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Lords Chamber

Volume 718: debated on Wednesday 17 March 2010

House of Lords

Wednesday, 17 March 2010.

Prayers—read by the Lord Bishop of Ripon and Leeds.

Health: Prescription Drugs


Asked by

To ask Her Majesty’s Government what plans they have to ensure that the supply of prescription drugs to patients is maintained.

My Lords, medicine supply problems can occur for a number of reasons, including manufacturing, regulatory problems and parallel trading. The Government work with drug companies, wholesalers and pharmacies on an ongoing basis to minimise the risks to patients.

My Lords, over the past 12 months, 48 different medicines have been reported to be in short supply so that patients cannot get access to them. Some of these medicines are critical. A parallel market has developed, practised by pharmacies, wholesalers, dispensing doctors and even NHS hospitals. Eighteen hundred licence holders are allowed to export medicines out of the UK. What urgent plans do the Government have to stop this parallel market? We know that existing regulations do not seem to work, while regulations in some EU countries forbid some of the practices that exist in the UK.

The noble Lord will know that parallel trading is a legitimate activity, but we take a very dim view of any NHS organisations indulging in it. We are concerned about whether it is having the effect on the supply of medicines that the noble Lord mentions. I am pleased to report that my right honourable friend Andy Burnham and the Minister, Mike O’Brien, held a summit with UK pharmaceutical supply-chain stakeholders to discuss concerns about the supply of medicines and agreed a package of urgent actions to address this issue to ensure that our patients continue to get the care that they need when they need it.

I believe, from when I chaired the Intergovernmental Organisations Select Committee on pandemics, that we in the UK stockpile drugs, so am I right in saying that we always have significant amounts of drugs available? We have an impressive reputation around the world for our drugs supply, but we have to keep stockpiles as well as meeting domestic needs.

My noble friend is right that there are stockpiles—the expression is “buffer stocks”—of essential medicines that we are building up for use in the event of pandemics or other major disruptions. The problem, as I am sure noble Lords will appreciate, is that feeding them back into the supply chain at the moment could have the opposite effect from what was intended, as it might encourage greater exporting. We are concerned not to increase the problem of parallel trading.

My Lords, the Minister has just told us that the Government take a dim view of this practice and the shortage of drugs. What does a “dim view” mean in reality? Who is held to account?

We think that it is unacceptable and contrary to acceptable professional behaviour for any hospital to be taking part in this. We were aware of some anecdotal reports that hospitals were trading in medicines, so the Chief Pharmaceutical Officer wrote to all chief hospital pharmacists in July 2009 and to the NHS chief executive and Monitor in February. Hospitals and NHS organisations are in absolutely no doubt that we regard this practice as unacceptable.

My Lords, does my noble friend accept that this is a particular problem for doctors’ practices in rural areas, where they do their own dispensing and where often no other source of treatment is available for patients? Will she take an urgent and close look at this aspect of the problem?

My noble friend raises an important point. This matter was discussed at the summit that I referred to and is being addressed by the stakeholders and partners that took part. He is quite right. I will undertake to ensure that we are taking action on rural pharmacies and I will write to my noble friend about it.

Will the noble Baroness explain how the outcomes of the summit will ensure that the supply chain of medicines in this country, which requires pharmacists to be able to receive medicines within 24 to 48 hours, will be resolved and restored?

The participants in the summit were the Association of the British Pharmaceutical Industry, the British Association of Pharmaceutical Wholesalers, the National Pharmacy Association, the Pharmaceutical Services Negotiating Committee and the Medicines and Healthcare Products Regulatory Agency, or MHRA. They agreed with my right honourable friend the Minister a more explicit duty on manufacturers and wholesalers to ensure the supply, a series of targeted inspections by the MHRA, tougher standards for the issuing of licences for medical wholesalers and the development of a best practice guide on how supply difficulties should be dealt with by doctors, pharmacies, wholesalers and manufacturers.

My Lords, according to the Minister, we were first worried about this in July 2009. The summit was held 15 days ago. Has there been any marked improvement over the last 15 days, as this is obviously an urgent problem?

As I said in my original Answer, the supply of medicines has to be dealt with all the time and interruptions in supply can be for a variety of reasons. It has become apparent only over the last period that parallel trading, which is to do with the relationship of the pound and the euro, has become a particular issue that we particularly need to address. It is too soon to say what the effect of the summit will be, because it was only a few weeks ago, but I will certainly let the noble Baroness know.

Is there a link between the department’s early warning systems and the specialist medical groups so that alternative guidance can be enacted quickly, such as happened when diamorphine supplies ran out at very short notice and the specialist society rapidly produced alternative guidance? No patient complaints were received then because no patient was left in pain through a lack of diamorphine supplies.

The noble Baroness points to a good example of how the system can work in different ways. We have officials who spend almost all their day making sure that the supplies of medicines are in the right place at the right time for the patients.

My Lords, had some of the drugs that were sold on to other countries—these drugs may be for people with rheumatoid arthritis and cancer—already been bought by the National Health Service before being sold on?

I am not absolutely certain about the answer to that question. Certainly, there is a list of 40 medicines, but that is 40 medicines out of tens of thousands of licensed medicines and out of millions of prescriptions. They include drugs for some of the conditions that the noble Baroness mentioned. I am not absolutely certain whether these were sold on by the wholesalers or the manufacturers direct. I will undertake to ask that question.

Health: Dementia


Asked By

To ask Her Majesty’s Government what progress they have made in implementing their dementia strategy launched in February; and how effective it has been.

My Lords, the Government have just completed the first full year of implementing the five-year National Dementia Strategy (NDS) to transform services for people with dementia. Progress has been made in many areas. Most recently, noble Lords may have noticed a public awareness campaign, including television adverts, designed to reduce the stigma associated with dementia.

I thank the Minister for that encouraging reply. However, yesterday the Public Accounts Committee came out with some rather worrying figures. By the end of this month, every primary care trust and local authority will be required to have in place a joint action plan to implement the dementia strategy and to account for the money that has been allocated. It also reported that research into dementia has fallen by 7 per cent. Will the Minister give me an idea of the Government’s response to this?

It was always envisaged that the first two years of the dementia strategy would be gearing up, as it were, for full implementation. Sixty million pounds has been made available to PCTs in the first year. We are assessing how that is spent and what it is spent on, and will report back on that. We are piloting and evaluating a variety of different projects. I was very surprised to learn that research funding had fallen because the money is there to spend on research. We need a volume of applications for dementia proposals to come forward so that research can be undertaken. My honourable friend Phil Hope has set up an advisory group on dementia research which we hope will develop practical ways of working together to increase the volume and quality of dementia research. I hope that when we have this discussion in a year’s time I will be able to report an increase in research spending.

My Lords, why are people with dementia staying too long in hospital? Does the dementia strategy recognise this problem and how to resolve it?

The House has discussed this matter several times. We certainly recognise the need to improve the quality of care for people with dementia in general hospitals and to improve the training of those who deal with people with dementia in hospitals. This is one of the seven priority areas for urgent action in the dementia implementation plan.

My Lords, the Alzheimer’s Research Trust, of which my wife is president and in which I take a very serious interest, has produced figures in the very recent past showing that the cost of Alzheimer’s to society as a whole is a staggering £23 billion. I am not sure whether I have remembered that correctly, but the figure is astronomical. It is going to get worse because people with Alzheimer’s are living longer and need carers. The relatives of those with Alzheimer’s cannot earn a living because they have to be carers. This research to find out what to do and to be aware of the cost is essential. Is the noble Baroness aware of that? I hope that she is.

We certainly are. The overall annual economic burden of dementia is estimated to be £14.3 billion a year. This is a huge cost. The direct cost to the NHS is £8.2 billion a year. I pay tribute to the work of the Alzheimer’s Society, which is a very important partner in the delivery of a dementia plan. Its reports have helped to point us in the right directions as regards the major priorities for research, as has the Alzheimer’s Research Trust.

Can the Minister give us any idea of how high a priority will be given under the dementia plan to carers’ need for respite when their caree, as it were, is living exclusively at home?

We know that carers play a vital role, and supporting them is a very important priority. That is why we launched the 10-year cross-government strategy to support carers. The noble Baroness will be aware that the new national care service White Paper, which will be with us shortly, addresses the issue of carers and how we can best support them in the very important work that they do in supporting not only people with dementia but a very large range of elderly people and those with other disabilities.

In the first two years we have appointed a clinical director, so the leadership that we require at hospital, local and regional level is very close to being in place. We have 40 demonstrator sites, which are where social services and healthcare services work together to produce local plans on the best way of dealing with people with dementia. Those are in place and will roll out in the fullness of time next year. We have also issued guidance on commissioning services for people with dementia. Noble Lords will be aware that we also commissioned the anti-psychotics report that was published in November last year, and are deciding what to do with it. Those are four areas where progress has been made.

Gypsies and Travellers


Moved By

To ask Her Majesty’s Government why they have decided not to implement the provision in the Housing and Regeneration Act 2008 to extend security of tenure on local authority Gypsy and Traveller sites to that enjoyed by other caravan dwellers under the Mobile Homes Act 1983.

My Lords, Her Majesty’s Government remain committed to bringing security of tenure to local authority Gypsy and Traveller sites and to do this by implementing Section 318 of the Housing and Regeneration Act 2008. Statutory instruments will be laid as soon as parliamentary time is available.

I thank my noble friend for that Answer. I know he intends to be helpful, but does he agree that the promise to give security of tenure—crucial to the education and health of Gypsy children—has just been dropped off the list of things to be done before the election because no one thinks that it matters enough? My noble friend has got two other statutory instruments under the same Act this afternoon. Does he also acknowledge that a very simple statutory instrument, a quarter of a page long, could speedily be brought in to cover just this one point, thus incidentally, also satisfying the letter from the Joint Committee on Human Rights?

My Lords, I acknowledge the role that my noble friend plays as an effective and consistent campaigner for the rights of Gypsies and Travellers. I share her disappointment that it is not going to be possible to bring forward this statutory instrument before the general election but emphasise that the Government remain committed to doing so. As to the alternative proposition, that we could achieve what is required by a fairly straightforward and shorter instrument, the Government’s view is that it would not have allowed the changes to assignment and the others requested in the consultation we undertook to be applied retrospectively to existing agreements once the Mobile Homes Act was applied to those agreements. We do not believe that the alternative is effective.

My Lords, does the Minister acknowledge that there continue to be great disparities between those who live in bricks and mortar houses and those who live in mobile homes or on caravan or Gypsy sites? Can he give an assurance that despite the pressures on the department the interests of those who live on Gypsy sites will be borne in mind? Will he give a commitment to try to iron out the disparities between those who live in bricks and mortar houses and those who find their housing by other means?

My Lords, the purpose of the consultation on these proposals was to seek to align the position of Gypsies and Travellers on local authority sites with other caravan dwellers on private sites or in park homes. That is the particular consistency we are seeking to achieve through these propositions.

My Lords, first, can the noble Lord give any examples, other than that of the case of Connors, where the Government have ignored a judgment of the European Court of Human Rights for six years, after having been reminded three times by the Joint Committee on Human Rights? Secondly, on the second question put by the noble Baroness, has the Minister had a chance to look at the draft statutory instrument we sent him just before the House convened, and why does he say that it is impossible to deal solely with the question of security of tenure to enable us to comply with the judgment?

My Lords, we are not ignoring this very important issue, which is why we introduced Section 318 into the 2008 Act. The reason a more straightforward statutory instrument would not work is a bit complicated, but basically the noble Lord will be aware that we consulted on a range of issues that needed to be addressed with the support of local authorities and the Gypsy and Traveller community and agreed to introduce new implied terms into the Mobile Homes Act. To make sure that any changes apply to existing agreements as well to new ones, we need to use the transitional provisions in Sections 321 and 322 of the Housing and Regeneration Act 2008. Those can be introduced only as a consequence of bringing in Section 318. If we separated these two things, we would not be able to achieve the primary objective of making a broader range of adjustments to the Mobile Homes Act which the Gypsy and Traveller community wanted and local authorities think are important. It would be possible to separate and deal with issues of security of tenure, but then we would forgo those other opportunities. That was not the proposition on which we were consulted and we feel that we could be subject to legal challenge on it.

My Lords, in January last year there were a massive 1,276 unauthorised Traveller sites that have to be tolerated due to the special treatment given to them; a further 1,086 sites on Travellers’ own land that were not tolerated; and a further 1,315 unauthorised sites on other people’s land. Will the Government give councils which have provided authorised sites stronger powers to tackle unauthorised development and illegal trespass?

My Lords, I would not accept the proposition of “special treatment”, which I think was the noble Earl’s phrase. We believe that the framework we have in place in terms of enforcement and encouragement of the identification of provision of sites to be the right one, and that is what the task group basically supported. The noble Earl has, however, partly put his finger on the issue that so long as 20 per cent of people living in caravans have no authorised place to stay, there are going to be these ongoing challenges. It is therefore important that local authorities go through their requirements to identify and bring forward additional sites. A statistic that surprised me when I read the brief is that across the country, it would take in aggregate no more than one square mile to accommodate all the additional authorised sites we would need.

My Lords, does the Minister accept that Gypsies, Travellers and Roma are almost invisible recipients of racial prejudice in this country, and will he work with colleagues, particularly in the education and justice departments, to ensure that appropriate provision is made for this often ignored minority ethnic group?

My Lords, I fear that that proposition is right, which is why the Government are seeking to ensure, through a range of measures, that we support these groups. They are covered by the Equality Bill, which is just finishing its passage through your Lordships’ House and we addressed them quite recently, for example, in the context of the Child Poverty Bill. The right reverend Prelate has rightly identified issues around health and education, and it is important that we move forward with measures to deal with them.

Armed Forces: Journalists


Asked By

To ask Her Majesty’s Government whether they will prohibit journalists embedding in United Kingdom military units in Afghanistan during the general election campaign.

My Lords, first, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Corporal Richard Green of 3rd Battalion The Rifles, Rifleman Jonathon Allott of 3rd Battalion The Rifles, Rifleman Liam Maughan of 3rd Battalion The Rifles, Lance Corporal Tom Keogh of 4th Battalion The Rifles, part of the 3 Rifles Battle Group, and Corporal Stephen Thompson from 1st Battalion The Rifles, part of the 3 Rifles Battle Group, as well as the three soldiers who have not yet been named from 1st Battalion The Royal Anglian Regiment, who have been killed recently because of operations in Afghanistan.

