from the NHS Confederation and the BMA suggest that they are opposed to the Bill. The Minister is losing the battle of the fine. The NHS Confederation clearly referred to it as a fine when it said:

''Under the current proposals, there is no duty to ensure that money which leaves social services as a fine and which goes to the health care provider is made available for services for older people.''

Likewise, the BMA states:

''Funds may be diverted from other 'non-fineable' areas of social service provision''.

At the beginning of its briefing note, it states:

''Charging hefty 'fines' will place an even greater burden on them.''

The Minister is fighting a losing battle over vocabulary in describing that regime as an incentive, when everyone believes it to be a fine.

The real concern among social services departments is that NHS trusts in the south-east, which face huge deficits, will see it as a revenue earner. For example, my hospital, North Hampshire hospital, has a deficit of between £2 million and £3 million this year; it is strapped for cash. Winchester and Eastleigh health care NHS trust also has a deficit. Social services departments are concerned that those running acute hospitals will use the Bill as a means of bridging the gap—that is, to balance income against revenue.

The money received in fines will not be used to provide the services that Parliament intended. It will be social services money that has been allocated to local authorities, then voted to social services departments to provide services for certain people. Unless there is some protection, as would be provided by the amendments, the money that Parliament votes to allocate to that group of people will be used for totally different people.

The hon. Member for Leigh (Andy Burnham) said in an intervention that the fines were to compensate the health service for costs. It is worth pausing to consider what is intended. I do not believe that anyone should stay in hospital for a moment longer than they need to when they are ready for discharge. However, one could argue that, far from costing the NHS money, a person staying in an acute bed when they are ready for discharge is in fact saving money. Such people are low-dependency patients who are, by definition, ready for discharge, and are therefore not making huge demands on the internal resources of that hospital. The moment they are discharged, they are replaced by someone who needs pre-operative treatment, expensive treatment, and—

Will the right hon. Gentleman go to all his constituents who are on hospital waiting lists and tell them that he prefers people who cost the NHS less to take up the beds that they require?

I do not know whether the hon. Gentleman heard what I said about one minute ago, when I made it absolutely clear that I do not want anyone to stay in hospital for one day longer than they need to, once they are ready for discharge. I am now focusing on the impact on a hospital and its budget of a person's staying in an acute ward longer than they need to. I was saying that if a low-dependency patient stays in a bed when they are ready for discharge, there is less of a cost to the NHS than there would be if they were replaced by someone who has an operation, goes into intensive care and has expensive post-operative treatment.

Will the right hon. Gentleman give way?

I am answering an intervention by the hon. Member for Lancaster and Wyre, who asked whether the NHS should be compensated for costs that have been incurred. I am asking what those costs are.

I think that the right hon. Gentleman has partly misunderstood what I said. When a PCT commissions care, there is a cost for treating, say, 60 or 100 new patients under a particular procedure. If a bed is taken by a patient who can be discharged, another patient cannot be moved into that bed to meet the overall performance target for the PCT. There is a cost.

That is why it is called a delayed discharge.

As my hon. Friend said, that is why it is called a delayed discharge. If the impact of delayed discharges is that operations are not carried out because beds are blocked, what are the costs for the NHS? We can have that debate, but at some point the Minister should say exactly what the NHS is being compensated for. I would accept as credible the argument that social services have saved money by leaving the person in the bed. However, I am slightly worried about the argument, implied by the hon. Member for Leigh, that if someone stays, they impose costs on the NHS. Perhaps the Minister can resolve that.

Throughout the debate, we have tried to re-institute the concept of partnership, and minimise the damage done by the Bill. We have failed all along, so there is now, at the end of the process, a pot of money. We are trying to enable the social services—from where the money will come—and the NHS to decide how to spend that pot jointly, rather than leaving the trust to which the money is paid to take a unilateral decision.

