House of Lords
Monday, 22 July 2013.
Prayers—read by the Lord Bishop of Birmingham.
Introduction: Lord King of Lothbury
Sir Mervyn Allister King, GBE, having been created Baron King of Lothbury, of Lothbury in the City of London, was introduced and took the oath, supported by Lord Burns and Lord Stern of Brentford, and signed an undertaking to abide by the Code of Conduct.
My Lords, with the leave of the House, I would like to make a personal statement. In my speech at the Second Reading of the Littering from Vehicles Bill on Friday, I unintentionally suggested that I might have been provided with the personal data of motorists by the DVLA. I should like to confirm that I have not at any time asked for, or been given, from the DVLA any information which is not in the public domain. In particular, I have not been given the names of keepers of vehicles. I much regret that my speech, made without text or notes, should have given rise to press speculation to the contrary, and I apologise to the House.
Schools: Admission Policies
My Lords, the coalition supports inclusive admission arrangements. New faith academies and free schools may admit only half their intake based on faith where they are oversubscribed. The Government also remain strongly committed to faith schools, which play a long-established role in our diverse education system. They allow parents to choose a school in line with their faith and they make a significant contribution to educational standards in this country.
I thank the Minister for that Answer. However, in the light of the government announcement last week of a funding initiative for 6,000 new schools, and given that this year the Department for Education has already accepted 16 new Christian schools and six Muslim schools, and that the Cantle report into the 2001 riots cited religious and ethnic fragmentation as an underlying cause, will the Minister tell us whether this Government believe that the children of this country should be integrated or segregated?
This Government believe strongly that one of the secrets for success in this country is that children should be integrated and that all schools should teach a balanced all-faith curriculum, even if they have a particular faith-based thesis. We will not make a long-term success of this country unless we can succeed in doing what the noble Baroness has mentioned.
My Lords, my interests are in the Lords’ register. Is my noble friend aware that Catholic schools are ethnically diverse—more diverse than community schools—that they serve some of our most deprived areas, that they make a major contribution to community cohesion and that they often have higher academic standards? Does my noble friend agree that it would be a mistake to tamper with a system that has served us so well and for so long?
My noble friend is quite right. According to the five A* to C statistics, including English and maths, 65% of pupils at Catholic schools achieve five A* to C grades, as opposed to non-faith schools, where the figure is 58%. At level 4 of key stage 2, 85% of pupils at Catholic schools achieve a pass mark, as opposed to 78% for non-faith schools. I agree that Catholic schools and all faith schools contribute strongly to our diverse education system.
All state-funded schools are required to promote community cohesion. Under the draft citizenship curriculum, pupils will be taught about diverse national, regional, religious and ethnic identities in the UK and the need for mutual respect and understanding. Schools are also free to teach pupils about such issues in PSHE. All state-funded schools are also required by law to teach a broad and balanced curriculum that promotes the spiritual, moral, social and cultural development of pupils, and Ofsted’s inspection framework includes a focus on this.
Is the Minister aware that not all schools of religious character select on faith grounds? The Methodist Church has 65 primary schools that are state-funded and 17 independent schools, none of which select according to the faith of the parents, although all are organised on Christian principles, but they are offered to society for the good of society as a whole.
My Lords, I am grateful to the Minister for confirming earlier that some religious free schools can select up to 50%. How does the department monitor the percentage of admission by faith in schools, particularly in those previously independent religious schools that are now free schools.
May I ask the Minister about the curriculum? In every Education Act that I can remember, certainly in the past few years, it has been stated that children should be permitted or encouraged to have a broad and balanced curriculum. How will faith and free schools enable pupils to have such a broad and balanced curriculum?
Does the Minister agree with the Secretary of State that Church of England schools are most often found in very challenging areas in our communities and provide excellent education? Would he encourage the expansion of religious schools of that kind in oversubscribed areas?
Where we have areas of basic need, we are keen to encourage all comers to help us. I entirely agree with the right reverend Prelate about the performance of Church of England schools. Again, in respect of achieving five A* to C grades, including in English and maths, they score 62% versus 58%, and at level 4 of key stage 2 they score 82% as opposed to 78%. We would welcome expansion of these schools as they provide an excellent education.
It is the turn of this side, but we shall be very quick and then we shall hear from the other side.
My Lords, does my noble friend agree that throughout this country church schools, Church of England schools in particular, make an enormous contribution to the cohesion of their local communities, and that Church of England clergy play a big part in this, both by what they teach and by serving as governors on the boards of such schools?
I agree with my noble friend. A 2009 independent report commissioned by the Church of England analysed Ofsted’s judgments on schools’ promotion of community cohesion. The report found that for secondary schools, faith schools contributed more highly to community cohesion than community schools and had higher average grades than community schools for promoting equality of opportunity and eliminating discrimination.
My Lords, will the Minister look at the situation in Northern Ireland where more than 90% of the children are in schools that are segregated on religious lines? Whereas that is not the only factor contributing to the historic difficulties in Northern Ireland, there are ominous lessons for us. Surely, the right way is to move, as in Northern Ireland, towards integrated education, which is what the majority of people in Northern Ireland want and what I believe most people in Britain would want.
We need a diverse education system that, as I say, is open to all faiths and teaches tolerance of all faiths. Indeed, there are good examples of faith-based groups running schools or sponsoring schools in Muslim areas, where the co-operation is working extremely well.
Armed Forces: Pension Scheme
My Lords, no soldiers fall into this category as full pension rights are granted only at the completion of a full military career. Personnel within the last three years of their engagement were ineligible for consideration under the redundancy scheme. The redundancy scheme that we have implemented is designed to ensure that all those made redundant leave by 31 March 2015, and personnel requiring full pension rights by that date would therefore normally leave anyway.
My Lords, following our last exchange on this matter on 20 June, I received an e-mail from a 35 year-old soldier who joined the Army as a boy of 16. He served in Northern Ireland, Sierra Leone, Iraq and Afghanistan and was told that he had a future in the Army. Indeed, two months ago, he was promoted to WO2.
While he was convalescing following surgery, his wife attended an army wives’ event to discover by chance that he was to be made redundant; he had not been told. Further inquiries revealed that he was to be made redundant 24 days before he qualifies for full pension. He is set to lose £10,000 a year in pension. I am sure that the whole House will join me in wishing him well in his appeal against redundancy.
When he returns to his department this afternoon, will the Minister review the redundancy package and, if necessary, come back to the House and reassure us before we break next week that no soldier who is prepared to put his life on the line in defence of our country will be made redundant in this cheapskate sort of way in order that the Treasury can save what amounts to no more than a few bob in petty cash?
My Lords, I am sorry to disappoint the noble Lord, but we have no plans to review this. When selecting personnel of the Armed Forces for compulsory redundancy, no consideration was given to the proximity of the immediate pension point. I can tell the noble Lord that only 1.2% of those made redundant are close to their immediate pension point. As we reduce the size of the Armed Forces, our priority is to ensure that the services maintain the correct balance of those skills and experience across rank structures that are required to deliver operational capability now and in the future. That is what has determined our redundancy criteria.
My Lords, my noble friend asks a very important question. The majority of service personnel make a successful transition to civilian life. All service leavers are entitled to some form of resettlement assistance. The Career Transition Partnership has proved successful in assisting service leavers to find work and a recent defence statistics survey shows that of the service leavers in 2011-12 who have a known employment outcome, around 85% are employed within six months of leaving the Armed Forces. Our resettlement arrangements are kept constantly under review to ensure the needs of service leavers are met.
My Lords, did I hear the Minister correctly? Did he really say that, in making people redundant, no account was taken of the proximity of the retirement date and that only 1% were so affected? How can he have the bare face to come to this House and make a statement like that?
My Lords, I did say that only 1.2% are affected. The redundancy schemes recognise those who miss out on immediate incomes by paying them significant enhanced tax-free redundancy compensation lump sums. Those who leave before the qualification point will get preserved pensions and further tax-free lump sums at the age of 60 or 65, depending on the pension scheme they are in. Armed Forces pensions remain among the most generous in the public or private sector. We recognise the unique role and sacrifice of the military, which is why the Armed Forces continue to benefit from non-contributory pension schemes.
My Lords, what impact does the Minister consider has been made to Army morale since the announcement of the third round of redundancies on 18 June this year? What conclusions about morale does my noble friend the Minister draw from the increased proportion of voluntary redundancies in the recent tranche of Army redundancies, up, reportedly, from 72% to 84%?
My Lords, there is no evidence that morale in the Armed Forces has been adversely affected by the redundancy programme. The number of applications for redundancy is not an indicator of the state of morale because the Army has deliberately set out to maximise applications. Recruiting for the Armed Forces remains buoyant.
My Lords, it is the Minister’s case that no cognisance is taken of the proximity of a decision in relation to redundancy and a pension date. How does it come about that the Ministry is able with such precision to say exactly what proportion is applicable in this case?
My Lords, because of the complexity of pensions calculations, establishing the exact number of Army personnel who fall into this category would require manual analysis of the records of those selected for redundancy. This could be undertaken only at disproportionate cost. However, to ensure the redundancy programme is fair, selection criteria have been published by each service and, while rank and seniority are reflected in selection criteria, length of reckonable service is not. This means that individuals might be made redundant either just before or just after the length of service at which they qualify for an immediate pension. Redundancy criteria are based on the future needs of the Army. Exempting personnel because of proximity to pension point would be contrary to this principle and would mean selecting others instead.
My Lords, the mood of the House in response to the Minister’s answers is one of considerable concern. It is no answer to the serious example spelt out in detail by my noble friend Lord Touhig, which seems to show a grave injustice, to say that this grave injustice applies to only 1.2% of the people affected. It is a grave injustice to them and, at the very least, I would appeal to the Minister—who listens carefully to what is said by the House—to go back to the department and say that there has been a very unhappy response to the answers he has given today.
The Government have invested more than £1 billion in measures that will help to improve air quality, including incentives for low-emission vehicles and sustainable transport. In London, the mayor is responsible for working towards national air quality objectives. The Government work with the mayor and London boroughs to improve air quality and help support the health needs of people across the capital.
My Lords, I am sure we are grateful to the Mayor of London for the initiatives he has taken, even though their implementation seems to be rather slow. However, is the noble Baroness aware that the WHO has calculated that there have been something like 29,000 premature deaths due to air pollution in the United Kingdom? Will she be kind enough to let me have details of the like-for-like figures, by region, for people dying as a result of air pollution compared with those dying as a result of obesity, alcohol or smoking?
My Lords, the area in which I live in London is considered one of the worst in the UK. Is it not a fact that we have been in breach of the European Union directives for many years and that the EU keeps extending the time before we have to pay the penalty? Does that not seem to be a very unsatisfactory position?
The noble Baroness is not quite right. There are a number of measures and the United Kingdom has worked incredibly hard to try to meet these; for example, on particulate matter, which is very significant, the UK met EU requirements for the PM10 measure in 2011. In addition, 22 out of 27 states are struggling to meet the nitrogen dioxide directive, largely because of problems with diesel vehicles. So across the board countries are finding this a challenge. We are working very hard to ensure that we comply, aiming for later this decade.
My brief tells me that cycling is actually a safer means of transport and that the risks from pollution highlighted by the noble Earl are not of major significance. However, clearly it would depend which roads those cyclists are cycling along. We want to do our very best to encourage people to cycle and walk, for the general benefit to themselves and the wider public, but it is true that there are greater risks in certain areas than in others.
My Lords, could the Minister explain how we are to know whether or not this reduction in pollution is correct, when the Government no longer require local authorities to measure pollution officially? We had this last year, before the Olympics, when it was reported that many measuring stations around London were covered with plastic bags so that we did not know that the pollution in London was actually worse than in Beijing before its Olympics.
In fact, pollution levels were and are carefully monitored. The challenge is to tackle that and we are trying to tackle that at all levels: national, across London and in the boroughs. The noble Lord will note also that Public Health England, which has recently been set up, is taking this forward, working with local public health specialists. He may also wish to contribute to the local air quality management review, which is occurring at the moment and is looking at what is being done locally and consulting on how best to take this forward.
My Lords, do the Government accept that the biggest public health risk after smoking is air pollution? Is the Minister aware that the House of Commons Environmental Audit Committee concluded that,
“a public awareness campaign would be the single most important tool in improving air quality”?
What plans do the Government have for such a public awareness campaign?
I noted the reports from The Lancet which cited air pollution as being the second greatest cause of lung cancer after passive smoking, so the noble Lord is right to flag its risks. The Government are working very closely to raise awareness. We are providing funding for this to local authorities. The public health outcomes framework includes an indicator on air pollution which enables public health professionals to address this. We are providing a forecasting service on levels of air pollution and information to vulnerable groups. There are some trials at Barts on how best to get information to vulnerable groups.
My Lords, in reply to the noble Lord, Lord Berkeley, the Minister, referred to the consultation Local Air Quality Management in England. In that consultation, the Government’s preferred option is to remove the requirement for local authorities to report and declare air quality management areas. How then do the Government propose to monitor air quality if their preferred option is chosen—or are the Minister’s warm words just hot air?
The noble Lord refers to hot air on a day like this. The consultation is a genuinely open one, and I am sure the noble Lord’s views will be taken into consideration. Many of these Acts date back a long way, including of course the Clean Air Act which had a fantastic effect in earlier decades. We need to make sure that these Acts are brought up to date, and I am sure the noble Lord will feed in his very cogent views.
Critical National Infrastructure: Ownership
My Lords, although detailed ownership figures are not held, much of the UK’s infrastructure is foreign owned. More broadly, as a nation the UK has a pipeline of more than £310 billion of potential infrastructure projects over the next five to 10 years. Investment will need to come from a variety of sources, foreign as well as domestic. The UK welcomes all investors, irrespective of nationality, particularly those bringing additional capital into the UK, provided that they meet our corporate governance standards and do not represent an unacceptable national security risk.
My Lords, I note that the Minister does not know what proportion of our national infrastructure is owned by foreign interests, but he does acknowledge that most of it is. Our ports are owned by Dubai, the BT network is controlled by the Chinese and London’s electricity is supplied by the French. Does he not think that it is about time that the Government started to take our national sovereignty, and our freedom of manoeuvre, seriously?
There are several points there. To say that the BT network is controlled by the Chinese is, to say the least, a considerable exaggeration. The issue of the dependence on the supply of equipment from China is a rather different one, and that, as noble Lords will know, is the subject of a recent ISC report. British sovereignty has traditionally and in recent years been debated much more in terms of threat to English common law, and the existential threat which Brussels and the European courts are thought to provide to Britain, than in terms of the threat from foreign investment. I should welcome the noble Lord banging on about one rather than the other—it would make a nice change.
We shall hear from the Cross Benches first.
My Lords, today the former Governor of the Bank of England has taken his seat, and we welcome him. His successor is a Canadian. How many other countries would have a foreign national as the governor of their national central bank? We do. Do not the Minister and the Government think that we should be proud that we are one of the most open economies in the world, and that that is a great strength to this country? Regardless of that, and on the other hand, how much longer are the Government going to dither and procrastinate about increasing our airport capacity in London?
I shall exclude the second half of that question from my response. I rather hoped that the noble Lord would welcome the degree of foreign investment in our automobile industry. Ten to 15 years ago, many would have sneered at the whole idea of Indian investment in our automobile industry. The recent announcement of the expansion of investment in Jaguar Land Rover is extremely welcome for the prospects for British exports.
My Lords, a number of French, German and Dutch companies which are partly or wholly state owned participate in our electricity, gas and railway industries. I hope that I shall not upset noble Lords by adding that 10% of Thames Water is now owned by Chinese investors. I hope that that will not make your Lordships worry a bit as you clean your teeth tomorrow morning.
My Lords, the Intelligence and Security Committee has raised its concerns about the degree of foreign ownership of the UK’s telecommunications infrastructure. What assessment have the Government made of its report and how do they plan to tackle the problem?
My Lords, the Government published a response to that report a few days ago, announcing that they will instigate a review of the Huawei cell, which is the issue very much at stake here. I emphasise that we are talking about a global supply chain in which there are, at most, two potential suppliers of some of the highly sophisticated equipment available—I believe that the other is Swedish. The dependence which we all have on each other for critical national infrastructure in telecommunications is a great deal more complicated than we previously understood. However, Vodafone owns a number of large mobile networks in other countries which are part of their critical national infrastructures, so this is not a one- way trade.
That is a very good comment. I remember, many years ago, when Mrs Thatcher was Prime Minister and an architect of free-market economics nevertheless phoning the Japanese Government to insist that they pressure Japanese banks to make their partial investment into funding Eurostar and the Eurotunnel project.
My Lords, I am sure that the Minister shares the concerns about the vulnerability to cyberattack of some elements of our critical national infrastructure. So far, the Government’s approach to this problem has been to seek a consensual solution with the industries involved. To what extent is such an approach likely to be successful with foreign companies?
My Lords, GCHQ and a number of other government agencies are actively engaged in mitigating the large and, to some extent, unknowable risk of cyberattack. This is a growing problem for all Governments in the world. I emphasise again that the specific issue at stake in the ISC’s recent report was the dependence on foreign equipment and the computer codes which come with it. That is something which GCHQ is much engaged with and which it has now been agreed the National Security Adviser will conduct an inquiry into.
My Lords, I am answering for the Cabinet Office on the question of critical national infrastructure. I do my best to cover all other aspects of government when challenged, but my knowledge of Tube projects in south-east London is a little more limited than of some other subjects.
Mutuals’ Redeemable Shares Bill [HL]
A Bill to enable the law relating to societies registered under the Industrial and Provident Societies Act 1965 or the Friendly Societies Act 1992 and certain mutual insurers to be amended to permit and facilitate the use of a new and additional class of redeemable share capital; to provide consequential rights to members of such societies or insurers; and to restrict the voting rights of certain members who hold such shares.
The Bill was introduced by Lord Naseby, read a first time and ordered to be printed.
Education (Amendment of the Curriculum Requirements) (England) Order 2013
Motion to Approve
Coroners and Justice Act 2009 (Consequential Provisions) Order 2013
Motion to Approve
Apprenticeships (Alternative English Completion Conditions) (Amendment) Regulations 2013
Motion to Approve
Extension of Franchise (House of Lords) Bill [HL]
Order of Commitment Discharged
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Mesothelioma Bill [HL]
Clause 2 : Eligible people with diffuse mesothelioma
1: Clause 2, page 1, line 16, leave out paragraph (c) and insert—
“(c) the person has not brought an action for damages in respect of the disease against the relevant employer or any insurer with whom the employer maintained employers’ liability insurance at the time of the person’s exposure to asbestos,(ca) the person is unable to bring an action for damages in respect of the disease against any employer of the person or any insurer with whom such an employer maintained employers’ liability insurance (because they cannot be found or no longer exist or for any other reason), and”
My Lords, in speaking to these amendments I hope noble Lords will not mind if I open with a few thanks. First, I thank noble Lords for their consistent and invaluable dedication to this important Bill. The Bill looks quite different now to how it did at Second Reading and it is certainly in better shape for its passage through this House. I never cease to be amazed by the attention to detail and rigour that noble Lords apply when examining a Bill and I admit that I have ruthlessly stolen as many noble Lords’ ideas as I could over the past few weeks.
The Bill as it stands is a collaborative piece. I have listened with great interest to the concerns of noble Lords and responded to the pressure points. Since the Bill was introduced we have been able to renegotiate the rate of payment to 75%, which is in no small part thanks to the pressure exerted by this House. We have pledged to explore the creation of an oversight committee to ensure that the scheme may operate in the most efficient and just way, an idea that I cannot claim credit for. For that, and indeed much more, I must thank the noble Lord, Lord McKenzie, and the noble Baroness, Lady Sherlock. The noble Lord and the noble Baroness have been kind enough to give their time frequently and I am grateful for their supportive approach and their expertise.
Returning to the issue of scheme management, we have announced that the scheme administrator is to be selected through an open-tender route. I am confident that the scheme that will be set up as a result of this Bill will be the best it can be and will offer financial support to those who, through no fault of their own, have contracted this terrible disease yet cannot sue for damages. This represents a substantial achievement and, once again, one for which I cannot claim all the credit; so I thank noble Lords. My particular thanks go to those who have given so much of their time to contribute to the comprehensive debates we have had. The continued support and attention of the noble Lords, Lord Howarth, Lord Wigley and Lord Avebury, have been key.
One issue that we have discussed at length, and I know that many noble Lords feel strongly about it, was research into mesothelioma. As noble Lords will remember, I mentioned that when negotiating the terms of this Bill, I really hit a brick wall at every turn regarding research. A great debt of thanks must therefore go to the noble Lord, Lord Alton, for raising the awareness of the lack of research in this area and, although we disagreed on the mechanism, the pressure of his amendment has helped me, jointly with my noble friend Lord Howe, to form a strategy for how we might encourage proposals for high-quality research into mesothelioma. On Report last week, my noble friend Lord Howe outlined this strategy, and I thank the noble Earl once again for his support and collaboration on that point. The momentum in this area created by his efforts and the efforts of this House should not be underestimated.
I have tabled one amendment for today and I apologise to the House for its tardiness. The amendment is minor and technical in nature and we will come to it in a moment, but I will quickly say that further thanks are due, this time to the noble Lord, Lord Browne. The purpose of the amendment is simply to add further clarification to Clause 2. It was the noble Lord’s careful scrutiny of that clause that alerted us to a possible source of confusion. The amendment was deemed necessary in cases where an individual had tried but failed to bring a claim against a relevant employer but, where any other relevant employer existed, the individual must attempt to bring a claim against that employer also before being able to come to the scheme. It has always been the policy intention that this scheme must be one of last resort and that all other avenues should be exhausted first. The object of the amendment is only to avoid any misinterpretation of Clause 2.
Before I conclude, I will briefly mention the sterling work of the team behind the scenes. There have been many working in DWP, MoJ, the Department of Health and parliamentary counsel to whom I extend my thanks, including, in the Box, Rose Willis and Fiona Walshe of the Bill team. I pay especial thanks to the tireless work of our redoubtable Bill manager, Lee Eplett, with whom I know many noble Lords have worked during the passage of this Bill.
I know that noble Lords have wished for the Bill to go even further than it does but I hope that they can agree with me that it is a major step forward. The issue of poor record-keeping in the industry has for far too long prevented mesothelioma sufferers from receiving the compensatory payments due to them. The Bill represents substantial progress in rectifying this injustice, and I once again thank noble Lords for their role in this achievement. I beg to move.
My Lords, I speak in support of these amendments to the extent that they improve the Bill. I am pleased to have been of some assistance to the noble Lord, Lord Freud, in improving the Bill. I venture to suggest that at one stage he thought that I was perhaps more of an irritation than an assistance on Clause 2. However, important issues still need to be addressed and, if your Lordships’ House will bear with me for a couple of minutes, I shall explain.
My noble friend Lord McKenzie of Luton first raised concerns about Clause 2 when he moved Amendment 12 in Committee on 5 June. My noble friend’s contribution spurred my interest, and I recollect making some points of observation in debate. In his response the noble Lord, Lord Freud, initially dismissed these points, but as the debate became more engaged he promised to write. That was because he found himself—I think I quote him properly—“in deep legal territory”, or he was concerned that he might find himself in deep legal territory. He promised to write, and on 7 June he did so. He dismissed my concerns again, but I persisted. Thanks to the engagement of the Bill team, in particular the Bill manager, I was able to find a route of communication with parliamentary counsel about my concerns in relation to Clause 2.
I will not take up the House’s time by going into these in detail, but I remain unconvinced that even an amended paragraph (c) of Clause 2(1) is necessary, except in the most remote, hypothetical circumstances. I commend the ingenuity of those supporting the Minister in trying to find sets of circumstances which justify the words in the first draft of the Bill. In my view, the justifications which I was given were either wrong or showed a repeated misunderstanding of the interaction of other parts of Clause 2 with that very paragraph or, as we got deeper into the weeds in this, a misunderstanding of the relationship between Clause 10 and Clause 2, and then a misunderstanding of the relationship between Clause 2 and its provisions, and the draft set of rules which we were then given. I presume they will now form the template for the regulations which will set out the scheme.
At every point at which a justification was made for the wording there was an inconsistency, which I pointed out. However, having said that, the clarification which the Minister gave in his letter of 7 June that the phrase “the relevant employer” in Clause 2(1)(c) was a reference to the same “a relevant employer” in paragraph (a) of the same subsection, perhaps deals with the issue, at least to some extent. If the Minister finds some way of putting that explanation on the record, it may be sufficient to see off my concerns in the short term. In any event, at this stage I do not intend to persist, now that the paragraph has been divided and recast.
Amendment 1, which would put new paragraph (ca) in Clause 2(1), and Amendment 3, which would put new paragraph (ba) in Clause 3(1), are improvements. I support them without any qualification because they deal directly with my concerns about cases where an employee had multiple employers. It is a simple necessity that at the time of application the employee-applicant, or an eligible dependant, must be unable to bring an action against any of the employers or relevant insurers.
I move now to the consequences of Amendment 5. Amendment 5 is extremely interesting. It would amend Clause 18(3) so that it reads as follows:
“The scheme may specify circumstances in which a person is, or is not, to be treated as able to bring an action for the purposes of section 2(1)(ca) or 3(1)(ba)”.
