My Lords, I have already declared my interest as chair of the Hanover Housing Association, which provides extra-care housing. I must now declare an interest as president of the Local Government Association. I am grateful to the LGA for its briefings on the Bill.

The first amendment in my name in this group, Amendment 17, and Amendment 44, which is also in the name of the noble Earl, Lord Howe, both raise questions about the real cost of providing care free of charge to people with high needs living at home. Amendment 44 calls for a regular appraisal of the actual expense in place of the unsure estimates that are all we have to go on at present. Amendment 17 seeks to put back the date of commencement of the legislation by six months.

My motivation for pursuing these amendments comes from the real anxieties felt throughout local government that, first, the Government’s “guesstimates” of the costs involved may turn out to be highly inaccurate; secondly, that the financial penalties, possibly in hundreds of millions of pounds if the figures turn out to be underestimates, will be borne entirely by the local authorities, which are already expected to contribute £250 million by making efficiency savings on other spending; and, thirdly, the current planned deadline of 1 October 2010 represents for local authorities an impossible task.

Let me explain why these fears, expressed very plainly by the LGA, seem likely to prove well founded. However, I preface my remarks with some positive comments about the financial arrangements which the Bill seeks to deliver. It must be a good thing that the Bill has helped to trigger this national debate on paying for personal care for older people and others. In the mid-1990s I organised an inquiry by the Joseph Rowntree Foundation into paying for long-term care. We recommended a national care service, with no boundaries between health and personal care, free at the point of delivery, but paid for by a compulsory national care insurance scheme funded by payments from earnings over one’s lifetime alongside national health insurance contributions. We failed at the Joseph Rowntree Foundation in 1996—as did the King’s Fund with an excellent financial analysis from Sir Derek Wanless 10 years later—to provoke sufficient debate for this issue to become a central concern for politicians of all parties. The publication of this Bill has helped to bring these issues centre stage and, I hope, will eventually lead to the essential consensus that we need on how the dramatically rising care costs of the future can best be met.

My second positive comment about the Bill is that its financial framework is built on removing some of the divide between health and social care budgets. The Government intend that this will lead to £420 million moving from the central health budget to the local social care budget. This is just the kind of holistic, joined-up thinking, pooling resources across old boundaries, that will achieve sensible outcomes for those who need personal care at home.

My third commendation for the Bill is that it should lead to equality of treatment in the assessment of care needs throughout the country, along with, I hope, the portability of that assessment for those who move from one place to another, as proposed by the noble Baroness, Lady Campbell. This approach to assessment of needs should lead to greater fairness all round. However, I believe that these amendments are necessary if local authorities are to be able to carry out the new duties now laid upon them.

Amendment 44 would make sure that Parliament and the wider public know the real cost of free personal care at home and understand where the cost will fall. They can then decide whether any in-flight corrections are needed to make the arrangements affordable at central and local government levels. The amendment would require the Secretary of State to commission an independent review, initially and then annually, reporting to Parliament on what the measures really cost and what they are likely to cost over the next five years. The amendment calls for the itemisation of any efficiency savings which the Government expect will arise from a reduced use of residential care by people for whom the local authority has to pay. I am not sure how real these savings may be, but if there are savings, the independent review will identify them.

The noble Earl, Lord Howe, spelt out at Second Reading some of the key concerns of the LGA’s members. I want to underline and expand on these points. I fear that the accuracy of the Government’s estimate of a £670 million total cost is very much in doubt. The Bill’s impact statement says there is “inherent uncertainty” in estimating the costs. It is not known how many people who currently fund their own care at home will come forward and claim the costs of care from the local authority. It is unknown how many people who have gone into residential care and pay their own way will move back to their homes or into new homes or extra-care housing where their care will be free. Statistics are not collected on the number of people who are defined as being in “critical” need of care under the Fair Access to Care Services assessment process. Nor are there figures for the numbers already receiving reablement services or what proportion of those receiving reablement services will need no further help once that reablement exercise is over. Therefore, there are lots of uncertainties.

The Association of Directors of Adult Social Services reckons that the true cost of offering free personal care to those with high needs could well exceed £1 billion rather than the Government’s figure of £670 million. Because the Department of Health has capped its own contribution at £420 million, the balance will all fall on the local authorities. I have noted that local councils are already expected to fund £250 million in very uncertain efficiency savings. For sure, there are few opportunities for any savings within the overstretched social care budgets. Eighty-one per cent of home care is currently provided by the private sector under very competitive contracts. Wages are notoriously low and, consequently, staff turnover can be high and shortages of properly qualified care workers are acute in some areas. Social care has had to be fiercely rationed in many areas, so it is not surprising that local authorities are fearful of the consequences, not only for funding the £250 million allocated to them but also perhaps another £300 million if the Government’s estimates of the real cost prove completely wrong.

My Lords, the noble Lord, Lord Best, has succinctly summed up the case. The Government’s timetable for implementing the Bill is unrealistic in the extreme; in fact, I am afraid that I go so far as to say that it is grossly irresponsible.

Local authorities have already set their budgets for the coming financial year, which already include substantial efficiency savings. They are therefore coming at this exercise not only not knowing how they are going to find the money to fund free personal care but completely unprepared for the practical aspects of implementation, as the noble Lord rightly said—never mind having to get used to a new system of assessment, which is a major task in itself. They will have to have enough people on the ground capable of responding to what in some areas will be a tidal wave of applications. In many councils, those trained people on the ground are simply not there.

We know—and the Government themselves admit—that the costings underpinning this policy are of the weakest kind. They are based almost entirely on assumptions which themselves rest not even on vague data but on no data at all. Even supposing that areas for further efficiency savings can be identified, the Government themselves concede that such savings do not just happen overnight. They happen gradually, over a period of years. Therefore, to expect councils collectively to find £125 million as from October this year, and £250 million per year thereafter, is to place upon them a burden which not even the most well managed of them will be able to sustain.

Make no mistake, this is a new burden. It defies belief that the Minister can claim that it is not. It would not be a new burden if central government were funding the whole policy, but they are not. Central government have limited their own liability, while at the same time inflicting unlimited liability on to local government. The result of that is likely to be that councils will find themselves making ill thought-through and perhaps arbitrary decisions in order to achieve instant savings.

These rushed decisions are almost bound to impact adversely upon council residents. We cannot predict in what ways, because that will depend on the budgets that are cut, and/or the new charges that are levied. Even then, councils will still be groping about in the dark prior to 1 October as regards the costs of implementation. London councils have pointed out that if the Government’s estimates are incorrect even by 1 per cent in the first year, the additional costs nationwide could amount to another £40 million.

The Minister knows, without me telling her, that introducing any new policy brings with it upfront costs. It is no different here; upfront costs will be incurred at the precise time when councils are expected to make savings. What estimates have the Government made about the additional manpower resources needed to deliver reablement on the scale envisaged? If no such estimate has been made, do we not owe it—at the very least—to local authorities to think about this in a measured and considered way? The money for reablement is one thing, but you need trained people to deliver it to the right standard of quality. If you do not have that, you are creating false expectations among the public.

The Royal College of Nursing is very concerned about this, as is the United Kingdom Homecare Association. I have seen some of the responses from local authorities to the department’s consultation exercise and a note of panic is detectable in some of them. This is not just on the funding question but also on the issue of manpower resources. Again, I say that it is irresponsible of the Government to take things at this breakneck pace. It is not being straight with the public. There is only one logical way forward, which is to revise the timetable for implementing this Bill and the regulations.