On the Question, it is the Cabinet Secretary’s responsibility, not Ministers’, to issue guidance to government departments on their activities during the election period, including how they should communicate. Guidelines have been agreed between officials in the Cabinet Office and in the Ministry of Defence about the implications for reporting on operations to ensure that facts about events in Afghanistan can continue to be made public. As during the 2005 general election, some restrictions on visits to theatre will apply.

My Lords, I associate these Benches with the Minister’s condolences to the families and friends of the riflemen and the three soldiers from the Royal Anglian Regiment. On the Question, this war is of national importance and the British public have every right to know what is happening, including the many acts of heroism. Sixteen servicemen have received the Conspicuous Gallantry Cross and scores more the Military Cross. Are the Government gagging the press for fear that they may uncover inconvenient truths that are damaging to new Labour during the election campaign?

My Lords, I regret the comments of the noble Lord. The experience of recognising the gallantry of those who are fighting in Afghanistan should unite the whole House and not divide us. As I said in my opening remarks, the guidelines are not issued by Ministers and the decisions are not taken by Ministers; they are taken by the Cabinet Secretary and his officials. The Chief of the Defence Staff has said clearly that no one within the military—anyway, it would be against Queen’s Regulations—should be undertaking any activity that could call into question political impartiality. It is in the interests of the armed services that no one calls their impartiality into question.

My Lords, on behalf of the Cross Benches, I add to the condolences expressed by the Minister. Can the Government find a way of encouraging journalists to cover those areas of Afghanistan where economic and social progress is undoubtedly taking place?

My Lords, the noble Baroness makes a good point, which the whole House could support. It is clear that what we are doing in Afghanistan is not just a military operation; it is also about ensuring long-term stability. That is dependent on the comprehensive approach, which includes looking at the economic and social progress that many people are trying to bring into effect. Those who are working in that area deserve our recognition also.

My Lords, I include these Benches in the earlier tribute. Can the Minister say where this nonsense is going to end? Is it the intention of the Government to gag the military commanders in the field in some way during the election campaign? Is it not an insult to our forces, who during the campaign will be laying their lives on the line for us, not to have the normal continuous reporting that we have got used to? Should not the Prime Minister and the Defence Secretary stop sheltering behind the Cabinet Secretary and reverse this wholly untenable and unacceptable position?

My Lords, the noble Lord is asking us as Ministers to interfere in an area where Ministers should not make and are not making decisions. The guidelines would be political were they being imposed by Ministers. It is an insult to suggest that the picture that the noble Lord presents is the case. The Chief of the Defence Staff has made it clear that his military people can continue to brief on progress with operations, can release factual information and can maintain blogs from operational theatre. However, they must stick to factual information only. Those guidelines are not ministerial. They are supported by the military and they are decided by the Cabinet Secretary and officials. I believe that they point us in the right direction.

My Lords, perhaps I, too, may express my condolences not just to those who have lost their lives in the recent tragic incidents, but to the seriously injured, whom we often forget. They are brought back and, with the wonders of medical science, are able to pick up their lives, but they are very seriously wounded. I hope that we never forget them.

I think that the noble Baroness is profoundly mistaken. As somebody who had to endure certain problems with the press embedded with our forces in the first Gulf War, I none the less took the view that they must always be allowed to report. While the Cabinet Secretary is admirable in giving his guidance, there is a Government with Ministers, who can discuss this in advance of the election with the leaders of the opposition parties. I am sure that that would be in the interests of the country. The noble Baroness must realise that, otherwise, the most unfortunate impression is given, which I am sure the Cabinet Secretary Gus O’Donnell did not wish to achieve, that the intention is to create a blackout during the election period. That would give quite the wrong impression to the country.

My Lords, that impression is given only by those who want to give it. The clarity of the guidelines that have been drawn up will ensure that there is direct reporting on a factual basis from those in the military who know what is going on on the ground. General Messenger’s briefings in London will continue. They will be on a factual basis and that is the way it should be. We should be wary of allowing political interference. That is why it is right that Ministers should not be involved in these kinds of decisions.

Let me take up the other point that the noble Lord made, which was about recognising those who have been seriously injured and the wonders of science that have kept them alive. We have seen this week some of those scientific wonders, with someone seeing through their tongue. It is appropriate to recognise the progress that is being made and the contributions of those who have sacrificed much of their future in many ways.

Commons Councils (Standard Constitution) (England) Regulations 2010

Charities (Disclosure of Revenue and Customs Information to the Charity Commission for Northern Ireland) Regulations 2010

Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2010

Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Devolution and Miscellaneous Provisions) Order 2010

Mesothelioma Lump Sum Payments (Conditions and Amounts) (Amendment) Regulations 2010

Pneumoconiosis etc. (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2010

Motions to Refer to Grand Committee

Moved By

Motions agreed.

Housing and Regeneration Act 2008 (Registration of Local Authorities) Order 2010

Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010

Motions to Approve

Moved By

That the draft orders laid before the House on 20 January and 3 February be approved.

Relevant documents: 8th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 8 March.

Motions agreed.

Taxation (International and Other Provisions) Bill

Third Reading

Bill passed.

Consolidated Fund (Appropriation) Bill

Bill read a second time. Committee negatived. Standing Order 46 having been dispensed with, the Bill was read a third time and passed.

Personal Care at Home Bill


Clause 1 : Free provision of personal care at home

Amendment 1

Moved by

1: Clause 1, page 1, line 20, at end insert—

“( ) impose on local authorities duties relating to the portability of the free provision”

My Lords, the House will recall that, in Committee, I tabled a similar amendment calling for arrangements to be put in place to ensure that recipients of free personal care are guaranteed seamless support in the event of moving from one local authority to another. My concern has been to ensure that no one's human rights are compromised by avoidable interruptions or breaks in care-support funding. People with critical-plus needs are potentially in a very vulnerable situation when they move. They need to know that there will be no hiatus in their free personal care provision. Hiatuses are, unfortunately, all too common in the current system, and cause extreme stress and hardship.

I have witnessed situations when care funding has stopped for nearly six months, while a severely disabled person renegotiated a similar care package in his new local authority. This person was not only forced to make all his assistants redundant—they were due to move with him while he looked for new staff locally—but he was left with absolutely no money to pay for backup care in his new home. He managed to scrape by, by taking a loan out and praying that family and volunteers would just about cover the costs. He survived the journey but, due to the stress and disruptions to care on top of the anxiety we all go through when moving, others have not. Even a few weeks’ delay or uncertainty can be dangerous for this group of people with personally challenging disabilities or illnesses.

This Bill attempts to create some of the foundations of a future national care service. One important feature of this modern service will be to provide universal consistency and portability of care. Therefore, it seems vital to me to seize this opportunity to test how we can deliver portability in practice. The noble Baroness, Lady Thornton, said in Committee that the Government would take this issue away with a view to making appropriate provision for transitional protection in regulations. I am very pleased to inform noble Lords that she has been true to her word. It feels like I and my colleagues from the Royal Association for Disability Rights—RADAR—have been locked in a room with officials for weeks, looking for the very best and clearest way to actualise the portability policy intent. This has been a complex and challenging task. Noble Lords will know that community care law is plentiful and tortuously complex.

I am pleased to say that we have emerged with what I think are clear and robust enforceable regulations and directives. I am very much indebted to the Minister for her passion and determination to find a workable solution, and to her officials who have worked with me in the true spirit of co-production, which is extremely hard to get right. We have been working on it for many years. I also acknowledge and thank Luke Clements, who gave me excellent legal advice, and RADAR for its usual high standard of support and knowledge. Finally, I am very grateful, as always, for the strong support this issue has received from all sides of the House. I know that the noble Baronesses, Lady Barker and Lady Williams, share my passion to extend this freedom of movement to the most disabled in our society.

My purpose in retabling this amendment is to ensure that the Government can set out on the record the fruits of our deliberations and the shape of future regulations. We must have it on the record. I shall say no more now because the Minister will doubtless give a full exposition in her response. I beg to move.

My Lords, I am very happy to support the noble Baroness, Lady Campbell, on an issue which has been debated in this House many times. It is a shame that it has taken such a long time to come to a successful conclusion.

As the noble Baroness, Lady Campbell, suggested in her speech in Committee and today, one of the deepest concerns of people who move from one area to another is the time lapse between assessments. Often their needs are urgent and have not changed, but the process of assessment delays their receipt of care. I am grateful to the noble Baroness, Lady Thornton, for the letter that she sent the other day, in which she made it explicit that there will be a continuity of service pending an assessment by the receiving authority. It should not be incumbent on a receiving authority to carry out an assessment in all cases. Will the Minister clarify that I am right that under the provisions of the Bill and the regulations it will be possible for people to move and for it to be accepted that their needs remain the same? We would not want to put people through an unnecessary process of assessment, which would just waste everybody’s time. That is the point of clarification that I wish to hear.

The noble Baroness, Lady Campbell, has tabled this amendment, supported by the noble Baronesses, Lady Wilkins and Lady Barker, to discuss once again the important matter of portability of care. It is an issue on which she has long campaigned with great determination, and which she again described most eloquently.

Of course, we recognise the potential for disruption to patterns of care, which can be the reality for a disabled person who moves from one local authority to another. The issue is addressed in the forthcoming White Paper as one of the long-term challenges of the care system.

Further to our confirmation in Committee that we would include provision to effect transitional protection in regulations, as the noble Baroness said, I am pleased to confirm that I believe that we can now achieve what has been long proposed: portability of the free personal care element of a package of community care services when someone moves from one authority to another for a transitional period.

In other words, where a person in receipt of free personal care moves from one authority to another, they must continue to be provided with the same package of free personal care as they had before their move, until the new authority has assessed their needs for community care services and decided what services to provide in the light of that assessment. They do not need to make that assessment; that is for them to decide.

That will be achieved through a combination of the regulations enabled by the Bill and the issuing of separate directions made under Section 7A of the Local Authority Social Services Act 1970. Just saying that shows that not just I but the noble Baroness, her advisers and our officials have been closeted together for the past few weeks to reach this solution.

The directions will impose a duty on both the authority providing the free personal care and the authority to which the person moves to co-operate to ensure that personal care of the same type and level provided by the first authority continues to be provided without interruption. That provision will continue until the new authority has carried out an assessment under Section 47(1) of the National Health Service and Community Care Act 1990 and decided what services need to be provided.

The regulations will provide that where a person in receipt of free personal care moves from one authority to another, and the new authority is providing them with personal care before an assessment of their eligibility for free provision is carried out, the new authority must provide the personal care free of charge until an assessment of eligibility for free care has been carried out.

I am very grateful to the noble Baroness and to her advisers at RADAR for all their hard work with us on the draft regulations and directions, and for giving us a further opportunity to demonstrate the move towards a future national care service. Subject to her satisfaction with our proposals, I would ask that the amendment be withdrawn.

I thank the noble Baroness, Lady Thornton, for setting out so clearly the positive impact that this will have on the life chances of those with critical-plus needs. It has been a very interesting, long and challenging journey. The right of portability and clear directions on how it should be executed seamlessly must not be underestimated. Disabled and older people will be absolutely delighted with what has been achieved in this House today. It will give them more hope for the tricky times ahead. This is indeed the first step towards the fairer national care and support system that we are looking for. I believe that it has been taken very seriously. Therefore, I am delighted and beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2

Moved by

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

“( ) not be made before 1 April 2011”

My Lords, the amendment would postpone the start date for free care at home for those with high levels of care needs. I declare my interest as president of the Local Government Association. The amendment reflects the concerns of local authorities about the timetable for this measure.

The anxieties of the local authorities which are being asked to deliver the new arrangements are of two kinds. First, there is the worry that they cannot get arrangements to help 400,000 people in a new way up and running in the next few months. These months will include local as well as national elections, with possible changes of local leadership and local policies, and will also cover the weeks of the summer holidays. Secondly, local authorities are concerned that their budgets have already been set for 2010-11 and cannot, at this stage, take the hit of an extra £125 million which they are expected to find by way of cuts in other areas. It may be much more than £125 million if, as the Association of Directors of Adult Social Services—ADASS—calculates, the government figures are a serious underestimate.

This is in no way a wrecking amendment. If it finds favour with your Lordships, the measures in the Bill would simply be implemented at a later date. At earlier stages, I have praised the positive aspects of this Bill, and I know it is supported by a number of charities with which I have connections. However, it is not sensible to proceed at a pace that local authorities believe is unfair and unreasonable. After all, central government depends on the hard work and good will of local authorities for the delivery of the Bill’s provisions; alienating those who will have to make it work would be a bad start. Nobody wants this new initiative to be a shambles on 1 October, discrediting its principles and antagonising those it should help.

The Minister has been unfailingly courteous and willing to listen throughout the progress of this legislation, as demonstrated in her support for the excellent portability clause pressed so successfully by the noble Baroness, Lady Campbell. She has written to all Peers with an interest in the Bill to offer a concession on the timing of the programme for delivering free care. She has said that if there are delays in local authorities processing all the thousands of assessments for eligibility for free care, then those individuals whose claims are eventually agreed will have the costs of care backdated to the date on which they applied, even though they were not assessed for some time thereafter. This is indeed a helpful concession, and would alleviate some of the pressure when people start to apply for eligibility assessments.

I have asked the Local Government Association whether this concession would make a significant difference to the administrative burden it faces. The LGA has responded that despite the very welcome efforts of the Minister, this help would not do the trick. The concession does not negate the need for councils to have completed a vast range of preparatory activity by 1 October. This activity includes: taking action on such matters as impact assessments of free personal care on other related policies; undertaking financial modelling and making changes to current charging systems; conducting equality impact assessments and implementation planning; carrying out an awful lot of training in the new assessments; introducing, testing and ironing out the bugs in new IT systems and reporting procedures; setting up and market-testing contracting arrangements with providers; communicating with the general public through an information and communication drive with new publicity leaflets; and all the rest. It would be wrong to assume there will be any less pressure on councils to complete all these tasks by 1 October simply because they can backdate an individual’s entitlements.

This brings me to the question of whether, irrespective of the problems of getting the administrative arrangements up and running by 1 October, local authorities can be expected to find the money for this scheme during the financial year that is just about to start. Councils have already set their budgets and council tax for 2010-11, and are already having to make hefty efficiency savings. The Government have given a pretty good idea of the amount each authority will get from the Department of Health to pay for free care, and local authorities must make up the balance, estimated at £125 million for the half year and £250 million next year—but perhaps much more if the figures used by the Government are wrong.