If, at the end of the process, the Minister is able to smile on some of those amendments—[Interruption.] Perhaps I should stop now. Sadly, I do not think that this sitting is televised. If the Minister indicates that the principle of partnership is not totally lost, and that she will try to re-institute it by enabling a joint decision-making process to take place at the end, the procedures that we have gone through all day will not have been in vain.

I support both my hon. Friend the Member for West Chelmsford and my right hon. Friend the Member for North-West Hampshire. Their amendments are both, in different ways, trying to solve the same problem. The problem is at the heart of the Bill—it is one of perverse incentives. My local acute trust, now the East Sussex Hospitals trust, is currently running at a deficit—in respect of my hospital—of £5 million.

I have written to the Secretary of State about that and I raised it in health questions the other day, and the Minister made it clear that there would be no more money from Government. The local PCT does not seem minded or able to plug the gap and the board of my trust has implemented what it calls a financial recovery plan. The word ''recovery'' is significant; it is often used by those involved in corporate failure. It involves a series of cuts in order to find £5 million from the running costs of my hospital in the current financial year.

In fairness, the management says that there will be no cuts in patient services. I am yet to be convinced; the jury is still out. I have ploughed through the

financial recovery plan, which is written in that brand of English that only chartered accountants seem to be able to master. It has some worrying aspects; for example, it mentions too many critical care beds, the effects on the deficit of meeting waiting time targets and the levels of activity required. That is a topic for a different debate, and I shall not pursue it now save to say that it is another example of how Government-imposed targets can produce perverse results in local hospitals.

Will the hon. Gentleman explain how amendment No. 5 can help his trust to recover its financial position?

I would be happy to do so, were that my point. Sadly it is not. I am coming on to say that—with due respect to my right hon. Friend the Member for North-West Hampshire, who speaks with great eloquence on such matters—on balance I favour the amendment tabled by my hon. Friend the Member for West Chelmsford. There is a perverse incentive: if we are not careful, the money for fines in my area—[Interruption.] The Minister is speaking from a sedentary position so I cannot hear her. If she wants to intervene I shall be happy to let her, but my point is, in a nutshell, that there is a perverse incentive for the money generated by the fines in my area—if they are to go to my acute trust—to be swallowed up by the black hole of the current financial deficit.

I am afraid that I was being mischievous in questioning whether there is a split among Conservative Members and, if there is, whether we may soon see the emergence of the former hon. Member for Henley, Lord Heseltine, to make the most of it.

I will not have a word said against my old boss, of course. I should have thought that the systemic split in the Labour party, between the Chancellor and his gang and the Prime Minister and his gang, was a bad example to all of us. The Minister leads me—

Order. Before we all go too far down the road of party divisions, the Committee will want to bear it in mind that by 7 o'clock we must dispose of this group of amendments and vote on amendment No. 11 and clauses 4 and 5.

You are right to remind us of the incredible pressure put upon Committees these days by the Government's desire to put through ill-conceived legislation in a great hurry.

I have already said that there is a perverse incentive. The point was made in response to an intervention by the hon. Member for Leigh. It is likely that in most situations the funds that we are discussing would find their way back to the acute trust. In a sense, they are entirely paper transactions, but it is right to say that the PCTs should receive the money. I am talking not about people trundling wheelbarrows full of cash between different NHS institutions, but about money on paper. If the PCTs are to be the gatekeepers and to have control of the moneys, they can of course allocate them back to the acute trust in my area or to any

other, or for any purpose, but only in the interests of local people.

I happen to believe that PCTs are under-engineered for the massive responsibilities that have suddenly fallen on their shoulders. They have a wide range of responsibilities, and any complaint about any aspect of our NHS is likely to land on the desk of the local PCT. If the Government mean what they say about devolving power in the NHS to PCTs, the amendment tabled by my hon. Friend the Member for West Chelmsford is the solution as to how to deal with the funds.