The Government need to get round a table with local government and to put together a more robust impact assessment based on much more accurate and reliable figures. This can be done. Only then, when proper costings are in place, and everyone agrees that the plans are workable and affordable, should the policy be implemented. Whether the policy can ever be made workable and affordable has to be a matter of doubt but it is certainly neither of those things at the moment. I very much hope that the Minister will take on board the very serious concerns expressed on this issue and be prepared to act accordingly.

My Lords, I shall speak in favour of the two amendments to which I have appended my name, Amendments 38 and 46. The first of these prescribes that regulations under the Bill should be subject to the affirmative resolution procedure, not the negative resolution as now, and the other that there should be a commencement date for the Bill, which again would be subject to the affirmative procedure.

In moving these amendments, I am delighted to be quite confident that this time the Minister will not be able to say that these are wrecking amendments. They are designed specifically to improve the Bill, and I hope therefore that I shall be more seductive with my arguments on these than I proved to be on the “wreckers”.

I can be pretty brief because the case for the amendments is self-evident. The Bill is the thinnest of skeleton Bills; it does not in itself do anything except remove the limitation on local authorities. All the substance—the flesh, the bones, the blood, the brains—is to come in the regulations, which are of course out for a consultation that closes tomorrow. It is sad indeed that the House has to consider the Bill today when the consultation on the regulations does not even close until tomorrow, and it is a sign of what the noble Lord, Lord Butler, who has participated in this debate, said earlier: that the Bill is being treated as if it were a piece of emergency legislation.

I see that the noble Lord, Lord Sutherland, is with us, and it is good to see him. It is quite strange: for 10 years he and I, with different solutions in mind, have tried to get long-term care up the policy agenda. We took one step forward sometimes, but usually two steps back. Then, suddenly, as a result of the Prime Minister’s conference speech, it has become a subject so urgent as to require emergency legislation without any of the safeguards that this Parliament and this country’s unwritten constitution usually demand in such cases.

It is not often that you get a Bill without a commencement date. It is certainly not often that you get a Bill introduced at this haste without a commencement date. It is never the case that you get a Bill introduced at this haste without a commencement date where the timetable is so flimsy—and where, for the reasons that the noble Earl, Lord Howe, set out so well, it is extremely doubtful that the timetable is even attainable.

There is a further argument for a commencement date, which arose earlier in our debates: there is widespread agreement, although it seems harder to turn this into reality, that we need some form of consensus over this. It is no good producing a Bill to last the four weeks until a general election; we want a Bill that will take us forward in policy in this area not over days, months or even years but over decades, because decades are the time horizon for the Bill’s effects. It therefore makes sense for a commencement date to be after a general election. The proposal, which would insert a commencement date to be agreed by affirmative resolution in both Houses, would have that effect. In my judgment, it would not be possible for the Government to get an order of that kind through before an election.

Our second proposal is that this be subject to the affirmative resolution procedure. Frankly, I am astonished that the Government have tried this one on. The argument is that the regulations that are being amended by the Bill were under the negative resolution procedure, and therefore the Bill should be too. That is rather like saying that a home that was fit for a mouse will of course be appropriate for an elephant. The House is clearly required to look at the amendments in detail in full debate and, if they will, agree them. We talk sometimes about Henry VIII powers. On that sort of scale, Henry VIII was an uxorious monogamist in comparison with the Bill, which is simply unsuitable to be taken under the negative procedure.

I commend both these amendments to the Committee. I hope that the Minister will accept them today; if not, she may be assured that we will be pursuing them on Report. It will be a much better Bill when we succeed, as I am wholly confident that we will, in inserting both amendments into it at that stage along with other necessary changes.

My Lords, I support Amendments 38 and 46, particularly Amendment 46, on the grounds that they would both require some further action in Parliament before the Bill came into effect. Indeed, I do not see how the Government could honourably object to having a procedure of this sort. I have criticised the process by which this policy was abruptly adopted and introduced, but I leave that aside. Nobody could listen to the debates today without being aware of the serious concerns among those in the frontline about the incentives that this Bill would introduce, and nobody could be unaware of the controversy about the costs of the Bill and the uncertainty about that. As the noble Lord, Lord Lipsey, has said, the consultation procedure does not even finish until tomorrow.

There used to be—I hope there still is—an honourable convention that, in the lead-up to a general election, a Government did not take decisions which would commit the next Government to very wide-ranging and possibly irreversible activities. However, when the country is in the economic state that it is, to introduce a policy which, on the Government’s own estimate, would cost £670 million a year, the source of which has not been identified, is in my view “worse than irresponsible”, to take the expression of the noble Earl, Lord Howe. We have a situation where the Government are arguing that it is too early to start reining back public expenditure to reduce public debt, and that is a big argument in the politics leading up to the general election. It is one thing to say that it is too early to cut back expenditure; it is quite another to force through in the weeks before a general election a policy like this, which would impose on the Government after the election a very large and indeterminate piece of extra expenditure.

The Government may win the general election. If they do, it will still be in the Government’s interests to have had a pause for reflection, to have taken into account the outcome of the consultations and to have considered the regulations which should be brought forward before they bring this Bill into effect. If they lose the general election and the Opposition become the Government, for the Government to have forced through this legislation in advance of the election is, in my belief, in the highest degree irresponsible. I do not speak from a politically partisan point of view when I say that. In political terms, the Government might regard this as a piece of scorched earth; I think, in national terms—and I do not use these words lightly—to force through this legislation, in advance of a general election, and to impose it on an incoming Government would be an act of national sabotage.

My Lords, follow that, as they say. The noble Lord, Lord Lipsey, has three amendments in this group to which I have added my name, but I support all the amendments in this group. They go largely to delay and alter the style of implementation, giving the Government more time to do what they need to do to get this legislation in shape. It is the most important group of amendments that we have debated today. If it were to be accepted, it would allow all of us to feel a little more confident that what the Government want to achieve would eventually be achieved by a consensus between the parties and in the country about what needs to be done on personal care. This would give us a real breathing space, and an honourable one for this Government to accept. I support the amendments in this group and I hope very much that the Government will listen.

I will speak to Amendment 47, which stands in my name and is grouped here. In doing so, I thank the noble Baroness, Lady Thornton, for her efforts to ensure that Members of this House had copies of the draft regulations and the consultation paper on draft regulations. There is something fundamental in those documents which led me to table Amendment 47, which asks for there to be a review not within a year of the Bill being implemented, but within six months. The reason for that is that I think noble Lords have overlooked something fundamental. We have made an assumption about the eligibility for this provision; we have assumed that it will make free personal care widely available to many people.

I am not sure that that is true. It depends entirely on the answer to one question, which I want to put to the Minister. Pages 14 and 15 of the consultation document about the regulations helpfully set out two things side by side. One is the FACS “critical” criteria band; the other is the list of activities in daily living with which people must have problems to be eligible. It is quite clear from the activities of daily living that someone must have problems with four of them. However, in the FACS “critical” band, the wording is not clear. The criteria for the critical band are as follows; I apologise for reading them out briefly. Somebody’s needs are deemed to be critical when:

“Life is, or will be, threatened and/or … Significant health problems have developed or will develop … Serious abuse or neglect has occurred or will occur … There is, or will be, little or no choice and control over vital aspects of the immediate environment … There is, or will be, an inability to carry out vital personal care or domestic routines … Vital involvement in work, education or learning cannot or will not be sustained … Vital social support systems and relationships cannot or will not be sustained and/or … Vital family and other social roles and responsibilities cannot or will not be undertaken”.