Some way down the line, there may be savings from the Bill’s provisions. For example, fewer people may pay their way and go into residential care, but their money may run out and the council will be required to pick up the bills. If these people are helped to stay at home for longer, public spending at a later date could be avoided in some cases. However, local government expects no such offsetting savings for a couple of years, and everyone agrees that extra money must be found as soon as the new system kicks in. Indeed, Sir Jeremy Beecham at the LGA believes that imposing these new duties on local authorities without fully funding them or lifting other obligations from them violates the new burdens doctrine that was agreed between central and local government. How are local authorities to shoulder this extra financial burden when they are already making significant economies and their social care budgets are under huge pressure?

Even if staff are made redundant, costs in the first year are likely to be higher, not lower, because of redundancy arrangements and the rest, and I am sure that the charities, which want to see help going to those who currently pay for care as soon as possible, would not be happy if this help were at the expense of others who also need social care. As the Equality and Human Rights Commission says:

“It is difficult to see how local authorities could meet the cost of this measure from efficiency savings, without any detriment to social care services and other local services”.

It is not justifiable to require local authorities to rob Peter to pay Paul, to redo budgets or to revisit council tax levels after the financial year has begun. Surely it is better to take this at a sensible pace and look at a start date of next April. I am therefore grateful to the Minister for her letter and her endeavours to help to ease the burden on councils which the current timetable certainly imposes, but surely the local government sector has right on its side when it says that it is unreasonable and unfair to require councils to implement and to pay a substantial share of the costs of the new arrangements from 1 October this year. Let us agree to postpone implementation, as set out in Amendment 2. I beg to move.

My Lords, I support this amendment, to which I have added my name.

I agree entirely with everything that the noble Lord, Lord Best, has said. As noble Lords know, I am no great fan of this Bill, which I regard more as a cul-de-sac than a stepping stone or bridge to a reformed system. However, even if I supported this Bill, I would still press this amendment on the Government to save them from spoiling their own creation through poor implementation.

This is not a wrecking amendment; it is simply a recognition of the realities of implementing a complex new scheme of assessment alongside other existing schemes of assessment within six months. Given the vulnerability of the people involved and the need to take account of carers’ needs, it will be impossible to put into place a properly trained and prepared workforce in the time that is left between now and October across all local authority areas. The Government now seem to recognise this fact of life, to some extent, in the letter of 12 March from the two Ministers, but they cannot quite bring themselves to take the next sensible step of deferring implementation until they can be confident that all local authorities can implement the new scheme properly. In wilfully pressing on, the Government are choosing to ignore sound professional advice from those who have to administer the scheme. All this will do is create an administrative shambles that damages service users, carers, local authority staff and, indeed, the Government’s own reputation.

This lack of preparedness has led the Association of Directors of Adult Social Services to make it crystal clear to the Government for a long time that the new system cannot be implemented in October. In replying to the Government’s consultation, on page 3 of its response, it said:

“ADASS believes that the timescales proposed by the Government are unreasonable and will lead to significant problems with the implementation of the Bill”.

It reiterated that position in a letter to me of 15 March, which it has copied to Ministers and which we have tried to make available to all Peers. The Government are simply ignoring clear advice from the people who will be held accountable for implementing the new system. This, in my judgment, is irresponsible. I hope the Government will accept this amendment.

My Lords, I, too, have a great deal of sympathy with what the noble Lord, Lord Best, has said. He is absolutely right that we should not willingly antagonise those who are the providers of care, because the best care has always been the result of good partnerships between the local authorities, the health providers and—most importantly—the users and carers. It is because of their needs that I cannot support the amendment. I am thinking of the 140,000 families—a number estimated by Carers UK—who would be denied free personal care if we delayed, of the 65,000 people who would not benefit from the reablement which they might have been able to access, and of the older and disabled people going into residential care, when that could have been prevented. As we are often reminded, most people want to stay in their own home.

Therefore, although we have duties to the local authorities and to the workforce, we also have duties and responsibilities to the biggest providers of care—the carers—and the users. For that reason, we should try to reach a compromise of the kind the Minister has very helpfully suggested. I remind the House that, in response to what the noble Lord, Lord Warner, said, we are not actually starting afresh with the workforce. Let us acknowledge that many of the social care workforce are already extremely experienced in assessment and all the other areas of need that are required to implement such legislation. I hope we will be able to find a compromise on this very important point.

My Lords, I share exactly the same concerns as the noble Baroness, Lady Pitkeathley, but I am afraid that I have come to exactly the opposite conclusion for the very same reasons. My reasoning is based, to a large extent, on the work I have done over the past year with a number of local authorities and, more importantly, a number of voluntary organisations.

I always think it is worth pointing out what is going on right now in the world of social care. Local authorities and voluntary organisations—the key providers of information and support to the recipients of this care—are currently dealing with large-scale tendering of services, in many cases for the first time, and, at the same time, implementing the personalisation agenda. That is having a huge and immediate impact on the process of assessment and resource allocation.

A number of councils—some of the most enthusiastic for the personalisation agenda—have been moving towards implementation of care brokerage. Even the most advanced councils that I know of, such as Kensington and Chelsea or Richmond in west London, are in the early stages of pilot schemes which are funded for one year and have not yet been evaluated. At the same time, local authorities are achieving the very same efficiencies that we are supposed to believe they will be using to fund the implementation of this Bill in ways that will also have a direct impact on it. They are tendering information and advice services on a generic basis. I am sorry because this is a very “anoraky” argument, but previously, information and advice services were largely provided on a client-group by client-group basis. But they are not now: they are being generically tendered for all adults over the age of 16. People with mental health, drug and alcohol problems, physical disabilities and carers will all be in the one contract. That will be a huge change, particularly for providers of information and advice. The information, advice and support services, which are always needed to make any change of this sort work—and they will be needed to make this work—are in turmoil. For that reason the noble Lord, Lord Best, is right.

I am not always particularly enamoured of provider arguments about their being overloaded, but these people in local authorities have a strong argument. A huge amount of change is going on. For example, seven local authorities in west London are coming together to tender all their information and advice services as one in order to achieve the economies that they are having to make. I hope noble Lords will understand that on the ground that is a monumental change. There will be a change of personnel and a change of practice. If this change goes ahead, there is a risk that a large number of people will not get this service to which they are entitled and will get no service at all because there is such confusion.

Notwithstanding the will of people to make services work better, more efficiently and in a more personalised way, I say to the Minister that whatever the intent of the Government the timing could not be worse. For that reason I support the argument put forward by the noble Lord, Lord Best.

My Lords, I warmly support all that has been said in support of this amendment by its other movers. No one who has spoken to local government as I have can possibly be in any doubt of the appalling predicament in which many councils now find themselves as they face the prospect of having to implement this Bill. Not only do they not know where the money will come from, they do not even know how much money, ultimately, they are likely to have to find.

They also argue, as I do and as the noble Lord, Lord Best, does, that this scheme is a new burden and therefore constitutes a blatant breach of the Government’s own undertaking to local government not to impose such burdens. In Committee, the Minister made light of these concerns. She seemed to be saying that there was plenty of money around and that it could be found from efficiency savings if people would only put their minds to it. She also dismissed the idea that the policy represented a new burden.

It is important to expose those arguments for the nonsense they are. New burdens are new tasks imposed on local government which are not fully funded. Free personal care at home is a new task imposed on local government and will be only partly funded. It is not any use the Minister saying, as she did in Committee, that the 4 per cent efficiency savings which councils have to make next year leave plenty of room to meet the costs of the scheme.

The term “efficiency savings” means that you take money away from a local authority’s spending total without damaging the services that are provided. Local authorities are therefore being asked by the Minister to spend money which, by definition, they do not have. It seems to me that that is a curious sort of sophistry. It may be that the line the Minister meant to give was that given by her colleague, John Denham, in another place, who indicated that the efficiency savings required were to be over and above the already budgeted 4 per cent savings.

We need to be clear how unrealistic that is. In many local authorities, it is impossible as of today to identify where such additional savings might come from. It is true that some local authorities will need to find comparatively small sums, but others will be landed with an instant and very large bill—I refer to those local authorities where a high proportion of those who are currently receiving personal care are funding that care themselves. It is irresponsible for Ministers to dismiss the acute funding problems that those councils are facing at a time when they have already finalised their budgets and the council tax for next year. I believe that it is the Government’s responsibility and ours in this Chamber to recognise practical reality and to back this amendment.

My Lords, I wish to support this amendment for all the good reasons given by my noble friend Lord Best and others, but I do not wish to see this Bill sunk. I wish to see some handcuffs on the Bill and of the options among the amendments, this seems to me the most elegant set of handcuffs. It has the advantage that it will have, at least, a way of dealing with the initial—and real—concerns of local authorities, and the problems not just of cash but of the provision of services in such a short time.

However, the best thing about the Bill is the direction of travel and I would not wish to see that lost. The advantage of this amendment is that if the Bill were to go through, it would give every incentive to an incoming Administration of whatever political hue—even if it were a coat of many colours—to seek the consensus which everyone in this House hopes will be the basis for real future planning in this very important area. For this reason I hope this amendment will be passed.

My Lords, listening to this discussion I find myself slightly confused because it strikes me that we are moving from a situation where there would be a sudden implementation date. However, the Minister’s reassurances suggest that local authorities will have somewhat of an ease-in, ease-out option. I certainly do not deny the stress on local authorities—the fact that they are suddenly facing a great deal of work—but I am also well aware that there are desperately worried users and their carers who are faced with the question of whether they must move from their own homes or whether they are able to sit it out. It is a desperately important issue for them.

I am aware also that it is human nature to start knuckling down to implementing change only when the deadline is looming—whenever that deadline is. I cannot help feeling that with some of the work that must be done, there is a point where one just has to say that you need to get on and do it. The assessment processes are, by and large, already worked through. The professionals are already assessing patients; certainly, the systems have to be worked through and must be streamlined so that they are fair.

It would help me greatly if the Minister could confirm my understanding from her reassurance—that there is now somewhat of an ease-in, ease-out process so that instead of there being a sudden transition, as this amendment would create, there is a period of grace. Can she also confirm that where there is undue pressure, every effort is made neither to jeopardise the users and carers nor to allow the whole system to come crashing down because of the local authorities?

My Lords, when I spoke on Second Reading I was critical of this Bill on grounds of both process and substance, and despite the assurances offered by the Minister nothing I have seen or heard subsequently causes me to revise that assessment.

On process, it exemplifies how not to go about developing a policy on a long-term issue. It introduces an option previously rejected in the Green Paper, even before the consultation period was finished, and, to judge by the outcry from local authorities and care professionals, insufficient work has been done to nail down the costs or establish clearly who should fund them.

On substance, the Bill remains flawed. Rather than progressively increasing the support elderly people are eligible for, as their needs rise over time, it introduces a discontinuity whereby people with moderately high needs in their own homes are helped much more generously than those with even greater needs who have to move into a residential home. This is an injustice and we should not introduce that injustice without a plan being in place quickly to resolve it.

It is an acknowledged role of this House to seek greater time for reflection where flawed legislation or flawed implementation is put before us. In my view this is precisely such a case where we need more time to get the policy, its funding and implementation right. I therefore support this amendment.

I rise because I fully support the Bill and have done from the very beginning. I also have some information from the Government about the work that they have already been doing with councils to ensure that councils have as much information as possible about the policy, the support that will be provided and the amount of central funding that they will receive. Moreover, we are talking here about people with the highest needs. Most of them have been anticipating that they will have a service from 1 October 2010 and I do not really think that we should disappoint them when they have been expecting an improved service. In point of fact, of course, one of the most important groups is the people who actually care for them. I have been a carer myself; I know how one waits and hopes for some assistance and is very unhappy when one does not get any. The amendment from the noble Lord, Lord Best, should not be accepted. We should proceed as fast as we can to get this policy operating so that people who have high needs get some assistance as soon as possible.

I had not intended to speak but, listening to some of the debate, I want to add a very short comment.

I am certainly concerned for carers and users and the disappointment that they might face if this is not implemented as soon as possible. As someone who works in the sector all the time, I think that we have to face the reality of who will be disappointed and who will receive the service. What is absolutely clear is that, whatever happens, there will be rationing. We have heard the arguments—I shall not repeat them—from the noble Lord, Lord Sutherland, the noble Baroness, Lady Barker, and others, about the situation in local authorities. We all know that at the moment there are not enough domiciliary carers to meet the need. Those providers of domiciliary care services know that currently they are sending people in at six o’clock at night to put people to bed and at six o’clock in the morning to get them up, because that is the only time slot that remains. If we introduce the legislation immediately, a range of people who are currently receiving services, but who are not at the heaviest end in the community, and will therefore lose those services because the services will be moved to people who can afford to pay for them but who will have a right to them. My worry is for those carers. I declare an interest as someone with responsibility for someone with serious Alzheimer’s in the community in the north of England and who may well benefit from this change. I think that we have to think very carefully.

My other reason for speaking is that I do not wish the Bill to fail. I do not want to support what might be a wrecking amendment. We have long waited for social care to be on the agenda—for those who need that type of social care to have the same kind of benefit as they would if they went into hospital. Many of them are the same patients/clients; they are the same people who need that kind of service. I hope that we will not lose the side of the Bill that takes us into the Green Paper.

Local authorities need time. Practically, they will have to sort out who does and who does not receive a service. Although I find it hard to disagree with some of my colleagues who support carers and carers’ associations, some of those people will lose out because there simply will not be enough money to go round.

The amendment in the name of the noble Lord, Lord Best, refers to a commencement date of 1 April 2011. It is worth clarifying that this would prevent the making and laying of regulations before April 2011. The effect of the amendment would therefore be to delay implementation of the scheme until June 2011. That probably was not the noble Lord’s intention; indeed, it was not the effect of the amendment that he tabled in Committee.

I am sure the House will be pleased to hear that I do not intend to repeat the remarks that I made at previous stages of the Bill but will instead address the issue of how the Government want to address the concerns expressed about councils’ readiness to introduce these measures from October 2010.

I note briefly that we are supported in our ambition to take action by key charities, which recognise that the Bill provides a real opportunity to individuals and their families. I thank my noble friend Lady Pitkeathley for reminding the House that we are not starting down this path with a blank sheet of paper.

We do not think it right to delay support to individuals because of local implementation issues—we think it is right to tackle those issues. However, we have listened to the concerns expressed, both in this place and in our widespread consultation on the proposals. Taking those concerns on board, we have already confirmed in our response to the consultation that we will ensure that councils are able to phase in the implementation of free personal care between October 2010 and March 2011, to take account of both local issues and potential peaks in demand for assessment.