We have had an interesting discussion as to where reimbursement payments should go and how the money should be spent. The amendment suggests that the income from the reimbursement charge should not go to the acute trust. Some Opposition Members seem to think that the money would be better spent by the PCT, but the amendment misses the point of what reimbursements and, indeed, the Bill, are about.

The point is to provide a financial incentive for social services to invest in the community care services needed to prevent delayed discharge in the first place, not to provide a pooled budget to spend on community services. If local partners want to do that, they already have the powers to do so under section 31 of the Health Act 1999. Nothing prevents a local authority, acute trust and PCT from setting up a pooled budget in order to decide how to spend reimbursement payments. Doing so would demonstrate a remarkable commitment to working in partnership.

With respect to the changes proposed in amendments Nos. 117 and 116, it would be difficult to set up such a system. Who would be the signatories of the local agreement that they suggest? Would the PCTs and social services be signatories, or would the acute trust be included? What about when social services had residents in many hospitals, including distant ones? Where would those charges go? Pooled budgets of such a nature can be beneficial. They should be set up by local agreement.

Some of my hon. Friends have made clear the other reason why the amendments miss the point of reimbursement. If the payments are made to the PCT and not the acute trust, the wrong body will be reimbursed. The acute trust will have lost out, through providing services to a patient who no longer needs to be in his bed. It is that trust that should be compensated.

The right hon. Member for North-West Hampshire made some thoughtful and important comments on the nature of financial incentives and flows in the system. Of course, so long as PCTs contract only for the period of acute treatment—they will do that increasingly as we move to funding that follows the patient—the acute trust and not the PCT will have to continue to provide bed, board and personal care to patients whose discharge is delayed. It is the acute trust it and not the PCT that will lose out in other ways from the delays, as my hon. Friend the Member

for Leigh (Andy Burnham) suggested, such as having to cancel elective operations because a bed is occupied by an individual who can no longer benefit from acute care.

It is logical and fair that the NHS body that suffers as a result of the delay is reimbursed. That means that the PCTs need to be clear about what they commission from the acute trust. In discussion with their social services partners, they need to ensure that they do not both pay for the care of delayed patients. The debate identified the need for more clarity about responsibility for provision and for payment, both within the NHS and across the interface between health and social services. That is what the legislation aims to do.

The hon. Member for Sutton and Cheam voiced concerns about whether patients in the community would be disadvantaged by the legislation. Social services are obliged to provide community care services for all who are their responsibility, regardless of where they are accommodated. The extra funding that we are providing for older people's services will mean that councils will be able to provide services to all those for whom they are responsible, not just people who are awaiting discharge.

Does the Minister accept that the Bill is creating perverse incentives? In a sense, there will be a fast-track system for social services care through the hospital, which will disadvantage patients who require care and who are not admitted through hospitals. How can the Minister suggest that we are not creating a two-tier system through perverse incentives?

I do not accept that. I shall explain what else we are doing to ensure that that does not happen. The implication of the hon. Gentleman's argument appears to be that we ought to maintain slow assessment and slow discharge from hospital because if we do not there will be an incentive for people to get into hospital in order to benefit from social services. My argument is that we should ensure that assessment is faster and services are provided wherever the patient is; not that we should maintain a delay in one part of the system because otherwise we would disadvantage people.

That is not my argument. We all want to see fast assessment, but the Bill introduces perverse incentives that would allow fast-tracking through the hospital route to the disadvantage of those patients who are not in hospital. Will the Minister now reassure the Committee that that will not take place and tell us how she will ensure that it will not?

I was coming to that point. The context is the increased investment, which will provide 130,000 additional carer services over the next three years, 500,000 more pieces of community equipment, 70,000 more social care intermediate care services and 30,000 home care services; packages of five hours or more a week. The national service framework for older people, referred to by my hon. Friend the Member for Lancaster and Wyre, has set targets for the provision of integrated services in the community that will ensure that hospital services are not seen as an

appropriate route for accessing community care services. It also introduces a number of services focused precisely on keeping older people out of hospital; for example, stroke and falls prevention services. Through the emergency care strategy, we are developing better means of ensuring that when older people do not need admission to an acute hospital but can receive better and more suitable care elsewhere, other options are developed.