How many of those criteria must a person fulfil to be eligible? This is the curse of the bullet point; it is not clear. It mentions these criteria but says “and/or”. Is it two? Let us presume that it is two. Is it three? Is it four? That, in conjunction with somebody having to have problems with four ADLs, means that somebody must be very, very ill and restricted in their ability to live to be eligible for this. That makes a huge difference to all the assumptions that underlie the Bill.

It could be that in six months’ time it is quite evident, after the implementation of the Bill, that the criteria have been drawn so narrowly that it is not delivering personal care to anyone, or to anything like the number that had been assumed. In which case, I assume, the Government would quickly want to rectify that. Equally, in six months, if this legislation is enacted, word may go around like wildfire that free personal care is available, at which point thousands and thousands of people who self-fund present themselves for assessment. In either of those two cases, that means that this legislation would be wrong. Therefore, it seems to me that within six months we can begin to tell whether it is appropriate or not. The critical question that I want to ask the noble Baroness is how many of those criteria does one have to fulfil? From that we can work out what the impact is likely to be both in budgetary terms and the likely impact on social services departments, which the noble Lord, Lord Best, set out so eloquently.

My Lords, the financing of this Bill is a puzzle to me but then lots of things to do with finance are a puzzle. As I understand it, the Pre-Budget Report suggested that annual savings of £250 million could be achieved from the reduced costs of residential care by 2012-13—and thus I suppose available to local authorities. However, after implementation on 1 October local councils would be expected to find an additional £250 million a year straight away. Are these two sums unrelated, though strangely the same figure? The submission from the LGAs seemed to me persuasive, as did the speech of the noble Lord, Lord Best, tonight.

It is intriguing for a bishop that the Government’s declared commitment to ensure new burdens falling on local authorities should be fully funded is commonly called the “new burdens doctrine”. I fear doctrines are much misunderstood. They are thought to be rigid and inflexible by those who do not understand them. Cardinal Newman, soon to be beatified, wrote a lot about the development of doctrine. I will spare you too much theology. The essential truth remains, in his understanding, that the understanding of doctrine develops and a doctrine gradually discloses more of its truth through history. Thus the doctrine is reshaped as its truth unfolds.

I wonder what sort of unfolding of the “new burdens doctrine” we are actually witnessing in relation to this Bill. There seems to be a curious flexibility built in about local government financing of the provisions of this Bill, which is not carried across into the very sharp distinctions that are drawn between care at home and care in residential care homes.

I was much struck by the explanation given by the noble Baroness, Lady Barker, of her amendment. It seems to me what we probably need is both a short-term review, for the very reasons that the noble Baroness, Lady Barker, has explained, as well as much longer-term reviews of what this Bill might lead to. It could well be what the noble Baroness, Lady Barker, has explained will happen. The fear in my part of the world is a rather different one—some of the adult day care centres in Norfolk have been under threat already. They certainly do not care for those in the greatest need, far from it, but as well as specialist services they provide meals, companionship and a life beyond their home for those who would otherwise have very little social engagement at all. Being continuously at home without any social encounter can cause many older people to decline in spirit pretty rapidly and that often leads on to greater physical decline.

Such unintended consequences of this legislation could be very expensive in a host of ways, not simply financially, but in terms of our social fabric. I noted that the briefing from the Equality and Human Rights Commission, while broadly supportive of the Bill, raised this point about negative trade-offs. What I am sure none of us wants to see is the free provision of personal care for some in great need at home leading to others, with lesser needs, feeling imprisoned in their homes.

My Lords, having listened to the debate on these amendments, I think that whatever happens, it is most important that vulnerable people and their carers should not have their hopes raised too high by what seems to be an impossible challenge, especially if there are not enough trained personnel to make it happen. It is not just finance that is important; it is also people’s hopes, expectations and spirit.

My Lords, I support many of the amendments in this group: Amendments 17, 38, 44, 46 and, with some modification, Amendment 47. The important thing about all these amendments is that they would require further interrogation by both Houses of Parliament on the content of the Bill and on the much wider range of issues in which it is enmeshed.

I have a specific point on Amendment 44. When something like this is put into place, it is important that we see the outcome in terms of real costs. However, I would also want to add the word “net”. We need to look at the net costs of provisions of this kind. The information that I have is that in Wales, for example, the percentage of the cost of providing personal care raised by means-testing is in the region of 14 or 15 per cent. That means that the expenditure is already committed to virtually 85 per cent of actual costs. We need to see what the net cost is in order to properly assess whether savings elsewhere would go some way—perhaps the whole way—towards covering some of these costs.

I support these amendments because, as I said, there has to be rethinking and constraint, but I would not want to stop the Bill dead in its tracks. Naïve as I am as a Cross-Bencher and in the ways of party politics, I realise that emergency legislation is the flavour of the month before a general election. However, as the noble Lord, Lord Lipsey, indicated, this issue is back on the agenda in a sensible and serious way. The wider community is debating this sensibly regardless of whether we in this House and down the Corridor are doing the same.

I fear that if the Bill is stopped in its tracks, it will not come back in significant form after an election—whether as a similar Bill or as any other legislation. My fear is that the discussion of these immensely important issues will once again be sent into the long grass because “they are too hard to deal with” or “the problems are too large and the costs would be too great”. For various reasons, the latter view is naïve. The costs of pensions in the public sector are too great, but we are not debating those in the same detail. We ought to be looking at this issue and bringing it back. It will not be brought back in any realistic way unless something is put on to the statute book that in the end, to be honest, requires revision. These provisions allow the possibility of such revision.

My Lords, the noble Baroness, Lady Masham, raised an important point regarding the personnel available to deal with these issues. They are not available. From both direct personal experience and anecdotal comments from people who have told me of their histories, I have found that in many cases local authorities cannot assess anyone within three months. If that is the case, how will they carry out all these new assessments? Getting people trained for these jobs will be a major issue, not just in terms of expense but in terms of getting them all to a point where they can operate efficiently. I said on Second Reading that the whole Bill is pure electioneering. That is tragic because this is a worthwhile cause which we should all be looking at.

The points made by the noble Lord, Lord Sutherland, are very interesting, and I appreciate his comments. However, I support the amendments. The whole thing has to be thought out much more thoroughly and local authorities must be sure that they can produce not only the money but the trained staff necessary to carry out the assessments and deliver the care.

My Lords, I am replying to this group of amendments: Amendment 17, in the name of the noble Lord, Lord Best; Amendment 20, in the names of the noble Earl, Lord Howe, and the noble Baroness, Lady Morris; Amendment 38, in the names of the noble Lords, Lord Warner and Lord Lipsey, the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy; Amendment 44, in the names of the noble Lord, Lord Best, and the noble Earl, Lord Howe; Amendment 45, in the names of the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy; Amendment 46, in the names of the noble Lords, Lord Warner and Lord Lipsey, the noble Baroness, Lady Murphy, and the noble Earl, Lord Howe; and Amendment 47, in the name of the noble Baroness, Lady Barker.