It is, however, our firm intention to introduce the scheme from October so that people can begin to benefit from this offer. In recognition of the large number of assessments that may need to be done initially, we propose to include in regulations a measure of backdating for individuals already assessed as needing personal care. Our intention is that, between October and April, councils will be able to delay the full assessment for free personal care of people who are already in the system and have been assessed as needing council care. These people will be able to have an assessment later and have any payments for free personal care backdated. Councils will be able to assess those people who are approaching social care for the first time—say, on discharge from hospital—in the normal fashion. Councils will, however, have to assess those people currently funding their own care and not currently known to the system when they make an approach from October.

In that way, we are offering councils which feel that they will not be fully ready by October the opportunity to have a staged approach to implementation. They will be able to focus on meeting the needs of people who have funded their own care, safe in the knowledge that those within the system will not be disadvantaged if they are not ready to fully assess them from the date of the introduction of the scheme. I will be circulating draft regulations before Third Reading that will give effect to these flexibilities for councils.

We are marrying two important objectives, recognising the practical difficulties that might be faced by some councils but ensuring that those with the highest care needs in our society receive the personal care that they need free of charge, as eloquently explained by my noble friend Lady Turner.

In addition to the specific new provision, offering flexibility while committing to provide for those in the highest need, we have published a clear implementation plan in our response to the consultation. We will be working closely with local government representatives to support councils in implementing the new arrangements, including a new commitment from the Department of Health to provide some centrally funded training for councils.

The government consultation response also sets out our proposal for the allocation formula to be used to distribute the specific extra grant of £210 million to cover the six-month period from October 2010, including an indicative allocation for each council. This gives local authorities greater clarity on the funding available, and a greater ability to plan for the implementation of this scheme.

Extensive discussion has taken place on the Bill, and we have announced flexibilities around implementation to ensure that councils provide free personal care from October. I ask the noble Lord to withdraw this amendment and engage with us in discussions to ensure that we have the best support possible for councils to help them through this implementation. If he does not wish to do so, I ask the House to reject his amendment.

Will the Minister confirm, for the record, that the Government believe that they should ignore the advice of the professional body whose members will be responsible for implementing this—namely, ADASS?

My Lords, we are not ignoring the advice of ADASS; we are in continuous discussion with it. We disagree with some of its members about how this can be implemented.

My Lords, I am grateful for support for this amendment from right round the House. The Minister’s point that the excellent concession that would allow councils to phase in the assessment of eligibility over time and then, later on, pay the individual the sums back to the date when they applied does not unfortunately negate the need for councils to complete a vast range of other preparatory activity of the kind that I listed earlier. It would be wrong to assume there is any less pressure on councils to complete all these tasks by 1 October simply because they can backdate individuals’ entitlements.

I can see local authorities incurring a good deal of opprobrium if the implementation date remains 1 October but nobody gets any cash for several months. The complaints that councils would receive would be very unfair when they are making it clear in advance that these deadlines are quite unrealistic. The noble Baroness, Lady Barker, explained the huge changes that are overloading those in local authorities. The noble Earl, Lord Howe, noted how the financial burden of this measure will force a number of councils to make horrible choices on what to cut elsewhere in their budget. The noble Baroness, Lady Howarth, expresses her anxieties that others in real need of care will suffer. The noble Lord, Lord Sutherland, adds that this amendment does no harm to the Bill’s direction of travel.

If there are technical flaws in the wording, I apologise. No doubt, if passed by your Lordships, this can come back to us from the other place with a better turn of phrase. I detect widespread agreement that more time is needed before this Bill should be implemented. I would like to test the opinion of the House.

Amendment 3

Moved by

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

“( ) For the purposes of this section, where a person has been assessed as deafblind, provision of personal care to a person living at home shall include the provision of communication and mobility support.”

My Lords, with this amendment I return us briefly to an issue I raised in Committee and one which the Minister has since been kind enough to talk to me about privately. I refer to the fact that this Bill and its implementing regulations look likely, if nothing is done, to sideline the needs of deafblind people.

Perhaps I may remind the House why this is such a concern. To be both deaf and blind is surely one of the cruellest of disabilities. It is impossible for any deafblind person to live a normal life without receiving some measure of care, and for the worst afflicted it would be difficult to describe their level of need as anything other than critical. Indeed, under the current FACS guidance, deafblind people are frequently assessed as having a critical need under the category which relates to involvement in family and wider community life. If the care needs of deafblind people are not addressed, they are at extreme risk of having to go into residential care.

The problem is that, deserving of help as these individuals may be, the people whom this Bill is designed to benefit are not the deafblind but rather the frail elderly or those younger people who are severely physically disabled. The kind of personal care which the frail elderly typically require—dressing, help with toileting and bathing, assistance with eating and so on—is often not relevant to a deafblind person whose needs centre above all on help with communication and the whole business of interacting with the outside world. The draft regulations published by the department effectively narrow the definition of personal care so as to exclude this kind of personal care.

In Committee, I pointed out what I felt was the unreasonableness of this narrow definition of personal care, bearing in mind the vulnerability and acuity of need of the deafblind. I invited the Minister to take time to think about this, which I know she has done, having been good enough to see me together with representatives of Sense a few days ago. I have therefore tabled this amendment as a means of asking her whether on reflection she believes that anything can be done to ensure that those deafblind people who have the most critical care needs and who are at greatest risk of requiring residential care if their needs are not met can, after all, qualify for free care and support. I beg to move.

My Lords, I do not want to come between the House and hearing what the Minister has to say for any longer than necessary, but I wish to offer my support for the amendment moved in similar terms by the noble Earl, Lord Howe, in Committee. Unfortunately, I was not able to be here to do so, which is why I want to say a few words to indicate my warm support for the amendment before us today.

Deafblindness is a combination of disabilities both of hearing and sight. In this condition they are multiplicative and not just additive. Deafblindness is not just deafness plus blindness. The two disabilities compound one another in such a way as to give rise to a distinct disability which is different in kind, not just in degree, from the disability of either deafness or blindness.

Most of what we learn about the world comes through our eyes and ears, so deafblind people face major problems with communication, access to information and mobility. Without support, deafblind people are frequently unable to access basic information, maintain social contact, cook for themselves, go to work, exercise, engage in leisure activities, get out to the shops or the bank, visit the doctor, deal with post and bills, and even get around their own home in order to carry out household chores. Without communication and mobility support, many deafblind people do not feel safe going out of their house alone. They are, thus, effectively prisoners in their own home. Inside the house, they may be unable even to speak to anyone on the telephone, read, watch television, or listen to the radio. In this condition of extreme isolation, it is not surprising that they often develop higher rates of ill health with consequent cost to the National Health Service. They have a higher incidence of falls and a greater likelihood of developing conditions such as strokes, arthritis, heart disease, depression, and mental distress.

Those who suffer from deafblindness have a very serious level of disability. It is just about as serious as it is possible to conceive of. But, as the noble Earl explained, deafblind people are often able to perform the bare minimum of tasks of daily living, such as getting themselves up, washing, dressing, and maybe even feeding themselves by one means or another, even if they are unable to cook for themselves. This means that, according to the definition of personal care customarily employed, a deafblind person would not qualify for free personal care under the provisions of this Bill. The definition of personal care needs to be broadened to include the mobility and communication support which deafblind people so desperately need. That is why I so strongly support this amendment.

My Lords, I also strongly support this amendment. Like the noble Lord, Lord Low, I was unable to be here at the Committee stage because of other commitments. I just seek clarification from the Minister about reablement. The Bill says free provision is,

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

I hope the Government are going to concede something in this area. Many of these people will have already had maximum independent living support prior to this Bill. I am concerned about what happens if somebody has a condition which is so severe that it is envisaged that no improvement can be made towards their independent living, or if they have already undergone a process, as part of their care management, which takes them to the maximum level. I hope we do not end up with the tokenism of some kind of reablement package.

My Lords, I thank the noble Earl, Lord Howe, for raising this issue and the noble Lord, Lord Low, for the passion he expressed. I also thank the noble Earl for the time he has spent with my noble friend discussing this. As he knows, we will ask for the amendment to be withdrawn. However, we have discussed the assurances that I will give, and I will briefly go through them.

The Government are very sympathetic to the deafblind, who are a group with very specific needs. We will ensure that the guidance we produce makes clear that where a person is unable to undertake activities of daily living because of deafblindness, this should be recognised; for example, where they are unable to feed themselves because they cannot identify food. While people who are deafblind have specific needs, the measures in the Bill are about providing free personal care to people with the highest needs. These measures are targeted and costed to include deafblind people within this group. The Bill is not intended to cover the entirety of a person’s care needs, only their personal care needs. We have always said that this is a proportionate measure—a step on the way to longer-term reform of the social care system.

To extend the free personal care scheme to provide communication support to the deafblind would be significantly to widen the scope and the costs of our proposals. On Sense's own figures, given in evidence to the Health Select Committee, there are approximately 180,000 deafblind people who might seek to benefit, and Sense anticipates that this figure will rise to more than 300,000 by 2029. To include communication and mobility support would be moving beyond the scope of personal care into the wider domain of care and support. The forthcoming White Paper will set out our plans for wider future long-term reform of the social care system.

Noble Lords have expressed concern about whether the measures are affordable and could be implemented in time by local authorities. To accept the amendment would increase both the costs and complexity of the implementation of such measures. While we do not believe that the Bill is an appropriate place to insert specific provisions for specific conditions, we are sympathetic to the needs of the deafblind. For that reason, we reissued statutory guidance in June last year to all local authorities. We have also, in the revised eligibility framework published last month, reminded local authorities of their obligations to take proper account of sensory impairment in reaching decisions about eligibility for social care. When Ministers and officials met Sense, we agreed that we would ensure that the guidance published to support the implementation of free personal care will remind authorities of their obligations to take the needs of this group seriously and offer the support needed.

On the matter raised by the noble Baroness, Lady Finlay, I believe that the issue of reablement was covered by my noble friend in Committee. We expect local authorities to use reablement in a sensitive way, and not in the difficult areas to which she alluded. I hope that the assurances provided in Committee are sufficient. In the light of what I have said, I hope that the noble Earl will withdraw his amendment.

My Lords, I thank all noble Lords who have spoken in the debate and in particular the Minister for his reply. I am a little disappointed. I had hoped that the deafblind community might be able to take from this debate a greater degree of hope and comfort. It is reassuring that the Government have re-emphasised in guidance the importance of recognising the gravity of this disability but it does not appear that there is much scope for making particular allowance for it in the scheme that we are debating. That is, to put it mildly, a pity. However, I do not propose to pursue the matter. I hope that the Government will give it some additional consideration as their plans materialise. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

Amendment 4

Moved by

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

“( ) After section 16 of the Community Care (Delayed Discharges etc.) Act 2003 insert—

“16A Right of appeal

(1) The Secretary of State shall by regulations establish an appeal mechanism for persons who believe that they are entitled, under section 15, to a qualifying service free of charge for a period of longer than six weeks, but who have been refused such a service by their local authority.

(2) Regulations made under subsection (1) shall be made by statutory instrument and any such instrument may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.””

My Lords, I have retabled this amendment on the right of appeal, as it is important to make it clear that there is a straightforward and fast-track mechanism. No doubt, in the critical band of people who need help, there will be complex problems. One must not forget that such people are very vulnerable and that their carers, if they have them, may be at their wits’ end. There are still unanswered questions: what will be the cut-off point and who will do the assessments? It is well known that many local authorities have differing criteria, so there is sure to be a postcode lottery. When I read the list of activities of daily living, I see that many deal with nursing duties covering such things as eating and drinking when there is difficulty swallowing, managing urinary and bowel functions, management of treatment that consists of a prescription-only medicine and dealing with equipment such as pressure-relieving mattresses. Those activities all need trained people who know what they are doing.

I thank the noble Baroness, Lady Thornton, for making herself and members of the Bill team available to Members of your Lordships’ House. I agree with the Minister that we do not wish to add any unnecessary layers to the process. However, I see too many bureaucratic layers in the existing social service appeals procedure. In Committee, the noble Baroness, Lady Barker, explained the cumbersome process. She said:

“One is an appeal against an assessment of needs, the second may be an appeal against the basis on which that assessment was made—that is, the criteria—and the third is an appeal against the decision about what funds or, indeed, services to allocate to somebody”.—[Official Report, 22/2/10; col. 825.]

Could the system not be streamlined and made simpler and fast-tracked?

After Committee stage, I received a telephone call from a lady with severe arthritis. She had a problem getting out of her bath and so needed to have a shower installed. When she was assessed, it had been agreed that she needed a shower, but she was told that she would have to wait three years. Are people really being put first or are those just meaningless words?

In the paper on personal care, it is proposed that to be eligible for free personal care someone must satisfy two key criteria: first, they must be identified by their local authority as falling within the fair access to care services critical band; and, secondly, they must require significant help or significant prompting in order to carry out four or more activities of daily living. What happens to all the other people who need a little help to enable them to stay independent and to live in their own homes? Will the local authorities say, “Sorry, we have no more money”?

After appeals, 50 per cent of assessments have been found to be wrong. The Minister sent a paper about complaints from North Yorkshire. One of the questions was:

“How long will it take the Ombudsman to investigate the complaint once the council has responded to it?”.

The answer was:

“Our target is to complete the investigation of half of the complaints made to us within 13 weeks. Eighty per cent of complaints are fully investigated within 26 weeks”.

Complex social care complaints tend to be among those that take longer to investigate. How long is longer? The people within the critical band have complex conditions; they cannot wait. They need help when they need it. Would it not be possible to build on the ombudsman’s service and have local ombudsmen to set up a fast-track appeals process for those at-risk people? I beg to move.

I support the amendment tabled by the noble Baroness, Lady Masham. This Bill clearly seeks to achieve a laudable and desirable end and we have heard articulated a small number of the very serious issues that have arisen in our contemplation of it. Those affected by the legislation will by definition include those most seriously ill and disabled in our society, each of whom may present with a wide range of issues requiring an equally wide range of responses. They will inevitably include those with the most serious communication and access difficulties, as referred to by the noble Lord, Lord Low, in the context of those who are both deaf and blind. The critical nature of those conditions will necessitate a speedy response to an application and to any appeal.

Pending the resolution of a dispute—there will inevitably be disputes, as we have seen in the other sectors, on the objectivity and fairness of what has been decided—the people will have to cope without help. We have heard this afternoon that those who are subsequently accepted for free personal care at home will have the money backdated, but that comes too late for those who have no money. The result of not having a speedy and effective disputes resolution mechanism may drive them into residential care.

I suggest that any dispute resolution must be accessible, open and easily understood by those who seek to use it. People must be able to find out what it is and they must be able to take part in the process. The system must be timely and effective and it must be operated by those with sufficient training in the matters related to the dispute. The noble Baroness, Lady Masham, referred to those matters of training and specific issues that will be raised by applicants in this situation. For those reasons, we must contemplate the possibility that a new disputes resolution is necessary.

