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Health and Social Care Bill

Volume 703: debated on Tuesday 1 July 2008

Read a third time.

Clause 4 [Matters to which the Commission must have regard]:

1: Clause 4, page 2, line 27, at end insert—

“( ) views expressed by staff, and those trade unions and professional organisations representing staff, employed in activities to which the functions relate,”

The noble Lord said: My Lords, Members of the House who were present in Committee and on Report will be aware that the emphasis of some amendments was on the position, fears and concerns of consumers and whether those concerns were addressed in the Bill.

However, during Committee there was much discussion among trade unions about what some believed to be a lack of consideration of the workforce’s views. Amendment No. 1, which is grouped with Amendment No. 11, to which I also wish to speak, deals with those concerns.

During the Bill’s passage there was much debate about ensuring that the new CQC has regard to users of health and social care services. There was support from all sides of the House for amendments to ensure that the new CQC must have regard to the views and experiences of people who use health and social care services and to their family and friends. My amendment would build on previous amendments to ensure that there is a similar reference in the Bill to the health and social care workforce. It aims to ensure that the CQC works closely with staff representatives and pays similar regard to their views and experience.

As we debated, under certain conditions a deterioration of care in a care home may be more likely, for example, when there is a change of ownership, a change of registered manager or an unexplained increase in staff turnover. Often, staff in these situations have vital knowledge about when and how these circumstances are likely to arise. Their experience should play a role in developing the range of triggers for additional inspection of care homes. It is important that a way is found to harness this knowledge and to provide a way in which the CQC can regularly take on board the advice of staff in developing its methodology. Amendment No. 1 would add a consideration to the list of matters to which the commission must have regard: the views expressed by staff employed in activities to which the commission’s functions relate, and of trade unions and professional organisations representing them.

Amendment No. 11 to Schedule 1 would build on this by putting in place provisions to ensure that the views and experience of staff have a role in the centre of the commission’s governance structures. Schedule 1 refers to the advisory committee that the CQC must appoint to provide advice and information to it. It specifies that the,

“advisory committee must include persons of a prescribed description”.

However, this amendment would explicitly require that a member of the workforce sit on the committee. In Committee we debated ways of achieving this important role for users. It is also important to put in place a process by which the commission is required to take on board the experience of the workforce. Ensuring staff representation on this advisory committee would enable them to have a role in the development of the commission’s methodology for inspection and review, which is appropriate to maximise public protection. Those working with staff employed in health and social care would greatly welcome assurances from the Government about the way the CQC will be expected to use the expertise of the workforce to ensure the highest level of public protection.

I am well aware that the Government have had very little notice of this amendment and I recognise that my noble friend is in a somewhat difficult position in answering the issues that I raised. However, I would welcome any statement that she can make from the Dispatch Box to assure members of trade unions representing the workforce that their voice will be clearly heard in the conditions I set out in my amendment. The unions are keen to hear her comments on that matter. I beg to move.

My Lords, I very much appreciate the intention of my noble friend Lord Campbell-Savours in tabling Amendments Nos. 1 and 11. In many ways, I wish that he had tabled them earlier in our proceedings, but I will do my best to be positive and to satisfy him. We want to ensure that the views of staff in organisations that provide or commission health and social care are properly represented in the new regulator.

We have discussed at length the importance of engaging and involving people who use services. I believe this is quite proper, given the concerns that the voice of the service user might otherwise not be heard. However, I would certainly not want to give the impression that the views of staff are not also important. We recognise the important contribution that staff in health and social care services make to the work of the Care Quality Commission. They are able to draw on their expert knowledge and experience and offer insight gained from working on the front line. Given that crucial insight and the importance of making sure that providers maintain proper working conditions, it has always been our intention for the Care Quality Commission to take account of the views of staff and their representative bodies.

I am pleased to confirm on the public record that Clause 4(1)(a) already enables the commission to take into account those views as part of the regard it must have to views expressed by the public. I emphasise that this provision is sufficiently wide to include staff, and we would certainly expect the commission to engage with them as part of its overall responsibilities. I can also confirm that this provision would cover trade unions and professional organisations, as the commission must also have regard to views expressed on behalf of the public. I hope this clarifies the issues that my noble friend has raised.

I would like to refer to several other provisions. Of particular relevance is our proposed registration requirement 17, which is about supporting workers to give people the care and treatment they need. The commission will need to engage with staff in assessing this and will be able to take action where this is not the case. We would also expect the commission, as CSCI currently does, to take into account the views of staff in gathering evidence to ensure that providers comply with all the registration requirements. Also, under Clause 24, the commission is required to consult on guidance as to compliance with requirements, and we would expect that to include providers and their staff. This is just one of a number of provisions in the Bill requiring consultation. I am sure that the commission will value staff input on many of these issues. I am sure that the noble Baroness, Lady Young, will carefully consider the views expressed today.

The importance that we place on engaging widely with everyone with an interest is exactly why we introduced the new requirement for an advisory committee. When establishing that committee, the commission will want to draw on a range of expertise from different sides. We have always been clear that we want the advisory committee to include a range of people with expertise relating to health and social care services, including providers of services, representative bodies and other interested observers. I expect that this will include people with front-line experience of delivering services.

I would be cautious, however, about naming a particular group in the Bill, which Amendment No. 11 seeks to do, as this goes against the concept of an independent regulator. I am confident that we can trust the commission to determine who is appropriate. If needs be—if the advisory committee were felt not to be providing the robust and representative sounding board we anticipate it should be—a power is provided for the Secretary of State to prescribe the sort of people that it must include.

As part of the wider picture, I refer noble Lords to the report launched yesterday by the Minister, my noble friend Lord Darzi, much of which is about engaging with staff about the changes they want to see to the NHS and empowering them to provide the highest quality of care. I hope that I have been able to reassure my noble friend Lord Campbell-Savours that the Bill as drafted meets the intention behind both these amendments, and that the Government are serious about empowering staff to help shape their workplaces. I hope that he will withdraw his amendment.

My Lords, in the light of that very comprehensive response, which I am sure will be welcomed by members of trade unions, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 [Regulation of regulated activities]:

2: Clause 20, page 9, line 17, at end insert “and the application of lessons learnt from them”

The noble Baroness said: My Lords, it will be convenient also to consider further government Amendments Nos. 10 and 12.

Amendment No. 10 has been tabled in response to constructive debates in Grand Committee and on Report about how best to ensure that the commission maintains a balance in its work. I very much appreciate the attempts on all sides to find the most appropriate way of doing this. The commission will be held to account for the delivery of its main objectives and statutory functions, which we have clarified in the Bill, through the close scrutiny of this House. These include the tasks of regulating adult social care, continuing to take an overview of adult social care in England through its reviews and through the vital Mental Health Act role.

The commission cannot fulfil its statutory responsibilities if it fails to dedicate sufficient priority of resources and attention to social care or mental health. We all agree that in bringing health, adult social care and mental health regulation together, it would be wrong to “insulate them from change” as the noble Earl, Lord Howe, put it. There has been some recognition that it therefore might not be appropriate to specify in primary legislation that there should be commissioners or sub-committees with specific remits. However, we recognise that it is important, to quote the noble Earl again,

“to ensure a fair balance of disciplines in direct alignment with the commission’s key regulatory functions”.—[Official Report, 16/6/08; col. 816.]

As so many noble Lords have acknowledged, particularly in the later stages of the Bill, it is vital to secure proper representation while maintaining the flexibility for the commission itself to decide how best to deliver its statutory functions. In government Amendment No. 10 I hope we have arrived at a solution that we can all agree to. This is very much in the spirit of the amendment tabled by the noble Earl, Lord Howe, on Report. However, rather than concentrating expertise on the commission’s review functions, it would require the Secretary of State, in appointing members of the commission, to ensure that they include people with experience and knowledge relating to the commission’s key areas of business: healthcare, social care and monitoring the application of the Mental Health Act. Such knowledge and experience could, for example, include a person’s involvement with relevant stakeholder groups who represent service users or carers, or perhaps their direct experience as a service user or carer themselves. I hope that noble Lords will agree that this amendment leaves no doubt as to the importance that we place on representing all aspects of the commission’s remit at board level, while leaving flexibility for the commission to still organise itself how it sees fit and ensure that the organisation can adapt as the services it regulates develop over time.