This group seeks to address a number of issues concerning the Bill—the commencement date, the way in which it will be reviewed, and the cost of the Bill. It is right that legitimate concerns are raised about the way the provisions are introduced, the costs and how it will be reviewed. We do not agree that delay is needed or warranted. We have made it clear that we want to introduce the regulations so that they will take effect from 1 October this year and people can benefit from the earliest possible date. I think that it is disappointing that so many councils that have responded to the consultation have so far focused almost solely on the financial aspects of the scheme—I will return to our view of their figures in a moment—and so little on the practicalities of implementation that we identified in our consultation document.

These proposals are not brand new or a great surprise to these councils; what we are intending to do was signalled well in advance. Indeed, we are working with them and with other stakeholders on an almost constant, daily basis. We are committed to working very closely with them and supporting them through the process of introducing this. We know that this is a challenge for them, but we think that it is achievable if they start in a timely fashion.

The Bill has a simple purpose: to bring relief to those disabled adults and older people who have the highest personal care needs. Despite the furore surrounding the Bill, we do not believe that our costs are underestimated. We think that they are a fair cost: £670 million, with £420 million funded from the Department of Health and £250 from local government efficiencies. The estimates of the costs of free personal care at home are derived from analyses by the Personal Social Services Research Unit at the London School of Economics, using its micro-simulation package for older people, with additional analysis by Department of Health analysts. We are confident about the accuracy of these estimates.

May I please interrupt the Minister? It might save the Committee a lot of time if she would agree to publish a full account of those calculations by the PSSRU and the department, so we can all take a view on them.

I will certainly look into ensuring that those calculations are published as far as they can be. I thought that they already had been.

The ADASS survey, to which less than half of the councils responded, proposed an annual cost of £1 billion rather than £670 million. Your Lordships will not be surprised to learn that we have gone through the figures with the ADASS, and it has conceded not only that it had overestimated the effects of lost income but that it had misread the impact assessment on the likely numbers of younger adults who might be eligible for free care. Our detailed consideration of its survey therefore gives us no reason to believe that the estimates that we originally published were not correct. However, we will be focusing on this and remain committed to our review in 12 to 18 months, after the policy is introduced, rather than providing powers to review it in the Bill.

I say to my noble friend Lord Lipsey that the PSSRU modelling has already been published. I will ensure that he receives a copy of it. I thought that I had read it somewhere.

Amendment 17 seeks to delay the introduction of free personal care at home to those with the highest need by delaying the date when the necessary regulations may be enacted. We have been clear from the outset that we intended to introduce the provisions from 1 October. We have already made available a working draft of the regulations which will inform how this scheme is proposed to be delivered, and we intend to publish detailed guidance alongside the national assessment tool for determining eligibility for free personal care in the early summer. We know that this is a challenge for local government but, as I say, it has had plenty of notice of these proposals. It also has a highly trained workforce and the tools which will enable it to implement this if it has the will to do so. We do not believe that there is any need to delay the implementation of the regulations enabled by the Bill in this way, and as such ask the Committee not to support Amendment 17.

I turn to Amendment 20, in the name of the noble Earl, Lord Howe, and the noble Baroness, Lady Morris. The policy is to provide free personal care and it is right that councils play their part in delivering it. As such, it would be inappropriate to accept this amendment, which would enable the Secretary of State to put a cap on the amount of free personal care which councils can be required to deliver. I am concerned that setting such a limit, giving local authorities the protection of an arbitrary cap on expenditure, might reduce the incentive for them to manage the costs of the policy as effectively as possible. Indeed, the Audit Commission’s report Under Pressure, released last week, said:

“There are huge financial pressures on councils in the years ahead, but redesigning services and exploiting technology can make them better, more efficient and more personal”.

The report found that the longer people can stay at home, the happier they are and the less they cost the taxpayer. Innovative, personalised services mean that older people stay independent longer and save public money in the long run. Members of the Committee have conflated two issues as regards savings. Indeed, savings are to be gained in the long run by keeping people out of homes and independent; there is no question about that. However, those savings will not fund this scheme in the next two years; 4 per cent of local authority spend—which is what local authorities are committed to save through efficiencies—is 4 per cent of almost £100 billion. Therefore, it seems to me that meeting the costs of this scheme within those savings is entirely within the capabilities of local government.

We cannot accept Amendment 38. The current position under Section 15 of the Community Care (Delayed Discharges etc.) Act 2003 is that regulations made by the Secretary of State are subject to the negative resolution procedure. Despite the impassioned plea from my noble friend on this issue, we listened to what the Delegated Powers and Regulatory Reform Committee had to say about the matter. On 22 January this year, the committee reported:

“There is nothing in the Bill to which we wish to draw the attention of the House”.

We have made available a working draft of the regulations. If at all possible, we intend to publish the Government’s response to the consultation when the Bill reaches its next stage; in other words, at the earliest opportunity. Noble Lords will know that I will keep them informed and make that available as soon as I am able to do so.

Amendment 44 would require the Secretary of State to commission an independent review of the costs of delivering personal care each year, the estimated costs of delivery in the next five years, the savings made from decreased use of residential care each year and the estimated savings in the next five years. It would require an annual report to Parliament of this information. In the impact assessment for the Bill we have committed to reviewing the implementation of free personal care within the first 12 to 18 months of the policy coming into force. After this review it will be possible to reconsider the predicted costs of delivering free personal care and the conditions for eligibility if necessary. If our costings for the first year prove to be accurate, it would seem to be an unnecessary burden on local authorities to have to produce data to enable the Secretary of State to report to Parliament annually on this matter. Such a report would require a much greater volume of data collection by local authorities than we had envisaged.

Amendment 45 seeks to delay the commencement of the provisions within the Bill until a review of their affordability has been carried out and reported to Parliament. Such a report would achieve nothing because the Bill’s provisions themselves simply concern the enabling powers for regulations on free personal care, not the substantive provisions on free personal care themselves, which would include the circumstances in which free personal care is to be provided. It seems to me that the review at 12 to 18 months would deal with that issue also.

Amendment 46 is another attempt to delay the coming into force of the Bill and the provision of free personal care to those who need it. The Delegated Powers and Regulatory Reform Committee has examined the memorandum which we sent it and which reflects our views on the appropriate level of parliamentary scrutiny for any secondary legislation that is to be made under Section 15 of the 2003 Act.

Finally, the answer to the question from the noble Baroness, Lady Barker, is one—one of the criteria of the FACS list which she read out. As for her Amendment 47, which would require an independent review of the costs of delivering free personal care within six months of the Bill coming into force, we think that our 12 to 18 month review will be more meaningful and that we will be able to reconsider the predicted costs and how the scheme is working at that point. We think that six months is too short a period for a meaningful review to be undertaken and I ask her not to press her amendment.

My Lords, I am grateful for the support from all round the Committee for the amendments in my name. There was possibly more robust support for some of the amendments in the names of others. The two parts of the group of amendments are really about the same things: they are about delaying the moment of implementation of this and about reviewing the costs. On Report, we will need to be clear about which parts of these amendments are best taken forward. However, at this stage, I beg leave to withdraw the amendment.

My Lords, at Second Reading a number of noble Lords talked about the position of carers, the position of carers in relation to assessment of need and the position of carers in relation to their capacity to implement care plans and the way in which those two factors are often confused by local authority staff carrying out assessments of people’s eligibility for services. This amendment addresses those two critical issues which determine whether or not many people are deemed eligible for free personal care. The first part of this amendment would ensure that somebody who is in need of personal care is fully and properly assessed and is given a choice over the type of service that they may be given.