This is potentially a very significant provision. Remarkably, despite all of the scrutiny it has remained totally unscrutinised. It has now been brought to my attention because of this amendment. I presume that these circumstances will now require to be set out in the regulations which will apply to the scheme—in other words, what were the draft rules that we were given copies of. I went through the draft rules in detail after I received this amendment and could find no references at all to any such circumstances. It seems therefore that a very important part of the structure of this scheme has not been subject to any form of parliamentary scrutiny. I hope that this will be corrected when the Bill goes to the other place. If this provision is necessary, the circumstances that are to be in the scheme ought to be shown to Parliament before parliamentary scrutiny of the Bill is concluded, which it has not been.
Finally, the most important point that has arisen from my engagement beyond Parliament with the Bill team is that during my conversations and in correspondence with those advising the Minister it was explained to me that it was the Government’s intention that, when a person was diagnosed with diffuse mesothelioma on or after 25 July 2012 but before the Bill comes into force as an Act, application to the scheme would have to be made and received by the scheme administrator not later than three years after the date on which it comes into force, not three years from 25 July 2012. That would be a very welcome relaxation of the limitation rules, given the nature of this dreadful disease and how quickly it can become fatal.
Unfortunately, the draft rules make no mention of that relaxation and there is no such relaxation anywhere in the Bill. However, there is a very specific relaxation in draft rule 7, where a person has died on or after 25 July 2012 and the claim is made by an eligible dependant. That very significant concession is known to me and is now known to all Members of your Lordships’ House. It requires some parliamentary acknowledgement or commitment, at the very least. More than that, it requires some commitment that the regulations will deal with this in an explicit way.
My Lords, if it is in order to make some brief remarks in the debate on these amendments which go a little wide of them, as the Minister has just done, I will do so now rather than on the Motion that this Bill do now pass. In the absence of the noble Countess, Lady Mar, I will take a chance and hope to have the indulgence of the House. In our proceedings on the Bill, we have considered very closely the predicament of people who have suffered the tragic misfortune of contracting mesothelioma. This predicament has elicited strong feelings of sympathy all around your Lordships’ House. It is the role of your Lordships’ House to advise our elected colleagues in another place and I would like to reflect for just a moment on what the essence of that advice should be.
In the Bill, we are attempting to deal with the consequences of what should certainly be regarded as a major scandal. Of course, among employer’s liability insurers there are many honourable and conscientious people, but in their ranks there have also been, I regret to say, a significant number who have been deeply dishonourable and reckless. Some of the employer’s liability insurers have behaved as badly as the worst of the bankers and the worst of the touts of mortgage loans did in the run-up to the crisis of 2008.
Because of the long latency of mesothelioma and the three to four decades that the disease takes to incubate, there was scope for genuine administrative confusion, but a significant proportion of insurers have managed to lose the documentation that would have enabled mesothelioma sufferers to make a claim against their employer, or their employer’s successor, and perhaps to make their case in the civil courts. Within that number, it is very clear that there were also significant numbers of insurers who wilfully destroyed that documentation. Such negligence and criminality in relation to people who are doomed to suffer from this most horrible illness and to die of it seems peculiarly cynical and, I would say, depraved. There has been the inhumanity of that but there is also another fundamental issue at stake; the proper administration of contracts is fundamental to the functioning of a free-enterprise economy and to the maintenance of trust in society.
We have all admired and applauded the Minister who, building on the initiative of my noble friend Lord McKenzie of Luton, negotiated with employer’s liability insurers the scheme that this Bill would legislate. The Minister and his officials have invariably been helpful to us, and he was most generous in his remarks just now about noble Lords who have participated in these proceedings. As he said, it has been a collaborative process. We recognise and thank him for the improvements that he has made to this scheme during the passage of the Bill—the raising of the rate of payment to 75%; his agreement that details of the scheme should be brought in by regulation; his acceptance of the principle of an oversight committee; and his decision that the scheme should go out to open tender. I am sure that he will continue to give attention to the significant issues raised just now by my noble friend Lord Browne. The noble Earl, Lord Howe, made a very constructive set of proposals in response to the noble Lord, Lord Alton, on how to facilitate and fund further research into mesothelioma.
The difficulty that the Minister has had, and one that we entirely understand, is that having conducted his negotiation with the industry and reached an agreement with it, he has found it very difficult to budge from the exact terms of that agreement. I do not think that Parliament is bound by the terms of an agreement negotiated between the Government and the industry. Indeed, it is the responsibility of Parliament to improve the scheme further if we can in the public interest. There is therefore a small number of issues which we should commend to our colleagues in the House of Commons for their further consideration. I hope that they will want to look again at the rate of payment and the date for eligibility. I very much hope that they will want to look at the plight of people who are at the moment excluded from the scope of the scheme, such as members of the households of people who were employed and exposed to asbestos, where the employee has not so far contracted the disease but the household member, perhaps someone who did the household laundry and washed the contaminated overalls brought back from the workplace, has contracted it. People in that situation are not covered by the scheme. The self-employed too, even if self-employment was something of a technicality, will not be eligible to benefit. I hope also that the Government will after all agree that there should be an annual report on the progress of the scheme to assist Parliament in its necessary further vigilance in the interests of mesothelioma victims.
I know the Minister has been fearful that if such refinements to the scheme were to be brought in by way of amendments to the Bill, the insurance industry would take away its bat and ball and revert to its customary position of taking legal action to prevent the Government from requiring it to do what in decency and justice it ought to do. Of course, we do not want to see any delays to the implementation of the Bill. I hope that Members of the House of Commons will take the view that a legal case by the employers against minor improvements of this kind to the Bill would be very weak indeed, given that they have accepted the principle that there ought to be a scheme of this kind which they should fund. My noble friend Lord McKenzie of Luton has demonstrated that the costs of such improvements would be affordable, and I do not believe that the employer’s liability insurers would be so shameless as to go to court to try to prevent these modest further improvements and further advance of justice for mesothelioma victims.
In the course of our proceedings on this Bill in your Lordships’ House we have defined the issues and laid out arguments and I very much hope that our colleagues in the elected House will wish to pursue these issues.
My Lords, I had not expected to rise at this stage of the debate but, having listened to the noble Lord, Lord Howarth, I feel compelled to do so on behalf of the insurance industry, as he has made a serious allegation of fundamental dishonesty within it. I remind the House that I myself have stood trial in the USA on a charge that would have got me 24 years in the slammer, and was acquitted. At issue was the integrity and honesty of the British insurance industry, for which I signed the audit certificate that led to the ultimate creation of Equitas. The noble Lord should remember that we are a very public arena, and that there are many in the world with other motives who will look to get any crumb of comfort that they can to mount an action that would lead to a financial advantage for them.
The issue on which I was arraigned in the Justice Courts in New York was that, with the fundamental insolvency of Lloyd’s of London totally at issue, I had signed an audit certificate that said it was solvent when it was not. I had seven days’ non-stop interrogation on the subject, but I won. I would like to go on the record to this gathering, for the outside world as well, about why I won so that we may not find that we are undermining the integrity and financial security of the insurance industry on which this scheme will depend. There is no point in us busting the world of the insurance industry for the sake of the Bill and getting nothing.
The point was that I had signed an audit certificate to say that Lloyd’s of London was solvent and could meet all its liabilities, at a time when most people believed that it could not. I relied upon Section 18(1) of the Insolvency Act, which by the greatest irony I wrote when I was assistant to Sir Kenneth Cork in drafting it. The Act makes very specific statements about what justifies a claim for solvency, and I claimed that those conditions were met in the case of Lloyd’s. The ultimate proof that it was is the fact that Equitas, whose creation by Lloyd’s of London I chaired, has been sold to Warren Buffett for an enormous amount of money, with a guarantee that he will fulfil Equitas’s entire liabilities. In the process, he will pick up about £3 billion in pocket money for himself, and good luck to him.
The events of those days cast a very long shadow. The noble Lord, Lord Howarth, may be right in his comment that there was dishonesty in the loss of documentation and the avoidance of liability by those devious means, but there is no question of integrity in the industry with which we are dealing. It is adequately funded and has adequate backing, and it is completely solvent for the discharge of all the liabilities that we want to meet, including those that we are discussing in the Bill. It would be an outrageous act of complete disregard for the facts of history and the integrity of the industry if we were to cast any doubts on its ability to stand behind its liabilities. The issue is that there are these liabilities but there are the reserves in the world for them—you just have to find the key to unlock them, and the Bill is a wonderful part of the process of doing that. There is no question of the integrity of the industry regarding its solvency.
I hope that the noble Lord will accept that I did not in any way impugn the general integrity of the industry, let alone cast doubt on its solvency or its capacity to meet its obligations. I asserted, and I believe this to be correct, that there were within that industry at one time people who behaved dishonestly and, because it was convenient to them, allowed that documentation to go missing.
My Lords, before the Bill passes and goes on to another place, I want to add a few words to those that have been spoken. I specifically support what the noble Lord, Lord Browne of Ladyton, said earlier about the limitations and relaxations that may well occur in Amendment 5. Like him, I hope that when the Bill goes to another place it will be subject to further scrutiny.
Like the noble Lord, Lord Howarth, I hope that the other place will look further at those who will be eligible under the scheme because of the start date. These are questions we debated in Committee and on Report, and I am sure that Members of another place will want to look at them. In particular, I hope that they will look at those people who will not qualify because the scheme was introduced on the last day of the last Session last year instead of on the commencement date of the consultation period and, in particular, at those people who contracted mesothelioma during that period. Even if small numbers are involved, it would be good if people who fall outside the scheme as currently drafted could be brought in.
In Committee, I paid tribute to the noble Lord and said that it would be unfair to criticise him for omissions in the Bill because in his discussions with the insurance industry he has done all that he possibly can to bring into its scope as many groups of people as humanly possible and to set the bar at whatever figure he was able to negotiate. Indeed, I join other noble Lords in expressing gratitude to him for being able to lift it from 70% to 75% during our proceedings. I, too, feel this is an issue of justice, and for those who believe that 100% compensation should have been given to them because of a disease that is not just life-threatening but life-taking, there will still be disappointment in some quarters. Although some of the victim support groups that have done huge amounts of work in supporting Members of your Lordships’ House as the Bill has gone through its various stages will be disappointed, I think many would agree that for those who would fall through the net—probably 300 people a year among the 2,200—this offers real hope. It would be grudging, curmudgeonly even, for me not to pay tribute to the noble Lord as others have done for what has been achieved, and I am indeed grateful for that.
The noble Lord referred to the oversight committee that will be established. That is a good step forward. We all owe a debt to the noble Lord, Lord McKenzie, for the work he has put in, not just now but previously in trying to shape legislation before the previous general election, to do something about a horrendous disease which, as we know, takes more than 2,000 lives every year in this country and which official figures predict will take a further 56,000 lives. As I mentioned on Report last week, new research from Cambridge University suggests that a combination of the BRIC countries and new forms of fibres that are coming into being could lead to a second wave of mesothelioma in future.
That takes me to the amendment that I moved last week which was lost by seven votes. I was obviously disappointed that the amendment was not passed. I am sure the issue will be returned to in another place, and I wish my friend and colleague Mr Paul Goggins MP well. I am sure he will try to build a cross-party coalition on this issue when another place returns to this question.
Another way of looking at the issue is by the Government being asked to look at the creation of a national research centre, a centre of excellence, specifically geared to the study of mesothelioma. I cannot think of any other disease that has taken so many lives and that will take so many lives in future that affects ordinary British citizens up and down the length and breadth of this land which has had such zero-sum funding. I know that the Minister and I are at one on this. We both agree that it has been a scandal that it has been so badly funded, so while congratulating the noble Earl, Lord Howe, on securing the defeat of my amendment last week—it is good to see him sitting below the gangway for today’s debate—I hope that the proposals he laid before us will be implemented. For me as a parliamentarian, my desire is always to see something written in a Bill. Statutory provision is the one guarantee we have in bringing and holding Ministers to account. Even good Ministers have their day, and they are succeeded by others who might not be quite so well intentioned or so committed to the cause as the two Ministers who have been dealing with this Bill and this question.
Therefore, I am sorry that it is not in statutory provision, but I am glad that an increased emphasis will be placed on finding resources and ways forward in combating mesothelioma. We could not possibly remove asbestos from every public building and private home in the land, and people will contract mesothelioma for years to come through exposure to asbestos. The answer is surely to find out why this disease, which we have known about since 1930 and which has this horrendous hibernation period, affects people in the way it does and whether there is a way to combat it. Obviously the fact that it hibernates for so long suggests that there might be ways to neutralise it. This is surely where we should put our resources in the future.
I join other noble Lords in thanking not just the Minister but the Bill team and all those who have been so courteous throughout our proceedings. During the meetings I had with the Minister and with members of his Bill team I was struck by their commitment and their professionalism and dedication. Your Lordships’ House is extremely well served.
My Lords, last time I declared an interest as someone who had worked in the asbestos industry and I made a suggestion to the noble Lord, Lord Alton, which I have researched further. That is that the amount of clean-up that will have to take place over many years is the perfect target for a levy that might be placed upon it for research purposes.
My Lords, before I seek the same dispensation that the noble Lord, Lord Howarth, sought at the beginning of his speech, I will say a few words about the amendments which are before us in order to give my noble friend time to locate the answers to them.
I appreciate all the work that the noble Lord, Lord Browne, has done to get to this point. He referred to remote and hypothetical places where things might occur. I hope that what I will say is not hypothetical, although I suspect that it will be remote. I am worried about the omission of the words,
“at the time of the person’s exposure to asbestos”,
from the new provisions now proposed as Clause 2(1)(ca) and Clause 3(1)(ba). The hypothetical, or rather remote situation, is the following. A company at the time of a person’s exposure did not have employer’s liability insurance—it was behaving negligently—and subsequently, when that person had left that company’s employment, it secured employer’s liability insurance in order to become compliant. As this is written, that would mean that there could be a possible—or not possible—claim against that employer’s liability insurance, which was subsequent to that person’s period of employment. That very remote case leads me to wonder about the omission of those words from the second part of each of those clauses and whether they need to be inserted, or rather made clear. Of course, maybe this could occur in the regulations that may follow from the rules of the scheme that pursues this.
I will quickly say a few words about the Bill. As regards the achievements that noble Lords have made in this House and the work they have done towards the changes that have been made to the Bill, in each of those three or four key issues there has been a change and a degree of success which we ought to recognise. I will first address independence and oversight, which was raised by noble Lords from all sides of this Chamber. They are both very important: the first ensures that the people who manage the process do not rule the way it operates, and the second ensures that there is a degree of observation of how it is run by all those who are, if you like, the actors on the stage who are affected by this dreadful disease.
The second issue is that of research. The noble Lord, Lord Alton, has already referred to the work which is being done by the two Ministers present today, my noble friends Lord Howe and Lord Freud. Clearly, there are differences of view as to how that might happen—statutory versus non-statutory. That is probably the way this House deals with issues: they have been raised, and although the solutions may not be the same ones that noble Lords wanted, they are, none the less, an approach to doing research into this disease.
One way in which we can keep track of what is happening in this area is by scrutiny of Ministers. It is not a matter of whether the Minister who follows is a good Minister—to rephrase the words of the noble Lord, Lord Alton—but of being able to hold Ministers to account. That is what Parliament can and should do. These things should not be kept from the public eye. I am sure that, in years to come, noble Lords will pursue this issue strongly with Ministers of whatever persuasion, from whichever part of the House they come, in order to ensure that we better understand this dreadful disease and how it can be treated and ameliorated. It is important also to take an international approach and work with those who suffer from this dreadful disease in other parts of the world.
The third area that has been of importance to your Lordships’ House during the course of the Bill is the level of compensation. Clearly, a major issue at the beginning was the percentage of civil damages that was to be given, according to a ratio or tariff. Noble Lords sought to raise the bar. There was some success, and, given the public interest in these matters, clearly on one side you wish to ensure as much compensation as you can, quite rightly, for sufferers who cannot trace their employer or their employer’s insurance company. However, you do not want to put another burden on companies that are not responsible for what happened, which would in turn pass on the costs to customers, who would have to pay them. We may not have reached the right balance but I pay tribute to the Minister for moving the bar upwards against all the pressure he was put under during the passage of the Bill.
There are ways in which the Bill can become a model for dealing with other forms of industrial illness relating to asbestos, and with other industrial diseases. The situations may not be exactly the same because, appropriately, this measure is directed at a unique and terminal illness that is dreadful in every aspect. However, it may be that we can derive other models from some of the work that has been done in the Bill.
Finally, I congratulate the Minister on his personal commitment. Many noble Lords will know that he has personally taken this as a challenge that he will see to its conclusion. The job was started by the previous Government, and the noble Lord has obviously taken it a step forward from where it was left by that Government. I pay tribute to the starting point. However, to see it to its completion, having undertaken what must have been horrendous negotiations with people who were not responsible but who had to pay for the people who were responsible and had disappeared off the scene, cannot have been easy. When eventually the fly on the wall in those meeting rooms publishes its memoirs, I am sure that we will be able to see the level of pressure brought by the Minister. From these Benches, I congratulate him and say that it was a job well done. We have taken a step that will lead us in future to deal with problems associated with this disease in an appropriate way. I hope that we will see an early start to implementation, so that people will no longer have to wait for compensation in cases where their former employer, or its insurance company, has gone out of business.
My Lords, perhaps, in summing up, the Minister could address two matters that were raised last week, one by the noble Earl, Lord Howe, and one by him. First, I think it is true to say that during the proceedings a cocktail of suggestions were made by the noble Earl, Lord Howe, as to how research could be opened up, extended and encouraged. Secondly, I believe that it was the noble Lord, Lord Wigley, who sought from the noble Earl an undertaking to look at a reporting mechanism so that we might have some way of following progress. Can the Minister say when he feels that it will be possible to initiate this process, and can he keep us informed of the progress being made with regard to the research, which is so critical for the future?
We keep repeating the mantra about how 56,000 people in this country may yet contract this disease. However, I remind noble Lords that western countries are exporting the disease to south-east Asia, where I believe it is a disease of the future, not a disease of the past. Together with our colleagues in the European Union, we ought to be looking even harder at whether there are certain things that can be justified.
I join in the thanks to the Minister and the noble Earl, Lord Howe, as well as to the Bill team, for the work that they have put into this. Whatever shortcomings some people may feel there are, I believe that significant progress has been made with this legislation.
My Lords, we support these amendments, which were spoken to by the Minister some little while ago. We do so in the confidence of having received advice from my noble friend Lord Browne, to whom I pay tribute for his tenacity in pressing certain points, even at Third Reading, and for the food for thought that he has left for colleagues in another place, added to that suggested by my noble friend Lord Howarth and the noble Lord, Lord Alton.
We have heaped praise on the Minister for all his efforts in developing and bringing forward this scheme, and we should do so again this afternoon—in particular, for his determination to have a co-operative approach to a scheme which, sadly, will have to last for many years. This has been reflected in the welcome approach of the Bill team, for which we are very grateful, and indeed in the attitude adopted by all noble Lords who have participated in this debate. I thank my noble friend Lady Sherlock in particular.
Of course, we would have hoped that the scheme would go further, especially in terms of the level of payment. However, we have something solid and substantial to build on in both another place and with a future Government.
I have a final word for all those who have campaigned on behalf of people who are or will be affected by this terrible disease. They, too, can be justifiably proud of what has been achieved so far. It will be their efforts that continue to remind us of what we still have left to do.
My Lords, I shall just tidy up the questions that noble Lords have raised. I turn, first, to the concerns about the scheme rules raised by the noble Lord, Lord Browne, who takes pride of place in terms of specificity. He was looking at the draft rules, and we will update them to reflect the points that he has made. I do not have an answer for him right now concerning the discrepancy between “a relevant” and “the relevant” employer but I will write to him over the summer. If possible, I should like to borrow his expertise in the coming months. We are still seeing the Bill through and I retain overall responsibility for making sure that it gets through in good shape. Perhaps I may borrow the noble Lord to go through some of these points with the Bill team, because he seems to have been most effective and helpful.
My noble friend Lord German raised related points concerning a company which is uninsured at the point of exposure and which later moves on. If the employer still exists, a claim would have to be made against that employer. If the employer no longer exists and no employer liability insurer can be identified, the person could come to the scheme. That is relatively straightforward to address.
I should take up the points raised by the noble Lord, Lord Howarth, who has been utterly assiduous in looking through the Bill, for which I thank him. I will touch on some of the points that he commends to another place. These issues are very specific, so the rate that we can pay is tied very much to the risks that the costs get passed on to British business. The start date is very much tied to the structure of the smoothing that we have, so that would be very difficult to change. We also have a problem with the household member concerned because it is cover not from employer liability but from public liability. We look at the point on annual reporting in the context of how the oversight committee works.
On the point made by the noble Lord, Lord Empey, on research, we are having a meeting later this week on this issue with key players, launched by the British Lung Foundation. My noble friend Lord Howe and I will be there, and it might be a useful place to discuss how we might look at the progress of research. While we did not agree with the amendment of the noble Lord, Lord Alton, we very much agree with the sentiment behind his motivation for raising the issue because something most disturbing was happening with the lack of research. We are looking for the very best way of making sure that we have quality research. I know that my noble friend Lord Howe went through that in great detail and that he has put a lot of energy into ensuring that we transform that situation. With that, I beg to move.
Amendment 1 agreed.
2: Clause 2, page 2, leave out lines 16 to 18
Amendment 2 agreed.
Clause 3 : Eligible dependants
3: Clause 3, page 2, line 26, leave out paragraph (b) and insert—
“(b) no one has brought an action for damages in respect of the disease under the fatal accidents legislation, or on behalf of the estate of the person with the disease, against the relevant employer or any insurer with whom the employer maintained employers’ liability insurance at the time of that person’s exposure to asbestos,“(ba) no one is able to bring an action for damages in respect of the disease under the fatal accidents legislation, or on behalf of the estate of the person with the disease, against any employer of the person with the disease or any insurer with whom such an employer maintained employers’ liability insurance (because they cannot be found or no longer exist or for any other reason), and”
Amendment 3 agreed.
Clause 18 : Defined terms used in more than one section of this Act
Amendments 4 and 5
4: Clause 18, page 10, leave out line 32
5: Clause 18, page 10, line 47, leave out “2(1)(c) or 3(1)(b)” and insert “2(1)(ca) or 3(1)(ba)”
Amendments 4 and 5 agreed.
A privilege amendment was made.
Bill passed and sent to the Commons.
Care Bill [HL]
Committee (7th Day)
Clause 34 : Deferred payment agreements and loans
92ZZV: Clause 34, page 28, line 31, leave out paragraph (b)
My Lords, I think all five of the non-governmental amendments in this group are down to me, so I crave the Committee’s forgiveness if I am not the soul of brevity on this occasion. All the amendments refer to the Government’s proposed universal deferred payment scheme.
I start by reminding the Committee of the background to this scheme. Its origins lie in the proposal made by a minority of the royal commission of 1999. We—my noble friend Lord Joffe and I—were concerned with one clear defect of the means-tested system. It meant that people were forced to sell their homes to pay for care. The Daily Mail banged on about this practically every week, and it was right—I never thought that those words would escape my lips—to do so. However, we also felt that it would be wrong that people needing care could simply hang onto their homes and eventually bequeath them to their families without spending any of the capital that those homes represented to pay for their own care. Therefore, we proposed deferred payments—local authority loans secured against the value of people’s homes and repayable only when the home was sold, often after the person had died.
Every politician that I have ever discussed this with sees this as a no-brainer. Unfortunately, officials at both local and national levels over the years—I do not of course make this charge against any officials on the current Bill—have taken a rather different view. They could not understand why anyone would hang onto their house when they were living in a care home and they did not want to see valuable homes left empty. The emotional side occasionally escaped them.
The Labour Government nevertheless brought in a scheme to allow deferred payment, but it was essentially sabotaged. A decision was made that no interest should be paid on the loans, and that gave local authorities a financial incentive not to make them. Then many local authorities refused to put schemes in place. If they were challenged in the courts, they lost, but how many people wanted to mount such challenges? Or they denied individual applicants who could succeed only if they showed stamina and determination and lived long enough to see them through.
The result is that the deferred payment scheme has been, if not a complete failure, not by any means a success. There are about 8,000 deferred loans outstanding, which is around 2% of the number of people in care and maybe twice that for self-funders. Most of the schemes are short-lasting in practice. The old person takes out a deferred loan and maybe they hope they will get home after a spell a little longer than the 12 weeks allowed in law to make a decision. Eventually they see that they will not be able to return to their own homes and the deferred loan is brought to an end. It performs a very useful function for the old person in giving them time to think, but the schemes are fairly short-lasting.
I am delighted that the Government have decided to complete the work that was half-botched in the 2000s and which Dilnot endorsed—a universal deferred payment scheme that actually works. The amendments in my name and one in my name and that of my noble friend Lord Warner are designed to refine the Government’s proposals to make them work even better still.
