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Personal Care at Home Bill

Volume 717: debated on Monday 1 March 2010

Committee (2nd Day)

Clause 1 : Free provision of personal care at home

Amendment 21

Moved by

21: Clause 1, page 1, line 22, at end insert—

“( ) make provision for those persons eligible for, or in receipt of, the free provision who are also deemed eligible for NHS continuing care”

I have tabled this amendment to ask the Minister questions about the potential for dispute in the way that the provisions of the Bill are implemented. My main questions centre on the interface between personal care at home and NHS continuing care.

The number of people currently in receipt of continuing care from the NHS is roughly 45,000. It is likely, although I confess that I have no figures to support this, that a high proportion of those people will be assessed as being in critical need of personal care under the FACS—fair access to care services—definition. The FACS guidelines, which are currently the subject of revision, set out the criteria for determining a person’s level of need, the four categories being “low”, “moderate”, “substantial” and “critical”. As we know, the Bill is designed to cover only those in critical need, and then only those who require substantial help with four or more activities of daily living.

The Minister will know that NHS continuing care has provided a field day for lawyers over the past 10 years. A senior lawyer described it to me the other day as a sub-specialisation in the field of litigation, such are the quantity of challenges brought by patients, and also very often the families of patients, against decisions taken by the NHS about eligibility. With this Bill, we have in prospect another dimension of this type of challenge, one in which the NHS itself is likely to argue that at least some of the burden of looking after people in their own homes should be borne by local authorities. The assessment process is set to become even more fraught than it has been up to now. We can envisage local authorities resisting the idea of providing someone with free personal care at home and directing them instead towards residential accommodation with additional nursing, while at the same time the PCT will resist that idea and argue in favour of personal care in the home with little or no nursing element. Somehow, there will have to be protocols to deal with this type of situation.

Of course, we all, I am sure, subscribe to the idea of pooled budgets, but that will not of itself get round the potential for disputes. If we look at the draft regulations and at the list of qualifying services that are to be the basis for determining whether someone’s needs are critical, we see that they include,

“eating or drinking (including the administration of parenteral nutrition)”.

I am surprised to see the administration of parenteral nutrition classified as personal care. In hospital, parenteral nutrition is almost invariably overseen by a qualified nurse as it is classed as a form of medical treatment. Similarly, the list includes washing and bathing. It would be helpful if the Minister could say whether this means we have finally overcome the arcane distinction between an NHS bath and a social services bath. If we have, I am quite surprised, because underneath that example of what sounds like a daft distinction lies a substantive issue in terms of the degree of care and skill required to give a bath to one patient as compared to another.

Similarly, oral care is included as a qualifying service for personal care. Certainly, some oral care will be quite straightforward and will not require a nurse, but will this always be the case where a person has some medical complication relating to their mouth, gums or teeth? Equally, in the list of so-called activities of daily living, we find management of treatment which consists of a prescription-only medicine. I agree that a care worker is perfectly capable of reminding a frail, elderly person that it is time to take their medicine. That is not a nursing task. But things become more difficult if we imagine a confused elderly person who takes a different combination of different pills at different times of the day. The level of responsibility required in a care worker to ensure that the right number of pills are taken at the right times of the day is considerable. This is the kind of thing which, in hospital, only a qualified nurse would do. I worry that we may be creating a potential minefield here, in terms of where responsibilities will lie, as between the NHS and local authorities. In many ways, it is helpful to define in black and white what we mean by personal care, but the other side of the coin is the scope that is created for arguing over what is meant by the various terms listed in the regulations. It is on that point, in particular, that I should be glad of any reassurance from the Minister. I beg to move.

My Lords, my Amendment 23, which is grouped with Amendment 21, was tabled for exactly the same purpose as that of the noble Earl.

After I tabled it last week, some individuals in my other working life, who did not know who I was and did not know that I had anything to do with your Lordships' House, happened to have a conversation which I simply sat in on and observed. They were all workers for a voluntary organisation who have had experience of assisting older people with the process of assessment for continuing care. They were trying to establish between themselves—they came from three different areas—whether there was any consistency at all in the decision-making processes to which they had been party.

What set my mind particularly to this matter was the description of an elderly man who has multi-infarct dementia, is blind, cannot walk, is doubly incontinent, has lost the ability to swallow and therefore has to have all his food made for him and pureéd. He is not eligible for NHS continuing care. That sparked a discussion about what NHS continuing care is. I do not know whether this is right, but I am interested in the point made by the noble Earl and in these care workers’ distinct impression that only when someone has to be peg-fed do they have a remote chance of being considered for NHS continuing care and that that must be but one of their conditions; there must be others, too. I, too, want to know how the criteria for this care, which will be the new revised version of FACS, will work alongside NHS continuing care. Will the Minister tell me for how long on average the 45,000 people who receive NHS continuing care have received it? I am trying to gauge how ill someone has to be to be eligible under the criteria.

The Bill is an amendment to the Community Care (Delayed Discharges etc.) Act. So far as I can see in all the debates in another place and here, one issue has not been the subject of any discussion at all, which is rather surprising. When that Act was introduced back in 2003, it introduced intermediate care—an entitlement of six weeks’ intensive care which elderly people are supposed to be given to enable them to be discharged from hospital when their medical needs have been attended to. The Bill was introduced with £900 million of funding behind it. I have a series of questions to ask the Minister today. I warned her that I would because it is quite important that we do so.

When the Act went through Parliament, I asked a series of questions about how it would work. The noble Lord, Lord Hunt of Kings Heath, gave the assurance that there would be a target; by March 2002, at least 220,000 people would be in receipt of intermediate care, over and above the baseline for 1999. The figures that I have been able to find show that, by the end of 2003, 143,000 people were being given intermediate care. How many people—in the last year for which there are figures—are in receipt of intermediate care, and how many of them received it at home? I ask that for two reasons. First, the term “intermediate care” seems to have disappeared somewhat. I am beginning to pick up on cases in which carers are being told that their relatives are not eligible for intermediate care because they have dementia and so there is no possibility of them improving. There are specific criteria for eligibility for intermediate care, and the Bill proposes three different assessments of a person to determine what sort of care they are eligible for, where they should receive it and for how long. I really would like the Minister to answer this in some detail.