There have been frequent references to Scotland. This is one of the areas on which the noble Lord, Lord Lipsey, and I have more profound differences than we do on many others. The evidence from Scotland—from a Joseph Rowntree Foundation-funded study—is not that carers have abandoned the people they care for; they have not given up caring for their relatives. They have, in a number of cases, changed what they do in order to make sure that life is more bearable for them and for the older people, and I think that that is an entirely right thing to do. This part of the amendment, building on that experience, is absolutely clear that the presence of a carer should not be taken as part of an assumption about somebody’s eligibility.

The second part is about qualifying services. At the heart of the Bill is something that we all know to be fundamentally out of step with the way in which many older people and their relatives now think. Their lives are very different from the lives of people when personal care at home was originally conceived. Many more people now work full-time or part-time.

The purpose of this part of the amendment is to enable people to be more imaginative in finding services that meet their needs. I was struck by what the noble Baroness, Lady Murphy, said about one particular group of carers: spouses, usually the wives of older men, who do not have any choice about whether they care for their husbands. There is an assumption that they will, even though they might themselves be frail and have a number of health difficulties. Often, those carers can perform personal care tasks but need help with other things to enable them to care for somebody with whom they have spent their lives. Having somebody come and do the washing or the housework once a week enables them to carry on with the task of delivering personal care. Many older people who are cared for do not want personal care to be delivered by a stranger; but in order for that to happen, their carer must be supported.

The amendment probes the extent to which, first, a carer's existence is not taken into account as part of the assessment of eligibility; and, secondly, how imaginative and free local authorities can be, working in partnership with service users and carers, in understanding the context in which personal care happens, and what the service needs may be, even though that service need may not be personal care itself but something that allows personal care to be delivered by somebody else. I beg to move.

My Lords, there is no doubt that most families want to provide care for their elderly and disabled relatives, and there is no sign of that willingness diminishing. As the noble Baroness, Lady Barker, rightly said, there has been no sign in Scotland of carers abandoning their relatives because free personal care is available. However, it is important that we do not wrongly assume that family members are willing and able to provide care; or that the care would be sustainable if it were imposed on family members at a particular time. If you do that, you will often force families to give up work, putting at risk their own health and their financial future. Therefore, you will possibly end up with more people being a charge on the state, or needing residential care or home care, than would otherwise be the case.

Some local authorities' self-assessment forms for disabled people ask whether any of their care is being provided by a family member or friend. So far so good; but they then do not include a provision to check with that person whether they are willing or able to provide the care. I remind noble Lords that that goes against current legislation such as the Carers (Recognition and Services) Act and the Carers and Disabled Children Act. It also raises issues under the Human Rights Act. I seek an assurance from the Minister that she agrees that we should always remember that caring takes place within an existing relationship, and that the nature, history and quality of that relationship should always be taken into account before any assumptions are made about a family's willingness to care.

My Lords, Amendments 22 and 41 in my name are grouped here. I echo a great deal of what the noble Baroness, Lady Barker, said. I also take fully on board the points made by the noble Baroness, Lady Pitkeathley. However, the amendment of the noble Baroness, Lady Barker, is not quite right because it is ambiguous. Before a person can be deemed eligible to receive free personal care at home there are three assessments which he or she must undergo. The first is an initial assessment that will usually be the precursor to a course of intensive reablement. The second is a community care assessment designed to identify the range of the person’s needs and what level of banding they fall into under the FACS definitions. The outcome of that assessment will in part be influenced by the result of the reablement exercise. Anyone placed in the highest FACS banding, “critical”, would be assessed on the number of activities of daily living for which they required personal care to be delivered to them by social services.

In practice, as I understand it, the second and third assessment legs will often be rolled into one. However, for decision-making purposes they are quite separate. The single assessment tool which the Government are bringing forward will be designed to inject national consistency into the assessment of need—in other words, whether a person’s needs are critical, substantial, moderate or low. It will not be able to take account of the particular living conditions in which the person finds himself.

To take a simple example, a man whose needs are assessed as critical may need help with four activities of daily living if he is living in a house with stairs. If he then moves to a bungalow his needs will remain critical under the national assessment process but he may only require assistance with three ADLs. This means that complete portability of benefits, which, in the abstract, many of us are keen on, cannot be delivered because it will always be necessary to assess someone by reference to their actual living conditions. So the noble Baroness’s amendment is flawed because it fails to draw a distinction between the single assessment to be carried out under national criteria and the assessment of eligibility for personal care which depends on the person’s individual circumstances and is a matter for the local authority concerned.

The question is whether the presence or absence of a carer should have any relevance in the various processes of assessment. My own view—and I hope the Minister will confirm this—is that in the assessment of a person’s overall level of need, which is what the national assessment tool will be used for, the presence or otherwise of a carer has no relevance or bearing whatever. The level of someone’s need is their level of need. However, when it comes to that person’s entitlement to personal care, whether free or paid for, it could well be that the presence of an unpaid carer affects the person’s eligibility for some elements of personal care.

For instance, if an unpaid carer were able and willing to supervise a person taking their prescribed medicines at certain times of day and the person himself was happy with that, there is no good reason for social services to assume responsibility for this task. So when deciding on someone’s eligibility to receive free personal care it is not unreasonable to take account of any assistance which can readily be provided by an unpaid carer. On the other hand, we do not want to see situations arising in which unpaid carers are unfairly exploited. Local authorities should not be able to impose unreasonable demands on carers as a way of avoiding their legal obligations to provide personal care. After all—and the noble Baroness, Lady Barker, effectively made this point—it is often when carers feel that they can no longer cope with looking after somebody on their own that local authorities are requested to provide help.

To what extent are would-be service-users entitled to insist that their eligibility to receive personal care in the home should take no account of whether a carer is willing and able to provide help with activities of daily living? This seems to be quite a difficult question because, if, as I believe, there is a difference between reasonably relying on a carer and unreasonable exploitation of that same carer, there is at the same time no obvious or easy way of making that distinction clear in regulations or guidance.

I take this opportunity to recognise the key role played by carers in supporting family networks with health and social care needs. The National Carers Strategy includes a 10-year vision for carers, a commitment to move carers’ issues to the “centre of family policy”, and to reflect this by promoting the concept of whole family care planning following separate assessment. Undertaking effective carers’ assessments is a key part of making this a reality. But while we will continue to rely on carers to contribute to the wider package of care, we do not want to place unreasonable caring burdens on them.

The planned White Paper is addressing longer-term issues, and it may have future implications for the way that social care is delivered. However, given that any fundamental system reform is unlikely to take place for some time, we have recently consulted on revised FACS guidance which will be published shortly in recognition that more immediate action can be taken to improve the current system. Compared with the previous guidance, the new FACS guidance will address the key role that carers can play in meeting people’s care needs and how their needs can be addressed at the same time if they are to continue in their caring role. In determining an individual’s eligibility for care, account will be taken of the input that the carer is able and willing to make. In that sense, it will not be “carer blind”, nor should it be, but this will help to establish whether someone is in the highest band for help with social care—FACS critical. For those with critical needs, the assessment for personal care will be based on activities of daily living and that will be carer blind, focusing only on what the individual themselves can or cannot do. That might be the opposite way around from how it was related by the noble Earl. I think I will check on that, but the Box tells me that that is what this says. A practice guide and online learning tools for FACS are being developed by the Social Care Institute for Excellence to help frontline staff and their managers apply the criteria in a more consistent way. These will be available in early April.