My Lords, I thank the noble Baroness, Lady Masham, for bringing up this issue. Some general comments have been made about the proposed scheme, but I shall refer to only one of them, which is the suggestion that there will be a postcode lottery for the scheme. That is not true; it will be a national scheme to national standards and we will be taking a series of measures to ensure that uniform standards apply throughout the country.

The real question brought up by the amendment is whether there should be a separate appeals mechanism. The Government believe that there should not be and that the present local government appeals mechanism, together with the ombudsman, does a good job and meets the objectives of a speedy, effective and well informed assessment.

The amendment would require the Secretary of State to make regulations that establish a specific appeals mechanism for those who believe that they are entitled to indefinite provision of a free qualifying service but have been denied it by their local authority. That would include a denial by the local authority to provide free personal care.

There is already a system for complaints under the existing procedure, providing the possibility of local resolution, supplemented by the possibility of independent investigation. We intend that that system will cover any complaints about eligibility for free personal care. If the person is not satisfied with how their complaint is dealt with under existing local authority complaints procedures, they can take the matter up with the Local Government Ombudsman or with the courts by means of judicial review.

I agree with the noble Baroness that it is important that decisions on free personal care at home are as fair and transparent as possible, including the right to challenge local authority decisions by people who have reason to believe that they should be eligible for such care, based on the criteria set out in regulations. That should be followed by the possibility of complaint to an independent body, should that be necessary.

The Local Government Ombudsman states in its fact sheet on adult social care:

“Experience suggests that many councils are quite successful at resolving complaints through their own complaints procedures”.

That is reiterated by North Yorkshire County Council, which says in its guide to its local complaints procedure that more than 95 per cent of the complaints that it receives are resolved informally at the first stage of the complaints process.

We are aiming to develop a simple, national decision tool to support decisions about eligibility for free personal care. The tool will be widely available to people who think that they may qualify, so that they can decide whether it would be worth while making an approach to the council in the first place. In that way, we hope that the number of speculative approaches that councils receive will be reduced. Similarly, the Social Care Institute for Excellence has been commissioned to produce training material for front-line staff in councils. A simple guide for the public is also being produced as part of that work. We believe that that will help to ensure that people both are better informed about the process and better understand the reasons why decisions have been taken.

We anticipate, therefore, that this much more transparent process, which involves individuals, should ensure that people have less need to resort to disputing the outcome of assessments. We have shared materials from local councils and the Local Government Ombudsman, which explain the current procedure, with the noble Baroness in a meeting with her, and last week sent an explanatory letter to her and other Peers. We hope that those steps have been helpful in providing some clarity and reassurance regarding the existing system.

The noble Baroness suggested in Committee that the Care Standards Tribunal could be expanded to include appeals about eligibility for free personal care. I thank her for that suggestion, but we do not think that it would be suitable. The existing complaints procedure for social care is fit for purpose in handling disputes relating to personal care at home. In any event, the jurisdiction of the tribunal has now been absorbed by the Health, Education and Social Care Chamber of the First-tier Tribunal.

We would not want further to confuse either the complainant or the council handling the complaint by introducing yet another mechanism. Multiple approaches can be the recipe for delay and further confusion and it would be unclear which process would take precedence. We will look to review the situation as part of our overall review of the policy’s costs and implementation within 12 to 18 months of its introduction, but at present we do not think that there are grounds for introducing a new appeals mechanism.

I thank the noble Baroness, Lady Masham, for meeting us to discuss her concerns and I hope that the letter that was circulated last week, along with examples about use of existing complaints procedures, provided reassurance that there is already adequate provision in this area. Accordingly, I invite her to withdraw her amendment.

My Lords, I thank the Minister for his reply. North Yorkshire and other local authorities have their appeal systems, but they are far too slow. When you are dealing with critical care, you need fast-track solutions. What worries me is that the professional bodies have their own support but service users often have to struggle for everything. Many years ago, when I was on a community health council, I found that it was the council members who did not turn up for meetings. I just hope that they will change their tune now that they are going to deal with seriously ill people.

I saw a glimmer of hope when the Minister said that, in 12 to 18 months, the situation would be reviewed. I think that I will be saying, “I told you so”. I hope that the system will work, but now that there will be a delay on the Bill perhaps councils will have time to get organised. I thank the Minister again and I thank my noble friend for her support—she knows about ombudsmen far better than anyone else does. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.

Clause 2 : Extent and short title

Amendment 5

Moved by

5: Clause 2, page 2, line 31, at end insert—

“(3) This Act shall come into force on such day as the Secretary of State may, by order made by statutory instrument, appoint.

(4) A statutory instrument containing an order made under subsection (3) may not be made unless a draft of the instrument has been laid before, and approved by, a resolution of each House of Parliament.”

My Lords, I shall speak to the amendment in my name and those of the noble Earl, Lord Howe, and the noble Baronesses, Lady Barker and Lady Murphy. In doing so, I remind the House that I am the honorary president of SOLLA, the Society of Later Life Advisers.

The amendment would insert into the Bill a commencement date and make sure that that date is carried first by an affirmative resolution of both Houses of Parliament. It mirrors an amendment moved in another place with the support of both the Conservative Party and the Liberal Democrats. Also, if I may put it this way, it represents a belt to go with the braces of the noble Lord, Lord Best, in ensuring that before the Bill is put into effect we have bottomed out the many open issues we are left with after all the hours this House has spent debating it. As was pointed out in another place, there is nothing to stop the Government introducing that commencement order tomorrow if they so wish. However, I accept that in practice there will not be a commencement order until after a general election—indeed, that is part of its purpose. This means a short delay, no more and no less.

I want to emphasise one point. There has been a suggestion that the amendments tabled by some of us are designed to wreck the Bill. This is a terrible calumny. Delaying is not stopping. I am not a supporter of the Bill and the policy behind it, but if I were I would want delay too: I would want my Bill put in the best possible order before I shoved it into effect. Nothing will be served for the Government if this results in administrative chaos or such a burden to finances that it has to be withdrawn again. These amendments are not unhelpful to the Government, even though that is not necessarily the only reason we move them. They are not wrecking amendments. The only thing they wreck is the attempt to force the Bill through as if it were an emergency measure, short-cutting parliamentary procedures, ignoring the criticism of its provisions which has dominated public discussion and without thinking through the fine detail as it needs to be thought through.

If ever proof of what I am saying were needed, it came in the report from the Commons Health Select Committee, published last Friday. Not all of your Lordships will have had the opportunity to study that report, but I hope you can take it from me and others who have that it is an Exocet into the heart of this policy. Its conclusions refer to, “policy-making on the hoof”, “piecemeal reform”, “perverse incentives”, “unintended consequences” and underfunding which,

“could be detrimental to the long-term interests of NHS patients”.

That is not a contribution to the Conservatives’ election manifesto; it is based on evidence from a committee of the House of Commons, with a majority of Labour members, on the eve of a general election. This is the verdict of the Government’s loyal supporters—Labour, as I am, to the roots—so let us not think that this is some ideological cross-party issue; it is what the Select Committee said. Your Lordships have a duty to ensure that the Government properly consider and respond to that report and its criticisms before the Bill is rushed into law.

The second thing to be resolved is the administrative difficulties. I will not repeat all that the noble Lord, Lord Best, said.

Thirdly, there is the controversy over costs, although I will not go into the detail of this either, as the noble Lord, Lord Warner, will do so when he moves his amendment. I will, however, quote SOLLA, which I mentioned earlier, because I do not think that a single outside authority or anyone else, other than the Government, believes that these assessments of costs are realistic. They were shoved out in a few hours after the Prime Minister’s speech, and they have been defended as though they were genuine and serious assessments of costs. SOLLA said that the costing is “at best only approximate”, and it cites the view of most experts—and SOLLA’s members are experts—that they are severely underestimated. We cannot let this Bill go through when we do not have the faintest clue how the expenditure that it mandates will be funded.

I have great sympathy for the Minister. She is a gallant and much loved Minister in this House, and she is working with hopelessly overburdened officials to an impossible timetable that has been dictated to them by No. 10. No. 10 can dictate to Ministers and to their officials, but it cannot dictate to this House, and it is our duty to make and accept the case for a steadier timetable. My argument for a steadier timetable would apply even if there was no election and even if it was true—and it is far from true—that the Government’s policy attracted the support of all the parties in this Parliament in a spirit of consensus. Of course, an election is imminent and the Conservatives and the Lib Dems have set out quite different approaches to this problem from the Government’s approach. I am not going to adjudicate between them, save only to say that there has been some very unfortunate political toing and froing on this. I look forward, after the election, to returning to the spirit of consensus that should inform our debates on these issues and to getting a consensus solution that will last not for the month to the general election, or for the year that follows it, but for years and decades to come to give our older people the certainty that they require.

The Government have proceeded throughout as though this was emergency legislation. The policy itself was announced in the Prime Minister’s conference speech in the midst of a government consultation that had explicitly ruled out the policy that it encapsulates. It was examined in detail in the Commons in a single day, and had its Committee stage in your Lordships’ House before the Government had completed their consultation on the regulations. The Government have not yet produced their White Paper—this is the most serious lacuna of all—setting out their policy for a comprehensive reform of long-term care, towards which they repeatedly claim the Bill is an interim step. It would be a grave mistake to pass this legislation without seeing the full plan for the architecture.

I accept that I have a certain strength of feeling about this, but this is not just my view; those two calm heads and former Cabinet Secretaries, the noble Lords, Lord Turnbull and Lord Butler, have used quite exceptionally severe words when speaking about it. The noble Lord, Lord Butler, told the Committee of this House that this Bill, which commits a future Government to huge expenditure, was,

“an act of national sabotage”.—[Official Report, 22/2/10; col. 893.]

I wonder whether he ever put that into Cabinet minutes. These are strong words. The noble Lord, Lord Turnbull, said that the Bill was,

“so badly constructed, so poorly costed and so weakly scrutinised that”,—[Official Report, 1/2/10; col. 68.]

we should not let it through. Cabinet Secretaries do not use their words lightly, and those are words that the whole House should weigh in its consideration this afternoon.

It is now 38 long years since I first started work in and around Westminster, and in that time Governments have done some pretty disgraceful things and Parliament has passed some pretty bad Bills. But, rack my memory as I will, I cannot recall in my lifetime an example of a piece of legislation which has so completely caused a British Government to ignore the precepts of good governance. Never mind the policy: look at the way it has been done and let your Lordships put that right. Fortunately, we exist in our constitution for one very specific purpose: as a backstop against constitutional abuse. Today, I hope we will carry this amendment, as we carried the amendment of the noble Lord, Lord Best, and as I trust we will carry others. That will at least gives pause to this headlong rush into half-baked legislation. Resolving the problem will be a matter for incoming Ministers with an up-to-date mandate from those who should ultimately decide these things—the people of this country.

My Lords, in supporting everything that the noble Lord, Lord Lipsey, has said, I would like to add my own very brief perspective on this amendment, lest the attitude of my party is in any way unclear. This amendment would in no way frustrate the Government’s ability to deliver on schedule their policy of free personal care at home to those in the most severe need; it does not tie the Government’s hands except in the loosest sense. Should the current Government be re-elected at the general election in a few weeks’ time, all they would need to do is lay the appropriate regulations immediately.

If, on the other hand, a Conservative Government were elected, Ministers would be able to take what we believe is the responsible course, which is to cost this policy properly, make sure that it is affordable in the context of the overall public finances and that it is deliverable in terms of the human resources that will be needed. None of these things is clear yet. The Government have brought this policy in, as the noble Lord, Lord Lipsey, has said, on the hoof, and they are blatantly playing to the gallery in so doing. I do not think that that is a responsible approach for any Government to take, particularly at a time of economic stringency. Our wish, if we are elected, is to achieve a political consensus on the long-term reform of social care policy, which would include a fair and coherent framework of social care funding to apply across the spectrum. In doing that, we would want to pick up the pointers and challenges laid down in the Government’s well argued Green Paper of last summer.

As I said in Committee, I would have liked to see this Bill act as the enabling legislative vehicle for at least part of that comprehensive reform package. The undesirable and unintended consequences which I believe will ensue from this scheme if it is launched on its own could have been mitigated very substantially by a graduated scale of entitlements which avoided the cliff edge that this scheme will create and by creating appropriate counterbalances to the perverse incentives inherent in the Government’s policy. That is clearly not to be, but given that Ministers are not interested in that broader idea, I do not think it is in any way wrong for an incoming Conservative Government, if they arrive, to make the introduction of this policy dependent on a much more thorough analysis of the risks that it carries and the financial burdens that it will impose on local government—for we really cannot say, as of today, that we have certainty on either of those things.

My Lords, this amendment in the names of my noble friend Lord Lipsey, the noble Earl, Lord Howe, and the noble Baronesses, Lady Barker and Lady Murphy, would require that a commencement order would need to be made before the proposals in the Bill could come into force. Additionally, such an order would need to be approved by the affirmative procedure, with consideration in this House and the other place.

Not only has this one-clause Bill had considerable scrutiny in this House and the other place, it has been openly and transparently discussed with many stakeholders over recent months. I covered this issue at length at Second Reading and in Committee, and the Government published their response to the consultation on regulations and guidance on 12 March 2010. Therefore, given the extensive scrutiny that this Bill has had here and in the other place, and more widely with stakeholders in the sector, we consider this amendment unnecessary.

In addition, the Delegated Powers Committee reported on the powers in the Bill on 22 January 2010. It said:

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

In other words, the negative procedure is appropriate.

My noble friend Lord Lipsey has tabled the amendment in the knowledge that the statutory provisions he is proposing would mean that the timetable for delivering free personal care from October would be placed in jeopardy. Please note that I have not used the word “wrecking” at any point during these debates, nor do I intend to do so. This is the Government’s priority and I can assure my noble friend that we will do whatever is necessary to deliver to that deadline for those people who need to benefit from this Bill. I would say to the noble Earl that if his party is so concerned to move forward to tackle the broader issues of social policy, it is a shame it pulled out a few months ago.

I remind the House that the Bill had an unopposed passage in another place and that there were extensive discussions with stakeholders, voluntary organisations and charities throughout. Today, I received a copy of a letter from Carers UK urging the Government not to delay. Given previous discussions, the amendment would not serve the best interests of councils, as it would introduce yet further uncertainty into their plans for implementation were this to be agreed.

Therefore, I urge all noble Lords to ensure that the Bill is not put at risk of delay and that they do not seek to jeopardise the delivery of this policy in October. I would ask that the amendment is withdrawn or, failing that, that it is opposed.