I am concerned that people are going to find themselves deemed to have met one of the FACS critical criteria, but are not deemed to need assistance with daily living because they have a carer to help them, and therefore they are going to be fobbed off. Is the decision support tool, about which the noble Baroness the Minister talked last week, going to have a consistency across all three of these assessments—NHS continuing care, intermediate care and personal care at home? Further to that, can she say when the fast-track process will be brought into play?

Finally, to pick up on the point made by the noble Earl about the potential for local authorities to challenge NHS continuing care decisions that may force people back on to the personal care at home regime, for which the NHS will not be liable to pay, can the noble Baroness say how many PCTs and local authorities have a named lead officer for NHS continuing healthcare funding issues? Increasingly there is the potential for older people and their carers to be stuck between PCTs and local authorities which are in dispute about eligibility. If cases such as the one that I just mentioned are deemed to be ineligible for NHS continuing care, we are into an area of decision-making that is going to be so fine that it is going to take a fair amount of experience on somebody’s part to make those judgments with any kind of consistency and lack of bias, so that people are not unfairly dealt with and so that we do not set up yet another lawyers’ charter.

I am asking a very simple thing—how can the policy behind this Bill be implemented in such as way that it does not cause confusion times three, but instead provides clarity and consistency between three different instances of decision-making. I should very much welcome some guidance from the Minister on that.

My Lords, the noble Earl has illustrated very well how there may be confusion, and so has the noble Baroness. It will be even worse if the person needing care falls between two stools and gets no care at all.

My Lords, I had not intended to speak on this. However, the eloquence of the noble Earl, Lord Howe, took me back to my days as a director of social services, when we policed the boundaries with the NHS, and it equally policed those boundaries, with great vigour in the 1980s and 1990s. A serious issue for the Government, which is made worse by this Bill, is the way that at a time when we are saying we want to take down this Berlin Wall, we have created, with the best of intentions, a whole range of areas with scope for more disputes between health and social services. They all had a good reason at the time—intermediate care, continuing care, and now free personal care at home. I wonder whether the Government know how many people are now engaged in these various assessments, how those numbers will be increased by this Bill, and how many people are being diverted from providing care to patients and service users in the area of carrying out assessments and policing those assessments in order to see that their particular organisation is not disadvantaged financially.

If things have been bad at a time when finances are generous on both sides of the Berlin Wall, they are about to get much worse. There seems likely to be a climate where policing of people’s responsibilities organisationally and financially will increase. I ask the Government to think through this much more carefully—I think that it has been considered—and to have a serious discussion with the directors of adult social services about the number of people now entrenched in this work, which is not of great use for the provision of services to people who need them.

My Lords, I shall speak first about continuing care and what it means generally, for people sometimes have different interpretations of the term. “Continuing care” is a term for care provided over an extended period to a person aged 18 or over to meet physical or mental health needs that have arisen as a result of disability, accident or illness. The term covers both NHS and social care services.

“NHS continuing healthcare” means a package of continuing care arranged and funded solely by the NHS. A person is eligible for NHS continuing healthcare if their primary needs—their main needs—are health needs. All primary care trusts and local authorities in England follow a common process to determine eligibility set out in the National Framework for NHS Continuing Healthcare.

In the third quarter of 2009-10, 50,000 individuals across England were eligible for NHS continuing healthcare, and the number of eligible people continues to increase. However, it is important to recognise that if an individual needs continuing care where their primary needs are not health needs, this will be provided by the local authority, either alone or in partnership with the NHS where appropriate. It is right that, in those circumstances, they should be able to receive personal care free of charge from the local authority if they qualify for it. It is important that NHS continuing healthcare and free personal care are recognised as different ways of delivering health and social care where the balance between health and care may differ.

It is vital that people do not fall between the health and social care systems. We need to be very clear in guidance that those with continuing needs get the appropriate services, whether that is health or social care. While the number of people who receive NHS continuing healthcare at home is small compared to people receiving NHS continuing care in residential care homes, there are some people at home who meet the criteria.

We will ensure that the guidance we produce will address the need for primary care trusts and councils to work together to try to ensure a smooth interface between NHS continuing healthcare and free personal care, and that people’s needs are identified appropriately.

Amendment 21 would appear to allow regulations made by the Secretary of State to make specific provision for people who have been deemed eligible for NHS continuing healthcare also to be considered for eligibility for free personal care. The amendment is unnecessary. Where people are deemed eligible for NHS continuing healthcare, the NHS is responsible for providing for all their assessed needs, including personal care if that is part of the overall need. As such, they would not require such free personal care from their local authority because they would already be receiving it for free.

Amendment 23 would exempt a local authority from providing personal care free of charge to a person who is eligible for or receiving continuing care. As I have explained, “continuing care” can refer to either health or social care services. If an individual needs continuing care, they may require services both from National Health Service bodies and from local authorities. Local authorities should be able also to provide free personal care to such people if they qualify for it.

However, if an individual is entitled to services as part of NHS continuing healthcare, the person’s package of care to meet their assessed needs would be provided solely by the NHS and not the local authority, including any personal care that was required.

It is important that NHS continuing care and free personal care are recognised as different means of providing health and social care support across the NHS and social care systems. In all cases where it appears to a primary care trust that there may need to be NHS continuing healthcare, the PCT has a duty to take reasonable steps to ensure that an assessment of eligibility for NHS continuing healthcare is carried out.

It seems to me that the Bill and the explanation that I have given are clear about who pays what. What I believe the noble Earl, Lord Howe, and to some extent the noble Baroness, Lady Barker, were saying is that there may be problems at the interface. We recognise that, and we have already said with respect to the home care that is envisaged as a result of the Bill that we will be issuing very clear guidance. The whole issue of the guidance relative to intermediate care will be covered by my noble friend Lady Thornton as part of the next group.

It remains for us to continue to be content that the national framework qualification for NHS continuing healthcare is developed in a way that is clear, to reduce any interface problems. In October 2007, the Department of Health introduced a national framework for assessing individuals’ eligibility for NHS continuing healthcare, replacing the 28 local frameworks previously used by the NHS. A revised version of the national framework was issued in July 2009 to further develop best practice.

A key intention of the national framework was to reduce variations in eligibility for NHS continuing healthcare between PCTs. The data collected show that the variation has reduced significantly since the national framework was introduced.