In relation to Amendment 18, I wish to stress that it is important that we properly reflect the role of carers, as outlined by my noble friend Lady Pitkeathley. At this point, I wish to pay tribute to the work that unpaid carers are doing up and down the country day in and day out. It is also important, as the noble Baroness, Lady Barker, pointed out, that we make sure when undertaking assessments that the role of a carer is not taken into account inappropriately. So, for example, when undertaking assessments, professionals should seek to establish whether a person can carry out a particular task such as washing or bathing, and that they are assessed on their own ability to do that, not the ability of the carer to assist them. Taking into account a carer’s role to a greater extent could inadvertently affect the outcome of the assessment for eligibility for free personal care. However, while I recognise the sentiment expressed in this amendment, we are committed to addressing this issue in statutory guidance. I therefore do not consider it necessary to have this on the face of the Bill, although clearly we will need to discuss the issue further as the guidance unfolds.

I turn to the point raised by the noble Baroness about “qualifying services”. Section 15 defines qualifying services as a range of services provided under community care legislation. This amendment would seek to extend the range of services provided free to any services needed by a person in receipt of personal care, not just services to meet their personal care needs. This would be uncertain and beyond the policy, which is limited to personal care for those in the highest need.

Amendment 22 aims to ensure that regulations may specify the extent to which a carer’s practical assistance can be taken into account when determining an individual’s eligibility for free personal care. We will be setting out the assessment process for deciding whether or not an individual is eligible for free personal care in statutory guidance and, as I have said, we will also be providing local authorities with a national assessment tool to help them make this judgment. The revised FACS guidance sets out how local authorities should take into account the practical support of a carer when they are carrying out a community care assessment and judging which FACS band an individual sits within, based on their level of risk. The additional assessment of personal care needs which will determine eligibility based on requiring significant help or prompting to carry out four or more of the activities of daily living will, as I have already said, be carer blind.

Finally, I note that Amendment 41 is consequential on the other amendments tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Morris of Bolton, which use the term “carer”, and is only necessary if these amendments are passed. In itself, the proposed definition of “carer”—that which is set out in the Carers and Disabled Children Act 2000—is unobjectionable. However, since those amendments to which Amendment 41 is consequential are being resisted, this amendment should also be resisted; I ask the noble Earl to withdraw it.

My Lords, before the noble Baroness, Lady Barker, decides what to do with her amendment, may I ask the Minister whether she and her officials can spare me some time between now and Report stage? It is quite clear that I have come at this subject from a completely different angle from the Minister. I may have done so with less than credible logic on my side, but I am slightly surprised by the answer she has given, even though I am very grateful for it. It is clear that the Government have done a great deal of thinking about this, and I probably need to be briefed on that thinking.

I am happy to do that. Having worked opposite the noble Earl for the past two years, I think it is worth us having a discussion about how we have got completely different views on how this works.

I thank the noble Baroness for her characteristically comprehensive and thorough response to the amendments tabled by myself and the noble Earl. It would be extremely helpful if there was a briefing for all Peers on this matter. This is a critical element to the whole of this Bill, and the place of carers is critical to the whole of social care. If there is confusion about this here and now, it needs to be clarified. Believe me, by the time it works its way down to the frontline of a social services department for an assessment, there will be major confusion, and people will lose out on entitlements which to them are quite often the difference between managing and not managing, and getting by with dignity. I am very grateful to the noble Baroness, but it would be helpful if she would clarify this matter for everybody concerned. I beg leave to withdraw the amendment.

My Lords, Amendment 19 is intended as a means of raising a series of questions to the Minister about the kind of personal care which will and will not be covered by the free care at home policy.

It is often the way in politics that Governments receive no thanks at all for the good things they do. Here, I think we have on our hands the potential for good intentions to bounce back in Ministers’ faces. The way the Government are setting up this scheme is, I am afraid, bound to lead to disappointed expectations on quite a large scale. They have led the public to think that people who have been through a reablement process, and whose needs are assessed as critical, will be eligible to receive free personal care at home—we know that is not so. Free care will only be available to those in critical need who require significant assistance with four or more activities of daily living. So then, is it correct that someone whose needs are critical and who requires significant assistance with four or more activities of daily living will be eligible for free personal care in the home? They may but, on the other hand, they may not, and that is because in the regulations to be laid under the Bill personal care and activities of daily living will be carefully defined in ways which exclude a whole range of important personal care activities. For example, cleaning, laundry and driving someone to the doctor are services for which a charge will continue to be made. To some people that will not come as a welcome piece of news; to others it will simply be confusing.

The issue of potential public disappointment and discontent is wider than this because, whenever lines in the sand are drawn and definitions set in stone, someone will always end up on the wrong side of one or other of them. The difference between someone having care needs that are substantial and care needs that are critical is often quite small. The difference between needing help with an activity of daily living and needing significant help with that activity can be equally tenuous and is often quite subjective. What is meant by “significant”? It could be a significant amount of help or it could be help which achieves a significant result. Neither the regulations nor the current guidance provide clear and simple answers to these key questions of eligibility.

The scope for disputes between local authorities and service users will be much greater than it is at the moment because much more will be at stake. A lawyer who deals in this field of the law said to me that he knew solicitors who were rubbing their hands in anticipation of dealing with the litigation that lies ahead. Let me make clear that I repeat that remark with no relish whatever. Disputes and litigation will be a tremendous distraction for all concerned, other than the lawyers, and a waste of resources. However, it looks like coming about because the Government have rushed at this policy and have not allowed themselves and everyone else to make sure that it is deliverable without unintended adverse consequences.

The Equality and Human Rights Commission and a number of other organisations have questioned the definition of personal care contained in the draft regulations. They have pointed out that the categories of personal care listed do not dovetail with the six categories of activities of daily living. For instance, the definition of personal care makes no reference to helping people with mobility problems, or managing and monitoring medication, or basic food preparation, even though these things feature in the activities of daily living. What is the reason for that mismatch? Should not the draft regulations be clearer about what is intended? I beg to move.

My Lords, I speak to Amendment 32 in this group, which might be called the housing amendment as that is what it covers. Alongside social care and health, housing represents the equally important third leg of the stool; without the housing leg the stool falls over. It is no good assessing an individual’s personal care needs and switching funds from health to pay for personal care if the critical problem is the unsuitability of that person’s home. You cannot discharge someone from hospital safely if the fall that they are recovering from is likely to recur when they get back to the unsafe premises that they came from: if they cannot get up the front steps; if they cannot get upstairs to the bathroom; if they need assistance in the home; if it is freezing cold. These are all ways in which the property may make someone a prisoner within it or debar someone from living there and force them into residential care.

I rise to speak to Amendment 33. I want to speak particularly about people suffering from dementia. There is quite a concern that many people with dementia will not meet the four ADLs or the critical criteria for an inability to carry out vital personal care or domestic routines, as described, despite having a substantial level of need. That is obvious when one thinks about the symptoms of dementia in its various forms. Your Lordships will recognise that one of the key reasons for this is that many people with dementia find that they can carry out some personal care routines with various degrees of difficulty, but only when they are prompted by care staff or carers. Providing personal care to someone with dementia is often very different from providing care for a frail older person, because the person with dementia can easily become confused and distressed and very often resists the essential care that he or she needs.

Careful prompting and supervision play a critical role in the care of many such people. There are all sorts of things that they can do—they are very simple things when you are well—such as swallowing medication, chewing properly, preparing food for themselves, washing properly, and dealing with and maintaining continence, if they are carefully prompted by trained people. The amendment would ensure that dementia is recognised as the illness that it is. It is essential that it is inserted. I hope that the Government take it seriously, so that the supervision and prompting that are necessary can be provided.