We have also tabled Amendment No. 2 in response to debates in Grand Committee and on Report, in this case about complaints. Clause 20(1) states:

“Regulations may impose in relation to regulated activities any requirements that the Secretary of State thinks fit”.

Moreover, we have set out that the proper handling of complaints is one of the key issues that those regulations may, in particular, include. Furthermore, our recent consultation, which closed on 17 June, made clear our intention that those regulations should include requirements about acting on and learning from complaints. However, I appreciate that noble Lords felt that the Bill could be more explicit on this point to reflect the importance that we attach to it. I am happy to be able to bring forward government Amendment No. 2, which, as I hope noble Lords will appreciate, aims to do just that.

I want to refer to the letter that I sent yesterday, which many noble Lords may have seen, following my commitment on Report to make an announcement relating to the independent resolution of complaints by people who arrange and fund their own adult social care services. I am pleased to confirm that we will take the next available legislative opportunity to extend the remit of the Local Government Ombudsman so that he or she can investigate complaints by self-funders. I know that many noble Lords have expressed concerns about this issue. I therefore trust that this proposal, which is certain to make a real difference to people who arrange and fund their own care, has the support of the House.

This group of amendments contains the minor, technical Amendment No. 12. I trust that noble Lords will accept these amendments. I beg to move.

My Lords, I thank the Minister most warmly, in particular for Amendments Nos. 2 and 10 and for her welcome announcement about the future role of the Local Government Ombudsman in relation to complaints by those who fund their own care. I am sure it is extremely gratifying to Members of the House that the Government have been so responsive to the concerns raised during our debates.

My Lords, I simply add to what the noble Earl has said in thanking the Minister and her noble friend Lord Darzi. They have both been assiduous in sending us letters of reassurance during the various stages of this Bill, which have been extremely helpful. I wish that to be formally recorded because these two amendments meet many of the concerns expressed in previous discussions on the Bill.

My Lords, I, too, congratulate the noble Baroness on her splendid work in this Bill. She really has excelled with her communication. With health and social care, communication at all times is so important, and she has led the way.

My Lords, I echo the remarks of other noble Lords. This has been a long Bill, but the amount of work that the Ministers have done and the way in which they have listened to us and taken on board our suggestions have been exemplary. In particular, I thank the Minister for the wonderful flow chart, which she sent me yesterday, on complaints. It is a masterclass in complexity—I have not yet learnt how to make a complaint but I shall master it.

My Lords, I say to the noble Baroness that you have to be careful what you ask for sometimes. I thank noble Lords for their support.

On Question, amendment agreed to.

Clause 45 [Standards set by Secretary of State]:

3: Clause 45, page 21, line 31, at end insert—

“( ) The Secretary of State shall make provision for the adoption of minimum standards of frequency for the inspection of the premises of social care providers.”

The noble Lord said: My Lords, it may take me longer to move this amendment than I had otherwise planned. It was not until yesterday that I thought that I would be moving this amendment, when I received from CSCI a briefing paper on my contribution last week to the House. I thought that I should not leave it without response, particularly because it deals with what I believe to be an issue that is at the heart of this whole debate; that is, the frequency of inspections in care homes. I remain utterly opposed to the regime that has been established in recent years, and which I believe is of increasing concern to those who know what is going on in this whole sector of care.

CSCI sent out a briefing, which most noble Lords will have received, entitled,

“Health and Social Care Bill Third Reading, Tuesday 1 July. Briefing on the ‘Today’ programme on CSCI and the new approach to inspections”.

Members will recall that the BBC transmitted a programme making a number of allegations about conditions within the inspectorate, drawing on the statements of people within the inspectorate. Those statements have been challenged by CSCI. I asked Unison, one of the unions, for its response to CSCI’s accusations against the unions, one of them being that they were aligned with the BBC in the formulation of the questions. CSCI’s response, in my view, questions the integrity not only of the four unions involved but also of the BBC, which will no doubt wish to respond directly to CSCI.

The “Today” programme report on this vital issue—on the frequency of the ability of the inspectorate to carry out its work—was based on more than 200 questionnaire returns. The questionnaire was written and paid for by the BBC. The unions had no input; they simply sent it to their members. The wording in the questionnaire was approved by the director of political research within the BBC, who is a well respected individual in Westminster. The focus of the questionnaire was on the impact of inspection and regulation changes on service users. It was not to do with internal industrial relations issues, which is what CSCI said in its briefing. The report mirrors many of the findings of an earlier survey conducted by the joint unions, based on 250 responses. These concerns are widespread and cannot be dismissed as comments of one or two people. Again, CSCI’s report misrepresented the position in terms of the number of people who spoke to the BBC. The unions have been complaining since last year about the effects on service users of the new inspection methods. CSCI’s own 2007 staff survey, which had 1,200 responses, had a different focus.

Nevertheless, some results backed the view that there are problems within the inspectorate that should be investigated.

I have not had time to check these data: this is what the unions told me this morning. In CSCI’s own survey, only half the staff agreed that CSCI delivers a good quality of service to its customers; only 35 per cent agreed that CSCI could deliver what it has committed itself to; only 25 per cent had confidence in the senior management team; only 15 per cent agreed that change is well managed within CSCI; and only 15 per cent agreed that CSCI values its own employees. I have not seen the data, but that is what I have been told. I shall check the data myself if possible.

The budget set by the Government, and the Government’s blanket approach to deregulation, have shaped the inspection regime. CSCI has responded to these pressures, rather than designing a system that meets the particular and unique circumstances of the care sector. In other words, what is happening is Treasury-driven, and I object.

The claim that the new methodology had widespread public support does not stand up to scrutiny. CSCI commissioned a MORI poll of service users for its 2004 report, When I Get Older. It showed that 79 per cent of respondents said that services should be inspected at least twice a year and that more than a third wanted monthly inspections, yet, under the current system, many services are inspected only once every three years. Moreover, respondents said the best way for inspectors to judge the quality of care was to speak privately to service users and spend time observing what goes on. These practices were rated much more highly than talking to owners or checking paperwork. Yet we now have a system that relies on a service review, which is a desk exercise based on provider self-assessment.

Yesterday’s CSCI briefing claims that its approach works, because two years ago there were 1,500 poor services and now there are only 600. The concern of union members is that this reduction does not necessarily show that services are getting better; rather, it shows that CSCI is getting worse at identifying poor services.

The claim is made that poor performers are inspected more often. This is doubtful. Under the new system, the default is twice a year for poor performers: the same as under the old system. The fundamental concern of union members is that the systems for assessing and monitoring providers are insufficiently robust. The frequency of inspection is determined by the service rating. The whole argument relies on being confident that a good or excellent rating, first, is justified, and, secondly, can be sustained for two or three years. It is this that concerns the members of the unions involved in these inspections. Poor or deteriorating services will slip through the net.

The number of inspectors has dropped from 1,400 in 2004—I emphasise this—to just over 800 now. In addition to concerns about frequency of inspections, inspectors report that they do not have enough time to spend on each inspection visit. The pressure of meeting targets means that they no longer have time to follow up on concerns or issues. The CSCI briefing refers to evidence from a range of sources, including the provider self-assessment surveys. The unions say:

“We have raised repeatedly with CSCI that inspectors are reporting that providers are not returning these and staffing shortages mean they are not always chased up in time. Even where they are provided, there are doubts about how objective and reliable the evidence is”.

A key feature of the new methodology was to have been a new IT system known as ICAP. Cuts in administrative staffing were made on the basis that the IT system would streamline systems. This was to have been introduced in 2007, yet it still has not been rolled out.

There are some concerns about the overall rating methodology. A provider in breach of key standards, such as the safe administration of medicine, can still be rated as adequate. I do not know whether that is true but, if it is, I find that appalling. CSCI talked about unannounced inspections at any time—indeed, there was much emphasis in Committee and on Report about the need for such inspections—but it has to be asked how often they happen, given the staffing constraints. Furthermore, I emphasise that providers are tipped off about the scheduling of a key inspection by receiving the self-assessment questionnaire in advance. In the view of people involved in the inspectorate, the annual service review is a desk exercise. The briefing claims that a change of manager or owner automatically triggers a fresh key inspection, but those involved question whether that is automatically the case.