Amendment 92ZZV gets rid of a suggestion in the Bill that people should in some circumstances require third-party guarantees on the loans as well as their being secured against the value of the home. That is belt and braces and I do not see why families should be providing braces when there is a perfectly good belt in place. It would particularly apply when the deferred payment is secured on where somebody else—perhaps the old person’s son or daughter—lives. At the moment, case law provides that a local authority cannot in those circumstances force the sale of a property in order to redeem a mortgage on that property when somebody else lives there. However, if a guarantee was sought from the co-owner, the guarantor could be in a position where they are expected to repay the individual’s care costs based on an unrealisable value of half of the property they live in. This provision may put off people who would otherwise have taken advantage of the scheme and I ask the Minister to look at it again.
Amendment 92ZZW limits the interest rates that local authorities can charge on deferred payments to MLR plus 2%. This is to prevent local authorities attempting to sabotage the new scheme as they sabotaged the previous scheme. They could otherwise do so by charging Wonga rates of interest and this amendment will prevent their doing that.
Amendment 92ZZX concerns the administrative difficulties in the scheme for local authorities. At the moment, it seems that each local authority will have to design and implement its own scheme which, as well as being extremely wasteful, will lead to lousy schemes as well as good ones. The amendment requires the Government to design a model scheme and to provide with it the associated software to local authorities, otherwise the deferred loan may become a new kind of postcode lottery, where what you get depends on where you live and not on your needs.
Amendment 92ZZY requires that loans are made available not only to pay care home fees but to pay for private sector point-of-need insurance policies. Even with the cap in place, care fees can be expensive—individuals have to find not only hotel costs but the excess over what a local authority will pay for them in a care home—and point-of-need insurance policies are a form of protection against this if it goes on for a long time. They are policies that you take out when you go into a home and they go on paying out for however long you are in there. They are a sensible way for people to manage this expense. I believe that, over time, the standard recommendation of independent regulators and financial advisers for self-funders going into residential care will become, “You need this or you are still at risk, even with a cap”. However, they are expensive and, as their home is the main asset that many old people have, it is important that the local authority lends against its value under the deferred payment scheme to fund the purchase of such policies. If it does not, people will have a choice: either take out a point-of-need insurance policy, which means you have to sell your home; or do not sell your home but you cannot then have a point-of-need policy.
Finally, and perhaps most important, Amendment 92ZZZ, in my name and that of my noble friend Lord Warner, a member of the Dilnot inquiry, seeks to defer the start of the deferred payment scheme from 2015 to 2016. Conceptually, deferred payments are simple; practically, they are highly complex.
Let me give a brief digest of a speech that Chris Horlick of Partnership, one of the leading firms in this area, made recently about some of the issues which arise. Will a citizen be allowed to choose a care home even if it costs more than a local authority usually pays, and to what level? Is there a perverse incentive for local authorities to put citizens into a residential setting because the loan will be paid for by the DoH, whereas care at home would be a burden on the local authority? Who will value the home? Who will pay the cost of the valuation? Who is responsible for maintaining the home when the person is in care? Can it be let? By whom, to whom and at what rent? What about owners with dementia; who will sign the deferred payment agreement? If there is not a power of attorney in place, what happens then? Who pays if the house is burgled, squatted, burnt down? Whose responsibility is it to insure the property? Who provides financial advice? Who pays for financial advice?
Further important questions arise from the Government’s consultation paper Caring for our Future, published last week. Would noble Lords like me to go on? I suspect not. However, I have established the basic point that these schemes are not simple.
Moreover, there is another huge decisive advantage in deferring the new scheme until 2016 in that it will then come in simultaneously with the cap. The two schemes are intimately related and they need to start at the same time so that people can look at their position holistically. It might make sense for someone to take out a deferred loan in 2015 when they are available, but it will not make sense for the same person to take it out in 2016 when there is a cap coming into play. Really, the difficulties of comprehension defy imagination. You are talking about older people, some of whom will not be as mentally agile as they were in their younger days, and you are trying to explain to them two schemes, both extremely complex and with ramifications for their and their families’ futures that are very complicated to understand. At the end of it all, you have to explain that these are coming into effect at completely different times. It really is an unnecessary complication—“Election day looms, so rush”.
We know that the Minister has the interests of older people in mind. He really should think again about this and give it an extra year so that both schemes can be introduced at the same time. If there is a short delay, most older people who want to will be able to take advantage of the existing scheme anyway, at least to bridge the gap.
As I said, the proposal in the Bill is a good scheme and I welcome it warmly. But if the Government steam ahead regardless with the 2015 date, it could turn into a botched scheme, leading to confusion rather than relief for thousands of older people. This is a case where the adage “more haste, less speed” undoubtedly applies. I beg to move.
My Lords, one of these amendments has my name attached to it. I certainly fully support my noble friend’s other amendments and perhaps should have added my name to them. This is an important group of amendments in relation to the deferred payment arrangements, which are an equally important part of the architecture of the new scheme.
I agree very much with the purpose of my noble friend’s Amendment 92ZZX. When the Dilnot report proposed the idea of a deferred payment scheme, it was to be a national scheme that was totally consistent with the minimum national criteria threshold and portability. I have to say that we envisaged it coming into operation at the same time as the cap. The Government’s proposal of universal payment arrangements is certainly consistent with our approach but it leaves unanswered the question of whether you want to administer such a scheme through 152 local authorities.
One could make a case for a central scheme or latching the management of a such a scheme on to some existing agency. I think that the arguments are relatively evenly balanced. My noble friend has come up with one way of doing it, which is a model scheme that would be required to be adopted by most local authorities. The worst of all worlds would be not to take hold of this issue and leave it to a marketplace of 152 different bodies without much guidance or assistance with compatibility of IT and issues of that kind. We need to hear from the Government how they intend to ensure that this scheme is operated consistently by 152 local authorities. I personally do not have an axe to grind one way or another but I fear that if the Bill is left as it is, we may end up with a bit of a mess, with a wide range of diversity among the different local authorities.
I certainly see the sense of the first part of my noble friend’s Amendment 92ZZY. I shall be very interested to hear the Minister’s response. The second part raises a wider issue, which I still think we need to give more consideration to. There was considerable concern during the Dilnot inquiry about access to sound, independent financial advice, not just in relation to a deferred payment scheme but to some of the other financial products or major financial decisions on paying for care that people would be taking—often at a time of crisis in a family’s life. People would not necessarily be as clear-headed as they might otherwise be. There would be a lot of emotion, and it was important that people could feel confident about getting impartial advice. My sense is that as these major changes come closer, the financial services industry itself might well prefer some stronger statutory safeguards on accessing quality financial advice, if only to protect it from accusations that people had been misled.
I think that we need to come back to this issue. Can the Minister tell us more about discussions with the industry, and where the Government’s thinking is on a statutory requirement on accessing independent financial advice, not just in relation to deferred payments, but to a wider range of financial decision-making?
I added my name to my noble friend’s Amendment 92ZZZ because, like him, I have considerable doubts about whether by April 2015 we can get in place a well thought out and reliable universal deferred payments scheme in place, alongside all the other systems changes that have to be made. The new consultation document, at more than 100 pages, which came out last week on the new funding and payment arrangements demonstrates the complexity of what is involved. These changes will require a major public awareness and education campaign, as we discussed last week. By coincidence, last week I received a note, as other noble Lords may have done, from Saga. It suggests that there is still a mountain to climb in making the public aware of and well advised about these particular new arrangements.
As I have already mentioned, it is not at all clear to me whether we are talking about a nationally administered deferred payments scheme, or 152 separate schemes. That issue in itself will, I suggest, take some time to get sorted out. It is another powerful argument for not rushing our fences and trying to get this all in place by April 2015. We need some convincing chapter and verse from the Minister on readiness, because I, like my noble friend, cannot see how it is sensible to introduce a deferred payments scheme a year in advance of the new cap scheme, with all the interrelationships between these two schemes.
The good news is I perhaps slightly take issue with my noble friend, and give the Minister some comfort on Amendment 92ZZW. I am not sure about putting an interest rate into primary legislation. The ex-Minister in me would be saying, “I think we need a bit more flexibility than that”.
My Lords, I shall give some support to the noble Lord, Lord Lipsey. He has thought about this issue in greater detail than many, and that is very important. It is worth pointing out one thing which many people seem to have forgotten. We already operate deferred payments. We have done for a very long time; this is not new. My first question to the Minister is, what intelligence have the Government taken from the evidence which already exists about the operation of current deferred payment schemes—albeit not as part of the Dilnot scheme—in the assumptions they have made about how this legislation will be implemented?
Secondly, I share the view of the noble Lord, Lord Warner, that the potential effects will vary according to demography. In certain boroughs, the overall balance of the population and its longevity will mean that this has a greater impact than elsewhere. For example, in Greater London, the impact will be completely different in the London Borough of Newham and the London Borough of Richmond. Have the differing effects in different geographical areas been modelled? What lessons have the Government taken from that modelling?
I think that the noble Lord, Lord Lipsey, is right. This scheme is a very important part of the overall architecture of Dilnot, and if it does not work, given the sensitivities which there are around property and so on, it could be extremely damaging. The noble Lord may be right that it should be deferred, perhaps as the noble Lord, Lord Warner, suggested, for a year. It may be better to do it at leisure and in more detail than to do it in haste and get it wrong.
My Lords, the Opposition strongly support the intention behind deferred payments. I hope therefore that the Minister will be able to give a serious response to my noble friend Lord Lipsey, because the issues before us are how the scheme is going to operate, the complexity that is necessarily involved and the ability of local authorities to do the right thing. Around all those matters, there remain some question marks.
While I would not necessarily support my noble friend on the specification of the interest rate, there are questions to be answered about how the Minister thinks the scheme will operate among the many local authorities which will be charged with discharging the scheme. For instance, on the question asked by the noble Baroness, Lady Barker, we could see large differences emerge between different local authorities. That would be unfortunate, and I would be interested to hear from the Minister what work his department has done in trying to model how it thinks local authorities will operate the deferred payment scheme.
The argument for a model deferred payment scheme is pretty persuasive. Even if local authorities are to have discretion—I do not disagree with that—in operating their own scheme, surely the production by the Minister’s department of a model scheme would ensure greater consistency and save local authorities a great deal of work in having to work out the details of their own scheme. Given all their other responsibilities, as much support as possible should be given to local authorities. A model payment scheme would be very useful.
I have two points to make on my noble friend’s Amendment 92ZZY. First, it is very specific on the loans being made available for the purchase of point-of-need insurance policies secured against an adult’s legal or beneficial interest in their home. That raises the whole issue of the insurance market. I again ask the Minister to reassure the House that he is confident that the insurance industry is prepared to come to market with suitable products. I know that he commented on this last week, but there remains some doubt about whether insurance companies really wish to operate in this market. Given that the whole thesis of Dilnot is that capping cost would lead to the development of an insurance market, this is something that we need to debate fully and be reassured on.
On Amendment 92ZZZ and the commencement date, I agree with my noble friends Lord Lipsey and Lord Warner about the complexity of what local authorities are being asked to do. We of course need to consider delay, but I do not understand why a different date has been chosen for the deferred payment scheme in contrast to other parts of the Dilnot implementation. It does not seem to make sense and, I would have thought, would be very confusing for people involved.
That brings me back to the second part of Amendment 92ZZY, which is the issue of regulated independent financial advice being made available to a person considering taking out a deferred payment. Surely the Minister will have been convinced by now that the financial consequences of decisions made by people in relation to the provisions in this Bill will be momentous. I would have hoped that by now he would recognise that the assurance that can be given through independent financial advice would be an important safeguard. Unless we have that, I fear that many people will have to make very difficult decisions, involving potentially large sums of money, without the necessary advice. That would detract from the generally consensual way in which we need to go forward. I hope that the Minister will perhaps have some good news for us on that front.
My Lords, I intervene briefly to ask the Minister a rather pedantic question. Subsections in Clause 35 all use the word “may”. There is no actual requirement for the Government to introduce regulations and therefore for local authorities to be placed in a position whereby they can charge. Why has it been left open, rather than using the word “shall”? If we could take the wording as meaning “shall”, can we assume that each further instance of the word “may”—that is to say:
“The regulations may specify costs … The regulations may require or permit adequate security…The authority may not charge interest under regulations…The regulations may make other provisions”—
is part of a whole package? Or, if “may” does mean “may”, might only individual parts of this clause be introduced, as opposed to the whole clause? For example, subsection (2) states that:
“The regulations may specify costs which are, or which are not, to be regarded as administrative costs for the purposes of subsection (1)(b)”.
If that particular part of the clause were not implemented, it would leave local authorities open to decide for themselves what the administrative costs could be. Whatever internal reasons they may have—and my noble friend Lord Lipsey referred earlier to the reluctance of local authorities—should local authorities have that ability to be flexible? I am seeking to establish whether, if this is all going to happen and we should read “shall” for “may”, all the subsections of Clause 35 will be implemented and that isolated subsections will not be introduced in the regulations. That might create difficulties that we are not foreseeing during the passage of the Bill.
I am grateful to the noble Lord, Lord Lipsey, for his amendments. He has a unique perspective, having first put forward the idea of deferred payments—as he reminded us—when a member of the 1999 royal commission. The Government share his disappointment that deferred payments are patchy and inconsistent across the country. Many people going into care face difficult decisions as a result, and authorities lose money when they offer a deferred payment because they cannot charge interest.
We also share the noble Lord’s commitment to ensuring that deferred payments work better in the future. We agree with the Dilnot commission that deferred payments should become a full and universal offer across the country for people who have to sell their homes to pay for residential care. We intend the scheme to be cost neutral to local authorities, as the commission also recommended.
We are proud to introduce this universal scheme from April 2015. It will provide much needed peace of mind to the 40,000 people who sell their homes each year to pay for care. As well as offering time to make decisions and choices over what happens to their home —a point well made by the noble Lord, Lord Lipsey—it will open up new options, such as renting it out.
In his amendments, the noble Lord raises important questions about implementation. These concern the interest rate, the use of a deferred payment to purchase insurance, support for authorities to implement deferred payments and the timetable. Before turning directly to those amendments, it may be helpful if I briefly outline our plans.
Clauses 34 and 35 contain the necessary powers for us to introduce deferred payments. All authorities will offer deferred payments and it is our intention that people at risk of selling their home to pay for residential care will qualify. They will be able to defer reasonable residential care and accommodation fees, in the care home of their choice, for the whole of their lifetime. We are currently consulting on more detailed proposals on who will qualify and what fees they can defer, and are gathering more evidence on the costs and practical issues involved with offering deferred payments.
One practical issue that we are exploring in our consultation is the possibility of situations in which the authority cannot secure its debt through a legal charge on the property. This is why the Bill provides for other forms of security, including third-party guarantees. The noble Lord, Lord Lipsey, expressed doubts about this provision and wondered whether the proposals in the Bill may put people off taking out a deferred payment plan. Our guiding principle here is that we want as many people as possible to benefit from deferred payments, but it is equally important that local authorities are able to secure their debt.
Traditionally, deferred payments have been secured by registering with the Land Registry a legal charge on the person’s land, but this might not always be possible or offer sufficient security to allow the authority to recover its costs. Examples of this might include when a charge cannot be secured by registration with the Land Registry or where there is reasonable doubt about the person’s ability to afford the care home of their choice over the longer term, but we are consulting on whether there are situations in which offering a deferred payment is particularly challenging and, if so, on what a constructive way forward might be. That might include use of a different form of guarantee such as a solicitor’s agreement or the involvement of a third party. It is important that the Bill contains this flexibility so that when we design deferred payments to accommodate all situations that might arise, individuals’ preferences about the type of security that they wish to offer can be built in. I hope that this will persuade the noble Lord to withdraw his amendment, at least for the time being.
These issues will, in turn, inform how we set the interest rate, which has to strike an important balance. The rate must be enough to help authorities cover their lending costs but be affordable to people going into residential care who are at risk of selling their home. I understand the intention of Amendment 92ZZW to fix the interest rate at a predictable level but, as the noble Lord, Lord Lipsey, might have sensed—the noble Lord, Lord Warner, may have alerted him to this—I am concerned that setting the rate in the Bill before we have finalised other aspects of the scheme is premature. We will announce the proposed interest rate following the consultation and decisions on the wider design of the scheme. This will be set out in the regulations that we will consult upon in 2014. It will be a nationally set, maximum interest rate and local authorities will not therefore be able to charge excessive rates.
I have tabled government Amendment 92ZZAA, which would introduce a new clause allowing authorities to make alternative arrangements for people who would not wish to have a deferred payment because of their religious objection to paying interest. I am grateful to the Islamic Bank of Britain for its help on this amendment. We will work with the bank over the summer to produce detailed proposals, and ensure deferred payments are available to such people.
Government Amendment 105U would provide that regulations made under the new clause, relating to how authorities secure their debt, would be subject to the affirmative resolution procedure if they amend or repeal an Act of Parliament. This mirrors the existing requirement in respect of similar regulations made under Clause 35(9), dealing with deferred payments.
The noble Lord, Lord Lipsey, has tabled Amendment 92ZZY, under which authorities would offer loans to people to assist with purchasing care annuities, so that they may enjoy peace of mind from insurance while also protecting their home. Of course, I understand the motivation for this amendment but, having reflected on this, our view is that the insurance market already offers such a mechanism: the use of equity release to purchase a care annuity. We are not convinced that the noble Lord’s amendment is necessary.
The noble Lord, Lord Hunt, asked whether the insurance market is really prepared to develop products of this kind. We are as sure as we can be that it will do so. Many companies have expressly said that they support the changes we are making. As I may have mentioned in an earlier debate, the Association of British Insurers welcomed our announcement, commenting that:
“This is potentially another positive step forward in tackling the challenges of an ageing society”.
We have a sector-led review working constructively with the Government to understand how the market will develop, or should develop, and in general create the right environment for products to succeed. That work will proceed over the summer.
My Lords, I wonder if the noble Earl could clarify what he said about equity release as an alternative to deferred payments. There seem to me to be two absolutely insuperable objects to that working. One is that you could not have both a deferred mortgage and an equity release on the same property. You cannot have two things secured. More importantly, you cannot get equity release on a house that is empty. The rules of the Equity Release Council—I am on its advisory board—do not permit that. That is not a possible solution to the problem which I put forward.
I have received advice that, technically, that is not so, but I am more than happy to engage the noble Lord in discussion after this debate. It would largely depend on the availability of a deferred scheme, agreed to by a local authority. It would also largely depend on the quantum of the debt that was already in existence. Of course, setting aside this particular issue, there could be a property on which there was pre-existing debt of a considerable size. It would largely be for the local authority to judge in individual cases whether it was in a position to offer a deferred payment scheme, looking at the facts of the case. I do not think one can make generalised remarks about this. We think that technically it is possible for an equity release scheme to exist alongside a deferred payment loan. As I say, I am sure that the noble Lord, with his insight into the market, will be able to put us right if we have misread the situation.
While we are on this topic, it seems to me that there is an issue for the Government to think about. What is the market rate for equity release, compared to the market rate for deferred payments? If you are not very careful, you could end up with a situation where one is incentivised over the other. I wonder what consideration the Government will give to that issue.
We will, of course, give that consideration. I am just reflecting, in the light of the noble Lord’s comment, on whether deciding what arrangements suit the individual is a matter for the Government, or rather a matter of individual choice. If there were a difference in the interest rate, it would surely be up to the individual to decide whether they wished to avail of whatever facility was being offered to them. I do not see that it is necessary to go down the path that the noble Lord, Lord Lipsey, is suggesting, whereby a local authority should be the one and only provider of funding in that kind of situation, merely because the interest rate was perhaps more favourable than an insurance provider’s.
Deferred payments mean that people will not have to sell their home in their lifetime to pay for residential care; I do not think that any commercial product offers that. Equity release is not available to people currently in residential care. However, there is potential for equity release to help people with domiciliary care and other costs. We would welcome developments in that market but this is an evolving discussion with the industry.
In respect of Amendment 92ZZX, we will continue to work with the care sector to ensure that authorities are in the right position to offer deferred payments from April 2015. There will be a dedicated implementation effort led jointly by government and local authorities, learning from local areas with well established deferred payments schemes. This will help to achieve a consistent national approach that fits with existing local systems and structures. We have also announced £335 million of additional funding in 2015-16 to support local authorities to deliver funding reform, including the introduction of universal deferred payments.
Amendment 92ZZZ would delay implementation by one year, until 2016. Given the work already under way with the sector and the shared desire across both Houses to address the issue of care and support funding reform, it is surely only right that we implement this at a reasonable pace. My view—and I hope, on balance, that the Committee will agree—is that it would be unfair to persist with the current system for longer than is needed. The timetable we have set out has other advantages. The 2015 introduction means that deferred payments will be part of the new offer to self-funders coming into place that year, and the stronger engagement by authorities with self-funders will be excellent preparation for introducing the capped costs system in 2016.
The noble Lord, Lord Warner, expressed the fear that we would have 152 deferred payment schemes around the country. As we have discussed, some authorities already have established deferred payments schemes. We think it makes perfect sense to build on the good work that exists. It will also ensure that deferred payments integrate with wider care services. The point here is that authorities will be following criteria set out in national regulations. There will be a consistent approach to who qualifies and what fees they can defer, and a consistent policy around interest and charges.
There is, of course, work to be done by local authorities, but I suggest that what we are tasking them to do is not exactly alien territory to them. We are confident that local authorities have the skills to offer deferred payments. The requirements primarily involve financially assessing people and keeping a record of fees that people have deferred and the interest owed, which is all consistent with activities that authorities undertake as part of providing means-tested care and support. Many authorities already operate deferred payments very effectively. We will work with the sector to identify good practice, as I have mentioned.
In answer to my noble friend Lady Barker, in local authorities with established schemes 20% to 30% of self-funding care home residents take out deferred payment. The level of uptake in 2015 may be similar or it may be somewhat higher. Again, it is incumbent on us—and we recognise this—to work with the sector to identify good practice that others can learn from.
Yes, it is intended to be an average estimate across local authorities.
The noble Lord, Lord Lipsey, was concerned that there might be an incentive to encourage people to go into care homes rather than receive care at home, which would be contrary to the direction of the policy. That is an understandable concern, but Clause 1 creates a new statutory principle that applies to all the functions under Part 1, including care and support and safeguarding and means that, whenever a local authority makes a decision about an adult, it must promote the adult’s well-being. That ensures that individual well-being is the driving force behind care and support so that local authorities focus on achieving the outcomes that matter to people.
Moreover, although local authorities will be able to charge interest they will not be able to make a profit on deferred payments, so there should not be perverse incentives. Even so, it is important that people who go into residential care should understand their financial options so they can decide what is best for them. Authorities will have a duty to establish and maintain a service to help people access independent financial advice. We are currently consulting on how this duty should operate in practice, including how it works for deferred payment.
The noble Lord raised an important point in relation to the details of the scheme. These are all things we want to look at as part of our consultation and in the work we are doing with the care sector on implementation of funding reform.
I am sorry to interrupt the Minister, but he skipped past the whole issue of 152 schemes rather rapidly in his answers and brushed aside most questions. Have the Government actually considered a national scheme, which was one of my questions? Does the Minister realise that only a small number of local authorities are actually running deferred payment schemes? It is a very small proportion of the total. The overwhelming majority of them have no experience whatever of running a deferred payment scheme; very few of them are used to valuing assets. These are all new complexities, but the Government are not going to be producing their draft regulations until 2014, by the Minister’s own admission. This is a recipe for a total shambles.
My Lords, the noble Earl has said, and I am sure it is welcome, that the Government intend to set a maximum interest rate to be charged by local authorities. Does he agree that, since it is a crucial part of a deferred payment scheme, setting a rate nationally is consistent with a much more uniform approach? That is why I would have thought my noble friend’s amendment would be a sensible way forward. It is not being mandatory and does not go as far as my noble friend Lord Warner, but simply asks for a model scheme to be introduced.
We are absolutely on side with the suggestion that there needs to be a uniform approach to the essentials of this scheme. That includes a national maximum interest rate. I suggest to the noble Lord, Lord Warner, that we do not need a national body running an all-singing, all-dancing, nationally mandated deferred payment scheme. We want to build on the good work already going on out there. The noble Lord made a fair point that only a minority of local authorities currently operate deferred payment schemes. Of those that do, many provide us with a very good basis on which to build and share knowledge with other local authorities. That can start now before the regulations are drawn up. We can and will start work with local authorities to ensure that they are gearing themselves up in the right way to approach this task.
The noble Lord, Lord Warner, asked me about statutory safeguards around independent financial advice and where the Government are in our discussions with stakeholders. As he will recall, this is a point that we discussed at length when dealing with the provisions on information and advice—or, rather, he will not recall it, as I think he was unavoidably away at that time. I have, though, noted the strength of feeling on the issue that emerged from our debates, and I take further note of the noble Lord’s own views on this, which I shall reflect on between now and Report and will be happy to talk to him about.
The noble Lord, Lord Campbell-Savours, asked me about Clause 35 and the reason for the word “may”. We are consulting on the details of how this policy will work, as I have mentioned, and our intention is to make a set of regulations that will reflect the policy decided in response to the consultation. I do not anticipate that we will adopt a selective approach to the various provisions set out in Clause 35. Those provisions have been put there for a purpose because we think that they are important. I hope that, while I cannot anticipate the result of the consultation, I may reassure the noble Lord as far as I can that we do not anticipate omitting any of those provisions from the eventual regulations.