I shall speak to Amendments 37 and 42, which stand in my name. I am pleased, as always, to follow the noble Baroness, Lady Greengross. It is fitting that I, too, want to talk about people with dementia and the importance of having staff who are trained and who understand the nature of dementia in the delivery of services.

I used to have an office whose window looked across the street. Twice a week, a little van would turn up from social services. A lady would get out and ring the door of a house that was divided into flats. She would wait for quite a while while the gentleman inside came to answer. All the time, she would continue to talk to the driver of the van. When the gentleman came to the door, she would hand him his package of dinner while continuing to talk to the driver. She would then turn around and walk away. That gentleman had dementia. She did not even know whether he ate that dinner, fed it to his dog or threw it in the bin. She had no idea of what his life was like inside his house. It was the absolute epitome of a service being delivered so badly and so wrongly for somebody who had dementia. I would hope that that sort of thing would not be so common these days, but who knows? Hard-pressed staff might find themselves in a similar position.

I wanted to table the amendment because it is important that we remind ourselves that we are talking in this Bill about two very distinct groups of people. There are adults with disabilities who for the most part will have conditions which are life-long and stable. Their needs may change, but probably not much over time. We are talking also about older people whose conditions can change quite rapidly, and older people whose conditions might be limiting and long-term, and change gradually. Their needs are very different. I hesitate to say it in front of the noble Baroness, Lady Murphy, but, in lay terms, the needs of people with dementia can change. The noble Earl, Lord Howe, was absolutely right: the distinction between substantial need and critical need is very difficult to determine, particularly when people have fluctuating needs.

When speaking to an earlier group of amendments, I asked the Minister how many of the FACS-critical criteria one would have to meet. Those criteria include:

““Life is, or will be, threatened”.

That is a comparatively easy thing for a member of staff or an assessor to find out. However, there is also the criterion that:

“There is, or will be, an inability to carry out vital personal care or domestic routines”.

Is that so clear and easy to determine, and are the consequences of it so great? Therefore, I tabled this amendment and Amendment 42, which is similar to that of the noble Earl, Lord Howe, to determine exactly what is meant by personal care. There is, as noble Lords are aware, no definition of personal care in primary legislation in England. As several noble Lords have already spotted, the definition in this amendment is the definition in the Scottish legislation from the Community Care and Health (Scotland) Act 2002, as amended in 2009. The significant amendment in 2009 was the consideration of the preparation of food. When looking at an amendment such as this, it is perhaps very easy to dismiss as insignificant each individual sub-clause of each individual part. However, in terms of the life of a person who is likely to be eligible for free personal care—and for their carers—each and every one of these small things is an extremely important part of life.

The Government have always resisted having a definition of personal care in primary legislation, and I am sure that they will do so now. I would be staggered if they did not. However, one of the excuses that they have always run in the past is that putting a definition into primary legislation would by its very nature be exclusive and would probably be unworkable. In Scotland, however, that has proven not to be the case; it has proven that the lawyers, sadly, have not made that much money from bringing cases to contend what is meant by an unclear definition.

I also wish to echo the points made by the noble Earl, Lord Howe, that the definitions proposed in the Bill and in the regulations do not equate to the six basic categories of activities of daily living. That is pretty well bound to cause confusion, if one is not being too generous.

As I did at Second Reading, I echo the point made by the noble Earl, Lord Howe. Help with the provision of medication is a critical part of life for these people, and it therefore seems to me that it is a major omission. The prompting and supervision of people who have dementia to do some of the personal care tasks of which they are capable but which they cannot do if they are not prompted seems to me to be a critical part of this. I echo the point made by the noble Baroness, Lady Greengross, that prompting somebody to do that must be one of the areas of personal care.

My Lords, I strongly support Amendments 32, 33, 37 and 42. I was very interested in the comments of the noble Baroness, Lady Greengross, who knows so much about dementia; her remarks were very sad. Amendment 37, tabled by the noble Baroness, Lady Barker, also deals with dementia. It is important that there should be special provision for dementia, because there has to be recognition that people suffering from dementia have different requirements.

I like the way in which Amendment 42, tabled by the noble Baroness, set out a great catalogue of things—that is practical. I am not sure, however—I am only speaking from my past experience of Bills in this House—about that approach. Usually, when someone sets out a provision listing everything that one could possibly think of, someone else says “Oh no, you should not make it like that, because there will be other things that you have not thought of, so you should put it in some other way to cover that”. Moreover, there should perhaps be a code of practice or something like that, which would include all of those things—this might not be completely appropriate even for a schedule. However, it is right that people should view those topics that she has listed there.

I strongly support the amendment of the noble Lord, Lord Best. He is right about the importance of the built environment in order to support people receiving appropriate care.

The other amendments all go to the difficulties of the definition of the problem and how it relates particularly to people suffering from mental health problems in addition to physical health problems. Activities of daily living were originally used to assess people’s physical states.

It is not just dementia; dementia is merely the commonest and most obvious condition. Take, for example, an older person with a depressive illness or a paranoid disorder who is not eating or drinking without help because of ongoing delusional beliefs about food—or, even commoner, a person with cerebrovascular disease who apparently has nothing wrong with them at all but sits all day and does nothing as the result of profound motivational difficulties that are of cerebrovascular origin. The latter is a remarkably common complaint from families: “Me mum seems all right but she doesn’t actually do anything, doctor”, is how it is usually described.

It is a devil of a job sometimes to get this right. I refer to attendance allowance because that has been one of the great banes of the help that people have had available to them. I worry that we will have a rigid interpretation in the guidance that will make it easy to tick boxes and do the assessment, but will not be sensitive enough. So much will depend upon it. If we are going to have a dividing line between three ADLs, four ADLs and five ADLS, we have to be sure that this is a sensitive way of assessing people and that people have clear guidance. Personally, I think it will be a nightmare to make decisions of this nature. We should have some sort of definition in the Bill, and I support the amendment of the noble Baroness, Lady Barker, and the amendments of the noble Baroness, Lady Greengross, and her intention to get some support for people with more difficult assessment problems.

My Lords, I will be brief. I strongly support Amendment 32, in the name of the noble Lord, Lord Best, which would ensure that home adaptations are effectively integrated into the new free personal care arrangements.

As the Government made clear in their excellent strategy report, Lifetime Homes, Lifetime Neighbourhoods, housing adaptations are an essential component of the triangle of support, with heath and social care, in enabling people to remain living independently in their own homes, a point that has been made by a number of noble Lords. Many noble Lords will have had the experience of breaking their leg or their ankle and finding how difficult it suddenly becomes to do the basic essentials of washing and going to the loo because of the flight of stairs that they hardly ever noticed going up and down each day. Sadly, many noble Lords will have had the experience of finding that the home they have lived in happily for many years with their partner suddenly becomes the major barrier in helping them to care for that partner, when they become seriously ill.

By chance, this Committee falls on the day that will no doubt always remain a significant anniversary in my life, as it was 44 years ago today that I fell off a carnival float and broke my neck. If my parents’ home had not been adapted to provide a bathroom and a bedroom downstairs, the amount of personal care which I would have needed would have been considerable, and would then have been a continuing and recurring cost. The ODI report of 2007, Better Outcomes, Lower Costs, by the University of Bristol, reviewed the evidence of the implications for heath and social care budgets of investment in housing adaptations. It set out a wide range of evidence and states:

“Adaptations that remove or reduce the need for daily visits pay for themselves in a time-span ranging from a few months to three years and then produce annual savings. In the cases reviewed, annual savings varied from £1,200 to £29,000 a year”.