The last time we debated these issues, I said to my noble friend that those who had replied to the BBC questionnaire were lying, telling the truth or exaggerating. The more I hear, the more I think that there is an element of truth in what they are alleging. I cannot see how it is possible to leave on the record accusations of this gravity without Ministers wanting to know precisely what is happening within the organisation. We know that very often those who lead any organisation simply push the party line, although I do not mean that in a political sense. They push the case for the organisation, very often knowing that complaints are occurring but, because of all sorts of considerations—relationships, budgets and whatever—they simply peddle the same old tune.

I believe that there is something wrong within this organisation that should be addressed and that the department should send people in to find out whether there is any truth in these allegations. I hope that my noble friend will be able to deal with that specifically when she replies from the Dispatch Box. However, I say to the noble Baroness, Lady Young, who I know is taking on a huge responsibility here, that many of these things will be left for her to sort out. I am confident that she will do so but she should have the benefit of knowing that people from outside have gone into the organisation and are able to provide her with information over and above that which may be fed up the line but which, by the time it gets to her office, may not altogether reflect the reality. I beg to move.

My Lords, I have a small rural riding centre in North Yorkshire and we are inspected twice a year. One of the inspections is done by a veterinary surgeon. It seems extraordinary to me that frail, vulnerable people in residential care should not be inspected more than my small riding centre.

My Lords, I emphasise, as I did at earlier stages of the Bill, that inspection must not be confused with regulation and audit. To my mind, the tick-boxes of regulation and audit are wholly unsuitable and unsatisfactory for the type of inspection required of these care homes. I know that my noble friend Lady Young will be going into this in some detail and I hope that, when she does, she will consult other inspectorates involved in other activities in the public sector in addition to CSCI. She will have to balance the resource issue between the needs of the healthcare, mental health care and social care commissions, which will not be easy. I recognise all the points that have been raised. Having spoken to CSCI about this, I know that it has been concerned about the impact of resources on the time that it is able to spend on essential inspections. Cutting those short is almost as bad as not doing them at all, and I therefore entirely support the wording of this amendment. I hope that the Minister will recognise it as being desperately important when the new commission takes up its post.

My Lords, because I am conscious of the Addison rules, I have had rather a self-denying ordinance on this Bill, but I have to say something on this amendment. I cannot speak on behalf of CSCI, which is a statutory body led by its own board, and I do not want to comment particularly on the issues that the noble Lord, Lord Campbell-Savours, has raised about CSCI itself. I simply want to reflect on the issue from my background in regulation and from the five weeks’ experience I have had of looking at the future role of the Care Quality Commission.

My view is that regulation is a wide, embracing and generic process. It is about drawing information from a whole variety of sources to allow a regulator to take a view about the performance of an individual institution and about its managers. It needs to draw from inspection as one source of evidence, but also from a whole variety of others—including the views and verdicts of carers, families and, indeed, staff. My experience in the regulatory field is of one who shies very much away from minimum inspection frequencies because, over time, services and circumstances change and that mix of information, from a whole variety of sources, needs to be adjusted.

The problem with minimum inspection frequencies as a statutory requirement is that they are, as your Lordships know well, quite difficult to change once in a statutory process, even if in statutory guidance. As a result, they are incredibly inflexible. In my previous regulatory roles, I have experienced circumstances where everyone knew that as a result of minimum inspection frequencies we were having to do things that were, frankly, crazy and a poor use of public resource. Yet we had no means of getting the appropriate regulatory change made to allow more flexibility. I really would not like to see the CQC in that position.

The noble Lord, Lord Campbell-Savours, aptly raised a recent report from the Commission for Social Care Inspection indicating that one of the best determinants of quality for a particular group of patients was, indeed, observation. Rather than a minimum inspection frequency, understanding how staff were relating to patients—and how that institution encouraged that degree of inter-relationship—was probably one of the best determinants of quality in that setting, which was the care for people with dementia. It would really be unfortunate, then, if the Care Quality Commission had an absolute requirement on minimum inspection frequencies and none on any of the other sources of information or regulatory models that it might feel best able to deploy, over the next few years, to produce the best outcome for users, patients, carers and their families.

As one word of support for the current Commission for Social Care Inspection, I do not believe that it operates a desk-based exercise supplemented by self-assessment. It is working hard to develop models that are genuinely risk-based and proportionate, taking the best research evidence it can for the most effective set of information to find out about an institution and the care settings of individuals. I believe that we should be giving the CQC that sort of encouragement for the future, rather than setting minimum inspection standards.

My Lords, I was going to have a self-denying ordinance and not speak at this point, mainly because I did not want to get into a difficult debate with the noble Lord, Lord Campbell-Savours, for whom I have the utmost respect. I believe that his heart is solidly behind ensuring the protection of vulnerable people, but I feel that I need to support the noble Baroness, Lady Young, in her endeavour not to find herself with a set of minimum standards that will make regulation very difficult.

I just want to mention one group of people who have not been mentioned at all in this debate but who were mentioned a great deal by Members on the Benches opposite in a discussion on the previous Bill: the providers of those services, who have to deal with regulation. I spend quite a lot of time with providers and I am a provider myself; I declare an interest as the chair of Livability. I am immensely grateful that inspectors come in and do in-depth, all-round inspections, where they come to observe. There are some tick boxes—I may have a bit of a difference of opinion about terminology with my noble friend Lord Ramsbotham—but, all in all, the approach is very rounded.

I do not doubt for a minute that not every inspection is perfect. Having worked in so many large organisations, I know how difficult it is. However, I also know that service providers who feel that they have worked immensely hard to get their service to a high level of provision find it difficult to be faced with the fact that here we are considering streamlining regulation on the benefits to the vulnerable elderly so that they get more attention. One criticism made in the BBC report was that an inspector said that they did not want a poor report because it meant more work. Indeed it does mean more work, because if you get a poor report, you get the inspectors back quite a lot until you improve. One of the positive things about CSCI is that, unless the service is dangerous, in which case it is closed immediately, the organisation works hard with the provider to bring services up to the appropriate level, because the alternative—closure—is disastrous for the vulnerable elderly. Anyone with a medical background will tell you that if you move the frail elderly or vulnerable severely disabled people, the likelihood of their death is increased. I have been faced with that option myself in the past.

In thinking this through and thinking how we move forward, we should recognise that all of us—I am absolutely with my noble friend Lord Ramsbotham in this—want CSCI to have enough resources to carry out the inspections that it believes are needed, but not to be so stuck in a framework that it cannot manage that flexibly. We do not want really good providers being punished by what they may feel is overregulation because of those who do not provide the best service. I apologise for making my small intervention, despite having said that I would not speak.

My Lords, as I hope I made clear when we discussed my noble friend’s amendment on Report, there is no intention to reduce the total amount of inspection activity or to reduce the new commission’s ability to act where care providers are failing to meet the safety and quality of care that users are entitled to expect.

On Report, we heard the views of several noble Lords who, while emphasising the importance of visiting and dealing with poor services, recognise the value of focusing resources on those services rather than on those that are doing well, as explained by the noble Baroness, Lady Howarth, who should never apologise for her interventions. That is why we are emphasising the benefits of unplanned rather than routine inspection and of intelligent and proportionate regulation, as explained very well by the noble Baroness, Lady Young of Old Scone, who, from her great experience, put the case for how robust regulation might take place.

I wrote to my noble friend yesterday following up on our previous debate, including responses from the Commission for Social Care Inspection to the points that he raised. Again, I cannot emphasise enough the importance that we place on keeping providers on their toes. However, as I hope I made clear before, although it will not be necessary in most circumstances, Clause 61 already gives the Secretary of State the power to set the frequency of inspection in regulations, should that be required in particular circumstances. I feel like the referee who cannot take much action, in this case between the BBC, CSCI and the concerns expressed by my noble friend. However, if I can help in any way to clarify and reassure him about what has happened, I will be happy to do so.

On the point about CSCI getting worse, we have no evidence to suggest that its performance is changing for the worse or that standards are slipping, but I understand my noble friend’s concerns and I undertake to follow this up further.