In addition, all strategic health authorities have developed benchmarking processes that give them detailed information on the numbers eligible in each of the primary care trusts in their area. They are using this to help identify the causes of any variations and the actions needed to address them.

It is a fair comment that we must get the guidance right in all three areas. We are committed to doing so, and we have shown action with regard to this particular area of NHS continuing care.

I hope, on the basis of what I have said, that the noble Baroness and the noble Earl will not press their amendments. They both asked a number of detailed questions to which I am afraid I will not be able to give instant answers. I will look at Hansard to see whether there is some useful detail we can add in writing.

My Lords, this has been a useful short debate and I am grateful to everybody who has taken part, not least to the Minister for his full answer. I found his answer partly reassuring, but we should listen very carefully to the noble Lord, Lord Warner, whose experience in these areas is probably unparalleled among those of us present. He is right. An awful lot of energy and effort are going to be devoted to shoring up a Berlin Wall, and that effort could more productively be devoted, as he rightly said, to looking after people.

Having said that, I very much welcome what the Minister had to say about the guidance. I think it is quite important that the guidance goes into some detail to remove some of the potential ambiguities in the terms that are to be used in the regulations. Even if the terms that I have seen in the draft regulations are tightened up, I am sure that there will still be scope for argument. The detail really does matter here. This is an area which all of us will follow with a lot of interest, but for now I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Amendments 22 and 23 not moved.

Amendment 24

Moved by

24: Clause 1, page 1, line 22, at end insert—

“( ) require local authorities and primary care trusts to work together to assess a person’s needs and deliver a package of personal care which is designed to maximise the person’s ability to live independently”

The Bill aims to introduce reablement or intensive support for people who need home care for the first time, which might be following a period of ill health or a stay in hospital. We know that the Department of Health will issue separate guidance to cover what a reablement package can include. The consultation suggests that this might be physiotherapy, occupational therapy or the installation of telecare or adaptations to the home. People with dementia are significant users of both health and social care. My amendment would encourage NHS and local authorities to have joint responsibility for delivering a health and social care package that could maximise the ability of a person to live independently after, for example, a stay in hospital. I am speaking briefly, as much has already been said on these issues.

Amendment 34 would ensure that the possibility of reablement is offered to people with dementia, who, as we know, are more likely to stay in hospital for longer than others who go in for the same procedures—the Alzheimer’s Society report Counting the Cost, which was produced last year, revealed that people with dementia stay in hospital far longer than those who go in for exactly the same procedure. The longer people with dementia stay in hospital, the worse the effect of the symptoms of dementia and the individual’s physical health. Discharge to a care home becomes more likely and anti-psychotic drugs, as we know, are more likely to be used to manage behavioural symptoms. I am concerned that people with dementia may be wrongly excluded from reablement because of the erroneous view that they might not benefit. The amendment would highlight the relevance of reablement whenever possible for people with dementia.

I shall speak briefly to Amendments 26 and 28 standing in my name and the names of the noble Lord, Lord Warner, and the noble Baroness, Lady Murphy. Amendment 28 is simple: it would replace “maximise” with “improve”. “Maximise” is the sort of word that should not appear in legislation; it suggests that we should do this whatever the cost, even if it is infinite, which in some cases it could be. “Improve” would be perfectly valid in this context and it would improve the legislation.

Amendment 26, which is the more important of the pair, is very much a probing amendment, as I want to explore the Government’s thinking. Everybody is in favour of re-enablement. There is no question but that it is a good thing—the more it can be done successfully, the better. However, the Bill is drafted in such a way that, if an elderly person is not willing to accept a programme for re-enablement, their free personal care can be withdrawn. That kind of thing is quite common in social policy these days, in the same way that if an unemployed person refuses to take a job their allowance can be withdrawn. That is not always wrong, but I am a bit concerned about what this might mean in practice.

Re-enablement may not be an easy process for the person undergoing it. Physiotherapy can be painful to anybody of any age, but for someone in later life it may be difficult to tolerate. I do not like the idea that a local authority can say, “You get on and do your exercises, Mrs Jones, or we’ll take away your free personal care”. That is not the kind of relationship that should exist as a result of such legislation. What guidance will the Government offer to prevent this from being used as a heavy-handed tool to bully old people into doing things that may be on the edge of or beyond what they are capable of, rather than as a tool for encouragement and mutual working together?

I added my name to Amendments 26 and 28. It is important for us to explore this discretionary activity around reablement and how it will be implemented. This is also our opportunity to look at the Government’s thinking on reablement. I hope that the noble Lord, Lord Lipsey, will not mind me teasing him for a moment, but I find it interesting that he called it “re-enablement”. That is because he cannot find “reablement” in the dictionary either. It does not appear in any dictionary yet; the term has been developed within social services to talk about rehabilitation. I cannot think of a single way in which it is different, but I will come to the cultural aspects of why it is called something different, because that is important.

This is exactly what intermediate care was set up to do. Again, therefore, I am afraid that there is extraordinary confusion. It is a bit like the difference between a social care bath and an NHS bath. It is not just the bubble bath that goes in from social services; the question is who delivers it and what the philosophy is. That is also the issue with enablement—I am sorry, I mean “reablement”, which is the word that will go into the dictionary eventually.

I know that the wording of Amendment 26 is probably the reverse of what is desirable, so I will save the Minister the effort of responding to the wording. I am as keen as anybody that there should be the opportunity for people to have a professional assessment to see whether there is room for improvement and to provide interventions in the physical and social environment that will allow people to function as well as they possibly can. I am worried, however, about how this discretionary intervention will be exercised in practice, particularly in relation to the concerns that were expressed by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, on the previous set of amendments. The opportunities for confusion, for swapping around and for the exercise of discretion as to who pays for what and who does what are really quite frightening. As the noble Baroness, Lady Greengross, said, the problem arises in particular in relation to those with dementia, perhaps when they come out of hospital and are assessed for the first time, when there will be opportunities for toing and froing between authorities about who is going to do what.