My Lords, I think that the Minister is beginning to tire of her task, given the perfunctory nature of those remarks. Within them, I think that she inadvertently misled the House as to the findings of the Delegated Powers Committee. It did not question the use of negative resolution procedures for regulations under the Bill as it then stood. Whether that was an inadvertency on its part or an oversight, or whether it should have done, does not matter because the House is not bound by it anyway.

The Delegated Powers Committee could not have considered whether this power—that is, the power to bring the Bill into force—should be by affirmative or negative resolution because it is only now before the House. It seems to me to be clearly appropriate that a decision of this magnitude, which was really a decision around which so many of our debates have evolved, must be taken by affirmative resolution in both Houses, as this amendment proposes.

The breath is somewhat taken away when I hear that the Bill had extensive scrutiny in another place or that it was not opposed. As I have pointed out to the House, this amendment was moved in another place by the two Opposition parties—unfortunately, it was defeated by the Government majority—in one day of frenetic proceedings when the whole Bill was shoved through. I think that your Lordships will recognise that if ever there was a Bill that required detailed scrutiny, it is the Bill before us today. This is not frivolous legislation. It has widespread administrative, financial and, most important, personal and social implications.

For the Minister to claim that a single day’s consideration in the Commons represents proper consideration of this Bill is not a proposition with which I could assent. I trust that the House will refuse to assent, as I test the opinion of the House in the Lobbies.

Amendment 6

Moved by

6: Clause 2, page 2, line 31, at end insert—

“( ) This Act shall not come into force until the Secretary of State has commissioned an independent review of the affordability of the provisions contained within this Act and has laid the report of that review before both Houses of Parliament.”

My Lords, this amendment is in my name and those of the noble Baronesses, Lady Barker and Lady Murphy, and the noble Earl, Lord Howe. The amendment arises solely from the Government’s failure to convince people in this House and outside that the Bill is soundly costed and affordable. To get in first, let me say that this is a good governance amendment, not a wrecking amendment.

The concerns over affordability have been made worse by the fact that we do not know how the Bill would fit into any longer-term solution and what the cost of that solution would be. We know, however, that the Government have failed to convince the Health Select Committee, the LGA, the Association of Directors of Adult Social Services and the King’s Fund with their numbers, so I feel in quite good company.

I shall anticipate the Minister’s response that the Government’s estimates are based on independent analysis by the PSSRU at the London School of Economics. The trouble is that the Secretary of State would not let the Health Select Committee see the detailed workings, despite two written requests, and the assumptions behind some of the computations look decidedly shaky. If the number of weekly care hours assumed for people with critical needs, demand assumptions and price increases used all look unrealistic, as I think they do, the Government’s figures are going to be unconvincing—and that is what they are.

I start with the ADASS cost figures. I will not repeat my Second Reading speech, other than to remind the House that ADASS said that the Bill would cost at least £1 billion a year to implement, compared to the Government’s figure of £670 million. The Government have consistently tried to rubbish the higher figure by saying that ADASS admitted overestimating some of its costs. However, the association said to me, in a letter dated 15 March:

“At no time have we admitted that the results from our survey were an overestimate of the true state of affairs that would occur if the Bill were to be implemented. If anything, we deliberately decided to underestimate as far as we possibly could, wherever we could, so as to avoid appearing to exaggerate or talk up our figures”.

The association has not “sexed up” its figures. It sticks firmly to its estimate of at least £1 billion a year, which is based on real-world calculations from its members. I confirmed this again with the association yesterday by e-mail.

ADASS is supported in its view by the LGA. The noble Lord, Lord Best, has already indicated some of the arguments on that, so I will not repeat them. Moreover, the Health Select Committee sided with ADASS’s position more than it did with the Government’s. In paragraph 296 of its report of last Friday, the committee said:

“Furthermore, estimates of the likely levels of demand and cost appear low, and there is a risk that the reform could be substantially underfunded”.

The committee was not helped in its deliberations by the Secretary of State’s reluctance to provide his workings, as it made clear in paragraph 280.

I have rather more confidence in the ADASS figures than I do in the Government’s, but that £1 billion figure is itself likely to rise faster than the Government estimate and this at a time when the public finances will be deteriorating, whoever is in government. That is because the Government’s assumptions on demand and cost inflation are optimistically low. Their impact assessment states that there will be a 1.5 per cent annual increase in service volume due to demography and a 2 per cent annual increase in price for pay increases.

The Government deny that there is any valid comparison between their scheme and what has happened in Scotland since home care was made free. I accept that there is not a direct comparison between this scheme and the Scottish one, but that is not the same as saying that there will be no similarities in human behaviour when you make this care free for some people. In Scotland, the number of people claiming went up by 36 per cent in four years when care was made free. In the last of those years, cost increases by care providers went up by 15 per cent—that was in a single year. There has to be a wide variation between what has happened in Scotland and what will happen in England, but I simply do not believe that the human beings either side of Hadrian’s Wall are that different in their likely behaviour when something is made free. Totally ignoring the Scottish experience as the Government are doing seems to me contrived. The Health Select Committee clearly did not believe the Government’s estimates on future cost increases for this Bill and neither do I.

Lastly, there is the issue of whether local government is being treated fairly over funding this legislation. The noble Lord, Lord Best, has described well its grievances, so I will not repeat them. However, if ADASS and the LGA turn out to be right about the costings—as I believe they will—it will be a pyrrhic victory, because they will have to pick up the extra tab, which could well be over £300 million in the 2011-12 financial year alone. There is also something of a conjuring trick about how local government is supposed to meet its £250 million share of the claimed £670 million annual cost. The Government have said that local government is expected to find its share from the 4 per cent efficiency savings that it is to deliver in 2010-11 so that there are no extra burdens. In its letter of 15 March, ADASS said to me:

“We believe this is very poor reasoning. We are already delivering 4% savings to fund demographic changes and to keep council tax increases down. As a result of the PCaH there will have to be additional savings or increases in council tax”.

Since it is difficult to increase council tax so close to the new year, this looks like cuts in services and possibly cuts to other elderly and vulnerable people, as others indicated earlier in the debate. The Government should accept the reasonable local government argument that this is a new burden that should be properly funded by central government.

We are at the beginning of a long, difficult and expensive road to comprehensive and durable reform of adult social care. This is probably the biggest social policy issue facing us in the next few years. A recent report by the London School of Economics suggests that the cost of free personal care for the elderly could have a price tag of an extra £20 billion a year building up over the next couple of decades. Getting the sums right and apportioning the cost fairly will be an important part of the journey that will have to be undertaken on, I hope, a cross-party basis.

With this first faltering step on this journey, the Government have not covered themselves with glory in their costings. They need to accept some help with the numbers from an independent source—I would suggest an organisation such as the Audit Commission or the King’s Fund. This amendment will help them to get back on track without delaying the implementation of the Bill beyond next spring as the House voted for earlier this afternoon. I beg to move.

My Lords, I strongly support this amendment. The Government’s assurances that the Bill is affordable and that their costings are robust are belied by their own statements, never mind anything being said by local government or ADASS. It is worth reminding ourselves of some of the relevant parts of the impact assessment. First, there is the basic question of how many people stand to benefit from this policy. We do not know the answer to that question. Paragraph 5.5 of the impact assessment states:

“Data relating to the number of people who are defined as FACS Critical at any point in time and the relative distribution of their needs/disability is not something that is routinely collected at the centre”.

Paragraph 8.8 states:

“We know very little about the disability of those younger adults who do not already receive free personal care, so all of the estimated costs … are themselves uncertain”.

Paragraph 5.10 talks about,

“the inherent uncertainty in estimating the costs of offering free personal care in their homes to those with 4 or more ADLs”—

and so it goes on. Paragraph 5.11 states:

“Estimating the costs of re-ablement is difficult. We do not know for certain how many people are already receiving re-ablement services. In addition, we do not know exactly what proportion of individuals require no further care following re-ablement or for how long they derive such a benefit”.

Paragraph 5.18 states that,

“there is a section of the population who will receive personal care who previously did not … A value on this benefit has not … been calculated”.

The impact assessment says in terms that the costs of this scheme are based on estimates. One or two estimates at the margin might be all right, but basing just about every costing assumption on an estimate where there are no underlying data at all makes this exercise unacceptably risky. We know that financial modelling is still going on. Consultations with stakeholders about the costs are still going on. In the absence of much clearer information, it is impossible as of today to say that the Government’s policy is affordable, which is why this amendment is absolutely right and appropriate.

My Lords, this amendment in the name of the noble Lord, Lord Warner, supported by the noble Baronesses, Lady Barker and Lady Murphy, and the noble Earl, Lord Howe, would require an independent review of the affordability of the provisions contained in the Bill to be carried out and a report laid before Parliament before the Bill could come into force.

I fear that my remarks will be tedious, as I am about to say pretty much what I have said on the two previous occasions when we discussed such an amendment. Given the considerable scrutiny that this Bill and the costs of measures enabled by it have had in the other place and more widely, we feel that this amendment is not necessary. I do not intend to burden the House by repeating for the third time the discussions that we had on Second Reading and in Committee.

We have looked in detail at the concerns raised by the Association of Directors of Adult Social Services. We remain confident that our estimates, of £670 million, are robust, based on the independent analysis by the London School of Economics. Clearly, we disagree with ADASS and its interpretation of the discussions. I can only repeat what we believe to be the case. The ADASS survey, by the association’s own admission, overestimated some aspects of the costs through a misunderstanding of the Government’s figures. I would like to clarify that it is correct that ADASS has not admitted to this position publicly. This was a position that it took in informal discussions with officials and the ADASS resources committee. While there is no official record of these conversations, we think that it is disappointing that the association is now distancing itself from what we believe was a previously agreed position.

However, we have listened to the concerns expressed. In the government response to the consultation, we have provided additional clarity about the £210 million of additional funding that will be allocated for the coming year, covering the six months from October 2010 to March 2011. We have circulated a letter to all councils about this so that they are now clear about exactly how much money they can expect. They can now make plans using these indicative allocation figures, which will be subject to final confirmation in June.

We are confident in our costings and have been open and transparent about the funding available with our stakeholders. In addition, we are fully committed to reviewing the costs of this scheme within 12 to 18 months of implementation and we will be working closely with local government representatives to ensure successful implementation. We are committed to collecting data from October and we will work with the councils to ensure that they have the necessary information.

Given that, we cannot see how an independent review prior to implementation would achieve anything. Where there is uncertainty—and we have been open and transparent about the uncertainties that exist—it is because the evidence is not there yet. Much of this involves assumptions about how people will behave and we cannot know whether they are right until the scheme is in place. We will need to work with councils to collect that information from the start, once the scheme is in place, and respond accordingly. That is the commitment that we have made. The net effect of this amendment would be to delay or jeopardise the implementation of this policy in October and the assistance that it would afford to the most vulnerable who need it. I therefore ask that the amendment be withdrawn or, failing that, be opposed.

Before the noble Baroness sits down, may I ask her a question? She says that the Government are confident in their costings. Will she therefore explain to the House why they twice denied the Health Committee of the House of Commons sight of those costings and why she told me in Committee that she would provide me with the costings but in fact provided me with a manual to the London School of Economics model, which predated the Prime Minister’s announcement by several months?

I do not have anything to add to the remarks that I have already made that explain our position on the costings.

I am going to be equally tedious, but, before that, let me say one thing to my noble friend. Where there is this level of uncertainty about something, those of us who have been around in the public service for a long time usually try a pilot scheme in order to work things out and get more reliable data. We do not whack a Bill through both Houses of Parliament as emergency legislation. She might like to digest and brood on that issue with some of her colleagues. However, having listened to her, I remain totally unconvinced and I wish to test the opinion of the House.

Amendment 7

Moved by

7: After Clause 2, insert the following new Clause—


(1) This Act shall cease to have effect at the end of the period of two years beginning with the day on which it is passed unless the condition in subsection (2) is satisfied.

(2) The condition is that regulations made under section 15 of the Community Care (Delayed Discharges etc.) Act 2003, having the effect of requiring the provision of personal care at home free of charge for periods of more than six weeks, are in force.”

My Lords, Amendment 7, tabled in my name and those of the noble Lords, Lord Lipsey and Lord Warner, and the noble Baroness, Lady Murphy, concerns what is commonly known as a sunset clause. It would impose a time limit on the effects of the Bill which is specified at two years. Why do we seek such a measure? Having listened with great interest not only to the discussions in your Lordships’ House but also to a variety of briefings from the Association of Directors of Adult Social Services and the charities, as well as from the Government, I still think there is too much about the Bill which is unknown. What it should be is a pilot measure, and I will come on to explain why I believe that this amendment is the most effective way to turn it into a pilot.

As the noble Lord, Lord Lipsey, said, the Health Select Committee report of another place is a pretty devastating critique of the Bill. I recommend noble Lords to read it all, but would direct them in particular to the section that talks about unmet need. I refer to the paragraphs in which the Secretary of State and officials set out in various ways the extent to which they cannot be sure how many people there are at the moment who might be eligible for care but who pay for themselves, and the number who might be eligible with or without assistance from a carer. I have to say that of our debates in Committee, the ones I thought were the least satisfactory were those in which we discussed the process of assessment and the involvement of carers.

During the passage of the Bill, I have become used to the term “carer-blind assessment”, but when I read the Select Committee report, I came across a term that was new even to me, and I know a lot of jargon in this field; and that is “carer centred”. It is where carers are not involved in the assessment of someone’s abilities but, I believe, carers themselves are taken into account in terms of assessing the services that will be provided. I may be wrong, but that is what I understand.

Throughout our discussions I have said that I have a fear that is different from that expressed by many noble Lords. They are concerned that the Bill will lead to an opening of the floodgates and that large numbers of people who are currently paying for their own needs will now believe themselves eligible for personal care. I have said consistently that I think that there is a completely different danger to consider. The number of people who will be assessed as being FACS-critical and in need of substantial assistance with four activities of daily living may be very small. I shall quote a statement made by Mr Andrew Harrop of Age UK to the Select Committee. I should say that the same thoughts were passed on to me by Pauline Thompson, the longstanding policy officer of Age UK who is to retire tomorrow. Many noble Lords will know her and will have appreciated her work. Mr Harrop said that he found some of the policy a narrow but “welcome move forward”, but went on to say about the proposed eligibility threshold that,

“you will need to be very, very disabled in order to get this free offer … the people who are going to be supported by this could be relatively few in number. There is a particular concern that people with fluctuating needs could be disadvantaged by the tightness of the eligibility criteria”.