But suppose that the local authorities come back and say, “We don’t want regulations to cover the issue of administrative costs”. What happens then? Is it possible that the regulations might be introduced excluding the requirement of administrative costs, if the consultation threw that up as a response? If it were possible, would it not change the nature of the debate that we are having today on this part of the clause?
We fully expect a range of views about how to implement the proposals that we have set out in the consultation document. However, what we do not anticipate is wholesale objections to the very idea of the proposals, because by and large they are widely accepted as being the right ones. We need to ensure that they are capable of being implemented in a practical way.
I am sorry to press the Minister, but the point is that some local authorities—let us say Westminster, Maidenhead and Windsor or Wandsworth—may want to raise the charges for administrative costs while other authorities might be more sensible and reasonable about what those costs are. There has to be national uniformity in that area, and we should be given assurances today that there will not be flexibility, which would invite differential administrative costs between local authorities and trouble for many people.
I can reassure the noble Lord that we are aiming to have uniformity. Merely because one local authority may present us with some rather maverick objections, I do not think that I could possibly envisage us capitulating to that kind of pressure. We want to see a system where people, wherever they live in the country, can rely on some clearly set-out rules and can thereby have peace of mind if they take out a deferred payment scheme. I hope and sincerely believe that the noble Lord’s fears will prove groundless, but I am happy to clarify as much of that as I can, given that we have only just gone out to consultation, in the letter.
My noble friend is, of course, completely right. They are model councils of their kind. It is rather fanciful to present them as possible examples of councils that might wish to do badly by their residents.
This is a major reform that we have committed to introduce in this Parliament. While I am the first to agree that that in itself should not drive the timetable, we think that the timetable is achievable. We are consulting to get the details right and working with the care sector to ensure that implementation goes as planned. The noble Lord raised some important points. I am sure that he knows me well enough to accept that this is not the last occasion when I shall look at the points that he has raised. I shall do so further. For the time being, I hope that I have responded to his satisfaction, at least on some of the amendments, and that he will feel able to withdraw the amendment.
My Lords, I genuinely thank the Minister for that response. I do not want to be the least bit churlish about these amendments which, after all, finally put into practice an idea that came to me in the bath 14 years ago. It does not happen very often, but this time we are on the verge.
I warmly welcome the Minister’s assurance that there will be a national interest rate for deferred loans. That completely deals with the point raised by my amendment on interest rates and my point about Wonga rates of interest and is a tremendous breakthrough for this scheme, so I thank the Minister most warmly for that.
Moving to slightly more churlish mode, on whether we have 152 schemes or one, on balance, I buy the Minister’s arguments against having a separate national organisation imposing this or a compulsory national scheme, but that is not the proposal made in my amendment. My proposal was that the Government produce a model scheme that those who wished to could adopt. It might have some bits that could be added on or taken away as local options within the national scheme, but it would at least stop work being done 152 times over. As my noble friend Lord Warner pointed out, some people are working with this stuff for the first time because they have never brought in a deferred payment scheme. I ask the Minister, among the other things that he has kindly offered to consider, to have another look at that specially to see whether we can find some mileage in it.
I got no change on the time of introduction of the scheme, not perhaps greatly to my surprise, but I still believe in my guts that, as this process moves forward, it will become more and more apparent that it is not sensible to aim for 2015. I do not ask the Minister to comment on that now, but I give him an assurance that I—and I hope my Front Bench will do the same—will not accuse him of a U-turn if later on he finds that it is not sensible. A syndrome in government that comes up time and time again is that a Government announce a timetable and, when it is quite clear it cannot be met, go on fighting like made to preserve their original timetable. I shall not say the words “unified benefit”, but I easily could. This does not make any sense. We are all after the same thing here, and if the Minister decides—and I am sure that he will make a very good judgment on this—that it cannot sensibly be met, let him say so openly and we shall be welcoming, not critical.
My final point emerges partly from what we were just talking about: things on which the Government will possibly think again. The noble Earl very generously said that there are lots of things on which he will want to engage in discussions; at one stage he said, “at least not for the time being”, and has made many remarks of that kind. I will make a purely practical point. It is 22 July and the House will return to the Bill relatively early in October, although I do not know when, and many noble Lords are planning to be away for parts of that period. All of us want to resolve as many of these issues as we possibly can without the need for confrontation or debate in this House or, heaven forefend, Divisions, if they can be avoided. Therefore it is rather important that we all reflect on how we can set up a mechanism so that we can continue over this period to discuss the outstanding issues. I know that the Minister will reflect, but he and his officials may want to have discussions with some of us who are involved, so that by the time that we get to Report we will have made use of this Committee stage and found a way to move the House and the Bill forward without unnecessary rancour. With that, I beg leave to withdraw the amendment.
Amendment 92ZZV withdrawn.
Clause 34 agreed.
Clause 35 : Deferred payment agreements and loans: further provision
Amendments 92ZZW to 92ZZZ not moved.
Clause 35 agreed.
92ZZAA: After Clause 35, insert the following new Clause—
“Alternative financial arrangements
(1) Regulations may, in such cases or circumstances and subject to such conditions as may be specified, require or permit a local authority to enter into alternative financial arrangements of a specified description with an adult.
(2) “Alternative financial arrangements” means arrangements which in the Secretary of State’s opinion—
(a) equate in substance to a deferred payment agreement or an agreement of the kind mentioned in section 34(8), but(b) achieve a similar effect to an agreement of the kind in question without including provision for the payment of interest.(3) The regulations may make provision in connection with alternative financial arrangements to which they apply, including, in particular, provision of the kind that may (or must) be made in regulations under section 34 or 35 (apart from provision for the payment of interest).”
Amendment 92ZZAA agreed.
Clause 36 : Notification, assessment, etc.
92ZZAB: Clause 36, page 30, line 43, after “4)” insert “and keep the adult and the carer informed of progress”
My Lords, I shall speak also to Amendment 92ZZAC and Amendment 92ZZAF.
I declare an interest as a long-term user of social care services. I have lived all my adult life in the same local authority. Like other disabled and older people who use social care services, I would find it impossible to move out of my local area because I could not be sure that my needs would be adequately met. Noble Lords will be aware that I have been very keen to change this deeply discriminatory state of affairs since I moved my first ever amendment in this House in May 2008 during the passage of the Health and Social Care Bill. I have returned to the issue several times in the past five years, culminating in my Private Member’s Bill on social care portability, which I recently introduced for a second time. Therefore, I am delighted that the Government have decided to put right this fundamental flaw in our social care system. I have been privileged to be closely involved in the Government’s deliberations on this issue for nearly three years. The Minister in another place told me very recently that my Private Member’s Bill was used as a template for the provisions in this Bill. That was very flattering, but flattery will not get you everywhere, and, on this, we are not quite there yet. There are a few points to be ironed out if social care portability is to work in practice.
My Amendment 92ZZAB ensures that service users and carers are informed about how their case is progressing. My Amendments 92ZZAC to 99ZZAE require the second authority to pay appropriate attention to the existing care plan so that the individual can continue to do the things that they currently do. Finally, Amendment 92ZZAF ensures the provision of a safety net if the process is not as seamless as it should be. I will now explain why such provisions are of critical importance.
We surely all agree that the adult who moves, and their carer, should be kept informed of what is happening throughout the process. Knowledge is power, and lack of knowledge is disempowering. Up-to-date information is vital for reassurance and confidence. Clause 36(4)(a) requires the second authority merely to provide the information that it thinks is appropriate to the adult and their carer. It says nothing about keeping them updated. My Amendment 92ZZAB corrects this omission. It ensures that communication about the transition is clear and regular.
Moving home is always exceptionally stressful, especially for disabled and older people. Stress exacerbates impairments and ill health, particularly mental health conditions. For those with a significant care package, an interruption in care may mean not being washed, dressed and fed—the fundamentals of life. That runs entirely counter to the Bill’s emphasis on well-being and prevention. I will give an example.
Dave Morris was a severely disabled man who required 24-hour care. He was appointed as a senior policy adviser to the Mayor of London. He had to relocate and found suitable accommodation for his needs. He took his personal care assistants with him for a few weeks, aware that the new authority might not have finalised his care package. He was right. Although it had had three months’ prior notice, nothing had been organised. For five months, while they argued over payment rates and systems, he relied on friends such as me to pay towards the cost of his PAs and to help him survive. The new authority failed to keep him informed. It failed to consider his existing support and what he wanted to secure so he could take up the post, and there was clearly no safety net. He nearly lost his job and he could easily have ended up in hospital. He was a clever and articulate man—so what hope is there for those who are not?
As my noble friend Lady Grey-Thompson said last year:
“The success of the Paralympics opening and closing ceremonies was because of Dave Morris’s inspired vision”.
Sadly, he did not live to see them. He died just before the Games. This is just one example of the barriers faced by disabled and older people who move from one local authority to another. Most cannot take the monumental risk Dave Morris was willing to take, which took its toll on him.
Even with the provisions in the Bill, service users cannot be certain that the care and support they receive in a new locality will enable them to lead their lives in the same way they do now. To have the same opportunities in education and work, and the same enjoyment of private and family life, the care and support must result in the same outcomes. Under Clause 36(7), the second authority must “have regard” to the existing care and support plan, or the existing support plan for a carer, when it carries out its assessment. My Amendment 92ZZAC would require the second authority to “have due regard” to the existing plan. This involves appropriate and conscious consideration—a stronger duty than having regard.
Critically, my Amendment 92ZZAD proposes that, when the second authority considers the existing plan, it does so with the aim of securing the same outcomes as far as reasonably practicable. It recognises that there may be occasions when the same outcomes are not possible. This goes to the heart of the continuity of care—to get as seamless a transition as possible—and it reflects the underlying intention of my Bill.
During Second Reading of the Care Bill, the Minister said in his winding-up speech:
“The noble Baroness asked why there was no requirement for equivalent services when somebody moves”.—[Official Report, 21/5/13; col. 829.]
Let me put the record straight. Neither I nor my Private Member’s Bill expect the second authority to offer the same service. That is a total misunderstanding. My clear intention, as reflected in my Bill, is that the second authority should enable the individual to have the same end result—what the Bill describes in Clauses 9 and 10 as,
“the outcomes that the adult wishes to achieve in day-to-day life”.
Amendment 92ZZAE makes this clear by referring back to those provisions. For example, it might mean taking your children to school but not by taxi if an accessible bus service is available, or having opportunities to keep fit or enjoy leisure activities but not by the same means.
When I talk about outcomes, I am talking about ordinary day-to-day activities. However, without genuine continuity of care, they stop altogether. For example, I received a letter from a young woman who moved to her neighbouring authority. The new authority honoured the existing plan, providing homecare assistance three times a day, but it refused to offer this at times which would fit in with her office breaks and childcare pick-ups, so she could not use the toilet or collect her children—same assessment needs; totally different outcomes.
I turn to my final amendment, Amendment 92ZZAF. It is clearly intended that the process of putting in place care and support should be completed by the day of the person’s move. Clause 37(1) states that, if this has not happened, the second authority must meet the same needs that the first authority has been meeting. Clause 37(6) says that from the day of the move the first authority has no more responsibility. However, as my earlier example showed, that does not provide any safety net if the second authority does not comply with its duty or it delays in doing so. The Local Government Ombudsman told the Joint Committee on the draft Care and Support Bill that failures may occur, which could have a major impact on the provision of care and the person’s experience. As noble Lords will know, the process of assessment and care planning can be arduous and lengthy. It would be far better for the first authority, which has the relevant experience, to continue to meet the person’s needs if the second authority is not ready to do so by the day of the move. That should continue until the second authority has put its own arrangements in place. It is too risky to assume that nothing will go wrong. Dave Morris’s story gives the lie to that.
If the first authority has to step in, it should of course be refunded by the second authority. That would provide an incentive for the second authority to act without delay. My Amendment 92ZZAF provides for this. This is the position under my Bill and the Joint Committee recommended a similar provision.
I genuinely congratulate the Government on this first attempt to secure social care portability, but as yet it is not deliverable. I have done my homework and have consulted local authorities and service users on this issue for nearly five years. Please let us honour Dave Morris’s memory by getting continuity of care just right. I beg to move.
My Lords, I am glad to add my voice in support of the amendments in the name of the noble Baroness, Lady Campbell. Unfortunately I was too late to get my name on the Marshalled List but that should in no way be taken to indicate any lack of enthusiasm for them. I do not think that I can usefully add anything to the advocacy of the noble Baroness. She is the expert in this area, and as she has told us, she has been living and breathing this for several years. She has spoken to the amendments comprehensively and with great eloquence.
Instead, I shall speak to Amendment 92ZZAFA in this group, which is a more narrowly targeted amendment. It is not unrelated to the amendments tabled by the noble Baroness, Lady Campbell, but it is more targeted. It would amend Clause 38, which deals with where a person’s ordinary residence is. Ordinary residence rules under the National Assistance Act 1948 established which local authority has a duty to fund a person’s care and support, particularly when they are living in a residential care setting outside their original local authority area and in another local authority. These rules are often disputed by local authorities, and every year hundreds of disabled people are caught in the middle of these disputes, which are mainly about financial responsibility, of course.
This is a probing amendment designed to seek clarification from the Minister about the policy which will inform the regulations accompanying Clause 38, which have yet to be published. Ordinary residence disputes are not merely academic; they affect the liability of local authorities, as I have said, but more particularly, they profoundly affect people’s lives. People who rely on significant care and support in their daily lives can change where they live only when all the arrangements are in place. As the noble Baroness, Lady Campbell, has powerfully demonstrated, they cannot afford to take the risk of a local authority refusing or delaying payment for their care, so people’s independence is put at risk and sometimes severely compromised. For example, there are people like Peter who, after three happy and productive years at a specialist college, wants to stay in the area to look for a job. He plans to live with two fellow students in supported accommodation, but he is under pressure from his home local authority to go back home. There is Lucy who has profound and multiple physical and learning difficulties. She requires 24-hour care and has been living out of area in residential care in London. She is ready to live more independently and a voluntary sector care provider is supporting her to move nearer her family on the south coast. However, her plans are in limbo because of disputes about funding her care package.
The Voluntary Organisations Disability Group—an umbrella body of more than 70 voluntary sector providers—estimates that 500 people, such as Lucy and Peter, are affected by ordinary residence disputes at any one time. A small number of disputes are referred to the Secretary of State for determination—64 in the past three years, of which 40 were dealt with. But these are just the tip of the iceberg. Not only disabled people are affected: providers too are caught up in these disputes. The Voluntary Organisations Disability Group estimates that in the past three years, voluntary organisations had to cover a gap in fees of more than £1.5 million while disputes have been resolved. That is not counting the amount of staff time involved.
To their credit, the Government have recognised the problems surrounding ordinary residence disputes and are making some welcome changes through Clause 38. Clause 38 provides that when an adult requiring a particular type of accommodation to meet their care and support needs moves into a different care setting, responsibility remains with their original or first authority. Regulations will describe different care settings by defining what constitutes accommodation of a particular type. These improvements will help to address some of the problems, but I fear not all. Unless the regulations are clear and comprehensive in terms of what types of accommodation are included, ordinary residence disputes and the uncertainty associated with them will continue.
As the Government's current guidance on ordinary residence makes clear:
“The well being of people is paramount in all cases of dispute”.
Since this guidance was published, the meaning of well-being has been helpfully clarified in Clause 1 of the Bill. Clause 1(2(c) refers to,
“control by the individual over day-to-day life (including over care and support, or support, provided to the individual and the way in which it is provided)”.
Clause 1(2)(g) refers to the “suitability of living accommodation”, and Clause 1(3)(a) to,
“the importance of beginning with the assumption that the individual is best-placed to judge the individual’s well-being”.
However, with ordinary residence disputes, the individual themselves becomes invisible in the midst of financial wrangling between authorities. If an individual is prevented or delayed from moving because of a dispute between local authorities over who pays, they have been denied the choice and control that are said to lie at the heart of this legislation. Funding rather than individual well-being has become the prime consideration.
Regulations must capture the full range of relevant accommodation options and be drafted in such a way as to anticipate future models of care. The Government have said that their intention is for regulations to include any type of accommodation where accommodation is required as part of meeting care and support needs. Specifically, I understand that regulations will include extra-care housing, supported living, and shared lives schemes, but the starting point should be the need for care rather than the specific type of accommodation. The type of care and the range of settings in which it is provided are developing quite rapidly. It would therefore be more appropriate for regulations concerning people placed out of area to be framed more generally in terms of the care that people need provided that they are eligible rather than a list of accommodation types which may soon become out of date.
I would welcome clarification from the Minister about the Government's intentions and that not only settings regulated by the CQC will be included. The regulations need to be clear. It is essential that councils are left in no doubt about which types of accommodation have a care element and which do not, otherwise this will become a new area for dispute. Some types of accommodation, such as a residential home, clearly have a care element but with others the picture is far less clear. For example, there is considerable diversity of definition about what constitutes domiciliary care as compared with supported living and what the differences are. This just indicates the sort of issues that need to be addressed if continuing disputes are to be avoided. These regulations provide an opportunity to end the needless consignment of vulnerable people and their families to limbo, avoiding the waste of time and resources caused by disputes and thereby give those who rely on social care and support more choice, control and independence in their lives.
I would like to put on record my support for the points made by the noble Baroness, Lady Campbell, and those just made by the noble Lord, Lord Low. I wish to speak to the two amendments in my name in this group; Amendments 92ZZAG and 107. These are probing amendments to try to get something on the record with regard to the way in which care issues covered by the Bill and which have cross-border implications between Wales and England will be handled in the future.
Although Clause 112 says that the Bill extends to England and Wales, the Bill is ostensibly to do with care provision in England only, which is why I have exercised a self-denying ordinance and not imposed my opinions on the House or the Committee in recent weeks—other than at Second Reading when I flagged up these matters, which I wish to pursue today.
There are two distinct issues although they can in some circumstances be linked. The first relates to the people who move between Wales and England and England and Wales and how differing care regimes in the respective countries will affect their entitlements. I am talking about people who move voluntarily and not those who may be placed by local authorities or a health authority. The second relates to the funds associated with this Bill and how they impact on the two respective countries, and to that extent the Bill certainly has implications for Wales, Scotland and Northern Ireland.
I first remind the Committee that the social care dimension is a wholly devolved subject, and the policy in Wales may be totally different from that in England. The National Assembly is now considering draft legislation which no doubt will lead in coming months to the evolution of a new statute in Wales. The Welsh Government have a commitment to a new system that is fair, affordable and sustainable within a Welsh context. The legislation being considered in Wales is likely to increase the number of services where people can claim a direct payment from local councils; introduce national eligibility criteria that may be different from those in England; create portable assessments within Wales that do not extend to England as I understand it, and establish a national adoption service and allow council officers greater powers in helping those suspected of being at risk.
In Wales there is a substantially greater proportion of older people—greater than any other country or region in the UK. I also maintain in that context that the GVA levels in Wales are in some areas 40% below the average levels of the UK. The financial profile against which any new policy is set will inevitably be different between Wales and England. They will also have to allow for the fact that disability levels are significantly higher in Wales. Wales has already set a cap of £50 a week on charges for home care. The Welsh Government have, wisely to my mind, waited to see the sums involved in England before deciding on the best policy for paying for care in Wales.
There has been pressure on the Welsh Government from Age Cymru and others pressing for a lower cap in Wales than in England and there has been talk of caps of £23,000 and £35,000, which is the figure recommended by Dilnot. There are serious questions about how the Care Bill in England may affect Wales and vice versa, both in terms of whether there is any full Barnett consequential accruing to Wales from the £1 billion cost of the package in England, and with regard to the entitlement of people who have moved informally—not by placement but informally—between the two countries. For example, what is the portability of assessments of need made in Wales for people who move to England and vice versa—not cross-border placements but those who move voluntarily?
To put it simply, what is the position of Mrs Jones who lives in Prestatyn and goes into residential care in Prestatyn? At the behest of her daughter who lives in Chester she moves to a residential home over the border to be closer to her grandchildren. Will the cap operational in Wales or in England be applicable? Likewise, what if Mrs Smith experiences exactly the same problem in the converse direction? Who will explain the situation and the implications of the situation to both Mrs Jones and Mrs Smith before they decide to move?
Incidentally, the definition of “ordinarily resident” in Clause 38(1) seems to be inadequate to deal with the situation of someone who may move from supported accommodation in one country to another as the location at which she or he lived prior to coming into supported accommodation might be totally irrelevant—for example, if they lived for a period with their daughter in, say, Dublin, Brussels or the Isle of Man.
There is then a question about the duty of the health research authorities covered by Clause 98 of co-operation between England and Wales. Clearly the duty of co-operation needs to be considered, not only in the context of the health authorities but in the general context of these amendments, but who will enforce that duty? What will be the fundamental long stop to ensure that Mrs Jones and Mrs Smith are not caught in the crossfire between the policies of two Governments?
I do not know whether any of the government amendments in this group have an implication for the question I am raising but I would be grateful if the Minister can address these issues so that between now and Report I can discuss them with colleagues in Cardiff to ensure that when the final legislation goes on to the statute book everyone will know exactly where they stand.
My Lords, I strongly support the amendments of the noble Baroness, Lady Campbell, and the noble Lord, Lord Low. The noble Baroness has been very keen in pursuing these issues for the past five years and her tenacity has been outstanding. I am sure we all recognise that. She has argued comprehensively and excellently for these amendments. We all know that there is huge stress in moving home and, if you are a person in need of care, that stress is beyond words. As the noble Baroness said, it is a monumental risk. I hope that the Committee will wholeheartedly support these amendments.
My Lords, I, too, congratulate the noble Baroness, Lady Campbell, on her amendments and on her persuasive advocacy in this area. We debated the issue of equivalent services at Second Reading and the noble Earl said in his response that he felt that when people move from one local authority to another their circumstances are, in many cases, likely to change and that after a move it would not always be appropriate for them to have services equivalent to those that they had before. However, the noble Baroness has answered this point—her amendment has moved on—and she is not asking for an equivalence of services but an equivalence of outcome. That is a very important difference that noble Lords ought to mark. It is a persuasive case. Of course it is not possible to say that a new local authority must provide exactly the same services in the same way, but it must be right to strive to ensure that the outcome for the person who has moved is the same. I have a great deal of sympathy with her amendments and support those which are designed to ensure a smooth transition.
The noble Lord, Lord Low, made an interesting contribution in relation to ordinary residence and the number of disputes that currently arise in relation to it. As he said, Clause 38 and its associated regulations are welcome. However, he is surely right to seek to ensure that the regulations give absolute clarity and I would welcome the Minister’s reassurance on that.
I welcome the intervention of the noble Lord, Lord Wigley. He should not feel inhibited from intervening in Bills which he thinks apply only to England. His experience is welcome and I hope that he will continue to take part in our debates at future stages of the Bill. I have always found cross-border issues complex. No doubt the Minister will now move many amendments to deal with the issue. However, the substantive point is that, as the four countries of the UK seem to be going their separate ways in relation to health and social care, it is important that we ensure that people moving to and from different parts of the UK are able to do so without a gap in services. In that sense, I welcome the noble Lord’s intervention.
My Amendment 92ZZADA is concerned with the circumstances of carers in relation to a move from one authority to another. Essentially, the amendment requires the second local authority to provide a written explanation where the cost to the second authority of meeting the carer’s eligible needs is different from the first. That explanation should be provided to the carer, the adult needing care and any other person to whom the carer asks the authority to provide an explanation. I am seeking to mirror for the carer the requirement contained in Clause 36(10) to explain the difference in the cost of meeting the eligible needs of an adult when they move from one authority to another.
Perhaps I may probe the Minister about what would happen in a scenario where a carer receiving local authority support moves to a new local authority area but the person receiving care does not. Does the Bill cover this situation? Would a review of the support plan of the carer and the care plan of the person being cared for be triggered? Essentially, on the issue of portability, I want to ensure that the circumstances relating to carers are as well understood as they are to the person making the move. If the Minister cannot specifically respond to that point, perhaps she will write to me between now and Report stage.
My Lords, adults with care and support needs may want to move home, just like anyone else, but co-ordination between local authorities can sometimes be variable and, as a result, we often hear that people are worried that they will face gaps in the care that they need. The Bill sets out to change that. Clauses 36 and 37 set out a new process to support people moving between areas in England with a guarantee that their needs will not go unmet during the transition.
I turn, first, to the amendments tabled by the noble Baroness, Lady Campbell, who has a long-standing interest in this issue. As the noble Baroness, Lady Wilkins, and the noble Lord, Lord Hunt, emphasised, the noble Baroness has fought on this issue for years and I thank her for her gratitude to the Government for taking action in this area, even if she has some residual concerns. I hope that I can reassure her and, should she wish to move, that she will be able to contemplate a move as feasible in a way that she never felt it was before.
Amendment 92ZZAB seeks to ensure that the adult remains informed during the process. It is important, as the noble Baroness, Lady Campbell, has made clear, that this is the case so that the adult can plan for their move. Clause 36(6) requires the second authority to carry out an assessment as soon as it has established the adult’s intention to move. This requires interaction with the adult from an early stage and thus provides the opportunity to inform them of progress. We intend to clarify this area in statutory guidance and I am sure that the noble Baroness will wish to feed into this.