The reablement approach is interesting, because it was developed with the sense of a restorative and capacity-building approach to improving the lives of disabled older people. It is as much a philosophical and cultural approach as a specific technique—not doing things for people, but assisting and doing alongside. However, one has to admit that there are at the moment no long-term studies that have demonstrated its efficacy over the longer term for people with a level of disability who will be the recipients of the free personal care. We are talking about a seriously disabled group of people. All successful studies have used very high levels of intervention. The Government’s short-term studies are encouraging for people of all ages and show that one can achieve a small but significant reduction in the use of personal care services. However, it is important to note that the studies in the care services delivery efficiency programme focused not only on those practical aspects of daily living that are the subject of this Bill but on much broader criteria of success. The interventions were often for longer than six weeks and for far more hours than is being proposed here. In fact, the cost of those successful schemes was more than what has been allocated for the reablement process.

I suppose that a purist would point out that it is rather bizarre to implement reablement intervention as a prerequisite for receiving assistance, when the long-term studies currently in progress have not reported yet. We know that schemes are nearly always successful in their pilot phases, but long-term sustainability and cost-effectiveness may be difficult to predict. Given how often I have personally pushed for things to be rolled out when there is some indication of support, I have some sympathy with the Government in wanting to do this. However, we should realise that reablement has so far been shown to be effective on, for example, mentally alert people who, after a short stay in hospital with a fractured femur, are coming out and need to get their confidence back. In that scenario, it can be quite successful. However, the Government’s short-term studies, which are fine as far as they go, show that reablement is less effective for those with severe disabilities over a longer period. It can be effective, but there is a group of people for whom an intensive, much longer period of care will be required. I have great doubts about the amount that will be required to get the improvements needed within the proposed level of reablement input. That is the purpose of this probing amendment.

As for Amendment 28, one should bear in mind that, for example, following a stroke or a head injury, maximum performance will not be achieved for perhaps more than two years, which would be a long time after the reablement process had finished. Therefore, I wonder whether the word “maximise” is quite right. I suggest that “significantly improve” would be a more appropriate phrase, particularly for people with mental health problems.

I shall speak to my amendment in this group. I want to probe some of the areas mentioned by the noble Lord, Lord Lipsey, again in the context of intermediate care provisions, about which I have previously spoken. Just as intermediate care provisions have an interplay with NHS continuing care, so they do with personal care at home.

I have a tremendous amount of sympathy with the points made by the noble Lord, Lord Lipsey. I am a fan of reablement. I was a big fan of it when it was called rehabilitation and I was just as big a fan when it was called good hospital discharge. It works tremendously well for a number of people. An older person who has had a stroke and has lost their confidence would value having someone to help them through the processes of returning home and learning to cope again. Sometimes it is a rather crude tool, while the strictures around it and the question of who pays for it have sometimes militated against the policy being as effective as it could be.

Some people come out of hospital and just want to go home. That is the most important thing to them. They do not want to go for weeks to a place where they do not know anyone to have an intensive period of what they consider to be treatment. They do not want that and they do not feel in charge of it. Some people want to stay with relatives for a while until they get themselves back together. If they choose to do that, sometimes they are deemed to be ineligible for intermediate care and they might be ineligible for personal care at home. However, some of them really need the services. What happens to people who need the services but who refuse to go through the particular pathway set out in this Bill?

I concede that much good has been done with the £900 million of intermediate care services, but some of the times and ways in which that policy has been implemented have not been particularly effective. An older person with a broken arm or leg probably could do with a period of reablement or rehabilitation when their cast is removed, which may be more than six weeks after they come out of hospital. However, they are not allowed to have that because it does not fall within the timeframe. When the Minister talks about intermediate care, as I know she will, will she say whether this Bill is an admission that for quite a number of older people that arbitrary six-week time limit has been ineffective?

Also, does the Minister share my concern that there has already been a considerable amount of rebadging—that is a new term, I think, but it has an awful lot of currency in the NHS these days—of intermediate care? I am thinking of things such as rapid response services, which now seem to be the flavour of the day. I do not have a problem with people choosing to call their services new things; I do not even have a problem with the services being given new and better purposes. However, I have a significant problem when money flows behind them in covert ways. That is what I am trying to get to the heart of: where does the money behind this system go? How is that tied to the assessment criteria and the eligibility criteria?

Finally, health and social care professionals are increasingly having to deal with a particular group of people whose need for services has not changed but for whom the money has run out. These people have funded their care for so long that they have run out of capital and resources. They have very significant needs, so how and when will they move into eligibility either for NHS continuing care or for free personal care? Their needs are very high; it is just that their resources have run out. The noble Lord, Lord Warner, is right: soon we will be back to a time when the assessment of clinical and social care needs will be governed largely by money. In our debate we need to do our best to prevent that.

My Lords, Amendment 30 in my name is designed to highlight what I hope are some fairly uncontentious issues around reablement. I come at this from a rather different angle from the noble Baroness, Lady Barker, although I very much identified with all that she said.

Reablement, as we have heard, is to be a precondition for receiving free personal care at home, but the way that reablement is offered and delivered to people will be very much a matter for local authorities to determine. Local authorities that are strapped for cash will be tempted to use reablement as a way of putting off the day when they have to decide one way or the other on a person’s eligibility for free personal care. Therefore, in the first instance I am worried that the process of reablement could be delayed, whether deliberately or not, as a means of postponing the burden of costs arising from having to give free care. How will authorities be monitored and held to account for the way in which they deliver reablement? What will prevent them from using reablement as a tool for withholding free personal care from those who would otherwise be eligible for it?

My second worry is very similar. There appears to be no limit to the number of times a local authority would be able to insist that someone went through a reablement process. The Minister in another place said:

“There are currently no proposals to restrict packages of re-ablement. It will be for councils to determine who might benefit from the intervention and whether it is appropriate to repeat this at a later date”.—[Official Report, Commons, 8/12/09; col. 292W.]

In other words, people could be put through it at frequent intervals—not for their own benefit so much as for the local authority’s benefit, in the hope that the obligation to deliver free personal care might be avoided following a further assessment of the person’s ability to cope with the activities of daily living. Again, what is to stop this unreasonable use of reablement from happening?

For some people, a process of reablement will do little or no good, and may even end up doing harm; those nearing the end of their lives are one example. In some of these cases it will be possible to predict that reablement will be burdensome and at best unlikely to be of more than temporary benefit. While I can readily accept that a refusal to undergo reablement will, in many cases, debar a person from an entitlement to free care—and rightly so—there will be other cases where a refusal is perfectly reasonable in the prevailing circumstances. The noble Baroness illustrated one or two of those examples. How will the system be able to distinguish between those two types of case and what safeguards will there be for service users in that context?