Officials in front of the Select Committee admitted that councils do not regularly hold data on unmet need, and indeed there is a school of thought, backed by In Control, which says that assessment of need by councils is unnecessary because people themselves are best equipped to know their own needs. Therefore, unmet need simply is not recorded.

In her response, the noble Baroness will say, as I would if I were she, that this Bill has the support of a number of different charities. Not surprisingly, those charities are doing their job, which is exactly the job I would do if I were in their place. They are attempting to secure some help for some of the people with whom they work. But all of those charities have noted that the legislation is deeply flawed at various different points.

We should go for a sunset clause for the following reason. The noble Lord, Lord Lipsey, is right to say that an incoming Government—I would include an incoming Liberal Democrat Government in this—will be faced with one of the most difficult political decisions to be made in a long time. It is so difficult that this Government ducked it 10 years ago. It will be extremely difficult to convince people not only that there must be restraint in public expenditure, but also to agree the priorities for the resources that are available. Governments of any hue find it intensely difficult to take away an entitlement that so far has been given for free. That is why, at this stage, we should add this clause to the Bill so that two years after the enactment of the legislation, whoever is right—whether it leads to an unmanageable level of demand for free personal care or whether I am right and the eligibility criteria have been drawn up in such a way that the Bill does not fulfil its intended purpose—a Government of any hue will be free to look again at the overall context of personal social care.

My colleague, Norman Lamb, has done a sterling job over the past few weeks in making the point that there has to be reform of social care and that, whatever the detail of that reform, it has to reflect a universal basic entitlement to care, a partnership model between the state and individuals, and some role for private insurers, all based on common criteria. I think that any incoming Government will work towards that. Perhaps the Minister will be able to tell us, when the White Paper is published, that her Government are moving in that direction. So far all that she has been able to do is assert that this is a step towards that kind of process, but she has given us no evidence. In the absence of that, and with so many unknowns of such magnitude, I believe that putting a sunset clause into a very small Bill at this time is a prudent act and one that we should take.

My Lords, I thoroughly agree with every word the noble Baroness, Lady Barker, has uttered. Let us face it, depending on this afternoon’s decisions in this House, after the election there will be a further debate to refine the arguments and discuss the costings and administrative implications. At the end of that process, the Government of that day may decide to proceed with the Bill. In that case, this amendment is otiose. It will have no effect because the Bill will be in force within two years. The other way things could go is that the Government, after an election and after that due process of debate, may conclude that this Bill is unaffordable or irredeemably unfair. In that case, I hope we will be looking for a consensus in the way forward. But if this Bill is still on the statute book, that is going to be harder. There will be organisations for the elderly, which, as the noble Baroness, Lady Thornton, has said, support the Bill in principle but not always in practice, and which keep on hankering after it, saying, “If only we could persuade the Government to implement it”. They will not be inclined to go along with the search for consensus. The sensible thing is for the Government of that day to conclude that this scheme is not going to work and is not the way forward and that not only should the scheme die but also the legislation which gave birth to it so that we can move on to the next stage of designing the kind of policy for the long-term care of the elderly that they need and deserve.

My Lords, this amendment in the name of the noble Baroness, Lady Barker, inserts what is known as a sunset clause and would require the Act created by this Bill to lapse automatically after two years if the powers within it have not been used to make regulations. It is our intention to use the powers enabled by this Bill to introduce regulations that will come into force from 1 October 2010 so that those most vulnerable and most in need can benefit. We have made a working draft of the regulations publicly available at an early stage and have been working with stakeholders to develop these in order to successfully implement the scheme. This is a strong indication that we intend to use these powers as soon as is practicable. We will seek to publish a further draft of the regulations shortly which reflect the outcome of the consultation. As I have said, this Bill is the first stage of a reform agenda towards a national care service. As we develop those plans, we will, of course, need to look at the bigger picture, but the future direction of travel is quite clear. It is our view that there is no reason for the Act to lapse after it is given Royal Assent and placed on the statute book. I therefore ask for the amendment to be withdrawn by the noble Baroness or, failing that, for it to be opposed by the House.

My Lords, I understand the noble Baroness’s predicament. None the less, I am not persuaded by her argument. Whatever the next Government’s hue, they are going to have to have the political capacity to, I hope, lead a consensus towards some very difficult decisions. A great deal of historical baggage will have to be ditched in order to come up with a solution which is in the best interest of those older people who are in most need and least financially capable of paying for their own care.

Before the noble Baroness sits down, does she not agree that we should legislate on questions of principle and not in anticipation of the colour of the Government likely to come into being? Otherwise, we would never legislate. If the principle is right that restrictions should be removed on who can be provided with care free of charge, we should legislate for it. If an incoming Government find that difficult, that will be their business. But a legislative body should legislate on the principle of whether the Act is right and not because it is anticipating the difficulties of another Government coming into being.

The most reverend Primate raises an entirely fair point. He will forgive me for saying he did not take part in the previous debates. Had he done so, he would have seen that noble Lords in all parts of the House have major objections to this Bill on grounds of both principle and practicality. My own disagreement on point of principle is not that I do not believe that older people need personal care but that this Bill currently stands to favour many people who can pay for their care themselves, rather than targeting those who cannot, and I rather fear that will be at the expense of services for people who are poorest in our society. So it has been a matter of both principle and practice and I wish to test the opinion of the House.

Child Poverty Bill

Third Reading

Clause 1 : The 2010 poverty target

Page 1, line 10, leave out from “the” to end of line and insert “relevant income group for the purpose of section 3 (the relative low income target)”

My Lords, this is a minor and technical amendment that removes inconsistency in the use of terms in Clauses 1 and 3. The amendment ensures that the wording of Clause 1(2) is consistent with other references in the Bill to “relevant income groups”; for example, in Clause 15(1)(a) and paragraph 8(1)(a) of Schedule 2. I beg to move.

As noble Lords will be aware, we put forward an amendment to Clause 1, which was accepted by the Government. This is a technical amendment that we are entirely happy to accept.

Amendment agreed.


Moved by

My Lords, I will say a few words of thanks to all noble Lords who participated in the Bill. It has been an interesting and challenging process, and noble Lords have done their job in holding the Government to account. Most importantly, the Bill provides significant challenges to government both now and in the future. I should like to place on record special thanks to members of the Bill team for the support they have given to me and to my noble friend Lady Crawley. They were put on their mettle by noble Lords, not least in respect of the forensic analysis of data and targets; but they delivered at every turn and I thank them.

Perhaps I may join the noble Lord, Lord McKenzie, in thanking members of the Bill team for all their work. I know that noble Lords put many difficult and technical questions to them, and enjoyed receiving back their best efforts and solutions. They did a sterling job and noble Lords on all Benches are grateful to them.

My Lords, just so that we on these Benches are not left out, we thank the noble Lord and the whole Bill team for listening to our concerns. We are very pleased that the Bill will make ending child poverty a priority for whoever forms the next Government. That is very important.

Bill passed and returned to the Commons with amendments.

Social Security (Housing Costs Special Arrangements) (Amendment) Regulations 2009

Motion to Resolve

Moved By

That this House regrets that Her Majesty’s Government have laid before Parliament the Social Security (Housing Costs Special Arrangements) (Amendment) Regulations 2009 (SI 2009/3257) without providing more information on the impact on claimants, and notes with concern the risk that Parliament may lack a basis on which to assess whether the measure has been effective or represents good value for public money.

Relevant Document: 5th Report from the Merits Committee.

My Lords, I have laid my regret Motion today to give the House the opportunity to discuss the issues raised in the 5th report of the Merits of Statutory Instruments Committee. The committee’s report made clear in its summary that there were significant concerns with the explanatory material surrounding this statutory instrument. Money has been both paid out and withheld in opposition to the policy intention. To compound the confusion, there is a complete lack of certainty about the number and magnitude of these errors.

I am sure we would all admit that the benefits system is now appallingly complicated. Trying to define how different benefits impact on each other is a task that I doubt many would undertake with enthusiasm. However, that is no reason for such a task not to be undertaken. I am glad that the department offers training sessions to welfare agencies to explain changes in the rules. I wonder whether the Minister could fill us in a little more about these sessions. How frequent are they? Are there routine refresher courses, or are they limited to the areas in which there have been new regulations?

Of course, an obvious way to reduce the need for these courses would be to reduce the number of changes made to the regulations. From the committee’s report, it is apparent that the Minister's department has not met the usual standards expected in regard to secondary legislation. I wonder whether he can tell me how many pieces of legislation have been produced in recent years by the Department for Work and Pensions that correct errors or clarify confusions in earlier Acts or statutory attachments. Such unnecessary work not only for this House and its committees but also for the department and, of course, the agencies tasked with implementing the rules would be much reduced if the department got it right first time. In future, I hope that the Government will take more care.

It is unfortunate that even after the Parliamentary Under-Secretary of State was hauled over the coals for errors and lack of information, the Explanatory Memorandum tabled with the regulations contains trivial errors. It lacks the necessary reference to the related SSAC report, for example, although a space has clearly been left for the information to be inserted. That is a small point and one on which the Minister's office has been extremely helpful and prompt in rectifying, for which I thank him.

When such mistakes are made, one can sympathise with the chairman’s evident frustration with the quality of information with which he was provided during the evidence session in January. The Parliamentary Under-Secretary indicated that she would be reviewing the relevant procedures when she answered the committee. I hope that the Minister will be able to tell us how that review has gone. Have any changes been made to stop these sorts of problems happening again?

I wonder whether the Minister will be able to give us a little more information on the detail of the errors which this SI is to rectify. In January it was thought that between 50 and 100 households could have taken advantage of the loophole but that none actually did. Is that still the case, or has any further information come to light? The cases of underpayment are much worse. A cumulative total of £17.2 million was suggested in the evidence session. That is a significant sum and one which was much exacerbated by the length of time it has taken the department to correct the error. Can the Minister give us an estimation of how much the extra statutory scheme will cost before all the money has been paid and how long does the Minister expect that to take? Will recipients be expected to apply for their entitlement or will the department do the work of seeking them out and giving them the money?

This entire episode has not reflected well on the Government. Although I am quite certain that the wider world will remain sublimely uninterested in such technical failings, I hope that the Minister can assure me that such a consideration will not prevent the necessary steps being taken to prevent similar occurrences in the future. I beg to move.

My Lords, I support the Motion tabled by the noble Lord, Lord Freud. He is absolutely right to table it and all his questions are pertinent and important. Some may be technical but they go to the heart of enabling us to discharge our duty to scrutinise these very technical issues.

In the atmosphere in which this original decision was taken—probably by the then Secretary of State, James Purnell—the instinct was right. The policy intention of trying to protect people from losing their homes was absolutely right. In 2008, when these decisions were originally taken, there was a possibility not only of people running the risk of losing their jobs but also of the tragedy being compounded by them losing their homes as a direct result of something not being done. Earlier evidence from earlier recessions suggests that that was a real risk. The ministerial decision was right at the time, but everything else after that seemed to go wrong.

Maybe there is a point to be made about the flow of Ministers through the department. They hold office for 15 months, if they are Secretaries of State, and if they are lucky. We have had 20 or so Ministers for Pensions with almost the same number of Parliamentary Under-Secretaries. The advice I would give to the department, and one of the lessons that we learnt from this set of mistakes, is that the professionals in the department should say, quite firmly, to Ministers, “Okay you have the authority to make the decision that something has to be done in this area”. Then they should be quite firm about the timetable and how the process is managed. There should not just be a press release and another initiative with Ministers taking the credit for making what they believe is the right decision. The department has to feel more confident about saying, “We will do this for you but we are going to do it the right way, and not in a way that will land you in trouble later on”. The intention was wholly right and supportable. However, by grabbing at it in a way that I suspect was driven by a political timetable, things went seriously wrong.

I want to add to the list of questions. What worries me most in the long term is that the department is now introducing two-year temporary time limits on substantial benefits by statutory instrument, without consultation. That is a disturbing precedent—there is no other adjective—and I want an assurance from the Minister that wholly exceptional circumstances led to that. Again, I suspect that it was driven by Mr Purnell for whom I must say I have a great deal of time, even though I have just criticised him. The two-year temporary provision was not necessary. As far as I have read the papers there was some £5 million a year, I think, at stake in terms of the temporary nature of the provision. The Minister might clarify that as I could not make sense of what it would cost to have run it on beyond two years. The combination of the temporary provision and the lack of consultation is worrying.

We all know that the benefits system is ineffably complicated but the defect at the heart of these regulations is the fact that somebody could artificially come out of a claim, make a new one and take advantage of the higher benefit levels. That is not an intrinsically complicated part of the benefits system but the kind of thing discussed in the corner of the bar of the Dog and Duck every Friday night. You need not be a highly paid departmental lawyer to work out that maybe people will take advantage of that, and it should have been entirely foreseeable. I do not accept that this is some complicated bit of legal text whose consequences people did not understand. Anybody who had given two seconds’ thought to bringing in the regulations in this way could see that artificially breaking the claim to come back in and get more money was a foreseeable risk. That was pretty shocking—I expect the department to be better than that. To describe it, as the Parliamentary Under-Secretary of State did to the Merits Committee, as an immensely complicated exercise which led to the mistake, is just wrong.

There was an inadequate response to the Merits Committee report, which I read carefully. The chairman in a very gracious way made it quite clear that the committee was absolutely fed up at how it had been treated by the department. The noble Lord, Lord Freud, was right about that. I noticed that the Parliamentary Under-Secretary of State rather fingered the Permanent Secretary by referring to him at least three times and saying that he was instituting training. Latterly, the Merits Committee found out that the people who made the mistake had gone through the training anyway, which is an interesting vignette in itself.

The Permanent Secretary must get a grip on this. If anyone is called in future by the Merits Committee to explain similar circumstances I hope that they will ask for Mr Leigh Lewis to appear in person and explain himself. He is an experienced and good Permanent Secretary but he must carry the can for this. The Merits Committee was right to exhibit displeasure and I hope that it will continue to do so. By the way, I hope that the training is now in place for everybody in future who gets anywhere near this kind of stuff.

Another point is evaluation. Having read these papers carefully, I do not think that there is any chance of evaluating the effectiveness of this policy at all because there are no baselines of any kind. It is not a huge spend—I accept that, particularly since it is time-limited—but it is impossible to evaluate the effectiveness of this increased amount of public money as there is nothing against which to measure it. That is regrettable.