Housing adaptations need to be an essential part of this Bill and I very much hope the Minister will accept this amendment.

My Lords, I want to support the probing in relation to housing and dementia. I will say no more about it, other than that I hope it will continue.

I will comment briefly, I promise, on Amendment 42. I admire the thoroughness with which the noble Baroness, Lady Barker, conducts herself in proceedings such as this, but I wonder if she has perhaps gone a step too far in this amendment. Despite the fine provenance that she quotes for much of the material, there will inevitably be gaps—for example, there is no mention of insulin injections, which some would regard as fundamental. I do not want to see that added to the list; I am just making the point that there will always be gaps if you make a list. I would prefer a series of general points that have to be covered.

My Lords, I will reply to the group which comprises Amendments 19, 32, 33, 37 and 42. I have taken out about two-thirds of my notes because I am conscious of the time, so if I seem a bit truncated that is because I am.

I start by saying that the proposals in this Bill are for England and are not the same as they are in Scotland. In Scotland they offer a much different system, which is about the provision of full care free of charge, not personal care, as we are proposing, which is a much more targeted approach.

The Government entirely agree that a range of services and support needs to be available to help people to maintain their independence and, crucially, to help prevent their care needs from increasing. We know, for instance, that an older person who is losing some of their mobility, but is otherwise capable of looking after themselves, can be helped by the provision of home adaptations to continue living independently in their own home.

As well as these sorts of adaptations, early intervention and support services, such as balance training to help someone recovering from a fall, are known to be a worthwhile investment which both helps people to get back on their feet and continue living independently, and saves money in terms of preventing admissions or readmissions to hospital or residential care.

We know that prevention and early intervention are not only good for people but make absolute economic sense. However, we are not starting from scratch. The Government have been promoting and supporting this approach in a variety of ways. In the Putting People First programme we defined prevention as one of the essential elements of what a transformed social care service for adults would look like. We have given local authorities more than £500 million to support that transformation and, all around the country, have been developing preventive services to support people’s independence. Where this involves adaptations to the home, it is often done in partnership with housing providers, who can draw on disabled facilities grants. The allocations for 2010-11 will be announced shortly. We have also specifically promoted the development of telecare and other technologies through the £80 million preventive technologies grant made some years ago. On top of this, the Bill offers further support for reablement services, which include home adaptations and technologies. We are not just talking about the amount of money allocated by the activities of this Bill, but about building on other resources which are already available for adaptations to people’s homes.

Amendment 19, moved by the noble Earl, Lord Howe, seeks to insert a power for the definition of personal care to be included in the regulations. Of course, the noble Earl is right: it is necessary that we clarify our definition of personal care but it is not necessary to do so in the Bill. The definition is in the working draft, which reflects our current thinking. It may be subject to change following the close of the stakeholder consultation tomorrow and our review of the responses. I ask the noble Earl to withdraw his amendment on the basis that we will include a definition of personal care in regulations, as indicated in the current working draft.

Amendment 32, tabled by the noble Lord, Lord Best, raises several different issues. The first part of the amendment would require regulations to give local authorities the power to assess the suitability of an individual’s home for independent living where they have been determined to be eligible to receive free personal care at home. Clearly, it is important that, while many people wish to stay in their homes for as long as possible, they should not be living in an inappropriate setting. We would expect councils to look at the impact that suitable alternative housing or adaptation would have on helping to keep people in their homes. We completely agree with the noble Lord about both the importance of housing and the necessity of including it in the assessment. We would expect local authorities to check whether there are any needs that could be helped by aids and adaptations or additional services when they carry out their community care assessment. That is one of the reasons why we include reablement in these proposals—to encourage councils to think more broadly about the type and range of support that they should provide. The second part of the amendment refers to the need for personal care to include the provision of aids and adaptations. I think I mentioned our view on this in my previous remarks on this amendment. We agree with the noble Lord.

I turn now to Amendment 33. In the draft regulations, which we have made available to Peers, we have set out the eligibility criteria which we propose will determine who has the highest care needs and will qualify for free personal care. Our proposals require that, to be counted as having the highest needs, a person must first be within the Fair Access to Care “critical” band, and—as we have proposed and already discussed—need significant help when prompted to carry out four or more activities of daily living. The noble Baroness, Lady Greengross, is rightly concerned that any assessment of a person’s ability to carry out activities of daily living should be able to capture whether they have difficulty because they need prompting in addition to any physical difficulty that they have. I reassure the noble Baroness and the noble Baroness, Lady Barker, who voiced their concerns on this matter, that, as part of our wider discussions with stakeholders, the regulations will need to cover supervision and prompting in relation to daily activities as part of the eligibility criteria.

Amendment 37 tabled by the noble Baroness, Lady Barker, would insert a requirement for local authorities to ensure that staff have an “understanding of dementia” when delivering personal care to those with a dementia diagnosis. The noble Baroness and the House will know that the Government have already taken major steps to transform the quality of care for those with dementia through our strategy and through the start we have made in building on that strategy.

Section 15 of the Community Care (Delayed Discharges etc.) Act 2003, which the Bill amends, is about the free provision of services and not about particular types of service provision. The guidance accompanying the regulations enabled by the Bill will need to consider how local authorities may best ensure the delivery of free personal social care at home and ensure that it takes into account the Dementia Strategy. We think it is unsuitable to place this in the Bill, but we completely take on board the concern raised by the noble Baronesses, Lady Barker and Lady Greengross, on this issue. We are absolutely in sympathy with it.

Amendment 42 by the noble Baroness, Lady Barker, inserts the definition of personal care into the Bill. As I have already said, the definition of personal care is included in the consultation document which is currently open for comment. We have been working with stakeholders to ensure that this definition is accurate and appropriate and meeting the Bill’s aim of providing personal care to those with the highest needs. Following our analysis of that consultation we will look to amend the definition of personal care that we have set out in our working draft. However, we do not believe it is appropriate to put this in the Bill. We ask the noble Baroness to withdraw the amendment.

My Lords, will the Minister confirm that the Bill covers Wales? I do not want it to feel left out, as she did not mention it.

No, it does not cover Wales. I can write to the noble Baroness about what bits are covered where and what Wales is doing. It is not that Wales is not taking action in this regard. I do not have the brief in front of me but I know that it is and I am very happy to write to the noble Baroness and other Members of the Committee about what Wales is doing in this regard.

My Lords, I would like to feel that those noble Lords who spoke so very ably to their individual amendments will be reassured by the noble Baroness’s answer, which I appreciated. This debate has shown the difficulty of enshrining in the Bill, or in regulations or in guidance, exactly what you want people to do.

I was particularly swayed by the speeches of the noble Baronesses, Lady Greengross and Lady Barker, in relation to dementia. They made points that I hope very much the Minister will continue to bear strongly in mind as the policy is developed in the department. I also thought that the noble Lord, Lord Best, spoke extremely cogently to his amendment on aids and adaptations, which I fully support. I did not say so earlier as he had not yet risen to his feet. I take the opportunity of doing so now. It may be that we shall come back to these matters at a later stage but I think for now it is appropriate for me to beg leave to withdraw my amendment.