The Equality and Human Rights Commission has developed that point further. It argues that some people may not want or may not be able to accept or understand that they need social care and support services because of impairment of their faculties, pride, their wish to remain independent or simply because they are in denial that they have become disabled and are in need of care services. In those circumstances, it cannot be right for free personal care to be refused on the grounds that someone had rejected a council’s package of reablement.

Lastly, I am concerned that reablement should not be withheld from someone merely on the grounds that the person's carer has refused to take an active part in the process. The fact that someone has an unpaid carer may or may not provide a useful means of support for a local authority in the way that reablement is delivered to the person. But the active involvement of the carer should never be made a precondition of reablement if for any reason the carer does not want to be involved. How will local authorities be prevented from acting in a way that unreasonably imposes on unpaid carers?

My Lords, perhaps I may add to the probing that is inherent in all these amendments. If the reablement is to be the subject of free support financially, does it have to take place at home or can it sometimes take place more satisfactorily in residential care on a short-term basis? In administering a retirement village outside York, we found that people leaving hospital often did not go straight home but spent time in the intermediate care phase in a residential setting. Would they then forfeit the opportunity to receive financial help with a reablement package that would be available only if they went straight home? Perhaps the Minister could clarify that.

My Lords, I will be replying to this group of amendments which involves a substantial discussion on reablement, including Amendment 24 from the noble Baroness, Lady Greengross, Amendment 25 from the noble Baroness, Lady Barker, Amendments 26 and 28 from the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, Amendment 30 from the noble Earl, Lord Howe, and Amendment 34 from the noble Baroness, Lady Greengross. The amendments deal with the Bill’s provisions on reablement. As has been clear from the discussion, they deal with different aspects so it might be useful to touch on what reablement means to the individual and how it fits into the wider range of services on offer, and to explore the issues raised by the noble Baroness, Lady Barker, about intermediate care. At its heart is the intention to help individuals to maximise their ability to look after themselves.

We have sometimes talked about intermediate care and reablement interchangeably. In essence, both reablement and intermediate care try to do the same thing. They have the same objective of helping to maximise a person’s abilities and independence, but come at the problem from different angles. Intermediate care is often linked to people coming out of acute hospital care and returning to live in the community and there is often a health element to that care as well as social care. Reablement is a more preventive approach, identifying people at risk of having to go into hospital or residential care and putting in support to maintain people’s independence to help them remain in the community. That might include specialist help to rebuild a person’s physical skills and confidence. To answer the question asked by the noble Lord, Lord Best, reablement can be offered in a residential care setting.

The aim is to maximise that person’s independence. It means often looking at how the home environment can support independence. Indeed, at an earlier stage of the Committee, we looked at the range of aids and adaptations that might help people. Grab rails, telecare, adaptations of showers, stair lifts and disabled facilities grants transform the home environment. Regardless of the terminology, what is on offer is simple to understand—and it is widely supported and, indeed, it is already happening. The introduction of this Bill will enable us to provide further funding of £130 million to encourage more people to benefit. In answer to the point raised by the noble Baroness, Lady Barker, this is not about substitution; this is about adding to it.

There is powerful evidence that reablement works. A research study by the University of York demonstrated that the benefits of reablement are not just immediate, but are long lasting. This is why we believe that it is such an important part of the Bill. Reablement and intermediate care services of various kinds have been developed in many parts of the country. We want to encourage councils to offer reablement to more people wherever that is appropriate and to make it a standard part of how they support people’s needs, rather than assuming that care needs will stay the same or increase. This is not about forcing people to do things, but about working with them and their carers and families to put them in the best possible shape. We recognise that there will be some people for whom reablement is not appropriate, and we believe it is right to let councils have the flexibility to make sensible judgments about the individual circumstances in which it is appropriate to offer it. Our guidance will address that issue.

I want to address the specific points that noble Lords have made about the cost of reablement—it is £130 million. We believe that this will mean that 130,000 people could benefit from reablement as part of the Bill. There is already money in the system to meet some of these needs. What we are doing now through the Personal Care at Home Bill is making more money available to encourage councils to offer more support to more people. Current community care funding provides for aids and equipment. For example, last year we invested £80 million to encourage council investment in telecare and we allocated £168 million for adaptations through disabled facilities grants.

Amendment 24 in the name of the noble Baroness, Lady Greengross, seeks to enable the making of regulations to require local authorities and PCTs to work together to assess needs and deliver reablement. It is indeed important, of course, that local authorities and partners in health work together effectively to support people. I agree with the motives of the noble Baroness, Lady Greengross, in proposing this amendment. It is vital that local authorities and their partners work together effectively. For the person who has a wide range of health and social care needs, it really does not matter whether what they are receiving is a social care bath or a health bath. Indeed, that interface, as mentioned by my noble friend Lord Warner, is at the crux of much of the care that we want people to benefit from. We recognise that they have to work together effectively, and if they do not it creates anxiety and is very frustrating.

In Putting People First, we have set out the cross-government strategy to transform adult social care. We recognise how important integrated working is across these sectors, and, in fact, we gave £520 million to councils to help them with that. We will be developing guidance which recommends that local authorities work with colleagues in NHS primary care trusts where it is appropriate. An acceptance of the noble Baroness’s amendment, however, could force local authorities to consult a primary care trust where, in some cases, there may not be a need to do so.

I turn to Amendment 25 tabled by the noble Baroness, Lady Barker. In its present form the Bill makes explicit reference to,

“a process designed to maximise the person’s ability to live independently”.

We are calling this process reablement. The Bill allows regulations to be made that will give local authorities the discretion to use a period of reablement as one of the criteria for determining eligibility for free personal care. This does not mean that local authorities should force everyone to undergo such a period of reablement. That is not our intention as in some cases reablement will be neither appropriate nor beneficial to the individual. However, many people can potentially benefit from reablement and we believe that local authorities should be encouraged to make greater use of these services where they are already available and established, and develop them further where provision is currently lacking.

New subsection (4C) explicitly sets out the power that will enable the Secretary of State to make regulations to achieve this, which will be accompanied by detailed guidance on how local authorities should decide whether or not reablement would be appropriate for the individual.