I hope that my noble friend will appreciate that we are committed to establishing a proportionate regulator that focuses its attention where it is needed most to get the greatest safety and quality benefits for patients and service users. While drawing on the best experience of the current commissions, we intend to leave those vital inspection decisions to the discretion of the commission, as the noble Baroness, Lady Young, indicated. It will be the commission’s job to set specific frequencies if they are required, so I hope that my noble friend will feel able to withdraw his amendment.

My Lords, I have listened carefully to what my noble friend has said and to the comments of other noble Lords. The noble Lord, Lord Ramsbotham, said that there was a need to draw a clear distinction between regulation, audit and inspection and the approach of ticking boxes. I hope that the successor organisation has that clearly in mind when it sets out to undertake its task.

The noble Baroness, Lady Young, has sought to reassure me. I wish her good luck in the task that she is to undertake. However, “risk-based and proportionate” inspection frightens me, because I know, as will other Members of the House, what that means. It means that some will get through that should be sorted out, but they will not be sorted out because they will slip through under that regime. However, if we are to proceed by introducing and using the reserve power to which my noble friend referred, then so be it.

The noble Baroness, Lady Howarth, referred to flexibility in inspection in her support for the noble Baroness, Lady Young. I understand perfectly where she is coming from, because she has made a number of contributions to which I have listened closely during the various proceedings on the Bill.

Finally, the Minister said that she undertakes to follow this up further. We could read a lot into that. I certainly want to do so, as long as following this up further is based on taking evidence not only from but through CSCI. If the information that my noble friend seeks comes from the senior management of CSCI, it will only reiterate the case that CSCI has made repeatedly in recent months that almost everything is all right. I do not accept that. If she means that she will seek evidence from a wider cohort of people—one that does not necessarily include the group that I have just referred to—I wish her the best of luck and I think that we will find where the truth lies. I hope that at some stage in the future I can table a Question to which she can give us far more up-to-date information than the information that is currently available. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4: After Clause 112, insert the following new Clause—

“Registers of healthcare professionals: non-practising members

(1) The Secretary of State must, if so requested by a regulatory body, make regulations giving power to that regulatory body to enable non-practising professionals to qualify for registration in a register of non-practising professionals.

(2) The regulations shall make provision for a reduced fee to be payable by non-practising professionals.

(3) In this section—

“non-practising professional” means a person who would otherwise be qualified for registration in the relevant register of the regulatory body, but who is, for a reason other than having been erased from that register, not currently practising;

“regulatory body” means—

(a) the General Medical Council,(b) the General Dental Council,(c) the General Optical Council,(d) the General Osteopathic Council,(e) the General Chiropractic Council,(f) the Royal Pharmaceutical Society of Great Britain,(g) the Pharmaceutical Society of Northern Ireland, or(h) any regulatory body within the meaning of Schedule 3 to the 1999 Act established by an Order in Council under section 60 of that Act.”

The noble Baroness said: My Lords, I brought forward this amendment twice before when it covered only dentists, but at the Report stage on 24 June it became clear that this situation affects all healthcare professionals. They run the risk of finding themselves removed from registers simply because they have ceased to practise. They cease to practise for many reasons: maternity leave; illness; the wish to follow a different career for a time; or simply that they are old enough to think about giving up active practice. The amendment before noble Lords today contains a list of the healthcare professions that may be adversely affected.

The General Dental Council considers it important that a list of non-practising dentists should have some public value rather than just private or personal value. I do not disagree, but the council underestimates the importance of knowing which trained professionals were practising as well as those who are still practising. All sorts of situations can arise. There could be an epidemic in an area, a pandemic could break out or a national emergency develop when it might be extremely useful to know where all those with skilled healthcare training could be contacted to give assistance. That can happen only if their details are retained on a register. People move house, sometimes to be closer to their families. The last dental register for retired dentists who wish to continue to be listed without continuing professional development and in a non-practising category was produced in 2004. Even by this year many of those details will be out of date. Who knows how much more time might go by before any call is made on these people?

I turn to the Good Samaritan issue, raised on Report by the noble Lord, Lord Walton of Detchant. At the moment doctors can remain on a list, but that is now under threat. What would be the noble Lord’s position if he were called on to save the life of a fellow Member of this House? Would it be a case of saying, “No, I am sorry”? That reminds me of the news story about the community support officer who was told not to dive in to save a drowning child. He said, “I can’t dive in the water to save that child who is drowning because health and safety prevents me from doing so”. Good Samaritans are needed on many occasions; indeed, in France you have a duty to be a Good Samaritan, but if you are a Good Samaritan in this country you are likely to be sued if anything goes wrong. For that reason, people are a bit doubtful about offering help.

A third important issue is whether the various equivalent health defence and protection organisations are willing to protect people when they are no longer practising. People do not know whether their cover will continue. Also, why is it that healthcare professionals are disadvantaged and treated as second-class practitioners in comparison with solicitors and accountants? Their councils have no intention of dropping the lists of non-practising members. You can remain on the list as a solicitor or accountant until the day you die and you value that position. We should value it for professionals in the healthcare field.

The Minister stated on 24 June that,

“the changes proposed in the amendment could be made through existing secondary legislation”.

It is important to have that confirmed clearly, certainly as it applies to the General Dental Council. I do not intend to repeat the arguments because they are all set out in Hansard and anyone who is interested can look them up. The president of the General Dental Council said in a letter that I quoted on Report that,

“there is no immediate prospect of a legislative opportunity being available”.

On previous occasions, the Minister has kindly said that any of these medical councils would be knocking at an open door if they asked to have this amendment made, but I would like that point to be stated specifically so that I can be confident that it is true and that it will not be just written off. There are major changes ahead. I quote the Minister again. She said:

“I should also mention that the White Paper on working groups on revalidation for all professionals will need to consider the wider issues around semi-retirement, retirement, career breaks and the ability of professionals to make use of or provide expert opinions to others”.—[Official Report, 24/6/08; cols. 1381-84.]

That is another important feature because non-practising people often still write in journals or lecture to other people. It is essential that there should be a differentiation between people who have been struck off the list for malpractice and those who have had an honourable career until whatever stage they decided not to continue. The amendment would cover that point.

I look to the Minister to reassure me on this. I am one of those awful, pig-headed people who tend to divide the House over issues if they have to. I do not want to have to, so I hope that she will be able to give me the reassurances that I seek. I beg to move.

My Lords, I support my noble friend, who has argued her case extremely persuasively throughout the passage of the Bill. I was persuaded on the first occasion that she spoke to it and I am equally persuaded now. It would be helpful to hear from the Minister that she accepts the argument put forward by my noble friend and that she will use her best endeavours to encourage the regulatory bodies to take up this idea, look with favour on it and, where possible, apply for the necessary Section 60 order, which I understand is the process that would be needed for those bodies which do not have a scheme of this kind.

My Lords, I warmly support the principles underlying the amendment so ably proposed by the noble Baroness. But this is a complicated issue which raises all kinds of problems. I was very surprised on Report to learn from her that the General Dental Council was not allowing retired dentists to remain on the register. Whereas for many years retired doctors have been entitled to remain on the register, the concern that I expressed on Report was because a legal opinion recently taken by the General Medical Council now suggests that retired doctors wishing to remain on the register must pay the annual retention fee from which they have been exempt since the age of 65. It is 21 years since I had to pay a much reduced registration fee for the General Medical Council.

Another problem is that next year the General Medical Council proposes to introduce a programme of revalidation which may, if the doctor succeeds in having his or her practice revalidated, lead to the establishment of a licence to practise which will be distinct from registration. It is a complicated issue which might make it difficult for an amendment of this nature to be enshrined in primary legislation. The idea suggested by the noble Baroness that the issues involved might well be dealt with by secondary legislation has many attractions. As the noble Baroness, Lady Gardner, said, doctors take pride in remaining on the register and dislike the thought, even in retirement, that they will no longer be registered medical practitioners.

Legally, a doctor who is qualified and who has never been erased from the register for disciplinary or other reasons would be entitled in an emergency to give medical support even if they were no longer registered, but many doctors would feel embarrassed and reluctant to do so without being on the register because of the potential fear of medical/legal complications. It is crucial that a mechanism be introduced whereby retired doctors can remain on the register. I should like to see the same for dentists and the other healthcare professionals listed in the amendment.

In principle, I warmly support the amendment, but I foresee difficulties in having it enshrined in primary legislation.