The single assessment process will ensure that older people receive faster assessment of their needs and that waits are not used to ration services. Some councils delay assessments for up to nine months, and that is not acceptable. That is why my right hon. Friend the Secretary of State made it clear in his announcement about the older people's package that we expect that, by the end of 2004, all assessments will begin within 48 hours and will be complete within one month. Those are all ways in which we shall ensure that we tackle the problem of preventing admissions.

Mr. Baron rose—

As the hon. Gentleman has made the same intervention twice, let me have another go at responding to him. Of course, the incentive effect of the Bill will make social services departments think about how they can keep people out of hospital as well as how they can discharge them more quickly. It is obvious that if one does not want people to be delayed in hospital because a reimbursement charge might become due, one has an incentive to keep them out of hospital in the first place. The Bill represents positive incentives, not to levy numerous charges but to make sure that the extra resources are spent on the community alternatives that ensure that older people get the right care when they need it.

I listened carefully to the Minister, and I am afraid that despite her effort and enthusiasm I was not convinced by her arguments.

She started her defence of the Bill, and her arguments against the amendment, by destroying her credibility with new Labour speak. First, it was ''incentives''; now it is ''reimbursements''. The fact is that they are fines; straightforward, plain fines. The Minister and her new Labour colleagues—and of course, the Secretary of State—are the only people who would see them as reimbursements or incentives. Everybody else—local authorities, Help the Aged, even the Liberal Democrats—recognises them for what they are. I am afraid that I was not persuaded by the Minister and I shall invite the Committee to divide on the amendment because it is important that we get the best deal from this mess.

I pray in aid the Health Committee. It has just occurred to me that there are two members of that Committee on this Committee.

I am a member of that Select Committee, as is the hon. Gentleman. If he had taken the trouble to join us last week when we visited Sweden, rather than concentrating on his fixation with fines, he would know that we visited the Huddinge university hospital in the outskirts of Stockholm and saw the effect of the system that was introduced 10 years ago. The average length of stay for each

episode had been reduced from seven to four days, producing a minimal exchange of reimbursements.

I am fascinated by the hon. Gentleman's intervention. As a member of the Health Committee, I know that it went to Sweden and Amsterdam last week to study sexually transmitted diseases, not delayed discharge.

The hon. Gentleman forgets that in July this year, the Health Committee produced a report on delayed discharge, which came out against fines; I hope that I have not upset the Minister. Funnily enough, on that element of the Committee's report, there were no divisions. During discussions on the idea of compulsion and fining, a unanimous view of the Committee was that they were not the right way forward.

I shall conclude by asking my hon. Friends to join me in supporting the amendment. Perhaps I should ask also my new hon. Friend the Member for Leigh to join me, if only for consistency and for old time's sake, as we are both members of the Health Committee.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

Amendment proposed: No. 11, in

clause 4, page 4, line 28, at end add—

''(10) No such payments shall be made where the reason for the delayed discharge is not the responsibility of the responsible authority.''.—[Mr. Burns.]

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 8.

Question accordingly negatived.

It being Seven o'clock, The Chairman proceeded, pursuant to Sessional Order C relating to Programming [29 October 2002] and the Order of the Committee [this day], to put forthwith the Questions necessary to dispose of the business to be concluded at that time.

Motion made, and Question put, That clause 4, as amended, and clause 5 stand part of the Bill.

The Committee divided: Ayes 8, Noes 7.

Question accordingly agreed to.

Clause 4, as amended, and clause 5 ordered to stand part of the Bill.

Adjourned at two minutes past Seven o'clock till Thursday 12 December at five minutes to Nine o'clock.