The noble Baroness asked about a person’s means, what happens when their money runs out, and when they will become eligible for free personal care. Continuing care is never means-tested. The Bill is designed to support those people who might well have already used substantial personal means to support their care needs, so it will help to provide some relief for them. My noble friend Lord Lipsey, the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, all asked about a person who is not willing to accept reablement, and whether that person could have their free personal care withdrawn. That would be a very heavy-handed tool. It is proposed that free personal care could be refused only where the person had—I think that the noble Earl said this—unreasonably refused that reablement. That will be set out in regulations and is an issue that would have to be treated with great sensitivity. In choosing to refuse an offer that is reasonable, they could not be eligible for free care under the scheme and would have to make a contribution to the cost of their own care. However, it is a very sensitive issue. In an earlier debate, we covered the issue of carers and unpaid carers not being part of the assessment that would take place for free personal care.

Amendment 26 in the—

Will the Minister clear up one point before she goes on to the next point? I am not talking about those who refuse reablement; I am talking about those who are not suitable for reablement. For instance, if they are too frail or too ill, will they then be able to get help, and who will decide that?

Yes, they will as part of the assessment process. I was asked specifically about somebody who might refuse reablement. However, I think that I said earlier that it would not be appropriate to offer some people reablement. That will also be covered in guidance. It is very important that the offer which is made to people is dealt with sensitively.

One of the difficulties with this legislation is that it covers two distinct groups of people: disabled people who may be young and may have a condition with which they will live for a considerable time—the whole purpose of this measure is to enable them to have the means to pursue fulfilling lives—and older people who become ill for one reason or another. I noted the noble Baroness’s distinction about intermediate care being provided to people who have been in hospital. How many people is it envisaged will meet the FACS criteria who will not have been in hospital? We are talking about people who will be very ill and very disabled even though they may not have had acute care. For very many older people who may or may not be eligible for care under this measure, simply maintaining their ability to live independently at a level of operation which is perhaps lower than it was before they were ill—for example, if they have had a stroke—will be a good result. It is not about improving their ability to live independently because, for some of them, it probably cannot be improved; it can only be maintained at a lower level. Is it the intention of this Bill, clumsily worded though it is, to reflect that—that some people will not improve as a result of reablement, but will simply continue to be able to cope and perhaps at a reduced level? That is an important point to make and make clear for people who may be doing assessments in the future.

That is a very important point. The noble Lady has raised two points. On the first, I can think of three people I know who are not in hospital, but who are definitely disabled. Whether they would qualify under this scheme, I do not know. It is very unlikely that they would be in hospital unless something acute happened, though there is no question that they are disabled. The point about reablement is that, if the reablement process—we will talk about “improvement” and “maximise” in a moment—actually enables that person to maintain the level of independence that they already have, it seems to me that that has also succeeded and would count. On the question about the number of FACS-critical people who have been in hospital, we have not collected that information in this form. However, the noble Baroness makes a valid point indeed.

Amendment 26, in the names of the noble Lords, Lords Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, would seek to change new subsection (4C). It would mean that any regulations which the Secretary of State makes under subsection (4A) that give local authorities functions relating to eligibility for free provision of personal care must specifically allow them to use reablement as an eligibility criterion. I understand that this is a probing amendment, and I hope that I have answered some of the points, but we have been clear from the start that the Bill must enable a two-pronged approach: providing free personal care to those with the highest needs who are living at home, accompanied by a period of intensive support or reablement for all those who would benefit from such a package.

We do not think that it is necessary to dictate the content of the regulations in the Bill. The working draft of the regulations, which has already been made available to noble Lords, makes plain that advice around reablement will be included within guidance. Stakeholders at several consultation events over the past few months have supported this approach. They welcome increased support for reablement, and we will use their comments regarding its implementation to further shape the content of regulations enabled by the Bill and the guidance on those regulations.

Amendment 28, in the names of the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, is a very “House of Lords” amendment about whether one should substitute “maximise” with “improve”. New subsection (4C) of the Bill refers to,

“a process designed to maximise the person’s ability to live independently”.

The noble Lords and the noble Baroness have suggested that we should replace “maximise” with the word “improve”. We do not feel that this best defines reablement. Improvement could mean only a small change in what may already be very poor circumstances. In fact, our aspirations for reablement are that it should do better than this. We want to help individuals to become as well as possible, not only to improve their status, but to maximise their ability to live independently. Therefore, we think that “maximise” is a better fit than “improve” for what we understand reablement to mean.

I think that I agree with the aim of Amendment 30, tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Morris. Although reablement will have many benefits for the majority of people, we recognise that in some cases it would have limited or no benefit and would not be appropriate, for example, for people who are very frail or who are receiving end-of-life care. We will place in statutory guidance advice around when reablement may or may not be appropriate, along with advice on how a suitable package should be developed with input from and consultation with the individual, their carers and any relevant health and social care professionals.

Amendment 34, tabled by the noble Baroness, Lady Greengross, would permit regulations to enable a local authority and primary care trust to offer a package of reablement and intermediate care to a person after they had stayed in hospital for more than one week.

All local authorities can already deliver packages of reablement, helping people to maximise their ability to live at home independently. These packages are most effective when they include a range of interventions to meet a person’s range of needs. A package of reablement or intermediate care can, and should, involve a variety of health and social care professionals, along with other interventions, minor aids or adaptations.

We will be outlining in statutory guidance how we expect local authorities to develop a personalised package of reablement for individuals, and we will make it clear that the person receiving the package, along with their carers, GP and other professionals, should be involved as necessary. We think that this is more suitable for guidance than regulations but we accept the point made in the noble Baroness’s amendment.

We recognise the concerns that the noble Baroness, Lady Greengross, expressed concerning dementia. We believe that people with dementia can and should be able to benefit from reablement services. We need to ensure that the guidance that goes along with the Bill takes on board the issues raised in the dementia strategy and makes it clear that people with dementia should have access to the appropriate equipment.

The noble Baroness, Lady Murphy, commented on long-term studies. We think that the reablement component increases the amount available to all those presenting for social care, and that it will reduce levels of dependence and may well delay or prevent people needing intensive support. The intention is to focus not just on this group; we believe that reablement has a role to play for a range of groups, including those with dementia or a head injury. As I mentioned earlier, York University has already carried out some studies on this, and we will be assessing the situation in 12 to 18 months’ time.