My Lords, I do not wish to try the patience of the House but I should like to make one additional point. Would it not be in all our interests for all the professions mentioned to have a list of retired members and for it to be nationally held? In a national emergency it might be extremely useful to know where all the retired physiotherapists or pharmacists are. It is a sad thing if a group of professional people from all of these specialties are just discharged when they retire, as if they are of no more use to society. We clearly know that they are. I hope that there is some device whereby the royal colleges—or whatever—can make sure that these people remain on the register.

My Lords, the noble Baroness made her arguments immensely persuasively yet again. I hope that the Minister can look at the issue, though I take the point made by my noble friend on primary legislation. I mentioned social workers when this issue was previously raised. Social workers do not have a right to appear on any of these lists because they are not defined as health professionals. Therefore, I hope that social workers will be considered too. Social workers can be members of the British Association of Social Workers, as I am, but their registration is completely separate. I am not registered at this moment—I do not get on and do the forms, not because I have not done the practice days. That is a separate issue. If the Minister is looking at the list of health professionals, it might be worth a glance at the other people in social care who seem to be missing.

My Lords, having practised for 40 years myself, I continue my indemnity insurance because the Medical Protection Society will continue to indemnify you after you are retired as long as you are on the register.

My Lords, as a retired member of one of the professions mentioned in the amendment, I support the feeling behind it. I hope that my noble friend will be able to come up with some formula that accepts the principles if not the wording.

My Lords, not to be left out, as a retired radiographer I was amazed when, less than two years ago, I was contacted to find out if I would like to train for a proper job and take up my former profession.

My Lords, the noble Baroness, Lady Gardner, has raised this issue in relation to dentists both in Committee and on Report. As I said in my response to those amendments, she knows that I am sympathetic to her view. As a result of the debate we had on Report, the noble Baroness has widened the scope of her original amendment to provide that the Secretary of State must make regulations giving powers to a health care regulator to establish a non-practising register with a reduced fee if the regulator requests it. It does not include any provision for social care regulators—the noble Baroness, Lady Howarth, is quite right on that.

This amendment is an enabling provision. As I have said previously, we already have such a power to amend the law in Section 60 of the Health Act 1999. As the noble Baroness and my noble friend have asked, I shall put it clearly on the record again that we already have the powers to do everything the noble Baroness is asking for. We do not need another power to do this. Adding this amendment to the Bill would be duplicating what already exists. The noble Baroness knows this but is mounting a justified and effective campaign.

As noble Lords know, Section 60 orders enable changes to be made to both primary and secondary legislation. Since 1999, these orders have become the usual means by which legislation relating to healthcare professions is made and amended. Indeed, your Lordships’ House has agreed 11 Section 60 orders since 1999. In other words, I do not understand the reservations that were expressed in the letter to the noble Baroness by the General Dental Council. Importantly, Section 60 orders provide safeguards, such as requiring consultation with the professions and the public and affirmative approval by Parliament, which the amendment does not contain. Given that we already have the power to change the way regulators deal with retired members of the professions, the debate we need to have now is not whether we need another enabling power but whether we need to use the existing powers to change the system.

I understand that non-practising and retired dentists may want to keep in touch with their profession, especially—as with the two noble dentists here today—when it has been a fundamental part of their identity. There is a strong argument that those who consider themselves no longer in practice but who teach, lecture, write health-related articles or are on boards of governors or boards of companies where professional advice is required should be registered with the regulator. That model has been adopted by the Royal Pharmaceutical Society of Great Britain.

All those issues are being considered at the moment by two of the working groups that have been set up to help implement the White Paper, Trust, Assurance and Safety. Those groups include external experts such as the regulators themselves, professional representative groups such as the BMA, and patient and consumer organisations such as Which?. We are looking at the issues raised by revalidation and the new process by which all health professionals will have regularly to show that their professional skills are up to date. The way the registers are kept by the regulators may have to change as a result. A large part of that will consist of looking at the implications of revalidation for people who may no longer treat patients but have an active professional role or are retired.

The noble Baroness, Lady Gardner, may also be assured to know that your Lordships’ House will be debating a Section 60 order to enable quick re-registration of appropriately qualified professionals in the event of a emergency—for example, of retired doctors. I will be taking that order through the House on Thursday. I am happy to use my best endeavours to help the noble Baroness take forward this cause, and I have been discussing it with officials. Given the breadth of her amendment, it is legitimate that we now raise the whole issue with all the regulators. I will be happy to do so with her support, which I know she will give me.

I hope that my response has indicated that we take the issue seriously and that the noble Baroness will be sufficiently encouraged to withdraw her amendment.

My Lords, I thank the Minister for that reply, which was very positive. These professions should look on that reply as being suitable encouragement to feel that we are not going to be overlooked. It may be too late for me in dentistry—I am not worried about that—but it is a much bigger issue than that, something that has become apparent in these debates. Revalidation is going to mean a dramatic change for all healthcare professionals. Whatever dividing lines there have been in the past, there will be much greater ones after revalidation comes in. There is a place for professionals to continue to be listed, and it may be desirable to have entirely separate lists for the validated ones and those who do not wish to continue practising. In fact, it is in the public interest to have them as entirely separate lists, which in the past has not been the case; doctors are still in their ordinary basic list. After revalidation, it will be better to have separate lists. The Minister has said that she will do her best to see that all the regulators looking into this and all the consultations about the White Paper will fully consider all these points.

I speak as a dentist, but also to a certain extent as one of the many healthcare professionals. We should be satisfied with what the Minister has said, because she has been very positive about this matter. Her response should be acknowledged by everyone as being very helpful and something that we can bring forward when those consultations and determinations are made. For that reason I thank her for all that she has done. Indeed, the whole House has been very patient as I have gone through this issue time after time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

5: After Clause 140, insert the following new Clause—

“Remuneration for persons providing pharmaceutical services: appointment of determining authorities

(1) In section 164 of the National Health Service Act 2006 (c.41) (remuneration for persons providing pharmaceutical services)—

(a) after subsection (4) insert—“(4A) An instrument of appointment— (a) must be contained in regulations if it provides for the appointment of a Primary Care Trust or other person as a determining authority in relation to the remuneration to be paid to persons who provide services under section 126, and(b) if paragraph (a) does not apply, may be contained in regulations.”, and(b) in subsection (5), omit paragraph (b) and the word “and” immediately preceding it.(2) In section 88 of the National Health Service (Wales) Act 2006 (c. 42) (remuneration for persons providing pharmaceutical services)—

(a) after subsection (4) insert—“(4A) An instrument of appointment—(a) must be contained in regulations if it provides for the appointment of a Local Health Board or other person as a determining authority in relation to the remuneration to be paid to persons who provide services under section 80, and(b) if paragraph (a) does not apply, may be contained in regulations.”, and(b) in subsection (5), omit paragraph (b) and the word “and” immediately preceding it.”

The noble Baroness said: My Lords, I shall speak also to government Amendments Nos. 7 to 9, 13 and 14. I will be brief because your Lordships are very familiar with the issue: the funding of community pharmaceutical services.

Section 164 of the National Health Service Act 2006 allows the Secretary of State to authorise any primary care trust or other person to exercise the functions of a determining authority when setting or varying remuneration for those providing NHS pharmaceutical services. There is corresponding provision in the National Health Service (Wales) Act 2006. As it stands, the authorisation may be, but is not required to be, set out in regulations. Noble Lords tabled a number of amendments that sought to remove this discretion in respect of payment for the essential services that all pharmaceutical services provide.

I fully appreciate the intention to ensure that we continue to support the vital role of community pharmacies. As noble Lords know, the Government have repeatedly given a commitment, both in public consultation and during the passage of the Bill, that the Secretary of State will continue to set the fees and allowances for the national elements of the community pharmacy contractual framework. However, the noble Earl, Lord Howe, and the noble Baronesses, Lady Barker and Lady Finlay, put forward persuasive arguments as to why we should look at this again and we undertook to consider whether an amendment might be appropriate. I am therefore pleased to be able to put forward Amendment No. 5. The amendment will ensure that where the Secretary of State appoints someone to be the determining authority in respect of essential services, this must be done by regulations. That will apply to services provided under both Section 126 of the National Health Service Act 2006 and Section 80 of the National Health Service (Wales) Act 2006. Government Amendments Nos. 7 to 9, 13 and 14 are consequential to this change. I hope these amendments will provide noble Lords with the reassurance that they sought. I beg to move.