Amendment 92ZZAC would require the second authority to have due regard to the care and support plan provided by the previous area and Amendments 92ZZAD and 92ZZAE seek to ensure that the focus is on securing equivalent outcomes as in that plan. I fully understand that the noble Baroness is not seeking equivalent services and that this is different from outcomes, a point emphasised also by the noble Lord, Lord Hunt. Of course, when a person moves it is possible that their needs for care and support may change; for example, if they move closer to their family. The noble Baroness is right to focus on outcomes and we recognise that in the Bill. For example, Clause 25(1)(d) would include all the matters identified by the person, including the outcomes they want to achieve. We very much sympathise with these points and indeed have already revised the provisions following consultation on the draft Bill. Clause 36(7) requires the second authority to have regard to the plan or plans provided.
A further change following consultation is the introduction of Clause 25(5), which requires that when preparing to meet an adult’s needs,
“the local authority must take all reasonable steps”,
to agree with the adult how it will do so. Together, these provisions allow adequate scope for the existing plan to be reflected, so far as is agreed and appropriate, in the way in which the second authority meets the person’s needs to achieve the outcomes that the noble Baroness speaks of. I hope that the noble Baroness, Lady Campbell, agrees that the changes we have introduced will ensure that the person will be fully involved in the development of their care and support plan, and as such, can ensure that this continues to meet the outcomes they want to achieve.
Amendment 92ZZADA, in the name of the noble Lord, Lord Hunt, proposes that we replicate Clause 36(10) for carers. I will explain why this is not required. Clause 36(10) has been inserted as a result of our proposals for funding reform, which we discussed earlier in Committee. It requires the second local authority to inform the person receiving care and support if the cost of their eligible needs is different from that provided by the first authority. This relates to the individual’s care account and it is right that the authority informs the person if the amount that counts towards their cap on care costs has changed. However, carers will not have a care account as they are not eligible for a cap on costs and there is therefore no need to require the second authority to inform them of any change in the cost of meeting their eligible needs.
Where a service user is moving to a new local authority in England and the carer is also intending to move with them, the continuity of care provisions will apply to the carer in the same way as they do to the service user. I hope that this reassures the noble Lord. Where the service user is not moving but the carer is moving home to another authority, these provisions will not apply. The carer is still providing care in the original authority and it will continue to be responsible for meeting their care needs.
Amendment 92ZZAF, in the name of the noble Baroness, Lady Campbell, would require the first authority to continue to meet any needs until it has satisfied itself that the second authority has met its duty in Clause 37(1). The noble Baroness explained why she felt this was important. The continuity duty in Clause 37(1) applies from the day of arrival in the new area. From that point, it is the new authority’s responsibility to meet the adult’s needs, and the first authority’s previous duties are discharged. There should not be a gap in these arrangements. In particular, the requirement on the second authority to assess the adult before they move is intended to ensure that the necessary preparation has been undertaken so that there is no delay. Therefore, this amendment should not be necessary. Moreover, there is a risk that such a provision could act as a disincentive on the second authority to meet its obligations in a timely manner, although I heard what the noble Baroness said in regard to that. We will develop statutory guidance to support local authorities in exercising these new duties. That guidance offers a further opportunity to clarify expectations and ensure that no gap occurs.
Amendments 92ZZAG and 107, in the name of the noble Lord, Lord Wigley, concern Schedule 1, which makes provision for cross-border residential placements. I thank the noble Lord for giving us the benefit of his knowledge of Wales and note his praiseworthy restraint with regard to English provisions, although I note that the noble Lord, Lord Hunt, did not share my view. Clearly, the noble Lord, Lord Wigley, has resolved the West Lothian question but I appreciate his offer to liaise with Welsh colleagues to ensure the greatest clarity. I will give him some further information that may be of assistance to him.
The Care Bill will make provision for cross-border residential care placements so that people can be placed in care homes in other parts of the United Kingdom. This will mean that if a local authority in England places someone in residential care in Northern Ireland, Scotland or Wales, that person will remain the responsibility of the English local authority. They will not acquire ordinary residence in their new location and will continue to benefit from the protection provided by the cap. For example, if people receiving domiciliary care move from England to Wales, or people in a care home move without being placed by their local authority, they will usually become ordinarily resident in the new area and the appropriate contribution they should make to the costs of their care will be determined by the arrangements in Wales. A person moving to another Administration and requiring domiciliary care will be reassessed under the system into which they are moving. The processes being proposed in England and Wales are different and we will work with colleagues in Wales to produce guidance to look at how continuity of care can work across borders.
Schedule 1 will end the untenable situation local authorities currently find themselves in when a person in their area who wishes to receive residential care in Wales, Scotland or Northern Ireland is unable to do so. The noble Lord’s amendments seek to delay commencement of Schedule 1 until a report is laid before Parliament outlining the issues connected with cross-border placements arising with the devolved Administrations. We believe that this would cause an unnecessary delay to enacting provisions that are long overdue.
However, we recognise the concerns about the practical challenges of cross-border working. I hope the noble Lord will be reassured that we are working with the devolved Administrations to create bespoke regulations to meet the diverse legislative and operational requirements of each Administration. The regulations will be subject to consultation and laid before Parliament. I expect the noble Lord to participate in those debates.
I do not want to delay proceedings. This is just a way of bringing focus on the issue. Can the Minister give any indication to the Committee as to whether the discussions and deliberations that have already taken place between her department and the National Assembly in Cardiff have gone well and that there is so far a meeting of minds, or are there issues over which there will be some clash? If there is a clash, how will it be resolved?
If need be, I will come back to the noble Lord with all the details because it is indeed a very complex area. There are a number of government amendments, as the noble Lord, Lord Hunt, pointed out, and these seek to address some of the issues that have arisen in trying to make sure that everything works as smoothly as possible. It would probably be most appropriate to write in detail to the noble Lord and for him to see and stress-test what is happening. I remind the noble Lord that these regulations will be subject to consultation and laid before Parliament.
I now move on to the government amendments that the noble Lord, Lord Hunt, referred to. Obviously, this is a complex area. Amendment 92ZZAFB is required to clarify the ordinary residence situation of a person who has an independent personal budget. The local authority where the person is ordinarily resident is responsible for preparing the person’s independent personal budget and keeping the care account. This amendment makes clear that if such a person is in residential care and moves to the area of a different local authority, they will be able to become ordinarily resident in that new area.
Amendments 92ZZAGA to 92ZZAGK relate to cross-border placements. Amendment 92ZZAGA is needed to ensure that the prohibition on English local authorities providing NHS care in England in Clause 22 of the Bill is mirrored when the English local authority places someone in residential accommodation across the border. This amendment makes clear that this prohibition applies in such cases, to avoid any doubt. The amendment also mirrors the regulation-making power in Clause 22(6), to require the English local authority to be involved, as necessary, in processes for assessing a person’s health needs, which would be led by the relevant NHS body.
Amendment 92ZZAGH amends the Social Work (Scotland) Act 1968 so that a local authority in Scotland can recover from a health and social care trust in Northern Ireland any expenditure it incurs in the provision of accommodation or services under Part II of that Act for a person ordinarily resident in the area of the trust, in the same way as is already the case if it incurs expenditure for the same reasons for a person who is ordinarily resident in England or Wales. It also amends the 1968 Act so that if there is any overlap between the dispute resolution mechanism in that Act and the procedure in Schedule 1 to the Bill, the provisions in the Bill will prevail.
Amendments 92ZZAGB to 92ZZAGG and 92ZZAGJ and 92ZZAGK ensure that the provisions of Schedule 1 apply to all residential placements made by Welsh local authorities. Paragraph 2(1) of the Schedule currently applies only to placements to be made by Welsh authorities under Clause 21 of the Social Services and Well-being (Wales) Bill once it is enacted. This amendment, which has been agreed by our counterparts in the Welsh Government, ensures that it also applies to placements to be made under Clause 22 of that Bill. It will prevent the possibility that Welsh authorities could place individuals in accommodation in England under Clause 22, and then cease to have responsibility for the individuals’ care.
The government amendments to Schedule 1—92AB to 92AL, 92AM to 92AX, 92AZA to 92AZE, 105W, 106A, 106B, 106C and 108—deal with cases of provider failure in relation to cross-border placements. Under Clause 47, local authorities in England are required to step in temporarily and meet the needs of people whose provider has failed in their geographic area. This means that the responsibility to ensure continuity of care falls on the local authority most able to meet needs, not necessarily the same local authority who made the arrangements with the failed provider to meet the needs of the adult. In fulfilling this duty, a local authority must co-operate with any local authority that made arrangements with the failed provider. It will be able to recoup costs from that authority.
We are committed to ensuring that people receive these protections throughout the United Kingdom. We have therefore worked with the Administrations in Wales, Northern Ireland and Scotland to ensure four-way reciprocity. I am pleased to bring forward amendments that give effect to the consensus reached. In order to replace Clause 48 and make these changes, noble Lords will note that my noble friend Lord Howe has given notice of his intention to oppose the Motion that Clause 48 stand part of the Bill.
Finally, I turn to Amendment 92ZZAFA of the noble Lord, Lord Low. Clause 38 is intended to have effect only if an adult is receiving care and support in a residential setting. The intention behind it is to ensure that if a local authority makes such a placement in accommodation in the area of another authority, the original authority remains responsible for funding the person’s care. We understand the noble Lord’s desire to clarify the types of accommodation relevant to this clause. The intention is to specify in regulations the responsibility for out-of-area placements in settings other than care homes. As he said, local authorities can currently fall into dispute over such placements, and the regulations should resolve this problem. I reassure him that the Government will consult on the regulations referred to in this clause.
The noble Lord was concerned about the effect of such disputes. I point out that the Government have issued extensive guidance and statutory directions to assist local authorities in making decisions about ordinary residence. Unfortunately there will be occasions when two or more authorities do not agree on where a person should be considered ordinarily resident. The statutory directions make clear that all genuine disputes must be referred to the Secretary of State within four months, so that there is no excuse for authorities deliberately to stall the process in order to postpone meeting their financial responsibility.
The noble Lord has flagged some useful elements. He was explicitly addressing regulations in much of what he said. It is extremely useful to hear from him. I can reassure him that we are extending the settings to which ordinary residence is deemed to apply beyond care homes alone. We shall consult on how best to ensure the regulations are comprehensive and flexible enough to deal with future changes in the provision of healthcare and support. I am sure that his comments will be noted. I thank him and other noble Lords for their contributions. As ever, we have had a very well informed debate. I hope that I have reassured noble Lords and that they will feel able not to press their amendments.
My Lords, I thank the Minister for her deliberations and her reflections on my amendments. I am glad that we have cleared up that touchy word, “equivalence”. I think that we are now on the same page.
However, I am worried about whether clarifications on the exchange of information and the updating of the user will give sufficient reassurance that services will be provided from day one. I understand that the Government are still working on and clarifying some of the issues with regard to assessment and involvement, and I think we all now understand what “outcomes” means. However, clarifying in guidance does not yet reassure me, because I have many examples of services users and their local authorities and good social workers being in contact with the second authority. They know what is coming their way. I am still deeply concerned that the Dave Morris example will happen again and again.
I am not convinced by the argument that the second authority is obliged pick up the bill from day one and that, should the first authority continue to pay, this would be a disincentive to the second. The second authority will have to pay this money back. Believe me, it will be far more vociferous than any service user. Thus I do not feel that there is an adequate safety net allowing the disabled person and their carer to be confident that the bills will be paid on day one. We still have a little bit more negotiation and clarification to do. I would be far more reassured by the mention of regulation in some of these areas but, for now, I will withdraw my amendment and look to the Minister and his very good, helpful and collaborative officials to go on working with me on this issue.
I am going away in the summer but only for two weeks. I will be back on this issue before and directly afterwards; I am a bit like a dog with a bone on this one. There is more work to do, but, for now, I beg leave to withdraw the amendment.
Amendment 92ZZAB withdrawn.
Amendments 92ZZAC to 92ZZAE not moved.
Clause 36 agreed.
Clause 37 : Case where assessments not complete on day of move
Amendment 92ZZAF not moved.
Clause 37 agreed.
Clause 38 : Where a person's ordinary residence is
Amendment 92ZZAFA not moved.
92ZZAFB: Clause 38, page 33, line 41, at end insert—
“( ) The reference in subsection (1) to this Part does not include a reference to section 28 (independent personal budget).”
Amendment 92ZZAFB agreed.
Amendment 92ZZAG not moved.
Clause 38, as amended, agreed.
Schedule 1 : Cross-border placements
Amendments 92ZZAGA to 92ZZAGK
92ZZAGA: Schedule 1, page 91, line 34, at end insert—
“( ) Section 22 (prohibition on provision of health services) is to have effect—
(a) in its application to a case within sub-paragraph (1)—(i) as if the references in subsections (1) and (6) to the National Health Service Act 2006 included a reference to the National Health Service (Wales) Act 2006, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Local Health Board; (b) in its application to a case within sub-paragraph (3)—(i) as if the references in subsections (1) and (6) to the National Health Service Act included a reference to the National Health Service (Scotland) Act 1978, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health Board or Special Health Board;(c) in its application to a case within sub-paragraph (4)—(i) as if the references in subsections (1) and (6) to a service or facility provided under the National Health Service Act 2006 included a reference to health care provided under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009, and(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health and Social Care trust.”
92ZZAGB: Schedule 1, page 92, line 10, at end insert—
“(1A) Where a local authority in Wales is arranging for the provision of accommodation in England in the exercise of its power under section 22 of the Social Services and Well-being (Wales) Act 2013—
(a) the adult concerned is to be treated for the purposes of that Act—(i) in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in England, as remaining within that area;(ii) in a case where the adult was outside but ordinarily resident in the local authority’s area immediately before being provided by the local authority with accommodation in England, as remaining outside but ordinarily resident in that area, and(b) the adult concerned is not to be treated for the purposes of Part 1 of this Act as ordinarily resident anywhere in England (unless the adult was so ordinarily resident immediately before being provided by the local authority with accommodation in England).”
92ZZAGC: Schedule 1, page 92, line 18, at end insert—
“(2A) Where a local authority in Wales is arranging for the provision of accommodation in Scotland in the exercise of its power under section 22 of the Social Services and Well-being (Wales) Act 2013—
(a) the adult concerned is to be treated for the purposes of that Act—(i) in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in Scotland, as remaining within that area;(ii) in a case where the adult was outside but ordinarily resident in the local authority’s area immediately before being provided by the local authority with accommodation in Scotland, as remaining outside but ordinarily resident in that area, and(b) no duty under Part 2 of the Social Work (Scotland) Act 1968 or sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 applies in the adult’s case.(2B) But paragraph (b) of sub-paragraph (2A) does not prevent a duty mentioned in that paragraph from applying in the case of an adult who was ordinarily resident in Scotland immediately before being provided by the local authority with accommodation in Scotland.”
92ZZAGD: Schedule 1, page 92, line 22, leave out “this Part” and insert “that Act”
92ZZAGE: Schedule 1, page 92, line 27, at end insert—
“(3A) Where a local authority in Wales is arranging for the provision of accommodation in Northern Ireland in the exercise of its power under section 22 of the Social Services and Well-being (Wales) Act 2013—
(a) the adult concerned is to be treated for the purposes of that Act—(i) in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in Northern Ireland, as remaining within that area;(ii) in a case where the adult was outside but ordinarily resident in the local authority’s area immediately before being provided by the local authority with accommodation in Northern Ireland, as remaining outside but ordinarily resident in that area, and(b) no duty under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009 to provide or secure the provision of accommodation or other facilities applies in the adult’s case.(3B) But paragraph (b) of sub-paragraph (3A) does not prevent a duty mentioned in that paragraph from applying in the case of an adult who was ordinarily resident in Northern Ireland immediately before being provided by the local authority with accommodation in Northern Ireland.”
92ZZAGF: Schedule 1, page 92, line 31, after “(2)” insert “or (2A)”
92ZZAGG: Schedule 1, page 92, line 33, leave out “that sub-paragraph” and insert “each of those sub-paragraphs”
92ZZAGH: Schedule 1, page 95, line 21, at end insert—
“6A (1) In section 86 of the Social Work (Scotland) Act 1968 (adjustments between authorities providing accommodation), in subsections (1) and (10), after “a local authority in England or Wales” insert “and to a Health and Social Care trust in Northern Ireland”.
(2) In subsection (2) of that section, after “the ordinary residence of a person shall” insert “, in a case within any of paragraphs 1 to 4 of Schedule 1 to the Care Act 2013 (cross-border placements), be determined in accordance with paragraph 5 of that Schedule; and in any other case, the question shall”.
(3) In section 97 of that Act (extent)—
(a) in subsection (1), for “sections 86 and 87” substitute “section 87”, and(b) after that subsection insert—“(1A) Section 86 of this Act shall extend to England and Wales and to Northern Ireland.”.”
92ZZAGJ: Schedule 1, page 96, line 23, leave out “1 to 4” and insert “1, 3, and 4”
92ZZAGK: Schedule 1, page 96, line 24, at end insert—
“( ) In paragraph 2—
(a) the references in sub-paragraphs (1), (2) and (3) to discharging a duty under section 21 of the Social Services and Well-being (Wales) Act 2013 by arranging for the provision of accommodation are to be read as references to providing residential accommodation under Part 3 of the National Assistance Act 1948; (b) the references in paragraph (a) of each of those sub-paragraphs to the Social Services and Well-being (Wales) Act 2013 are to be read as references to Part 3 of the National Assistance Act 1948; (c) sub-paragraphs (1A), (2A) and (3A) are to be ignored; and(d) in sub-paragraph (5), the references to sub-paragraph (2A) and paragraph (b) of sub-paragraph (2A) are to be ignored.”
Amendments 92ZZAGA to 92ZZAGK agreed.
Schedule 1, as amended, agreed.
Clauses 39 and 40 agreed.
Clause 41 : Enquiry by local authority
92ZZAH: Clause 41, page 35, line 13, after “neglect” insert “in any setting”
My Lords, I declare an interest as the family carer of an adult man who has publicly funded care and support.
My noble friend Lord Rix and I have tabled eight amendments in this group which together aim to strengthen the safeguarding section of the Bill, Clause 41 and accompanying Schedule 2.
I know that Mencap and others welcome the focus that the Bill gives to safeguarding. At Second Reading, my noble friend said that he regretted the lack of a duty on providers or relevant partners to inform the local authority when they suspect that an adult is at risk. The Minister replied:
“The local authority duty is to make inquiries to decide what action should be taken. One such form of action is to assess the adult’s needs … where it appears, ‘that an adult may have needs for care and support’”.—[Official Report, 21/5/13; col. 830.]
However, Mencap and others remain concerned about the lack of a duty on all providers and relevant partners to advise the local authority that there is a need to assess.
We need not look too far into the past to find examples of failings. The serious case review looking at the deaths of Francesca Hardwick and her mother Fiona Pilkington found that safeguarding procedures had failed. Likewise, at Winterbourne View hospital, it took a whistleblower with a hidden camera to expose the abuse and get the authorities and police to take action. We need to get this right and, while the Bill improves on what we have, these amendments would create watertight legislation that provided the level of protection that vulnerable people need.
On Amendment 92ZD, it is critical that local authorities take the action to protect people from all forms of abuse and the Bill must reflect this. Currently, only financial abuse is defined. The rationale might be that others types of abuse are better understood and will be set out in the guidance, but this means that the clause looks a bit lop-sided. The amendment would add in the different types of abuse as listed in the No Secrets guidance; for example, physical, sexual, psychological, neglect and so on. It also includes an “other” category to allow for the list to be expanded on in the guidance if necessary so that there are no concerns that it will be considered an exhaustive list, which could have unintended consequences.
Amendment 92ZE is necessary because it is important to have it clarified that abuse is not always deliberate; it may be perpetrated as the result of negligence or ignorance. This point is of such importance that it warrants being in the Bill. The wording of this amendment is again taken from the No Secrets guidance.
I turn to Amendment 92ZZAH. Clause 41 is not clear about where the abuse and neglect have to happen for the local authority to make inquiries. A small addition here would make it explicit that we are talking not just about social care settings but about all settings. This is important, as there can be a tendency to view hospitals as safe places, but the tragedies of Winterbourne View and Mid-Staffordshire tell us otherwise.
I turn to Amendment 92ZF. The Bill introduces a duty on the local authority to make inquiries when it suspects that an adult is at risk of, or experiencing, abuse or neglect. However, there is no duty on other agencies to report to the local authority when they suspect that an adult is at risk of, or experiencing, abuse or neglect. This is a gap. Currently, guidance provides information to help agencies make a judgment about whether they should refer concerns to the local authority. There are also requirements on providers to notify the CQC of concerns and to have suitable arrangements in place to ensure that people are safe, but this does not go far enough. There must be a duty on all relevant partners of the local authority, including providers of relevant services such as social care, health and housing, to report to the local authority when they think that an adult is at risk of abuse or neglect. The Welsh Bill includes such a duty, and we could do worse than replicating it. Indeed, in the Welsh Bill there is a whole clause devoted to:
“Duty to report adults at risk”.
It may be that inserting a new clause, such as that proposed by an amendment tabled by the noble Baroness, Lady Greengross, would be appropriate. I look forward to the Minister’s views on this matter.
The Bill quite rightly allows safeguarding boards the ability to decide how to meet its objectives. Amendment 92ZC suggests that it is crucial that regulation and guidance set standards for investigations. It would require the Secretary of State to set out in regulation and guidance the thresholds for investigation together with the process. Such a move would bring much needed clarity for agencies as to roles and responsibilities as well as faith in the safeguarding system for families.
Currently, it is not always clear what is and is not a safeguarding concern. For services supporting people with challenging behaviour, we know that there are issues about overuse of restrictive practices. There is wide variation regarding when restrictive practices are identified as safeguarding concerns. The serious case review into Winterbourne View said:
“It is shocking that the practice of restraint on a … daily basis was not identified as constituting abuse by any professional”.
Once reported, it is crucial that there is a proportionate response. The threshold for investigation currently differs greatly between local areas. A safeguarding panel in one area, with a limited understanding of restraint, may not take a concern seriously whereas another local area may take action. There is also a lack of connection between agencies. The serious case review into Winterbourne View found that there had been plenty of warnings that something was seriously wrong: 40 safeguarding alerts, 29 incidents where the police were involved and 78 attendances at A&E. However, information did not flow between agencies: action was not taken. Essentially, they all believed that someone else was looking. Roles and responsibilities must be clear and regulation needs to place emphasis on the importance of timescales so that concerns are investigated in a timely manner.
Turning to Amendment 92ZB, it is vital that, where appropriate, an advocate is available to support vulnerable adults who are going through safeguarding inquiries. It may be a traumatic time and it is important that individuals get the support they need to speak up. They may also need help to ensure that the inquiry and follow-up actions properly address their needs.
Amendments 92ZG and 92ZH amend Schedule 2. In addition to improving processes, we must also ensure that lessons are learnt. Schedule 2 sets out the parameters for how safeguarding adults boards should operate. There is much to welcome here, but we should go a little further. First, the annual reports compiled by each board should not only include findings of reviews but what actions have been taken to implement recommendations from the reviews. It is crucial that we learn from failings and that practices change. Secondly, I would like to request that the Secretary of State be added to the list of those who must be sent a copy of the safeguarding adults board’s annual report. Collating these would provide the Government with the national picture and allow the effective monitoring of trends as well as the ability to share good practice.
In conclusion, there is, as I mentioned earlier, much to be welcomed in the Bill’s focus on safeguarding. These amendments are simply designed to complement and strengthen what is already there and I look forward to the Minister’s response. I beg to move.
My Lords, I shall speak to several amendments in this group. I strongly welcome the clauses in the Care Bill that relate to adult safeguarding. It is right that the abuse of vulnerable adults should be placed on a statutory footing, alongside domestic abuse and child abuse. However, these clauses primarily address a minimum safeguarding infrastructure, and in the main seek to meet the requirements of professionals. My proposed amendments focus on the needs of victims.
The prevalence study into elder abuse, funded in part by the Department of Health and published in 2007, indicated that at least 500,000 older people experience abuse at home; abuse that is, sadly, often perpetrated by family members and others whom the victim should be able to trust. Research by the charity Action on Elder Abuse—I declare an interest as one of its founders—indicates that fewer than 10% of the victims come to the attention of adult safeguarding systems. We clearly must do better than that. However, we must also recognise that there are more victims than just the older person. No matter what the circumstances, when someone's mother or father or sister or brother is abused or neglected, it is not unusual for relatives to blame themselves—to feel that somehow they should have known or should have done something. Even when they could not have done so, there are many more victims of elder abuse than just the older person. We know that many victims of elder abuse are elderly people who are attacked by their son or daughter, perhaps because of a long history of domestic violence. However, they are very reluctant to call the attention of the police or anyone to those crimes because they see themselves as having failed as parents.