The Bill is about the free provision of personal care by local authorities and not the NHS. In any event, there will be some circumstances in which it will be more appropriate for the service to be offered solely by either the NHS or social care. We do not want to create fresh barriers, which some of these amendments would bring about, to the most effective delivery of services to individuals. The forthcoming White Paper will reaffirm our commitment to the health and social care systems working together much more effectively as part of a future reform of the care service. Therefore, I ask the noble Baroness to withdraw the amendment.

Will the noble Baroness write to me with answers to the questions that I asked about intermediate care? I asked a number of such questions of the noble Lord, Lord Tunnicliffe, and I quite understand why he did not answer them. However, in particular, I should like to have updated figures for the number of people in receipt of intermediate care and for the number of PCTs and local authorities that have a named lead officer. That would be extraordinarily helpful to Members of the Committee.

I apologise to the noble Baroness. I had marked up answers to a lot of her questions and I believe I have now found some of them. The latest figures show that 28,116 intermediate care places benefited 132,720 people between April and June 2008. Compared with 1999-2000, the number of intermediate care beds has doubled, and the number of intermediate care places in non-residential settings has trebled. Three times as many people are benefiting from intermediate care. The NHS Plan aimed for an extra 6,700 places for intermediate care by March 2005—5,000 residential and 1,700 non-residential—and today the NHS has delivered an extra 22,948 places.

In her previous question, the noble Baroness raised the issue of the guidance. The original guidance has been strengthened to include flexibility over the period of an intermediate care episode—which I think is the point that she raised. That will ensure that people with dementia have access to intermediate care, with that care being commissioned across health and social care, and that reablement services are part of the commissioned service, widening access to intermediate care to include all adult age groups, not just older people.

I thank the Minister very much for her obvious commitment to the amendments I put forward. I am sorry that she cannot accept them, but I appreciate what she said and I shall think again about them. In the mean time, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendments 25 to 35 not moved.

Amendment 36

Moved by

36: Clause 1, page 2, line 12, at end insert—

“( ) The Secretary of State shall report annually to Parliament on the compatibility of regulations made under this section with the European Convention on Human Rights.”

My Lords, we come now to one of the most important legal issues presented by the Bill, and that is its compatibility with the European Convention on Human Rights. One of the most striking features of the Explanatory Notes is the length and complexity of the Government’s defence of the legality of the Bill in relation to the convention. Of course it is very helpful to see that defence set out in clear terms, but I cannot remember another Bill where it has been necessary to do this to quite the same extent. The obvious conclusion from this is that, even though the Government’s human rights justification may be correct in its bald terms, we are, nevertheless, on quite tricky legal ground. We have already considered the issue of discrimination against deafblind people arising from the Bill and its regulations, so I shall not dwell upon those arguments a second time.

The other type of discrimination to which the Bill potentially gives rise relates to residents of care homes. It would be perfectly possible for those people to argue that their personal care needs are every bit as critical as those of someone who happens to be living at home and that this discrimination against them amounts to a breach of Article 14 of the convention, taken with Article 1 of Protocol 1, which covers the right to peaceful enjoyment of possessions. Indeed, the department accepts that it is a prima facie breach of Article 14 to discriminate between one person and another on the basis of where each of them lives. Nevertheless, the Government maintain that the different treatment of people living at home is not discriminatory because the policy underlying the different treatment pursues,

“a legitimate aim in a proportionate way”.

As this is a framework Bill, an enabling Bill, it would be hard to argue that the Bill itself was incompatible with the convention. The issue, rather, is whether the policy to which the future regulations will give substance does indeed pursue a legitimate aim in a proportionate way. As regards the aim of the Bill, and the aim of the regulations, it would be difficult to show that these were in any way illegitimate. So I shall not spend time arguing that case. However, on the issue of proportionality, there is quite a lot that we can say. The Explanatory Notes say:

“The key aim of the policy behind the Bill is to enable, support and encourage more people to avoid or delay entering residential accommodation … It is considered that the proposals are proportionate as they are aimed at those people in highest need—the group of people who are most at risk of having to enter residential accommodation”.

The message that I take away from that is that, as long as the Government’s assumptions prove to be correct as regards the number of people who are likely to benefit from the legislation, the policy is unlikely to breach the convention. The problem, it seems to me, arises if the Government’s assumptions are not correct. As we have said a number of times, the figures quoted in the impact assessment come with a giant health warning. At best, they are an approximation; at worst, they bear little or no relation to reality. So we need to ask: what would happen if the numbers of those eligible for free care in the home turned out to be much larger than the numbers postulated in the impact assessment? What would happen if local authorities are unable to make efficiency savings sufficient to cover their share of the cost of delivering free care? What would happen if, as a number of councils are arguing, it proves impossible to deliver free care to a satisfactory standard within the assumed cash limits? The Government’s assumption is that the time taken to deliver help with four activities of daily living is roughly one hour per service user per day, but some councils are saying that it would be double that. What if they are right?

The money would have to be found from somewhere. It could be found from an increase in council tax. It could be found from cuts in other local authority budgets. It could be found from increased charges for personal care to those who are not receiving their care free. Or it could be found by reducing the amount of personal care being delivered to those same people. If it is the last of these, we are in dangerous territory as far as the European convention is concerned. If local authorities were to withhold personal care from people who are in critical need but who require help with fewer than four activities of daily living, or if they were to withhold it from people with substantial care needs or from people with care needs in a lower banding, it could well make those people decide to move into residential care rather than to be enabled to stay at home.

In that situation we could indeed see more people receiving free care in their homes, but possibly fewer people receiving care in their homes overall. Should that occur, then a breach of Article 14 is a real possibility, because the Bill would have failed to achieve its stated objective of enabling more people to avoid or delay entering residential accommodation. We would have spent a lot of money favouring one group of people at the expense of a larger group of people. It could be argued that the result would be a disproportionate way of pursuing the policy objective.

In other words, ECHR compliance will be a matter of fact rather than theory. With all the uncertainties over the costing of the policy and all the worries being expressed by local authorities about its affordability, we cannot know how things will pan out in practice. We therefore have to plan ahead on the basis that human rights compliance will need to be regularly monitored. This amendment is designed simply to ensure that that is done, and done in a way that is visible to Parliament. I beg to move.

I thank the noble Earl, Lord Howe, for tabling this amendment because it caused me to spend this morning studying that magnificent piece of legislation introduced by this Government—the Human Rights Act—and a fine piece of legislation it is too.