My Lords, it would be wrong to let this amendment pass without expressing my thanks to the Minister for bringing it forward. It will provide pharmacists and the Royal Pharmaceutical Society, which has been assiduous in promoting this issue, with the added confidence and reassurance that they were seeking. I am most grateful.

On Question, amendment agreed to.

6: After Clause 147, insert the following new Clause—

“Continuity of social care support

(1) This section applies where an English or Welsh local authority (the original authority) has made a determination of need for care services in respect of a person ordinarily resident in its area under any of the social care enactments, and—

(a) has arranged or is providing such services, or(b) is making payments to such a person in lieu of care services under section 57 of the Health and Social Care Act 2001 (c. 15) or section 17A of the Children Act 1989 (c. 41); andthe person concerned becomes or intends to become ordinarily resident in a different local authority (the new authority).

(2) It shall be the duty of the original authority to—

(a) give notice to the new authority if it becomes aware that a person to whom it provides care services or direct payments intends to become ordinarily resident in the new authority’s area; and(b) co-operate with the new authority in making appropriate arrangements for such a person.(3) It shall be the duty of the new authority to provide the person concerned with—

(a) services of an equivalent type and quantity to those provided by the original authority; or(b) direct payments enabling an equivalent type and quantity of support to that provided by the original authority,for such transitional period as may be prescribed.

(4) Arrangements made under subsections (2) and (3) shall—

(a) be made with the involvement and consent of the person concerned;(b) include effective arrangements to meet any new or different needs of the person concerned; and(c) be made in accordance with regulations made under this section.(5) Regulations under this section may, in particular—

(a) prescribe the period or periods during which the original authority retains funding responsibility for a person’s care needs;(b) prescribe the period or periods during which the original and new authorities must resolve any disagreements concerning their respective funding responsibilities;(c) prescribe the period or periods by which the new authority must assume funding responsibility for an individual’s care needs;(d) provide for reimbursement by the new authority of expenditure made by the original authority whilst the authorities were resolving a disagreement as to their respective funding responsibilities; and(e) provide for the payment of interest on any sums reimbursed.(6) For the purposes of this section “social care enactments” includes—

(a) section 2 of the Chronically Sick and Disabled Persons Act 1970 (c. 44);(b) section 4 of the Disabled Persons (Services, Consultation and Representation Act) 1986 (c. 33);(c) section 17 of the Children Act 1989 (c. 41);(d) section 47 of the National Health Service and Community Care Act 1990 (c. 19).”

The noble Baroness said: My Lords, I apologise for not being here to move this amendment on Report. Unfortunately I was in St Thomas’ Hospital with pneumonia—just across the river, so near and yet so far. I thank the House for its generosity in allowing me to move this amendment on Third Reading.

The amendment proposes a practical solution to the intolerable injustice of being, as I am, almost a prisoner of one’s local authority, unable to enjoy the same social and economic mobility and freedom of movement as our non-disabled counterparts. Once in receipt of a care package, we are to all intents and purposes required to remain in one place or risk losing the support we rely on to live if we move to another local authority. Those who do move often face agonising stress, hardship and uncertainty. It can take months and even years for the new local authority to decide what type and level of care package, if any, it will provide. Continuity of care is thrown to the wind.

I shall explain how the amendment would resolve the situation and what it would mean in practice when someone in receipt of a care package moved to a new local authority. Their original authority must notify the receiving council and work with it to effect a seamless transition of an equivalent level of support. Crucially, the original authority would retain funding responsibility for a short time until the receiving authority took over the responsibility. The receiving authority would thus be paid to maintain an equivalent level of support for a period specified in regulations. In this way, a disabled or older person would have the statutory guarantee of continuity of support, enabling him or her to maximise opportunities for employment or a better family life.

Noble Lords may think that continuity of care is already a statutory obligation under community care law. However, Luke Clements, one of the country’s leading social care lawyers, argues that it is nearly always frustrated by bureaucratic delay and maladministration on the part of the receiving authority. He argues that the Government must urgently implement specific and corrective legislation, as provided by this amendment, to make continuity of social care support a reality.

The view of the Equality and Human Rights Commission—on which I serve as a commissioner as chair of the disability committee; I therefore declare an interest—is very clear. In its opinion, the current situation could be open to challenge under the Disability Discrimination Act and the disability equality duty. Discontinuity of support negatively impacts on equality of opportunity for older and disabled people; for example, to move to take up employment or educational opportunities, as would their able-bodied counterparts.

As noble Lords will be aware, the Local Government Association has expressed concern that the amendment will put undue pressure on budgets and services. I can reassure the House that that will not be the case. No new demand for services will be created by the amendment. Against the costs to a receiving authority of taking over funding responsibility for someone must be offset a considerable range of savings, such as other service users leaving the authority, and ending unnecessary and costly bureaucratic reassessments.

The LGA also questioned whether the amendment could tie the hands of a receiving local authority and be impractical by requiring it to provide exactly the same services to the new arrival. It has been reassured by the fact that the amendment refers to support services,

“of an equivalent type and quantity”.

It does not require the same care package. The receiving authority will have great flexibility in how underlying needs are met.

RADAR, Scope, the British Institute of Human Rights, Age Concern, Carers UK, Mencap, the National Centre for Independent Living and Help the Aged are among the many other organisations which support the amendment and have been working towards it for years. Like me, they are not prepared to be told once again that a Green Paper consultation on this issue is needed. We have raised the issue during previous social care Green Paper consultations for more than a decade. Each time new social care legislation is introduced, we are told that it is not the right Bill. I believe that this is the right Bill, unless the Minister can give firm assurances that the provisions of this amendment will be very closely reflected in the Green Paper on adult social care and in subsequent legislation. This amendment will enhance the quality of care for older and disabled people at the same time as effectively creating a climate of fairness for all. Let us today pull down one of the most glaring remnant of the old Poor Law that puts disabled people at the mercy of their parish. We owe it to all British citizens to seize this opportunity. I beg to move.

My Lords, I strongly support this amendment, to which I have put my name, and which has been so persuasively presented by the noble Baroness, Lady Campbell of Surbiton. What an indictment of a local authority—and of its association, the LGA—to argue that it is justified in refusing to accept another authority’s judgment of a disabled person’s assessed needs. Disabled and older people do not move on a whim. It takes an enormous amount of organisation and effort. As we have heard, some people have no option but to move and throw themselves on the mercy of another authority. Is that authority then likely to decide in the end that the person has vastly different needs? What justification is there for the months of misery, cost and wastage that can currently take place while needs are being reassessed?

As a Labour Peer I am proud of my Government’s commitment to independent living and the goal of equal lives for disabled people. So many policies have been put in place to improve our social and economic well-being. We have rightly invested thousands of pounds in schemes to help disabled people out of poverty, off benefit and into employment. Yet what greater disincentive can there be to prevent someone seeking employment which is just over the boundary of their authority than forcing them to take this gamble with their care needs?

The Minister is expected to say that this problem of portability will be dealt with in the forthcoming Green Paper on adult social care. I welcome that Green Paper, but it will be many years before that policy becomes everyday practice. In the mean time, let us give disabled and older people with support needs the freedom that they desperately need: the freedom to move to be closer to their family and friends; the freedom to get the education they need; and the freedom to apply for the job of their choosing wherever that may be. I urge noble Lords to support this amendment.

My Lords, the Minister will know how vitally important this issue is for disabled people; it is an issue of literally life-changing importance. For our society to allow disabled people to feel trapped in a local authority area, and to find themselves unable to take up employment opportunities elsewhere or to be near family, is simply unacceptable. It is equally unacceptable to subject disabled people who move to another area to the insecurity, worry and bureaucracy that almost inevitably ensues.

I know that the Minister is sympathetic to the arguments that the noble Baroness, Lady Campbell, has so ably put forward. However, I am aware that she is unlikely to be able to accept the amendment as it stands. What we need from her is a commitment that this problem will be sorted. I am not sure that a rather loose promise to place a set of proposals in a Green Paper is quite enough to allay the fears and worries of the disabled community. We need an undertaking that the Government will take this issue away and deal with it appropriately. If there is to be a proposal in a Green Paper, that part of the Green Paper should have very distinct white edges to it. I hope the Minister will be able to give us the reassurance that we seek.