The amendments go to the heart of what is most cruel about elder abuse. Too many older people are locked away in back rooms, imprisoned by those who choose to exploit them, and unable to seek assistance. Theirs is a silent scream that we must hear, and to which we must respond. We cannot allow abusers the right to deny access to their victims. We must ensure that we do everything possible to find and support the 90% of older victims who currently are unsupported, and we must encourage agencies to work together, as the noble Baroness, Lady Hollins, has said, to report their concerns about possible victims. We must also ensure that those who ill treat or neglect vulnerable people are held to account, because victims and their families deserve to know that elder abuse will not be tolerated and that abusers will be held to account.
Amendment 92ZFC deals with the need for a power of access for confidential interview, to occur only when the reasonable suspicion of a social worker or other practitioner is tested by application to a court, which would consider whether or not to authorise such access. As we have heard, such access is available under the Scottish Act and is proposed in the Welsh Bill through application to a justice of the peace.
Amendment 92ZFD relates to safeguarding adults at risk of abuse and neglect and introduces a duty to report adults at risk of abuse. There is currently no duty on agencies to notify a local authority if they believe an adult may be at risk of abuse. A local authority cannot be expected to identify all abuse by itself. It has to rely on the good will of others to make referrals. There is a need to underline the responsibility of all agencies to report if they have a reasonable belief that an adult is at risk.
As we have heard, the Welsh Bill proposes:
“If a relevant partner of a local authority has reasonable cause to suspect that a person is an adult at risk and appears to be within the authority’s area, it must inform the local authority of that fact”.
A relevant partner is proposed to be the police, another local authority, the probation service, a local health board, an NHS trust, Ministers, or anyone else that regulations may specify.
Amendment 92ZFE is proposed because there is currently no specific offence to protect adults with capacity who are the subject of neglect or abuse but who are not covered by the Mental Health Act or the Mental Capacity Act. The view is that, in such circumstances, they can be covered by the inherent jurisdiction of the courts only, which is time-consuming, costly and not widely used in such circumstances. The Law Commission report noted the gap in the law relating to protecting adults at risk who were being ill treated or neglected but who were not subject to the powers of the Mental Health Act or the Mental Capacity Act. Police officers had suggested that prosecutions were being dropped in practice because doctors could not confirm, or had not documented, that a person lacked capacity.
Additionally, the extent of abuse and neglect uncovered in hospitals and care homes has caused anxiety and outrage throughout the UK. Current systems and law have been insufficient to deter abuse, and too often the few perpetrators who reach the courts have sentences that the public consider far too lenient.
Amendments 92ZFF and 92ZJ are about safeguarding adults at risk of abuse and neglect. I welcome the proposals in the Bill to put safeguarding adults boards on a statutory footing. However, along with the College of Social Work, I believe that the Bill should ensure that social workers are appointed to supervise safeguarding inquiries because they alone have the theoretical, legal and policy knowledge to undertake complex, politically charged and sensitive pieces of safeguarding investigative work that may require co-operation and co-ordination with other professionals and organisations.
The Bill should also stipulate that the local authority representative on safeguarding adults boards must be a social worker or have a social work qualification. This would ensure practice-based and evidence-led influence on boards by practitioners involved in active work with clients. Safeguarding adults review teams should also include a social worker with substantial experience of safeguarding work. Where there is not someone of sufficient seniority and experience, representation on SABs and review teams should be a role for the principal social workers now being appointed in many local authority adult social services departments.
Amendment 92ZK is about the statutory duty of candour. I very much welcome its introduction in the health service but we feel that it should be extended to local authorities, apply to any contract that a local authority awards to a community-based service and should extend to instances of abuse or neglect. I have a concern that social workers who whistleblow on bad practice within their organisations are not always properly protected. The Public Interest Disclosure Act 1998 sets out the minimal requirements on employers and offers protection to staff making a protected disclosure. However, even these minimal requirements on employers are often poorly enforced, thereby making it hard to expose malpractice and putting people at risk of harm.
I would like the Bill to extend the PIDA requirements on employers by introducing a duty of candour for employers in health and social care, in keeping with the Francis report’s recommendations. The provisions should ensure the existence of a clear presumption of disclosure where the behaviour of employees gives rise to concerns. All staff must have a professional duty to whistleblow if they identify practice that they believe puts people they are supporting at risk of harm. Organisations must have clear whistleblowing procedures in place for when practice that puts people at risk of harm has been identified. These should stipulate that if a social worker or another care worker identifies abuse, mistreatment or neglect in any care setting, or has questions about treatment affecting anyone, whether they are supporting them directly or encounter them in the course of their work, they have a duty to draw this to the attention of managers, commissioners and managers of any provider organisation, and follow up to see if their concern has been acted upon. This would amount to a duty of candour.
My Lords, I have two amendments in this group. While the previous amendments have looked particularly at the risk of abuse to individuals, my amendments are to do with finance. I looked carefully through the Bill but did not see where they would fit and I therefore proposed that they be considered at this stage.
Amendment 92ZFA asks that an,
“investigation may be instigated following a complaint from a person with power of attorney for an adult having needs for care and support”.
My second amendment, Amendment 92ZFB, is an accountancy measure to ask that,
“care services shall have a duty to follow specific accounting guidelines”.
As we have heard, increasing numbers of elderly people require care and support, an increasing proportion of whom rely on someone who has power of attorney to act on their behalf, particularly in financial matters.
I am aware that a range of service providers, from banks to shops, from online businesses to public authorities, have difficulty when faced with one of these attorneys. A solicitor acting for the person in need of care sets up the power of attorney and holds all the certification. The person with the power is normally given a number of certified copies of the warrant to use in fulfilling the role. However, there seems to be conflict in the minds of many service suppliers between the need to comply with requests from the holder of power of attorney and the need to protect their original customer under the rules of the Data Protection Act. There was an example of a major chain which acknowledged a request to stop a credit/debit card and then, three years later, billed the customer for a three-year subscription. The warrant holder could not resolve the position because the enterprise would neither contact the solicitor direct nor accept a certified copy of the warrant. A number of letters and a great many telephone calls were used to remedy the situation. Then there was the example of the high street bank that lost two certified copies of a single warrant—to say nothing of the media company, the card protection company and a different bank, all of which have refused to deal with someone with power of attorney.
People in care suffering, for example, from dementia, rely heavily on those who act for them. Difficulties of the kind just outlined take a lot of time and effort to resolve. There is a high cost, too, which is particularly important when the warrant holder is neither being paid nor charging expenses. I am especially concerned about the plight of the spouses of those in care. They are often elderly, physically infirm and hard up. They are often unaccustomed to opposing the will of large organisations, nor do they necessarily know their way around officialdom. Warrant holders who are unrelated to the person in care have severe problems also, in that they may be ignored simply because they are no relation. Alternatively, how does someone with power of attorney cope with demands for family top-up fees from a care home where the managers will not accept that there is no family? Warrant holders have a statutory responsibility and must be scrupulous in their dealings. Businesses will not understand situations that create unnecessary difficulty.
My Amendment 92ZFB refers to care homes and fees. The Bill already concerns itself with the funding of care homes, and the Care Quality Commission has recently been given explicit responsibility to ensure that such homes have adequate funding to carry out their functions. My concern is with residents’ funding, to which I can find no reference in the Bill. Indeed, if I have missed it, the Minister will no doubt point me to it.
I have received complaints about how care home residents and those with power of attorney on behalf of such residents, are billed, bamboozled and in some cases bullied. Examples that I have been told about include over-invoicing which, when challenged, has resulted not in an apology and a credit note but a computer printout, without headings to any of the columns, and no possibility of agreement on the overdue balance. Requests for credit notes are ignored, and the resident or the person acting on their behalf cannot therefore maintain normal books. Mistakes by the local authority are visited upon residents in the form of extra charges that are not cancelled when the original error is corrected. The Care Quality Commission refuses to get involved, I understand, on the grounds that it has no duty to examine residents’ funding. The local authority had come upon similar problems before, but had no power to intervene. Board members of the newly constituted clinical commissioning group advised that the only thing to do was query the figures, ensure the local authority payments were up to date, and never give in.
It appears that the financial side of the care home business can be totally removed, physically and organisationally, from the home itself. No one has a duty to examine, audit or report on it. I feel that the Bill should carry that responsibility, and have a simple outline of the procedures to be followed to ensure accurate billing for services rendered, so that residents and their carers may be certain of their financial situation. At the moment it is unclear. I hope that the Minister’s response will clarify these situations, because in some cases those holding power of attorney are really at a loss to know how to resolve the situation.
My Lords, I speak in support of Amendment 92A, which stands in my name and that of the noble Baroness, Lady Greengross. The amendment concerns corporate responsibility for neglect. In speaking to this amendment, I acknowledge that the Bill introduces England’s first primary legislation to protect adults at risk of abuse and neglect. Similar legislation is in place in Scotland, and is in the process of being enacted in Wales.
The Bill as it stands places a duty on local authorities to investigate abuse or neglect, and introduces statutory requirements around safeguarding adults boards and safeguarding adults reviews. Substantive regulations on assessment and eligibility, published as secondary legislation, should also make provision to consider whether the person is at risk of abuse or neglect, and if this risk is sufficient to provide support.
I welcome the Government’s decision and the publication of a consultation on how to ensure that the directors of organisations are personally held to account. This may provide some redress, which our amendment seeks to secure. Given that this consultation closes in September, when the Minister responds to the amendment perhaps she could give some indication of when, in the latter stages of the Bill, the Government might decide whether they will enact some of these changes. The Government’s own consultation document acknowledges that there is a loophole in the system, allowing providers responsible for appalling failures in care to escape prosecution. This is what our amendment seeks to address. I am grateful to the noble Earl, Lord Howe, for writing to me about the Government’s consultation.
In south Wales, Operation Jasmine uncovered appalling treatment of older people in residential care. The police investigation into neglect of old people in care homes lasted more than seven years, and cost more than £11 million. Over 100 potential elderly victims were indentified; 75 police officers were involved in the inquiry, and more than 4,000 statements were taken. Yet the nursing home owner, a local GP, suffered brain damage during a violent burglary at his home in September 2012, and in March the court case against him, his company’s chief executive and their company collapsed. I understand that the company is still operating some care homes.
When I served in the other place, I saw for myself some terrible photographs of elderly people who had been neglected, and who had what I can only describe as holes in their bodies where bedsores had been left untreated. A number of people died, and the Commissioner for Older People in Wales, Sarah Rochira, said:
“I don't really know any other way of describing it other than a catalogue of failure”.
Detectives were unable to bring prosecutions for serious offences such as manslaughter and wilful neglect. The then-deputy chief constable of Gwent, Jeff Farrar, said:
“Where you are seeing people who have got pressure sores which are corroded down to the bone; people vomiting faeces they are so constipated; or so dehydrated, it is a significant cause of their death”.
Those responsible for this terrible degree of neglect should be brought to justice. At the moment they cannot be, and that is why we need an amendment of this sort. The Care Quality Commission’s report on Winterbourne View care home and the Equality and Human Rights Commission’s inquiry into home care also uncovered serious, systematic threats to the basic human rights of those receiving care services.
Amendment 92A seeks to strengthen protection by ensuring that registered providers of health and social care have duties, similar to those placed on local authorities, to report suspected abuse and to inform the safeguarding adults boards. Then, crucially, if abuse is found to have an element of corporate responsibility, where the systems or approaches taken by the care provider were a contributory factor in the abuse or neglect, a new offence is created, allowing prosecution of a registered care provider. This does not undermine the individual responsibility of staff members or the registered care provider, but would add corporate responsibility where a culture of neglect or abuse has been allowed to flourish.
The existing body of domestic legislation protects vulnerable adults from neglect or abuse, and contains criminal penalties against individuals. It is also the case that in civil law a corporate body can be held responsible for such events. However, when such abuse or neglect is attributable to the practices and procedures of a company, there are no active criminal sanctions in place in domestic law. If it were possible to amend the Care Bill to mirror the regulations set out within the Corporate Manslaughter and Corporate Homicide Act 2007 within a care situation, it would be possible to hold corporations criminally responsible for their actions. As things stand, if there were another Winterbourne View or Operation Jasmine, there is no criminal sanction to hold a corporate body to account for enabling or fostering abuse in a care setting.
In conclusion, I point out that the Joint Select Committee on the Bill said:
“We recommend that where abuse or neglect of an adult has resulted in the commission of an offence by an employee of a body corporate acting as such, and this is proved to have been committed with the consent of, or to have been attributable to any neglect on the part of, a director, manager or similar officer of the body corporate acting as such, he as well as the body corporate should be guilty of an offence”.
I hope that the Government’s consultation will show that we need to make progress on this issue. I certainly hope that at the end of the day the Government will see some merit in this amendment, and agree to amend the Bill.
My Lords, I shall speak to Amendment 92AA, which is at the end of this group. It concerns what is potentially one of the most powerful instruments for protecting people against neglect and abuse: the Human Rights Act. Amendment 92AA would insert a new clause after Clause 46 to make all providers of social care services regulated by the CQC subject to Section 6 of the Human Rights Act 1998. The Act applies to all public authorities and to other bodies when they are performing functions of a public nature. Under Section 6 such bodies are under a duty to act in a way which is compatible with the human rights protected by the Act. This duty does not simply arise as a result of litigation in the courts or dispute resolution, but means that human rights are part and parcel of the development and delivery of public services.
However, as a result of the case of YL v Birmingham City Council in 2007, a loophole opened up which meant that care home services provided by private and third sector organisations under a contract with the local authority were not considered to fall within the definition of public function under the Human Rights Act. This decision, that private and third sector care home providers were not directly bound by the Human Rights Act, meant that thousands of service users had no direct legal remedy to hold their providers to account for abuse, neglect or undignified treatment. Though the public body commissioning services remained bound by the Human Rights Act, this was of little practical value to the individual on the receiving end of poor or abusive treatment.
Following a sustained campaign the then-Labour Government, with cross-party support, accepted that the loophole created by the YL decision needed to be closed. Section 145 was included in the Health and Social Care Act 2008 to clarify that residential care services provided or arranged by local authorities are covered by the Human Rights Act. The operative words are “provided or arranged”. If the noble Earl is responding to this debate, he will no doubt remember giving his support to the amendment from the opposition Front Bench.
Age UK and other organisations are concerned, however, that the Bill risks returning the situation in England and Wales to that at the time of the YL decision. Section 145 of the Health and Social Care Act refers specifically to those placed in residential care under Sections 21(1)(a) and 26 of the National Assistance Act 1948. However, it is expected that these sections will now be repealed under Clause 107, meaning that Section 145 will no longer have anything to bite on. This amendment seeks clarification from the Government as to how they propose to deal with this and an assurance that there will be no regression in human rights protection.
However, this is not the only point. The organisations supporting this amendment have long been concerned that Section 145 of the Health and Social Care Act does not cover all care service users or even all residential care service users. Rather, as I have said, it protects only people placed in residential care under the National Assistance Act 1948. Having accepted the argument that primary legislation was required to clarify that Parliament intended the Human Rights Act to extend to residential care services provided by private and third sector organisations under a contract with a local authority, it is anomalous not to treat residential care provided under other legislation and domiciliary care in the same way.
The Government’s view, as stated in a note submitted to the Joint Committee on the draft Care and Support Bill, is that all providers of publicly arranged care and support services,
“including private and voluntary sector providers, should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998 and not to act in a way that is incompatible with a Convention right”.
The Joint Committee acknowledged that this is the Government's position but concluded that,
“as a result of the decision in the YL case, statutory provision is required to ensure this”.
This must surely be right. The words,
“should consider themselves to be bound”,
are not enough. It needs to be a matter of law, not just of honour. I have seen a letter in which it is stated that the Government’s position is that care providers are covered, and should not just consider themselves bound. However, the House of Lords said in YL that they were not covered and the Joint Committee was not convinced either. Given such uncertainty, it is surely essential that the matter is put beyond doubt in legislation.
The Government consider that there are dangers in doing this as it is felt that it would risk creating doubt about the interpretation of the Human Rights Act in other sectors. They stated in their note to the Joint Committee:
“Each time specific provision is made with respect to a particular type of body, we weaken the applicability of”,
the existing provision,
“and raise doubts about all those bodies that have not been specified explicitly in the legislation”.
Against this, it needs to be said that the legal situation following YL is already one of significant legal ambiguity, which is unsatisfactory for both service providers and the users of public services. It forces service users to litigate on a case-by-case basis to seek clarification.
The proposed amendment would bring the necessary legal clarity by deeming that all those providing social care services regulated by the CQC are exercising a public function for the purposes of Section 6 of the Human Rights Act. Without the direct, positive obligation to protect an individual’s human rights conferred by Section 6, human rights abuses of care service users are a frequent occurrence in private and voluntary sector provision. That is something which other noble Lords have highlighted and which is also highlighted by a succession of inquiries and reports such as the EHRC’s inquiry into home care, which uncovered serious and systemic threats to the basic human rights of those receiving care services.
This amendment also seeks to include those who are eligible for care but who, due to means testing, have to arrange and/or pay for their own care—the so-called self-funders—and who therefore currently lack the full protection of the Human Rights Act. To date it has been the case, at least for those who were found to be eligible for care in their own home, that the obligation for the local authority to arrange care regardless of the person’s resources provided them with a degree of protection under the Human Rights Act. The local authority’s duties to arrange care are subject to that Act, even though the provider might not be.
However, the changes to the system for arranging care to be introduced by the Bill weaken the protection. The Bill introduces a single system for arranging care, whether it takes place in a residential setting or the recipient’s own home. Under these proposals, where people are deemed eligible for care but are found after means testing to be responsible for paying part or all of the cost of that care, they will be able to request that the local authority arranges their care but may have to pay it to do so. This new system is likely to reduce the coverage of the Human Rights Act because people who are entitled to local authority care in their own home but have to pay for it will no longer be automatically protected by the Act unless they request that the local authority arranges their care. Many will not make such a request, either because they will not be able to afford to pay for having the local authority arrange their care on top of the cost of the care itself, or because they will simply not be able to cope with the bureaucratic hassle.
The Joint Committee on the draft Care and Support Bill recommended:
“The draft Bill should be amended to ensure that private and third sector providers of care services regulated by public authorities are deemed to be performing public functions within the meaning of section 6(3)(b) of the Human Rights Act 1998”.
The amendment that I bring to the Committee today follows this approach and, if accepted, would provide equal protection to all users of regulated social care, regardless of where that care is provided and who pays for it. The Government believe, as the notes to the draft Bill make clear, that protection under the Human Rights Act extends to care arranged by a local authority even if it is self-funded. The Joint Committee does not accept that this does not require explicit statutory provision. However, regardless of this view, the committee made the point that this does not address the situation of self-funders who arrange their own care and support. It said:
“The Government will need to consider whether it is right that, of all adults in need of care, only this group should lack the protection of the Human Rights Act, solely because there is no public sector involvement in arranging or paying for their care”.
There are those who argue, as their Lordships did in YL, that the right approach for protecting human rights is not an extension of the Human Rights Act. An alternative, often suggested, is that regulation can be better used to target specific issues. The CQC is under a duty to have due regard to the need to protect the human rights of those using care services in performing its functions, which include inspecting all care homes and registered home care providers. It is argued that this gives self-funders human rights protection, but without a credible prospect of litigation against the care provider itself, there is reduced pressure on it to respect and safeguard the human rights of service users.
I fully accept that bringing all regulated social care services within the scope of Section 6 of the Human Rights Act will not alone solve the problems of undignified care and human rights abuses in care settings. Improved regulation, additional safeguarding legislation and better training must also play their part. However, the evidence continues to mount that without direct application of the Human Rights Act and the proactive approach to promoting and protecting rights that it demands, abuse, neglect and undignified treatment are commonplace occurrences. The status quo is not acceptable. The proposed amendment offers a simple, effective and lasting solution to this long-standing problem. The Human Rights Act can provide an essential safety net for social care recipients who find themselves in highly vulnerable situations. The Government must not deny them this protection.
This is my first intervention on this Bill. It is not an area of government policy in which I have historically taken a lot of interest so I am some way outside my comfort zone. However, when I saw that my noble friend Lady Byford had put down two amendments about financial records and appropriate billing, both areas I have taken an interest in, I felt I should support her and put my name to them.
I fear that if I could glance over at the speaking note prepared for the Front Bench on Amendment 92ZFA, I would see the words, “Resist on the grounds that this is unnecessary and the clause already provides for it”. That may be so, but if you read the Explanatory Note to Clause 41 carefully, at paragraph 230, I am not sure that it actually places a duty on the local authority to follow up complaints where they are made by external parties, such as one holding a power of attorney, as my noble friend mentioned in her opening remarks. If would be helpful if my noble friend on the Front Bench could give some reassurance on this point and also for the record confirm, as I am sure must be the case, that people holding powers of attorney are “representatives” as defined in this clause.
The new clause inserted into the Bill by Amendment 92ZFB is a much more significant development. If the Minister’s officials were to call for and examine a range of the invoices sent to individual residents or patients by different companies for the provision of care services, she would see a considerable variation in the quality and, above all, the clarity of how the charges are laid out and calculated. To be fair to the companies, it is not easy to do because it becomes quite complex, quite quickly. For example, local authority rebate periods do not always coincide neatly with the charging periods of the individual care homes. Then there are the charges for extras over and above normal care. In the vast majority of cases these are entirely legitimate but, if you look at the records and the way they are laid out, all too often they are not clearly itemised and often a one-line entry, “Additional Charges” on an invoice received perhaps a month later makes it very hard to verify the accuracy or otherwise of the charge.
We need to keep at the forefront of our mind the fact that these invoices are addressed to elderly people who perhaps are more easily confused or may be browbeaten. In particular, if they have no relatives or representatives to help them, they may be over-ready to accept the invoices at face value and pay them. I particularly support my noble friend’s amendment because it seems to address three important objectives. First, it encourages the emergence of best practice among care homes and the way they lay out their charges. Secondly, it helps individuals and their families understand what is being charged and whether it is accurate. Thirdly, and possibly most cynically, it reduces any temptation to pad invoices with additional items. I do not suppose for a moment that the precise wording of this amendment meets the standards required by parliamentary draftsmen. However, I hope when my noble friend comes to wind up she will consider it an idea worth following up.
My Lords, I add my support to Amendment 92AA to which the noble Lord, Lord Low of Dalston, spoke so powerfully a few minutes ago. I declare an interest—or, more accurately, a regret—in that I represented YL in the Appellate Committee of your Lordships’ House and failed to persuade a majority of that committee that those who operate care homes under a contract with a local authority are performing a public function for the purposes of the Human Rights Act and therefore are obliged to comply with human rights principles. The complexity of the legal issues was such that the much lamented Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale of Richmond, both dissented from the views of the three judges in the majority.
As the noble Lord, Lord Low, has mentioned, Section 145 of the Health and Social Care Act 2008 addressed the issue by bringing some care home providers directly within the scope of the Human Rights Act, providing direct legal protection for residents of such homes. However, important gaps in the law remain. Duties under the Human Rights Act are not owed by the person who provides residential care to persons who pay for it themselves—that is, when the local authority is not paying—and the provider of care services, when that provider is not a local authority, has no duties under the Human Rights Act when providing care in a person’s own home.
I share the concerns of the noble Lord, Lord Low, that, in the light of the changes to be introduced by this Bill, it is important that the law should clearly address liability under the Human Rights Act. I agree with the noble Lord, Lord Low, who made a very powerful case, that the vulnerability of the person receiving care, and the risk of abuse, mean that the law should now impose duties on the provider under the Human Rights Act in all these circumstances to encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases. It is really no answer for the Government to say, as they have previously indicated, that it is undesirable in principle to specify the scope of the Human Rights Act in relation to public functions. The YL judgment already does that in a deeply unsatisfactory and narrow manner.
I accept, of course, that improved regulation and proper training will play an important part in protecting the interests of those receiving care. However, I ask the Minister to accept that the principles and the remedies under the Human Rights Act will add a significant and necessary further dimension to the obligations of those providing care and to the rights of those receiving it. I hope we will receive a positive response from the Minister this evening to the amendment from the noble Lord, Lord Low, and the noble Baroness, Lady Greengross.
My Lords, I follow the noble Lord, Lord Pannick, with some trepidation but I do so as a member of the Joint Select Committee that recommended a change to the Bill along the lines asked for so eloquently by the noble Lord, Lord Low. I remind the Minister of an individual case which demonstrates the lacunae in the current legislation. It was the case of a lady over 90, who wholly self-funded in a private nursing home. This lady expressed her views—I suspect rather trenchantly—about assisted dying. She did not ask them to do anything about assisted dying but merely offered her views—though probably, as I say, quite trenchantly—but the home owner and members of staff took great exception to those views. She was pretty much immediately given four weeks’ notice to quit. We are talking about an elderly person who was very vulnerable. Her son took counsel’s opinion, which seemed to be remarkably similar to the views expressed by the noble Lord, Lord Pannick. We are faced with a situation where you can fall down on two grounds: on the grounds that you are in a privately provided home, and on the grounds that you are a self-funder. Whatever the arguments, and we have been over this ground several times in this House, the reality is that vague requirements on the CQC to observe the requirements of the Human Rights Act do not safeguard elderly people in the kind of case that I have posited.