The amendment focuses on the compatibility of the Bill with the European Convention on Human Rights and the requirements of reporting on that. As noble Lords may be aware, the Equality and Human Rights Commission helpfully produced a briefing on the Bill. I shall highlight some key points. I am very pleased that the commission broadly welcomes the Government’s commitment to provide personal care free of charge in certain circumstances to people with the highest needs and the additional investment in the wider social care system and acknowledges the importance of reablement.

In the commission’s view, the Bill does not discriminate against those in residential care and the policy of providing free personal care at home is reasonably and objectively justified as a proportionate means of achieving a legitimate aim, and is thus compliant with obligations under the European Convention on Human Rights. We recognise that the commission has some underlying concerns about implementation and the impact on others with social care needs should local authorities not realign their services as a result of the Bill. We are committed to addressing these concerns as part of supporting councils to prepare for implementation and we hope that some of the debate in Committee has gone some way to reassuring the commission.

Amendment 36 would require the Secretary of State to report annually to Parliament on the compatibility with the European Convention on Human Rights of regulations relating to the provision of free personal care at home. As the Bill states, it has already been certified that in our view the Bill is compatible with the European Convention on Human Rights, and a detailed, well read and thorough memorandum setting out the reasons for this has been sent to the Chair of the Joint Committee on Human Rights.

In addition, the committee requested further evidence in relation to specific questions relating to the European Convention on Human Rights issues around the Bill, which the Minister for Care Services responded to on 29 January. We will give careful consideration to any points raised by the Joint Committee in its final report. The Government already seek to ensure that any secondary legislation and guidance are compatible with the convention, as required by the Human Rights Act 1998. The regulations which the Secretary of State will be enabled to make by this Bill, and any related guidance, will be no different in this regard.

The noble Earl, Lord Howe, asked why the note was so long. This is because of Article 14 of the convention. The words cannot simply be taken at face value from the article, but have to be related to former judgments by the European Court of Human Rights and to a similar judgment in the House of Lords acting, as it was then, as the Supreme Court, in 2008, known as the RJM case. Essentially, he is quite right to point out that this fails the first test of discrimination, but it is justified by the argument that the policy is a proportionate response to a need. To quote the memo:

“The Department’s view is that the different treatment of people living at home is not discriminatory. This is because the policy underlying the different treatment pursues a legitimate aim in a proportionate way.”

It has been argued that this is okay, provided that we are actually delivering the policy. I would not like to give the sense that we will not deliver the policy, as we believe that we will and that none of the traps or problems that have been used to illustrate the case will occur. It is very important, on this legalistically technical point, to realise just how far the policy would have to go before it was in any way threatened by the Human Rights Act, because the Act is about protecting individuals from an overbearing state. The Court has been particularly concerned that social policy should be an area where a wide measure of appreciation is accorded to the state by the Court, and I am told that “appreciation” is code for “latitude”. It was also noted that, where there is a general rule, a line must be drawn, and it is for Parliament to decide where to draw it.

The House of Lords noted that social policy is an area where the Court should be very slow to substitute its view for that of the Executive, especially where the discrimination is not on one of the express, or primary, grounds. Even under the most difficult circumstances, it is difficult to believe that the convention would be threatened. Nevertheless, we are concerned that this policy should be successful, and we have already said that there will be a review after 12 to 18 months. That review will need to assure itself that the policy is succeeding and is achieving proportionality. Through the process of looking at the Act and making sure all the orders and regulations are compatible, I believe there will be no risk that the Bill, its policy and its implementation will be incompatible with the Human Rights Act.

The amendment would impose an unnecessary requirement, particularly as the regulations are highly unlikely to change annually. Given the generality of the Human Rights Act, which I have tried to describe, together with the fact that we will have a review and that the Government are generally bound by the Human Rights Act to implement policy in a way that is compatible with that Act, I hope the noble Earl will feel able to withdraw his amendment.

What exactly did the Minister mean when he said that the regulations are likely to change every year? Does he mean the regulations that we make in this country, or the European regulations? I am not clear.

I think I said that they were not likely to change. Either way, I was speaking to regulations made by the United Kingdom. The convention is a fairly steady piece of policy and is being developed more by case law than particularly by change.

The Minister referred to the memorandum that was sent to the Joint Committee on Human Rights. In view of the fact that it is before that committee, will the Minister assure us—I am sure he will—that no regulations will be laid under this Bill until that committee has had a chance to consider the Government’s memorandum and to offer its opinion to both Houses on it?

My Lords, I am not sure that I am content with the conditionality of that statement, but I am certainly happy to advise my noble friend that we expect the committee’s final report to be available within days: indeed, probably tomorrow.

My Lords, does the Minister agree that this gives strength to my amendment, which would ensure that people have a right to an independent appeal so that these matters can be sorted out at home rather than having to go to Europe?

My Lords, I am trying to say that the compatibility of the Act and its regulations with the convention is in no doubt. We do not think that the extra reporting which the amendment would require is justified. The Government will implement this Act in a way that will be compatible with the convention.

My Lords, I am grateful to the Minister for his reply. He is correct; the Bill is compatible with the convention, but for the simple reason that it contains very little. The regulations may well be compatible prior to their implementation. What is in question is whether the Bill and the regulations, in their implementation, will breach the convention because of the unintended consequences that may ensue.

The Minister is right to advise the Committee that the European Court of Human Rights has been reluctant to intervene in social policy. However, I am advised that a legal challenge that is based on the relevant articles of the convention might well engage the Court’s attention, should the effect of the Bill, contrary to intention, prove to be disproportionate. This question must hang in the air, and we shall all be very interested to read what the Joint Committee says. I am a little sorry that the Minister could not answer his noble friend Lord Lipsey categorically, because, should the committee report adversely, the Government would have every case for withholding any further action on this Bill, although that may be unlikely in the circumstances. We can, however, take comfort from the fact that the Government are committed to reviewing the workings of the Act within 12 to 18 months, which will give us the opportunity to look at these matters further. With that, I beg leave to withdraw the amendment.

Amendment 36 withdrawn.

Amendments 37 to 43 not moved.

Clause 1 agreed.

Amendment 44 not moved.

Clause 2 : Extent and short title

Amendments 45 to 47 not moved.

Clause 2 agreed.

House resumed.

Bill reported without amendment.