My Lords, this amendment goes to the heart of the rights of those needing a care package to live independently. The question before us is one of principle. If people cannot move to be economically active or to be nearer relatives and other support, they are locked into dependency on the state, deteriorating health through demoralisation and thus increased social and health costs. The provision makes economic sense as well as being fundamental to equality of the right to work and the right to family life.

I fear the Minister will say that the issue will be addressed in a Green Paper and that that will solve the problem. It will not. We need to know exactly when the matter will be sorted out, which needs to be in the lifetime of this Parliament. The provision must address people of all ages, including children, and must be delivered through the legislation set out in the amendment. You cannot ask those with a disability and their families to settle for anything less or to wait any longer.

My Lords, I am somewhat horrified that this amendment has been brought before the House at such a late stage. It should have been discussed weeks ago because this matter is of such tremendous importance to the individuals concerned. It is a huge issue. All of us have only one life and if we are disabled we need enormous support to try to make it as normal as possible.

Social services departments up and down the country have varying provision for the disabled and the elderly. This is another example of our postcode lotteries. Where you live depends on all sorts of circumstances, but local authorities’ provision differs. As a former chair of social services in the London borough of Richmond, I know that if someone with a huge need, which can incur costs of hundreds of thousands of pounds a year, moves into an authority’s area, it can be very difficult financially to match the provision that that person received previously. This is a very serious issue, and with the best will in the world a social services department might want to match that provision but be unable to do so because it has a very small budget. Some local authorities will have a very low budget for social services due to their demography. The London borough of Richmond, where I was chair of social services, had a big budget because at that time we had the second highest proportion of people over the age of 85 after Worthing. We wore that badge with pride. However, provision can vary among authorities. Although I appreciate the need to sort this out, and clearly people’s needs have to be met if they move to a different area, we must also understand local authorities’ problems in seeking to make that provision.

I hope that the Minister will tell us that there is something in the pipeline, such as another discussion, a secondary regulation or a device whereby this matter can be addressed, thoroughly discussed and sorted out because it is a human rights issue for disabled and elderly people.

My Lords, I congratulate the noble Baroness, Lady Campbell, and her colleagues on tabling this amendment and presenting it so coherently and persuasively. The need for it is paramount. It is the most important amendment for disabled people that the Government can address. Labour Peers lean over backwards to make things easy for the Government because we support them, but on this occasion we feel a bit perplexed because they do not seem to accept the powerful case for this specific provision. We have had delay so often in this area. I have been involved in politics for 40 years and there has always been an excuse why Governments cannot do this or that. Although this Government have a marvellous record on disability and other things, they have failed to rise to the occasion on this matter. We have heard Labour and Conservative Peers put their cases. What are we waiting for? All sides—Labour, Liberal and Conservative—support the amendment.

An absurd piece of propaganda recently stated that the amendment would tie the hands of local authorities. That is preposterous. The compassion that would flow out of the amendment should not go to well heeled local authorities, but to poor, disabled and old people. So that advice was out of touch with reality. Noble Lords who have spoken on this, including the noble Baroness, Lady Campbell, and countless organisations support the amendment. Some 50, 60 or 70 of these organisations, which represent the blind, the paralysed and so on are unanimous in saying to the Government, “Please let us have this amendment”. These people are at the coal face of disability and live with these problems. They do not work in offices in Whitehall that are remote from reality. I hope that the Government will, for once, say, “Okay, we will take this back and give a commitment, not in two years or in a Green Paper. We will face this now. You want this now and you need it now”.

Although I am criticising the Government, I am aware that they have been kind to many disabled people and to me personally; but they are making a huge mistake if they fail to provide now for the measures in the amendment. I ask them to take this back and bring back a solution that will satisfy every disabled person in Britain.

My Lords, I strongly support the amendment. I am delighted that my noble friend Lady Campbell was well enough to return and put the amendment so movingly. I am a commissioner on the Equality and Human Rights Commission and vice-president of the Local Government Association, which is worried about extra costs and burdens. I honestly feel that if this amendment is seen to be necessary, the Government’s role is to encourage local authorities to take it seriously and ensure that local authorities are given sufficient resources.

It is important that we enable older people and disabled people who live in this country to feel that the system is fair to them. It cannot be fair if you are caught just because you want to move from one locality to another. Everything that is said about different levels of care and service provision in different parts of the country militates against that feeling of fairness. That is quite wrong. It would cost very little in real terms and would enable disabled and older people who need services, educational opportunities and a proper family life to move without feeling that they would be terribly disadvantaged by doing so.

First, I say to the noble Baroness, Lady Tonge, that this subject was discussed at Second Reading and an amendment was discussed in Committee. The amendment would stop a disabled person being in limbo while a new local authority assessed them yet again. This can take months, if not years. Would the Minister tell us how much it costs to do an assessment, or do they differ between local authorities? This amendment might, in the long term, save rather than cost money.

My Lords, the noble Baroness, Lady Campbell of Surbiton, has put her case most cogently. I am only sorry that she was not here at Second Reading. I feel that this is more of a Second Reading than a Report debate. Therefore, I beg leave to say a few more words than I would normally say at Report. That does not mean that I will speak at length; I seldom do. I simply want to make a few points.

A little while ago, we had a debate on the Floor of the House about disabled people’s needs which should have been led by the noble Lord, Lord Ashley. On that occasion, none of my friends with disabilities was able to be present. All of them were suffering from the difficulties that occur when you have respiratory problems caused by a disability. That was why the noble Baroness, Lady Campbell, was not able to put her amendment at that time and why it is important that we hear all the arguments today. In that debate I mentioned a campaign that I am involved with, Freedom to Live, run by Liveability, which has identified a wide range of difficulties that disabled people face simply because our systems do not allow them to move, not only geographically but between bureaucracies.

If this amendment were pressed, however, I could not go through the Division Lobby with my good friend, and I will tell noble Lords why. This is the broader point. As the Local Government Association—of which I, too, am a vice-president—has pointed out, funding for these services has already outstripped supply. Its worries are about the implications for existing services. That seems an extremely serious position for the nation to be in. It is particularly serious as I have also read documents in which residential services are being encouraged to provide quality care while faced with a framework that pays the minimum wage to people who will not only care for some of the most vulnerable in our society, but give them the opportunities that we have. That is the perceptual difficulty, which I hope the noble Baroness, Lady Campbell, and our other campaigning friends who have campaigned extremely actively, have made us understand. Being in a wheelchair and being disabled does not mean you are disabled in terms of what you can contribute to society overall. Despite that, I find it difficult to support this amendment because of the extraordinary complexity of the services that we need to look at.

The noble Lord, Lord Low, and I did not table yet another amendment about the transfer of funding for residential care between one authority and another, but that is another aspect that needs to be looked at. I have a sheaf of papers from Ministers in replies to queries that I have raised about the problem of people moving from residential care into housing, from housing into supported housing and, possibly, back into residential care. It is impossible, if your disability improves or gets worse, to move between services. Never mind that; what about the benefits system? When you transfer from one place to another, benefits become even more complex.

One area that has been hit on is assessment. People who move between one place and another have to undergo constant reassessment. The amount of person power that it takes to decide, for the third or fourth time, what the individual actually needs, is something that the Minister in the other place, at a meeting I was at recently, has undertaken to look at. I will ask the Minister, when we look forward to the Green Paper—as the noble Earl, Lord Howe, said, these issues can be looked at even sooner—for an assurance that someone will grasp the complexity of this issue. That person should be prepared to look at the detail, not put it into the “too difficult” box—difficult as it is—and come up with some real plans, so that people such as my noble friend Lady Campbell and many others I know like her have the opportunity to live their life where they want to live it and how they want to live it without the inhibitions that we currently place on them simply by our own processes.

My Lords, we debated a similar amendment in Grand Committee. I said at that time that I have every sympathy with its intention, as the noble Baroness knows. I fully understand the reason for returning to this issue again today. I join other noble Lords in welcoming back the noble Baroness in good health to the Chamber. I commend her for the eloquence with which she and my noble friend Lady Wilkins spoke to the amendment.