We have to look at this again, which is why, when the Joint Committee looked at this issue, we took advice from our adviser, who is legally qualified. If I may remind the noble Lord, the noble and learned Lord, Lord Mackay, was a member of the committee, which went along with that recommendation. The Government have to move away from the rather brushing-off response that they gave to the Joint Committee’s recommendation and think again, particularly in light of the powerful case made by the noble Lord, Lord Low, and strongly supported by the noble Lord, Lord Pannick.
My Lords, I had not intended to speak today. I support the amendment, but in a rather different context. I welcome the work that the Government have done on the safeguarding clauses. Those of us who work in this area find that extremely helpful. However, the tone of today’s discussion has been very negative about providers, so I am probably outside my comfort zone, even more than the noble Lord, as a provider. I declare my interest as the president of Livability; I chair both its providing committee and its safeguarding board.
Throughout the sector there are large numbers of organisations that run their own safeguarding boards within the organisation, where they review every single incident that occurs within it. Quite properly, they already refer to the local authority those cases where they think it should be informed, and indeed to the CQC. In the not-too-distant past I had conversations with the Charity Commission about its role in these areas as well as those of the providers and the regulators.
It would be a pity if we did not recognise the huge amount of work that was going on already on safeguarding, and that we can learn a great deal from it. I would be pleased to support the amendment that says the Secretary of State should collect any report, because we could then look at trends. There is not a single provider that would object to being controlled by the Human Rights Act; I think that we all see ourselves as already being controlled by that Act, because we work under contract to the local authorities and see that as a clear extension of it. If it were direct, we would not operate any differently from how we do already.
I apologise for taking the time of the Committee today because I have not intervened very often, but it needs to be on record that there are thousands of elderly people and disabled people being significantly cared for by very good providers in conjunction and partnership with their local authority.
One of the issues that I would really like to have supported is the amendment from the noble Baroness, Lady Greengross, saying that you have to change the culture. What will make the difference—this has made a difference in the organisation where I work, where we extended our services—is a culture of no blame. The sense that I have had here today is rather one of blame, but having no blame brings people forward and makes them report incidents that you can then look at. In my role, I am really concerned when no one comes forward and reports an incident.
I welcome what the Government are doing, but I hope that whatever else comes is not so draconian that it actually prevents people coming forward and making it clear that they want to report incidents in their organisation.
My Lords, I had not intended to speak on these amendments, but they present something of a dichotomy in one of the areas in the Bill, particularly Amendment 92ZFC from the noble Baroness, Lady Greengross, on the powers of access. Last year I was invited by the manager of the local Bradford safeguarding social work team, a Mr Robert Strachan, who had already thought about this issue and had had extensive consultation with some of his colleagues, social work professionals and strategic managers in Bradford. He told me that opinions varied. At that time, no one had had a problem pulling together a protection plan for a vulnerable adult within the existing legislation, although people felt, when they were pushed to the limit, that such a power could be quite useful. I was gently persuaded by that.
However, when talking to Mind, the mental health charity, which has recently done an extensive consultation with its network, I found that it believes that this power is disproportionate and unnecessary. Its members have been clear that they would consider it intrusive and contrary to the European Convention on Human Rights, and that this would undermine the trust between social workers and service users. Mind has sought the views of its network of people with experience of mental health problems, and was clearly told that there is a mistaken but prevalent belief that people with mental health problems do not have the capacity to make decisions about their own safety. Because of that, many have had negative experiences of intervention, compulsion and detention, all of which reduce choice and control and can undermine trust in statutory authorities. Mind argues that introducing powers of access for social workers is likely to further undermine trust in statutory authorities and lead to extremely difficult working relationships between social workers and service providers. I am of course sympathetic to these views. However, I am also extremely sympathetic to the views expressed in the arguments from the noble Baroness, Lady Greengross, so I am a little torn.
The only way in which I can look at this is by case example. Let us assume that an elderly lady is being cared for by her son, who has some behavioural problems, like the case that we recently had in Bradford where the grandson actually killed his grandmother. Neighbours report their concerns to social services, who dutifully go around and visit. However, they never get further than clacking the front door; the son tells them that everything is fine and he is looking after his mother. Further reports of shouting and banging reach the authorities via the neighbours, but still they are refused permission to enter and see the older lady. What do you do? The police have no powers of entry but clearly there are some major concerns. How, therefore, to proceed and establish even that the lady is dead or alive? Powers of entry, in such extreme circumstances, would allow professionals to access the house and see the person, as in cases involving domestic violence or children. I would therefore be broadly inclined to support the powers, which would add something that is not currently in place.
However, the trick would be in the execution of those powers. For example, it would not be sufficient merely to gain entry. What would you do next—convey the lady to a place of safety or take the son away? If you did not, you would be exposing the victim to further and sustained abuse. This would need thinking through carefully. The question of how the powers would be controlled and executed would be difficult but not insurmountable. I look forward to the Minister’s arguments to persuade me either way on this one.
My Lords, I support the amendments of the noble Baroness, Lady Greengross. They go straight to a gap that exists for older people who have capacity but are physically dependent upon people who may be abusing them. With all respect to the noble Lord, Lord Patel—whose arguments I listened to very carefully because they were very thoughtful, and I would not want to disregard what Mind has found in its consultation with its members—I point out to him that members of Mind are likely to have protection under either the Mental Health Act or the Mental Capacity Act. The people to whom the amendment tabled by the noble Baroness, Lady Greengross, is addressed do not have that protection. For me, that swings the argument.
Elder abuse has a rather odd standing in the general consciousness. It does not have the same profile as the abuse of children. It goes up and down the public agenda depending upon whether there has been some scandal or an awful case in the papers. People’s reactions to it vary enormously. When people are polled on their views about this, the phrasing of the questions in any consultation can have a profound impact. Were we faced with a question that said: “Would you like social workers to have the power to intrude into your house?”, most of us would say no, but if we were asked, “Do you think that somebody ought to be able to look out for people who are extremely vulnerable and may not be able to get out and tell anybody?”, we would say yes. That goes straight to the consultation that the Government have already held, and the reason for some of its findings. Professionals who have had experience of dealing with people and operating under the law have said that they think there needs to be a greater degree of protection, albeit with brakes and conditions, such as the necessity of getting the agreement of a JP—not just social workers barging in because they feel like it.
Taken together, the amendments tabled by the noble Baroness, Lady Greengross, get the right balance. They are not about empowering bossy professionals to wade in regardless of what people want but they are quite important, not least because of something the noble Baroness, Lady Greengross, said, which was of tremendous importance: the largest percentage of people who abuse vulnerable elderly adults are family members. The consequence of that is that very often people who are being abused are highly reluctant to do anything about it because they fear that there will be repercussions against their family members. That is why it is necessary to have a bit more legal force behind some of this than we would otherwise think we should, and I think that, on balance, the noble Baroness’s amendments are right and proportionate.
Finally, there is a very good case for the Government to accept the amendments or something like them within this legislation. They should do it now when we are not making decisions in the shadow of a scandal and when we can talk about best practice in neutral terms.
My Lords, I shall speak briefly in support of my noble friend’s Amendment 92ZFC because it applies to people with learning disabilities—particularly people with mild or moderate learning disabilities who may not meet the eligibility criteria for care and support in a situation where someone has befriended a person with a learning disability, moved in with them and concerns have been raised by neighbours that the person may be being abused. This is not about family carers; it is a mate crime. It is the sort of crime of which Steven Hoskin was a victim. He was subsequently murdered. Somebody moves in, and the local authority is unable to speak to the adult with a learning disability to check whether they are okay because the other person always answers the door and will not let anybody in. This power of access would change that, and I support my noble friend.
My Lords, when the Committee considered the Clause 2 duty on preventing needs for care and support, the noble Lord, Lord Rix—who I am sorry cannot be in his place today—put forward a strong case for ensuring that safeguarding is explicit in the Bill alongside the other duties of prevention relating to adults and carers. We gave strong support to that. The focus on safeguarding vulnerable adults should not just be on protection once abuse or neglect has taken place. Local authorities, and agencies on their behalf, should also be obliged and guided proactively to prevent abuse occurring in the first place.
We welcome placing safeguarding on a statutory footing in the Bill and the establishment of statutory safeguarding adults boards. This builds on legislation, regulations and advice on principles and frameworks for safeguarding adults and children that Labour established up to 2009 and which the Government are taking forward in the Bill. We were, however, always cautious about bringing adult and children’s safeguarding together under one structure as some councils have done. Adult and children’s safeguarding issues are not the same, and I would be grateful if the Minister will comment on the Government’s approach to this in future.
The amendments tabled by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, include important issues which we support to ensure that safeguarding is properly identified, reported and investigated in all health and social care settings, not just social care, which is particularly important in the light of the appalling neglect and abuse that happened to people with learning difficulties at Winterbourne View. In this vein, the intention behind Amendment 92ZF to place a duty on providers or other relevant partners of the local authority to report when they suspect an adult is at risk of experiencing abuse or neglect is also important, as local authorities will not be able to identify all situations where people are at risk.
We also support the need to ensure that an adult has access to support and advocacy during a safeguarding investigation; the need to specify in the Bill areas of abuse, as set out in the No Secrets guidance, in addition to the reference to financial abuse; and the need for abuse to be recognised as abuse whether it is perpetrated as the result of deliberate intent, negligence or ignorance. These are all strong areas of concern expressed by noble Lords today and by key stakeholders. I also underline the vital need, when so much care is now contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister inform the Committee how the Government intend to ensure this happens?
Amendment 92ZFC, tabled by the noble Baroness, Lady Greengross, puts forward a comprehensive case for the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. As the Government’s recent consultation response on this issue shows, there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions and patients and user organisations on this sensitive and complex issue, although we have to remember that the consultation response was relatively low in terms of local authority and NHS trust participation and that many of the responses appeared not to have fully understood the proposed limitation of the power to situations where the third party is denying access, not the individual.
It is clear that there is a significant gap in the current legislation for dealing with third-party denial of access to some of the most vulnerable adults—women subject to abuse by violent partners or a person with a learning disability being bullied by a friend who has moved into their home—which the Bill needs to take the opportunity to address. The noble Baroness’s amendment is strongly supported by, among others, the Equality and Human Rights Commission, the College of Social Work, Mencap and Age UK, and sets out a tight framework and the limitations and restrictions that would apply. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone is in danger of abuse. The Equality and Human Rights Commission argues, as have noble Lords, that alongside the proposed duty of local authorities to make inquiries set out in Amendment 92ZFD, the power of access will enable more intervention in response to allegations or suspicions of abuse or neglect and get the balance right, as the noble Baroness, Lady Barker, said. The critical point of the power of access is to enable the local authority to access the person and speak to them alone to assess the situation. It is not about entering someone’s house for no good reason. It is a last-resort power and is by no means presented as a solution in itself.
On balance, we support the case for inclusion in the Bill of the power of access by a social worker and the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment tabled by the noble Baroness, Lady Greengross. However, we of course recognise the strong concerns of Mind on this issue and of the Royal College of General Practitioners, which would prefer the use of other options, such as working with the sector to coproduce best-practice guidelines. Will the Minister explain to the Committee how the Government propose to address that denial of access by a third party to a potentially vulnerable adult without dealing with this issue in the Bill?
The issues raised by the noble Lord, Lord Low, in his Amendment 92AA on the need to clarify the application of the Human Rights Act to regulated care services are familiar to the House, as we thoroughly debated and aired similar grounds during the passage of the Health and Social Care Act. There are now concerns that amendments to that Act and the National Assistance Act in the Care Bill have set the clock back on the application of the HRA to private and voluntary sector residential care home providers. The noble Lord, Lord Low, has set out these concerns clearly, this time powerfully supported by the noble Lord, Lord Pannick. I hope that the Minister will respond positively to the pleas from noble Lords to think again on this matter.
I will make three comments on Clauses 41 to 49 and the amendments included in this group. We strongly welcome the provisions in the Bill to address provider failure and the need to prevent the appalling events at Southern Cross happening again. However, we agree with the concern of the Lords Delegated Powers Committee that the Bill does not define what is meant by “business failure” or “market failure”. I look forward to the Minister’s explanation of why the Government have chosen instead, in their later Amendment 105V, to go down the route of regulations to deal with these two pretty fundamental issues to the operation of the provider failure provisions.
Amendment 92A in the name of the noble Baroness, Lady Greengross, and my noble friend Lord Touhig establishes a corporate duty for neglect for registered care providers. It would both place a duty on the provider to act where it suspects that an adult in its care is at risk of abuse and hold the organisation and its senior management responsible for neglect or abuse occurring in the care service they provide. Like my noble friend Lord Touhig, we welcome the Government’s recent consultation on the introduction of a compulsory fit and proper person test for directors in charge of care homes and hospitals that would address the loopholes in the current system whereby providers responsible for appalling failures in care can escape prosecution.
Finally, Amendment 92ZK in the name of the noble Baroness, Lady Greengross, would introduce a new clause on the duty of candour on local authorities to foster a culture that enables staff to report reasonable suspicions of abuse and neglect of adults under the authority’s care. As we have repeatedly argued, a statutory duty of candour, in line with the recommendations of the Francis report, should be included as a key principle in the Bill. We on these Benches fully support ensuring its explicit reference to the vital issue of adult safeguarding.
My Lords, I am very grateful to noble Lords for tabling amendments on such important issues. I am sure that noble Lords will agree that if we are to claim to be a civilised society, it is critical that we safeguard those people who are most vulnerable to abuse and neglect. In particular, the Bill places local authorities under a duty to make inquiries or cause inquiries to be made in suspected cases of abuse or neglect of adults with care and support needs who are unable to protect themselves because of those needs.
This is a very important moment—the first time any Government have placed adult safeguarding in primary legislation. I thank the noble Baroness, Lady Greengross, the noble Lord, Lord Touhig, and the noble Baroness, Lady Wheeler, for recognising this. It is in line with the recommendations of the Law Commission’s report on adult social care. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. It also requires local authorities to establish safeguarding adult boards, which will include key representatives of the NHS and police and any other persons considered appropriate.
Such boards will have three statutory duties. A board must publish strategic plans each financial year, following local consultation, which set out how it is to help and protect adults with care and support needs in its area who may be at risk of abuse or neglect. At the end of each financial year it must publish an annual report that sets out what it and its individual members have done to achieve and implement this objective. It must arrange for any safeguarding adult reviews of serious cases of abuse or neglect where there is a concern about how persons relevant to safeguarding worked together to protect the adult in question, so as to identify and apply any lessons learnt to future cases and prevent such incidents arising again.
Noble Lords have tabled a number of amendments that rightly press the Government on the robustness of the clauses. We believe that the points they make are covered by our proposals and I will try to outline why. I take this opportunity to say that although these clauses are the result of significant experience and consultation, we accept that we need to be flexible and adapt to experience of implementation. Our approach of covering much of the detail in statutory guidance allows this flexibility.
I turn to the first of the amendments that we are considering. Amendment 92ZZAH in the names of the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, seeks reassurance that adult safeguarding applies regardless of location. I am happy to confirm that this is the case. Clause 41 will require a local authority to make inquiries or cause them to be made where abuse and neglect are suspected in respect of an adult with care and support needs, regardless of the particular setting where the abuse or neglect is suspected to have occurred.
Amendments 92ZB and 92ZD are also tabled by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins. The first aims to ensure that the voice of the individual is heard in any safeguarding inquiry and that the individual is properly supported. We agree that these factors are of utmost importance, which is why those principles are enshrined in the Bill, beginning with Clause 1, on promoting individual well-being. If a person does not have capacity to take part in a safeguarding inquiry concerning them, the local authority should involve any person appointed to act on their behalf, or, where there is no such person, the local authority must itself act in the person’s best interests. We believe that statutory guidance is the best place to cover this in more detail, with practical examples to illustrate the point. As regards the second amendment, on defining abuse, we have taken the approach of relying on the natural meaning of “abuse” to keep the scope of the duty to make inquiries as wide and flexible as possible. The joint pre-legislative scrutiny committee itself stated:
“Abuse is an ordinary English word, capable of being understood without being defined. It might not however normally be thought of as including financial abuse, and it is right that”,
“should put this beyond doubt. But to attempt an exhaustive definition always has the danger of omitting something which, as subsequent events make clear, should have been included”.
However, turning to Amendment 92ZA, I agree with the noble Baroness, Lady Barker, who tabled that amendment and who seeks assurance that a person should not be considered as suffering abuse or neglect if they have refused medical treatment. We agree with that, and there is no intention of doing so. That is an important principle of law and ethics.
In Amendment 92ZC, the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, are concerned with ensuring a more consistent, timely and transparent process for adult safeguarding. This is one of our central aims, which we will address this in statutory guidance. We want to pre-empt the risks arising from the overly bureaucratic safeguarding process that Professor Munro discovered in her review of children’s safeguarding. It is vital to focus on the outcomes that people want and how best to achieve them rather than overprescribing and focusing on processes.
I have a note that says that I wanted to add something at this point, but I cannot find the notes in question so I will turn to Amendment 92ZE, in the name of the noble Baroness, Lady Hollins. We agree that it is extremely important to ensure that inquiries are made into cases of suspected abuse or neglect regardless of the motivation behind the action, and that is what the Bill as drafted achieves. This important point links to Amendment 92ZFA, in the name of my noble friend Lady Byford. Her first amendment is about who can report abuse; in this case it focuses on financial abuse. The local authority must make inquiries in respect of safeguarding concerns, no matter how they come to its attention—whether it is from someone with power of attorney or anyone else. For the first time, local authorities will have such an express duty in statute.
My noble friend Lady Byford spoke about the problems that those with power of attorney may encounter. This is a very familiar concern. We know that the provisions of the Mental Capacity Act are implemented variably. This House currently has a committee undertaking post-legislative scrutiny of the Act. It will have views about the implementation of the Act, and the Office of the Public Guardian, which is in charge of registering and supervising powers of attorney, is establishing improvements in the training and oversight of those with power of attorney and of their deputies. The Court of Protection also has a critical role in protecting the affairs of those who lack capacity. I am sure that this matter will get further post-legislative scrutiny.
My noble friend Lord Hodgson supported my noble friend Lady Byford on the way in which people are charged for care. We agree that services vary and that the charges that are applied reflect the varying cost of providing care. It is important that people know what they will pay before agreeing to purchase a service, and what the charges do and do not cover. Clause 4 requires local authorities to make available information and advice relating to care and support services. Clause 5 requires local authorities to shape a diverse, high-quality and sustainable market that meets people’s needs.
The second amendment in the name of my noble friend Lady Byford, Amendment 92ZFB, raises the critical issue of protecting people from having to overpay for the care and support services they need. My noble friend is absolutely right that people should know in advance, and in writing, what will be included in the fees they pay, and what, if any, elements will be covered by others, including the council or NHS. That is why it is in the registration requirements of the Care Quality Commission. We can also include this, if necessary, in the guidance we produce.
I turn to other amendments tabled by the noble Baroness, Lady Hollins, and the noble Lord, Lord Rix. Amendments 92ZG and 92ZH are about ensuring that organisations take action and report it when they are found to be wanting in their adult safeguarding arrangements. We recognise this gap and have placed adult safeguarding reviews on a statutory footing for the first time. Paragraph 4 of Schedule 2 sets out detailed requirements for the annual reports of boards. In particular, the report must include the findings of all reviews and must set out what the board has done to achieve its objective. This would include implementation of those findings. The Bill places a duty on safeguarding adult boards to publish their annual reports. The report will be publicly available, and this will ensure transparency in the way that they work. I am sure that not drawing conclusions from those reports would face a challenge, given the train of events that I laid out. I hope that these points will reassure the noble Baroness.
Amendment 92A is very timely, given the appalling failures of care that we heard about recently. We absolutely agree with the noble Lord, Lord Touhig, and the noble Baroness, Lady Greengross, that providers that allow abuse and neglect to go unchecked should face serious consequences, including potential prosecution. This has not been the case to date. We agree that this is a problem. The Government believe that the best way to take this forward is through the introduction of fundamental standards in a revised set of requirements for registration with the Care Quality Commission. It was appalling to hear what the noble Lord, Lord Touhig, said. The Care Quality Commission has started consulting on those fundamental standards. The noble Lord asked about the timescale. We expect to consult on draft regulations in the autumn. The standards will ensure that the CQC will be able to take action against providers for unacceptable standards of care, including abuse and neglect.
Of course, we understand the concerns expressed by the noble Baroness, Lady Greengross, and the noble Lord, Lord Low, in Amendment 92AA, about protecting and promoting the human rights of those requiring care and support services, many of whom are very vulnerable to abuse and exploitation. We discussed this in detail recently in your Lordships’ House, on 13 March 2012, during the passage of the Health and Social Care Act 2012. The matter was debated extensively and voted on, and the Government won the vote with a substantial majority. We are not aware of anything having changed in the past nine months that would cause us to change our position.
As the noble Lord, Lord Low, will remember, there was much discussion of the YL case, which, as he said, was brought under the National Assistance Act. The Government of the day believed that the outcome of the case was wrong, and the decision was reversed. I therefore conclude that the noble Lord, Lord Pannick, was right. They then consulted on the Human Rights Act and concluded, according to my noble and learned Lord Mackay, that nothing needed to be done—he was quoting from the noble Baroness, Lady Thornton. I will provide the statement from the noble Baroness which my noble and learned friend quoted. She said:
“Therefore, it remains the Government’s view that, in general, the provision of publicly arranged health and social care should be considered a function of a public nature. The Government will therefore continue to treat those exercising such functions as being subject to the Human Rights Act”.—[Official Report, 22/5/08; col. GC 632.]
My noble and learned friend Lord Mackay went into further detail. I also note that my noble friend Lord Lester of Herne Hill said in the debate:
“However, I do not think that there is a loophole”.—[Official Report, 13/3/12; col. 231.]
He was referring to the loophole that the noble Lord, Lord Low, thinks that there might be. Therefore, there is some dispute about that.
The Government’s position has been that all providers—
Perhaps I could suggest that the Minister should have another conversation with the noble and learned Lord, Lord Mackay. After the quotation to which she referred, the noble and learned Lord signed and agreed the Joint Committee’s report that made the recommendation. The Minister might like to have a discussion with him about whether he has changed his position.
That is a very interesting point. This is a very serious area. We want to make sure that the Human Rights Act applies in the way that we think it does, and in the way that the noble Lord’s Government brought in and thought that it did apply. I have a feeling that this is an issue that we will revisit. I remember the discussions last year on this between the noble Lord, Lord Low, my noble and learned friend Lord Mackay and others. I would not be at all surprised if there were further discussions.
The important point here is to protect people, to make sure that the law protects them and to do nothing that undermines the effect of the Human Rights Act in other areas. The Government’s position has been that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves to be bound by the duty imposed by Section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the convention rights. The CQC, as the regulator, is subject to the HRA, which may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. As noble Lords will know, the Ministry of Justice is concerned that every time you add a provision, you may inadvertently have an effect on the umbrella application of the Act.
The noble Lord, Lord Low, asked about the repeal of the National Assistance Act. I assure the noble Lord that there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation. He will also be able to set in context that change, in the light of the discussions we had earlier.
I point out that there are strong regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements which are compatible with the provisions of the European convention. This applies to all providers of regulated care to people who use care and support services, whether publicly or privately funded.
As to Amendment 92ZFE, we agree with the noble Baroness, Lady Greengross, that people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution where an offence has been committed. This should also be read in the light of the discussion on the Human Rights Act. The Bill does not seek to duplicate existing law. Civil law currently provides redress for cases of neglect, and criminal law prohibits assault, which would include much of what is sought in this amendment. We therefore believe that there are already adequate provisions in place to deal with such cases.
My noble friend Lady Barker spoke of the potential creation of a new offence of abuse and neglect of somebody who has capacity. There is legislation that protects those with capacity, and there are powers that local authorities and the police can use. These include the Anti-social Behaviour Act 2003 and the Crime and Disorder Act 1998, and the police also have wide powers to enter premises for specific purposes with or without a warrant. The inherent jurisdiction of the High Court ensures that there is no gap.
Where an adult lacks capacity, there is an existing offence of ill treatment or neglect by a person who has care of the adult or is authorised to act for the adult under the provisions of the Mental Capacity Act. In our view, this is a case where an offence is justified because of the evidence that such people are highly vulnerable to abuse, neglect and exploitation.
I turn to Amendment 92ZK, in the name of the noble Baroness, Lady Greengross. We all want local authorities to foster an open and honest culture in which employees feel able to express genuine concerns without fear of repercussions. However, we do not feel that this amendment is necessary. As I think we would all agree, the law on its own cannot change organisational culture. We need to work with and through local authorities to consider what barriers exist to the type of open and honest environment that we want to see. This is something that we have debated a great deal and there has been much emphasis on leadership. However, legislation can have an effective role in setting parameters and reinforcing expectations, which in turn impact on culture. In this regard, the Government have already confirmed their intention to introduce an explicit duty of candour on providers of health and care and support. This will be introduced as a CQC registration requirement and will mean that providers will have to ensure that staff and clinicians are open with patients and service users where there are failings in care.