I do not want to read too much into this but there was an exchange in the Merits Committee between Mr Howarth, who is the lawyer, at page 31, when he was asked by the noble and learned Lord, Lord Scott, about extra-statutory payments. He seemed to suggest—and I am really looking for an assurance that this is not the case—that extra-statutory payments were okay as long as they were within the Treasury budget limit for the programme cost. I do not think that the House can accept that. Extra-statutory payments—gratuitous payments—by the department are wholly exceptional. For the department to say, “Never mind, we can pay money gratuitously to people because it doesn’t bust the amount of money the Treasury has given us to do this”, is completely unacceptable. I may be reading too much into the sentence at the bottom of page 31 in the Merits Committee’s fifth report but I would not mind a reassurance that we are going nowhere near that kind of territory. If we are, the House will want to know more about that, and rightly so.

The SSAC and the Merits Committee have both done an excellent job. To come back to an important point made by the noble Lord, Lord Freud, I am a DWP watcher and had an immense amount of difficulty from home in tracking down the SSAC document, as it did not have a number. I do not think that that is the fault of the SSAC, but is something to do with the fact that HMSO or TSO are tardy when it comes to putting reference numbers on documents. The document that I eventually found had no number on it anywhere. If people are doing their best they can to keep up with some of these technical arguments, a good way of confusing them is not to give references or links to documents that people can understand. These were complicated circumstances concerning an amended set of regulations that we were amending. It was not easy even for somebody like me, who has been following these things for quite some time.

The SSAC also put its finger on an important point. There should be a fundamental review of homeowners’ costs in future. Anybody who thinks that homeowners will be trading themselves out of repossession territory within the next two years misunderstands the dilemmas, financial and economic difficulties that the country will face in the next comprehensive spending review period. Two years will just not do it. Therefore, we should be looking at how we spend money to support these people in future. I cannot understand why we did not just flush the extra Treasury money through the existing system. Of course, that would have meant people waiting for longish periods, and there are benefits of the new system. I absolutely understand that. But if people—particularly debtors or people threatened with repossession—knew that there was this amount of money flushed through the old rules, it would have given them a lot more comfort and the same effect would have been achieved without all this complexity. This has not done credit to anyone. We seem to have snatched defeat from the jaws of victory, with a good policy going horribly wrong because of how it is administered.

I finish where I started. I think that this was the right thing to do, but I hope that we will learn lessons. The noble Lord, Lord Freud, is absolutely right and has done a service to the House by bringing the regulations to our attention so that we can examine them and try to learn lessons so that such things do not go wrong in future.

My Lords, I start by thanking the noble Lord, Lord Freud, for bringing forward the Motion, which has given us a chance to discuss the issues. I have listened with great interest to the points that have been made.

I am bound to say that I found the contributions a little unbalanced. In particular, it was difficult to understand the criticism about process. There was no great recognition of the substance of the regulations. Perhaps I can start by explaining why the Government introduced the regulations.

The changes to the support for the mortgage interest scheme were announced on 2 September 2008 as part of a major cross-government package of new measures to meet the challenges in the housing market at that time. Doing nothing would have increased the risk of homeowners losing their homes. Although we initially intended the regulations to come into force in April 2009, we decided to bring forward their introduction to January 2009 in the light of the increasing and fast-moving effects of the economic downturn. We thought it important that working-age benefit customers with mortgages got that additional help as quickly as possible. The changes were therefore in place from 5 January 2009. The changes doubled the capital limit for loans up to which support for mortgage interest is payable from £100,000 to £200,000 for new working-age customers. They reduced the waiting period for mortgage help for new working-age customers from 26 or 39 weeks to 13 weeks from 5 January 2009, and they also introduced a two-year time limit on the payment of support for mortgage interest for some income-based JSA claims—I will come back to that point in a moment.

In addition to those changes, the Chancellor announced in the Pre-Budget Report in November 2008 that the standard interest rate would be maintained at 6.08 per cent for six months. The standard interest rate is used to calculate the amount of help available by applying it to the eligible capital outstanding on a customer's mortgage. The rate applies to all support for mortgage interest customers, both existing and new, including those claiming pension credit.

In the Budget of April 2009, the Chancellor announced a further extension to the 6.08 per cent rate for a further six months. In last December’s Pre-Budget Report, he announced another extension of that rate until the end of June this year. He also said that we intend to move towards a fairer, more affordable approach that more closely reflects the mortgage interest rates being charged to customers. That will help to ensure that support for mortgage interest is appropriately targeted as housing market conditions improve.

Of course, we always keep arrangements under review to ensure that they work well. For example, some customers have always had interest rates below the standard interest rate, but we have recently started to receive increased volumes of inquiries about access payments of support for mortgage interest. As a result of the standard interest rate, people receive more support for mortgage interest than is needed to cover their actual interest payments. I am pleased to use this opportunity to tell the House that we will lay regulations tomorrow to ensure that support for mortgage interest payments made to lenders can be applied only to customers’ mortgage accounts. Establishing that central principle in legislation reflects our overarching policy that support for mortgage interest is intended to help to prevent repossessions, and that any excess SMI should be used to reduce the mortgage liabilities for individuals, and thus future cost to taxpayers.

Fundamentally, by introducing these measures we wanted to provide help for homeowners at a time of great pressure for many of them. We believe that it was right as a matter of urgency to protect those most at risk of losing their homes. Although I agree that it is always helpful fully to understand the likely impact of any regulations, there are circumstances when that is simply not possible. At the time, given the changing economic situation and the pressure on the financial system, there was concern that a waiting period of 39 weeks was too long. Many customers may have been subject to foreclosure proceedings before they became eligible for support. The capital limit of £100,000 was outdated, given that by 2008 the average house price in the UK was closer to £200,000.

Without reform to those elements of SMI, many families may have found that the support that they would have received would have been too little, or too late, to prevent their home being repossessed. We stand by the decision to introduce the regulations swiftly. If we had not introduced them as soon as possible, customers would have had to wait until April 2009 to benefit from the changes. Instead, as a result of our action, customers benefited from the changes from January 2009, at a time when the effects of the economic downturn were being felt by many hard-working families. That was the right action to take.

By introducing the whole package of measures, we estimate that we have provided an additional £700 million in support to about 220,000 households at risk of repossession. We believe that that support, as part of a wider package of measures, has helped to keep the number of repossessions lower than was originally feared. It should also have helped to prevent a considerable number of families falling into arrears with their mortgage accounts, which, in many cases, may have led to long-term financial difficulty or being forced to sell their home.

The changes have been broadly welcomed by all key stakeholders. There is widespread acknowledgement that they have been effective in supporting the poorest homeowners in the recession and preventing repossession. The Council of Mortgage Lenders said in its budget submission last week:

“We believe that a combination of lender forbearance, low interest rates, lower than expected unemployment during the recession”—

I will not dwell on today's encouraging figures—

“and a variety of government schemes has helped keep mortgage possessions in check and will continue to do so. Having originally forecast 75,000 possessions in 2009, similar to levels seen at the depth of the last recession, our recently published data showed that there were, in fact, 46,000 cases during the year. We have predicted 53,000 possessions in 2010 but have already said that, while we cannot be complacent about mortgage payment problems, our forecast looks a little pessimistic”.

A number of other stakeholders have acknowledged that the changes have had a real impact in supporting homeowners and preventing repossessions. They include Citizens Advice, the Building Societies’ Association, Advice UK, the Money Advice Trust and Shelter.

To introduce the regulations as quickly as we did, it was necessary to bypass our statutory consultee, the Social Security Advisory Committee. The department values highly the contribution made to policy development by SSAC. We of course take into account views expressed by commentators on consultations undertaken by the committee. We are committed to consultation processes. We believe that stakeholders and others outside DWP have an important contribution to make to the formulation of policy. However, in this instance, after careful deliberation, the Secretary of State decided not to refer the regulations to the Social Security Advisory Committee, in accordance with the statutory provision, because he believed that it was inexpedient to refer the proposals, due to the urgency of the matter.

That decision was not taken lightly. Had we followed the normal process, the introduction of the regulations would have been delayed by many months—which, as I have explained, would have put homeowners at risk. Ideally, we would have consulted publicly on the regulations before they came into effect, but, on balance, we thought that it was important to get help to people as quickly as possible. We subsequently referred the regulations to the Social Security Advisory Committee in January 2009, and it decided to consult on them. We responded to that consultation in December last year.

The regulations came into effect on 5 January. They clarify how some of the temporary rules that I have described operate in practice and correct a few anomalies in the earlier regulations. They also implement a Social Security Advisory Committee recommendation regarding what we refer to as excess income over requirement cases. This will ensure that the new rules introduced in January 2009 are extended to customers who first claim a relevant benefit on or after 5 January 2009 but who are not entitled to that benefit until the support for mortgage interest component becomes payable. Jobcentre Plus staff are contacting customers who are affected by this amendment—that is one of the points that the noble Lord raised—so that where appropriate they can receive the more beneficial help. However, as this cannot apply retrospectively, the department is setting up an extra-statutory scheme to address any potential shortfalls, of which it will publish details in due course.

The noble Lord, Lord Kirkwood, gave the impression that, simply because there was a bit left in the budget, the department was happy to have lots of extra-statutory payments floating around. That is not the case. There was a situation and there was a policy objective. It was not possible to do this retrospectively so we did it through the extra-statutory route. A very clear policy underpins the approach that was taken.

I stress that all these changes were introduced on a temporary basis in response to the economic downturn and will be reviewed when conditions are more favourable. The purpose of this policy is to support people who lose their jobs in the current economic downturn and to prevent repossessions. This package of measures needs to be assessed against that. We have committed to conducting a full evaluation of the reforms to the support for mortgage interest component by the end of 2010. The aim of the evaluation is to assess the impact of the various changes introduced in January 2009—for example, assessing the number of people affected and the associated costs, as well as investigating the impact of particular subsets of the SMI population.

I will try to deal with the points that were made, but I hope that noble Lords will forgive me if I do not do so in the order in which they were raised. The noble Lord, Lord Kirkwood, referred to training for officials on process, as did the noble Lord, Lord Freud. We fully accept the point about the need for adequate training. We have introduced more training. The Permanent Secretary has stressed its importance, as I do, because the point is well made.

The noble Lord, Lord Freud, referred to the complexity of the benefits system. We have discussed that before and talked about what we have done in seeking to make it less complicated and to simplify it. The reality is that moving towards a more straightforward system takes time and there are costs along the way, but we share the aspiration of a single working age benefit.

Both noble Lords referred to the Explanatory Memorandum. The reference to the Command Paper in the Explanatory Memorandum was intended to be removed but was unfortunately overlooked. The department has responded to the Social Security Advisory Committee’s reports by way of Command Papers for many years, but officials were advised at a late stage that it would be appropriate for the department to respond by way of an Act paper. As Act papers are not numbered, the reference should have been deleted. Also, as Act papers are not published on the OPSI website, the link should have been amended to say that the papers are available on the Stationery Office website. I would be happy to write to noble Lords further if that would help on that point.

The noble Lord, Lord Freud, asked about the number of people involved in what he described as errors. Here we are dealing with the cases involving excess income over requirements and the adjustment of the arrangements that causes extra-statutory payments to be applied, rather than the specifics of the regulations. The total number of people listed on the clerical records kept by Jobcentre Plus offices is 2,263. The noble Lord asked about some of the detail of training. I do not have that detail to hand. However, the department holds a regular forum for stakeholders, including welfare rights organisations. Where training is required, we discussed how it can best be delivered. He also asked about the cost of error. We do not have the cost because we do not know how many people will subsequently become entitled until we assess the new claims.

The noble Lord, Lord Kirkwood, asked about the introduction of a two-year limit for JSA customers. I think that the import of his remarks was that it sets a worrying precedent. I stress again that the package of measures is temporary and has a time-limiting aspect; it is not intended to set a precedent. The entire package will be reviewed once housing market conditions are more favourable. We did not decide to make these changes lightly, or to bring them in quickly, but difficult times called for swift action. The current data show that 96 per cent of claimants leave JSA within 24 months. The first time at which this requirement could impact on a JSA claimant would be January 2011.

The noble Lord, Lord Kirkwood, said that there was no baseline for evaluation. The scale of the downturn meant that it would have been inappropriate to wait to fully develop an internal evidence base before introducing reforms, but officials are currently developing an integrated package of monitoring and evaluation to determine the effectiveness of reforms and are due to report by the end of 2010.

The noble Lord also asked whether officials guided Ministers strongly enough if Ministers wanted to do something more expeditiously than the system provided for. My experience is that officials are pretty robust in helping Ministers to understand what is practical and what is not. He also referred to the longevity of Ministers in the DWP, which I found slightly disconcerting because I have been in the DWP for more than three years. The trouble is that all the others have been promoted, which is rather worrying.

The noble Lord, Lord Freud, asked how many pieces of legislation we have produced that correct errors or make changes that need to be made because of technical deficiencies. I do not have those data to hand but I am not sure whether they are as extensive as he might think. I do not think that the data are collected particularly, but no doubt if someone has time on their hands they can dig back and see what the number is.

The noble Lord, Lord Kirkwood, referred to what goes on in the Dog and Duck on a Friday evening. Preventing a claimant from flipping to get the benefit of extended provisions should have been provided for, and the amended regulations now ensure that that is covered.

Having said all that, I hope that the noble Lord will not press his Motion. I accept that there are lessons to be learnt from this process, but the fundamental issue is that the Government sought to bring in a package of measures early to help people who were at risk of having their homes repossessed in quite extraordinary financial circumstances. We were right to do so, even if in the circumstances it was not possible to dot all the “i”s and cross the “t”s along the way.

My Lords, I thank the Minister for that very full answer. I should make it clear, as I hope I did in my earlier remarks, that he and his department have been immensely helpful in this process.

Like the noble Lord, Lord Kirkwood, I acknowledge that this initiative was welcome and that very few people who had to heart the concerns of people who had lost their jobs would think that the initiative was poor. Clearly it was a very difficult period and there was a lot of fear around, so the package was appropriate for the time. However, as a result of the rush and the urgency, some of the processes were less than satisfactory, which I think the Minister has acknowledged in practice.

We have learnt quite a lot about the Dog and Duck from the noble Lord, Lord Kirkwood, which is one aspect of the matter, but the real lesson is the importance of keeping a grip on these rushed initiatives. If these things become too loose in an overly complicated benefit system, you can lose control very quickly. I yield to no one in my admiration for Sir Leigh Lewis of the DWP, who I think is an excellent Permanent Secretary, but I think that he would have to acknowledge that Homer nodded a little on this.

When there is a rush to get something in, it is important that we remember to ensure that we keep things as tight as possible. That is the main point that I would like to make after this rather interesting discussion. As I said at the beginning of the debate, I moved this Motion to have a useful discussion, which I think we have had. On that basis, I beg leave to withdraw the Motion.

Motion withdrawn.

House adjourned at 7.22 pm.