Noble Lords will be aware that, throughout the passage of the Bill, the Minister and I have sought on every occasion to listen to the experience and expertise in the various areas covered by the Bill. Together—that is, noble Lords and the Government—we have created a much improved Bill to send back to the other place. In the parts where it has not been possible or practical, for various reasons, to include provisions in the Bill, we have sought to engage in constructive discussion and provide reassurance and explanation. While it is with deep regret that I cannot support this amendment, as it is currently drafted—because it seeks to place a wholly new and rather fundamental provision in the Bill—I seek, in the spirit that has applied to the rest of the Bill, to discuss how we can take this issue further. I have spoken to the Minister responsible for this area of policy and I am able to give noble Lords more positive information about continuity of care than I could in Grand Committee. I hope to convince noble Lords that the Government are determined to resolve the issue. A Green Paper with white edges, as was mentioned by the noble Earl, is the right way to express that.

First, I make it clear that the issue that lies beneath this amendment—whether care and support services should be the same no matter where a person lives, as opposed to local authorities being able to respond to local needs and provide different kinds of services—is a strong theme of the engagement activity that the Government are currently leading, in preparation for a Green Paper on the future system of care and support in this country. When looking at national standards versus local flexibility, the issue of transitional arrangements is fundamental.

The Government accept that there are great challenges within the care system and have signalled their intention for radical reform with the announcement of the Green Paper. They have, for the first time, launched a public engagement process which specifically asks people whether care and support in the future should be based on the principle of devolved control and local flexibility, or on a more national basis where a person will be entitled to the same support no matter where they live. That is at the heart of this issue.

This question is explicit in our published discussion document, is on our website and is part of our current programme of engagement events. I can also confirm that the issue of portability, which the amendment raises, is being addressed as part of the debate on the Green Paper. This is a fundamental component of the system that can be addressed only as part of a full review because of its implications for local and national accountability, democracy and control of budgets.

The Green Paper will set out options for the future funding of care and support. I can confirm for the first time—I am happy to do so on the record—that these options will address the wider issue of local flexibility versus national standards, and the difficult problems that this presents to service users, as set out in the amendment. We will then hold a formal consultation on these options and decide, in the light of the responses, what the care and support system of the future will look like. I undertake to ensure that we pursue that with rigour and speed.

Among other things, the Green Paper will be informed by the review of the eligibility criteria for fair access to care services that the Commission for Social Care Inspection is conducting for us. In January 2008, my honourable friend Ivan Lewis asked the commission, in the context of the Government’s vision for adult social care, Putting People First, to undertake a review of the eligibility criteria, their application by local authorities with social services responsibilities and their impact on people. This followed a report from the commission that highlighted major inconsistencies in the way eligibility criteria were applied in different local authorities.

The commission has been asked to submit its review by 15 September. After Ministers have received it, we expect the commission to make the review public. We cannot say at this stage what the commission will recommend, but the aim is clear: to achieve greater consistency in eligibility criteria across local authorities. This is another activity related to the wider issue raised by the amendment, and further evidence of the Government’s willingness to tackle the issue as part of a coherent review of the whole system of eligibility for social care services.

I turn briefly to the specific provisions of the amendment. It may be difficult to justify looking at these issues for people who recently moved out of a local authority without also considering those who have chosen to stay where they are. We should not tackle these far-reaching issues in a piecemeal fashion. Neither should we lightly dismiss the concerns expressed by local councils about this amendment.

There is no question that this issue must be looked at as part of a wider review of care and support services. However, I hope that the noble Baroness and other noble Lords who support this amendment will accept my assurance that the Government are not walking away; the issue is simply too far-reaching to address through an amendment to the Bill. The principles of the amendment may indeed be the future direction of social care provision. However, if that is the case, it is right that this should emerge from a review of the whole system, rather than from this single debate. Detailed negotiation and discussion with local government, and certainly time, would be required before changes were introduced.

I have one further announcement that may provide reassurance. On 11 June, the Law Commission announced that it was to draw up plans for the reform of adult social care law. This could result in the redrafting of current legislation. The aim would be to remove anomalies, contradictions and dated concepts. The review may also explore whether the current legal framework is in harmony with the Government’s policy direction. I am sure that noble Lords will be pleased to hear that my honourable friend Ivan Lewis wrote to the Law Commission on 23 June and asked it to include, within the scope of its review, consideration of whether the current legal framework contributes to the difficulties that people face when they move from one local authority to another and are unable to find out in advance what package of community care services will be made available to them in the new area. Through this action, we will bring to bear on the problem the highly respected and independent view of the Law Commission, to complement the work that is going on in preparation for the Green Paper.

Noble Lords will recognise that Ministers have tried extremely hard, throughout the debates that we have had in your Lordships’ House, to respond to concerns with positive action. We have taken every concern seriously; we take this concern extremely seriously. I assure noble Lords that I have taken it back to the department for careful thought on several occasions in the past few weeks. We have also brought forward amendments and made commitments on the record. We have clarified the role of social care within the Care Quality Commission; we have made it clear that the Human Rights Act extends to those who receive publicly arranged care in a private setting; we have addressed the issue of ordinary residence; and I have announced new proposals today. Wherever possible, we have sought to listen and respond constructively. However, I am afraid that we are not able to support this amendment. I hope that, with the reassurances that I have given, the noble Baroness will feel able to withdraw her amendment.

My Lords, first, I thank all noble Lords who supported this amendment; they have been tremendous. I would mention them all by name, but I might run out of puff and I will save that for the Minister, whom I thank for her reply and her sincere endeavours to be helpful. I know that she is personally supportive of equality of opportunity for older and disabled people, and has great sympathy for this amendment.

It is a tough judgment call. On the one hand, my heart is heavy. I have heard how complicated this is and how we have to talk about it more and get to grips with it; yet I have been doing this for eight or nine years and feel that I have gone over the arguments ad nauseam. Therefore, it is difficult for me to see light at the end of the tunnel. However, today I feel that we have made some progress, even perhaps within the past hour. A combination of three announcements, some enthusiasm and clarity about going forward in a positive way and, frankly, sorting this matter out makes me feel that the journey could go in the right direction.

Naturally, I and others will follow this issue forensically as it progresses. However, I feel that we have a plan and that I may not now need to take the action that I thought I would take only a few hours ago. I feel that I will probably now be free to accept that job of a lifetime in Newcastle next year and that my care package will go with me because we will have sorted it all out. With the Minister’s commitment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 170 [The appropriate authority by whom commencement order is made]:

7: Clause 170, page 112, line 9, leave out from second “Schedule” to end of line 11 and insert—

“( ) section (Remuneration for persons providing pharmaceutical services: appointment of determining authorities) (2) (remuneration for persons providing pharmaceutical services: appointment of determining authorities in relation to Wales),”

8: Clause 170, page 112, line 19, leave out “and”

9: Clause 170, page 112, line 21, at end insert “and

( ) the repeals in the National Health Service (Wales) Act 2006 (c. 42) in Part 4 of Schedule 15 (and section 165 so far as relating to those repeals),”

On Question, amendments agreed to.

Schedule 1 [The Care Quality Commission]:

10: Schedule 1, page 114, line 24, at end insert—

“( ) The Secretary of State must exercise the powers in sub-paragraph (1) so as to secure that the knowledge and experience of the members of the Commission (taken together) includes knowledge and experience relating to health care, social care and the Mental Health Act 1983 (c. 20).”

On Question, amendment agreed to.

[Amendment No. 11 not moved.]

Schedule 5 [Further amendments relating to Part 1]:

12: Schedule 5, page 135, line 39, leave out “section 29 of”

On Question, amendment agreed to.

Schedule 15 [Repeals and revocations]:

13: Schedule 15, page 204, line 42, column 2, at end insert—

“In section 164(5), paragraph (b) and the word “and” immediately preceding it.”

14: Schedule 15, page 205, line 9, column 2, at beginning insert—

“In section 88(5), paragraph (b) and the word “and” immediately preceding it.”

On Question, amendments agreed to.

My Lords, I beg to move that this Bill do now pass.

Moved accordingly, and, on Question, Bill passed, and returned to the Commons with amendments.