I turn to the need to be able to gain access to a person suspected of experiencing abuse or neglect where that access is denied by a third party. The Government carried out a full consultation on a potential power of entry, very similar to the access order proposed by the noble Baroness, Lady Greengross, in Amendment 92ZFC. We received no compelling evidence to warrant such a power and, indeed, there was and remains considerable opposition to it from members of the public and some third-sector organisations. We have heard some of the concerns expressed by the noble Lord, Lord Patel, and the contrary view expressed by my noble friend Lady Barker and the noble Baroness, Lady Wheeler. We recognise that this is a sensitive and complex area of work, but we believe that understanding what positive work by skilled professionals can achieve and promoting that is a more desirable, effective and sustainable route to take. As with all the new duties and powers in the Bill, we will pay close attention to implementation and address any issues that arise.
Perhaps I may mention to the noble Baroness, Lady Wheeler, that, although the consultation has ended, we have continued to get written correspondence from both members of the public and third-sector organisations petitioning the Government not to introduce a power of entry. They are particularly concerned that such a power would be used as a quick fix that would neither resolve the problem nor improve good professional practice where the intention is to try to build trusting relationships. From what noble Lords have said, it is very clear that trying to get the balance right and focusing on the protection of the individual can be very challenging in such circumstances.
We understand the concerns that lie behind Amendment 92ZF, tabled by the noble Baroness, Lady Hollins. It is of course imperative that anyone—but especially those in the NHS and local authorities—who suspects abuse or neglect knows what action to take. Organisations should make their procedures clear and boards should widely publicise information on this issue.
Amendments 92ZFF and 92ZJ, tabled by the noble Baroness, Lady Greengross, emphasise the need for the involvement of social work-qualified staff in boards and reviews. We understand what the noble Baroness is saying. In Schedule 2, we make it clear that both the chairs and members of boards must have,
“the required skills and experience”.
We will elaborate on that in guidance and ensure that the importance of social work is recognised and supported. Guidance will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.
This has been a very important and wide-ranging group of amendments concerning a new step that we are taking to try to ensure that vulnerable adults are offered the best protection. We welcome noble Lords’ probing of the Government. We are all trying to secure the same outcome, and we need to be challenged on how best to achieve that. I hope that noble Lords will have taken on board our reasoning behind doing things as we are and that they will be reassured that we are indeed delivering through this Bill what they are seeking. I hope that they have been reassured that their concerns have been carefully considered and addressed and, on that basis, I hope that the noble Baroness will withdraw her amendment.
My Lords, I thank the noble Baroness for her characteristically thoughtful comments in response to these amendments. I am reassured by many of the points that she has made, although one issue that I felt she did not fully address is the need to clarify thresholds for reporting abuse. I am also disappointed with her response to the amendment proposing a power of access, which I strongly support for its relevance to people with learning disabilities. Going by the feelings that have been expressed in the Committee, I think that a number of people would welcome an opportunity to discuss some of these matters a little further and perhaps to bring them back on Report. However, I beg leave to withdraw the amendment.
Amendment 92ZZAH withdrawn.
Amendments 92ZA to 92ZFA not moved.
Clause 41 agreed.
Amendments 92ZFB to 92ZFE not moved.
Clause 42 agreed.
Schedule 2 : Safeguarding Adults Boards
Amendments 92ZFF to 92ZH not moved.
Schedule 2 agreed.
Clause 43 : Safeguarding adults reviews
Amendment 92ZJ not moved.
Clause 43 agreed.
Amendment 92ZK not moved.
Clauses 44 to 46 agreed.
Amendments 92A and 92AA not moved.
Clause 47 : Temporary duty on local authority
Amendments 92AB to 92AL
92AB: Clause 47, page 38, line 21, leave out subsection (4)
92AC: Clause 47, page 38, line 34, at end insert—
“( ) Subsection (6) does not apply if section (Section 47: cross-border cases) (cross-border cases) applies (see subsection (3) of that section).”
92AD: Clause 47, page 38, line 38, leave out from “by” to “co-operate” in line 39 and insert “another local authority”
92AE: Clause 47, page 38, line 40, at end insert—
“(aa) must, in meeting needs under that subsection which were being met under arrangements all of part of the cost of which was paid for by another local authority by means of direct payments, co-operate with that authority (in so far as it is not already required to do so by section 6);”
92AF: Clause 47, page 38, line 41, leave out from “from” to “meeting” in line 42 and insert “the other local authority mentioned in paragraph (a) or (aa) (as the case may be) the cost it incurs in”
92AG: Clause 47, page 38, line 43, leave out “paragraph (a)” and insert “the paragraph in question”
92AH: Clause 47, page 39, line 4, leave out subsection (10)
92AJ: After Clause 47, insert the following new Clause—
“Section 47: cross-border cases
“(1) This section applies where, in a case within section 47, immediately before the registered care provider became unable to carry on the regulated activity, some or all of the adult’s needs for care and support or the carer’s needs for support were being met by the carrying on of that activity by the provider under arrangements made—
(a) by a local authority in Wales discharging its duty under section 21 or 26, or exercising its power under section 22 or 29, of the Social Services and Well-being (Wales) Act 2013,(b) by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003, or(c) by a Health and Social Care trust under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 or section 2 of the Carers and Direct Payments Act (Northern Ireland) 2002.(2) This section also applies where, in a case within section 47—
(a) immediately before the registered care provider became unable to carry on the regulated activity, some or all of the adult’s needs for care and support or the carer’s needs for support were being met by the carrying on of that activity by the provider, and (b) all or part of the cost of the accommodation or other services provided by the provider to meet those needs was paid for by means of direct payments made—(i) under section 34 or 36 of the Social Services and Well-being (Wales) Act 2013,(ii) as a result of the choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or(iii) by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.(3) The local authority which is required to meet needs under section 47(2)—
(a) must, in meeting needs under section 47(2) which were being met by the authority which made the arrangements referred to in subsection (1), co-operate with that authority;(b) must, in meeting needs under section 47(2) which were being met by the provision of accommodation or other services all or part of the cost of which was paid for by an authority by means of direct payments as referred to in subsection (2), co-operate with that authority;(c) may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question; (d) may recover from the adult or carer the cost it incurs in meeting those of the adult’s or carer’s needs other than those referred to in paragraph (a) or (b) (as the case may be).“(4) Any dispute between a local authority and a local authority in Wales, a local authority in Scotland or a Health and Social Care trust about the application of section 47 or of this section is to be resolved in accordance with paragraph 5 of Schedule 1.
“(5) “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 8 of Schedule 1.
(6) The references in paragraphs (a) to (d) of subsection (3) to an authority are references to a local authority in Wales, a local authority in Scotland or a Health and Social Care trust (as the case may be).”
92AK: After Clause 47, insert the following new Clause—
“Temporary duty on local authority in Wales
(1) This section applies where a person registered under Part 2 of the Care Standards Act 2000 in respect of an establishment or agency—
(a) becomes unable to carry on or manage the establishment or agency because of business failure, and(b) immediately before becoming unable to do so, was providing an adult with accommodation or other services in Wales under arrangements made—(i) by a local authority meeting an adult’s needs for care and support or a carer’s needs for support under Part 1 of this Act,(ii) by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003, or(iii) by a Health and Social Care trust under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 or section 2 of the Carers and Direct Payments Act (Northern Ireland) 2002.(2) This section also applies where a person registered under Part 2 of the Care Standards Act 2000 in respect of an establishment or agency—
(a) becomes unable to carry on or manage the establishment or agency because of business failure, and(b) immediately before becoming unable to do so, was providing an adult with accommodation or other services in Wales all or part of the cost of which was paid for by means of direct payments made— (i) under this Part of this Act, (ii) as a result of the choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or(iii) by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.(3) The local authority in Wales in whose area the accommodation is situated or the services were provided must for so long as it considers necessary meet those of the adult’s needs for care and support or the carer’s needs for support which were being met by the registered person by the provision of the accommodation or other services.
(4) A local authority in Wales which is required to meet needs under subsection (3)—
(a) must, in meeting needs under that subsection which were being met by the authority which made the arrangements referred to in subsection (1)(b), co-operate with that authority;(b) must, in meeting needs under subsection (3) which were being met by the provision of accommodation or other services all or part of the cost of which was paid for by an authority by means of direct payments as referred to in subsection (2)(b), co-operate with that authority;(c) may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question.(5) Any dispute about the application of this section is to be resolved in accordance with paragraph 5 of Schedule 1.
(6) “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 8 of Schedule 1.
(7) The references in paragraphs (a) to (d) of subsection (4) to an authority are references to a local authority, a local authority in Scotland or a Health and Social Care trust (as the case may be).”
92AL: After Clause 47, insert the following new Clause—
“Temporary duty on Health and Social Care trust in Northern Ireland
“(1) This section applies where a person registered under Part 3 of the Health and Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 in respect of an establishment or agency—
(a) becomes unable to carry on or manage the establishment or agency because of business failure, and(b) immediately before becoming unable to do so, was providing an adult with accommodation or other services in Northern Ireland under arrangements made—(i) by a local authority meeting an adult’s needs for care and support or a carer’s needs for support under Part 1 of this Act,(ii) by a local authority in Wales discharging its duty under section 21 or 26, or exercising its power under section 22 or 29, of the Social Services and Well-being (Wales) Act 2013, or(iii) by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003.(2) This section also applies where a person registered under Part 3 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 in respect of an establishment or agency—
(a) becomes unable to carry on or manage the establishment or agency because of business failure, and(b) immediately before becoming unable to do so, the person was providing an adult with accommodation or other services in Northern Ireland, all or part of the cost of which was paid for by means of direct payments made— (i) under this Part of this Act, (ii) under section 34 or 36 of the Social Services and Well-being (Wales) Act 2013, or(iii) as a result of the choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013.(3) The Health and Social Care trust in whose area the accommodation is situated or the services were provided must for so long as it considers necessary meet those of the adult’s needs for care and support or the carer’s needs for support which were being met by the registered person by the provision of the accommodation or other services.
(4) A Health and Social Care trust which is required to meet needs under subsection (3)—
(a) must, in meeting needs under that subsection which were being met by the authority which made the arrangements referred to in subsection (1)(b), co-operate with that authority;(b) must, in meeting needs under subsection (3) which were being met by the provision of accommodation or other services all of part of the cost of which was paid for by an authority by means of direct payments as referred to in subsection (2)(b), co-operate with that authority;(c) may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question.(5) Any dispute about the application of this section is to be resolved in accordance with paragraph 5 of Schedule 1.
(6) “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 8 of Schedule 1.
(7) The references in paragraphs (a) to (d) of subsection (4) to an authority are references to a local authority, a local authority in Wales or a local authority in Scotland (as the case may be).”
Amendments 92AB to 92AL agreed.
Clause 48 disagreed.
Clause 49 : Sections 47 and 48: supplementary
Amendments 92AM to 92AX
92AM: Clause 49, page 40, line 2, leave out “or 48(3)” and insert “, (Temporary duty on local authority in Wales)(3) or (Temporary duty on Health and Social Care trust in Northern Ireland)(3)”
92AN: Clause 49, page 40, line 4, leave out “or 48(3)”
92AP: Clause 49, page 40, line 5, at end insert—
“( ) Section 20 of the Social Services and Well-being (Wales) Act 2013 (how to meet needs) applies to meeting needs under section (Temporary duty on local authority in Wales)(3) as it applies to meeting needs under section 21 of that Act.”
92AQ: Clause 49, page 40, line 7, leave out “or 48(3)” and insert “, (Temporary duty on local authority in Wales)(3) or (Temporary duty on Health and Social Care trust in Northern Ireland)(3)”
92AR: Clause 49, page 40, line 13, after “47(2)” insert “, (Temporary duty on local authority in Wales)(3) or (Temporary duty on Health and Social Care trust in Northern Ireland)(3)”
92AS: Clause 49, page 40, line 21, leave out “sections 47(2) and 48(3)” and insert “section 47(2)”
92AT: Clause 49, page 40, line 21, at end insert—
“(6A) Sections 30 to 33 of the Social Services and Well-being (Wales) Act 2013 (exceptions to, and restrictions on, duty to meet needs) apply to meeting needs under section (Temporary duty on local authority in Wales)(3) as they apply to meeting needs under section 21 of that Act.”
92AU: Clause 49, page 40, line 30, leave out “or 48(3)”
92AV: Clause 49, page 40, line 34, leave out “and 48” and insert “, (Temporary duty on local authority in Wales) and (Temporary duty on Health and Social Care trust in Northern Ireland)”
92AW: Clause 49, page 40, line 37, at end insert—
“( ) Pending the commencement of Part 4 of the Social Services and Well-being (Wales) Act 2013—
(a) a reference in section (Section 47: cross-border cases) or (Temporary duty on Health and Social Care trust in Northern Ireland) to making arrangements to meet needs under section 21 or 22 of that Act is to be read as a reference to making arrangements or providing services under—(i) Part 3 of the National Assistance Act 1948,(ii) section 45 of the Health Services and Public Health Act 1968,(iii) section 117 of the Mental Health Act 1983, or(iv) Schedule 15 to the National Health Service (Wales) Act 2006;(b) a reference in section (Section 47: cross-border cases) or (Temporary duty on Health and Social Care trust in Northern Ireland) to making arrangements to meet needs under section 26 or 29 of that Act is to be read as a reference to providing services as referred to in section 2 of the Carers and Disabled Children Act 2000;(c) a reference in section (Section 47: cross-border cases) or (Temporary duty on Health and Social Care trust in Northern Ireland) to making direct payments under section 34 or 36 of that Act is to be read as a reference to making direct payments by virtue of section 57 of the Health and Social Care Act 2001;(d) subsection (6A) is to be read as if there were substituted for it—“(6A) Sections 21(1A) and (8) and 29(6) of the National Assistance Act 1948 apply to meeting needs under section (Temporary duty on local authority in Wales)(3) as they apply to the exercise of functions under sections 21 and 29 of that Act by a local authority in Wales (within the meaning given in paragraph 8 of Schedule 1).”
92AX: Clause 49, page 40, line 37, at end insert—
“( ) Pending the commencement of section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013—
(a) sections (Section 47: cross-border cases)(2)(b)(ii) and (Temporary duty on local authority in Wales)(2)(b)(ii) are to be read as if there were substituted for each of them—“(ii) under section 12B of the Social Work (Scotland) Act 1968,”, and(b) section (Temporary duty on Health and Social Care trust in Northern Ireland)(2)(b)(iii) is to be read as if there were substituted for it—“(iii) under section 12B of the Social Work (Scotland) Act 1968.”.”
Amendments 92AM to 92AX agreed.
Clause 49, as amended, agreed.
House resumed. Committee to begin again not before 9 pm.
Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013
Motion to Approve
That the draft order laid before the House on 18 December 2012 be approved.
Relevant documents: 15th Report from the Joint Committee on Statutory Instruments, Session 2012–13, 25th, 32nd and 35th Reports from the Secondary Legislation Scrutiny Committee, Session 2012–13, 2nd and 7th Reports from the Secondary Legislation Scrutiny Committee, Session 2013–14
My Lords, before starting my speech it would be remiss of me if I did not pay tribute to the late Lord Newton. He was passionate about administrative justice and provided rigour and challenge in your Lordships’ House to the proposals contained in the Public Bodies Act. We will all feel his presence and spirit with us in today’s debate.
The purpose of this draft order is to abolish the Administrative Justice and Tribunals Council using powers provided in the Public Bodies Act 2011. Before setting out further details on the order, I will briefly explain some of the background. The AJTC is an advisory, non-departmental public body, not a tribunal or any other form of judicial body. It does not exercise powers that relate to judicial independence or judicial decision-making. It was created before much of the reform of recent years was implemented—crucially before a unified tribunal structure was put in place.
The Government announced proposed reforms to public bodies on 14 October 2010. It was considered that the oversight of the administrative justice system and development of policy was properly a function of government, and also that the AJTC’s oversight functions with regard to tribunals were no longer required, given the governance and oversight arrangements that exist within HMCTS. The AJTC was therefore included for abolition in the Public Bodies Bill. A public consultation, including the proposal to abolish the AJTC, was launched on 12 July 2011 and closed on 11 October 2011. The Government’s response to the consultation was published on 15 December 2011. After considering all the responses to the consultation, the decision was that the AJTC should be abolished. Following further policy development and discussions with the devolved Administrations during 2012, the draft order was laid before Parliament on 18 December 2012.
Noble Lords will no doubt be aware of the scrutiny given to this draft order by both the Justice Committee in the other place and the Secondary Legislation Scrutiny Committee in this House. The Secondary Legislation Scrutiny Committee has fulfilled its role in that regard with its customary thoroughness, but that is not to say that I am in agreement with all its conclusions. Section 8 of the Public Bodies Act provides certain criteria that Ministers must consider have been met when making an order under the Act. Taking each of these in turn will give a full account of how the order meets the requirements of the Act.
On efficiency, abolishing the AJTC will remove duplication of functions and ensure that the state provides only what is necessary to support the administrative justice and tribunals system. The reforms of recent years mean that the vast majority of the system is now administered by HMCTS and so is managed independently of the departments whose decisions are being challenged. I believe that this is a vital point. I know that in a debate on the Public Bodies Bill the noble Lord, Lord Pannick, expressed concern that the Government are often defendants in tribunal proceedings. This in no way compromises the independence of the tribunals judiciary which determines cases impartially and acts independently. This independence is also reflected in the governance of HMCTS which has an independent, non-executive chair and has two judicial representatives on its board. It also has a dual reporting line to both the Lord Chancellor and the Lord Chief Justice. For those limited number of bodies that are outside the oversight of HMCTS, Ministry of Justice officials already work with the relevant departments, the bodies themselves and others to identify and share good practice as well as tackle areas of concern. This is an approach that works well. It is solution focused and one that the department is keen to build on.
The Administrative Justice and Tribunals Strategic Work Programme, published in December 2012, sets out the areas on which the Government will focus until 2015. Objectives include improving initial decision-making by government and making systems and processes more accessible and proportionate for users. The noble Lord, Lord Borrie, commented at Report that there will no longer be a group coming together and discussing important issues of administrative justice. The Government listened to such concerns and in May 2012 established the Administrative Justice Advisory Group, which provides an expert and critical forum to review the system from a user perspective against the strategic work programme. The advisory group supports and guides this by informing policy development from the perspective of users of the system. For instance, members from the group contributed to the development of the strategic work programme ahead of its publication. The group is also able to form sub-groups to look at specific issues, such as improving user guidance. To date the advisory group has been chaired by a director from the MoJ. Having reflected on concerns raised by your Lordships’ Secondary Legislation Scrutiny Committee, my right honourable friend the Secretary of State for Justice has decided to appoint an independent chair to the advisory group on abolition of the AJTC. Whoever fills the post will have responsibility for ensuring the group’s collaboration to give robust, evidence-based challenge; building consensus and ensuring that the different representative bodies work together; galvanising action to inform improvements to the system in line with the MoJ’s principles of efficiency, fairness and accessibility; providing strong leadership to the group and representing its views to Parliament; and ensuring that the group delivers on its aims and objectives, as set out in its terms of reference.
On economy, those opposed to abolition have cited the modest or insubstantial savings involved and questioned the estimates provided by the ministry. Let me be clear on both counts: the AJTC currently costs £700,000 per year to operate. While this represents a reduction from its 2010-11 budget of £1.2 million, it is still a significant amount of money at this time. Based on a revised closure date of late August, which allows for a four-week orderly close-down period following parliamentary approval to the order, we estimate gross savings of around £1.2 million across the remainder of 2013-14 and 2014-15. Costs of closure are estimated to be around £0.6 million over the same period. This includes £300,000 for possible redundancies at the AJTC and £300,000 for reimbursements to the Scottish and Welsh Governments for the creation of interim non-statutory bodies to replace the AJTC in Scotland and Wales. This means net savings of around £0.6 million over the rest of this spending review period and, of course, this would represent a long-term saving well beyond the spending period. No further costs are estimated from our successor arrangements. The advisory group is supported using existing resources within the policy group in MoJ. The costs of recruiting and remunerating the independent chair of the AJAG are negligible—some £10,000 to £15,000—and will be met from the budget required to implement policy changes.
I now turn to securing appropriate accountability to Ministers. The abolition of the AJTC will not result in any loss of accountability. Ministers are, and will remain, ultimately accountable for the administrative justice system and for HMCTS as an executive agency of MoJ. HMCTS is responsible for the performance of the unified system. A minority of tribunals sit outside HMCTS and remain accountable to Ministers through their respective departmental channels. MoJ will re-examine the case for bringing these remaining existing tribunals into the unified tribunal system. Where they are not brought into the unified system, MoJ will still, as it does now, keep their administration and performance under review.
On the removal or loss of protections, rights and freedoms, the abolition of the AJTC will not result in the removal of any necessary protection and no person will be prevented from exercising a right or freedom that they might reasonably expect to continue to exercise. Abolition does not prevent anyone from accessing a tribunal or an ombudsman to vindicate or protect their rights or freedoms. Tribunal users can still make their voices heard by raising concerns with their elected representatives or through the user groups that exist in most HMCTS tribunal jurisdictions. Concerns may also be raised by their elected representatives with the Parliamentary and Health Service Ombudsman.
I stress that no part of the administrative justice system currently included under the AJTC’s overview remit will be left out under the new arrangements, including those tribunals and bodies currently outside the unified tribunal system. There is no “hiatus” in oversight as has been mentioned in scrutiny reports. HMCTS’s governance structure, with its strong judicial representation, provides a clear level of protection to the public in respect of its oversight of the unified tribunal system.
Parliament will also have an important role to play in scrutinising the work of the department. In his response to the Public Administration Select Committee report on the future oversight of administrative justice in May 2012, the Lord Chancellor agreed, following the AJTC’s abolition, to report annually to the Public Administration Select Committee on the following: details of the resourcing of the department’s administrative justice function; actions taken by Ministers and officials to improve the operation of the system; details of how the views of users of the administrative justice system have been sought and addressed; and details of work undertaken with other departments, devolved Administrations and local government to improve administrative justice for the citizen. Parliament will therefore have the means of ensuring that the Government are held to account for oversight in this area and provide a further layer of protection for the public.
It is important to have had this opportunity to set out in some detail the Government’s plans for oversight of the administrative justice and tribunals system following abolition of the AJTC. What we propose is about delivering real improvements, based on ministerial priorities and on evidence gathered by capable and experienced officials working with colleagues and experts from other departments and from across the system. We disagree that oversight has always to take place at arm’s length from Ministers and departments. It is absolutely in the interest of government to reduce demand on the system, get decisions right first time and make the system accessible and proportionate to users. This, I think, we are doing. I commend this draft order to the House. I beg to move.
Amendment to the Motion
My Lords, the amendment in my name would add to the Motion moved by the Minister that,
“this House regrets the proposed abolition of the Administrative Justice and Tribunals Council, which will remove independent oversight of the justice and tribunal system at a time when it is undergoing major change”.
I am grateful to the Minister for so clearly outlining the Government’s thinking and the details of their proposals.
Of course, the fate of the AJTC was debated at length during the passage of the Public Bodies Bill, which lit the torch for the Government’s proclaimed bonfire of the quangos. Deep concern was expressed in all parts of the House, led by the late and much lamented Lord Newton, to whom the Minister rightly paid tribute, and endorsed by the noble and learned Lords, Lord Mackay of Clashfern, Lord Woolf and Lord Howe, among many others.
Lord Newton had served with great distinction for 10 years as chairman of the Council on Tribunals, a non-departmental public body attached to the MoJ with oversight of the tribunal system, which in turn was replaced by the AJTC. Administrative justice as a feature of our legal system has grown in importance over the years in response to the need to offer an accessible means of redress for citizens wishing and needing to challenge the decisions of public bodies in a wide range of contexts. This changing landscape, incidentally, is another example of why, with justification, the original scope of the civil legal aid and advice scheme widened over the years, much to the apparent distaste of the present Government, who have in effect withdrawn administrative justice from what remains of legal aid.
The proposal to abolish the council evinced little response other than hostility both inside and outside Parliament. Having established three tests by which the status of public bodies was to be charged—namely, whether the body is needed in order to “perform a technical function”, whether it needs to be politically impartial and whether it needs to,
“act independently to establish facts”.
The Minister in the House of Commons, giving evidence to the Public Administration Select Committee, avowed that the council failed all three.
The Public Administration Select Committee, on the other hand, thought that,
“it could be, and has been, argued that the AJTC in fact meets all three of them”—
a judgment with which I profoundly concur.
The committee pointed to the high level of successful appeals across the system, with higher rates when legal representation was available, declaring:
“This poor decision-making results in injustice to individuals and cost to the taxpayer on a scale that PASC finds unacceptable. The role of the AJTC in providing an independent overview … is therefore one of vital national importance … overseeing a system that protects the rights of millions of citizens every year”.
It concluded that,
“oversight by an entity independent from Government is valuable and should be continued”.
The Justice Select Committee, in its eighth report for the previous Session, echoed many of these concerns and, while conceding that certain functions might be transferred to the Ministry of Justice, stated that it did not,
“believe that the abolition of the AJTC satisfies the statutory tests”,
set out in the Public Bodies Act,
“in respect of efficiency and effectiveness”.
I note in passing that, interestingly, in evidence to the Public Administration Select Committee, the Minister in the other place did not seem to rely on these tests. The Justice Committee concluded by recommending,
“that the Government reconsiders its decision to abolish the Council”.
The Minister, Helen Grant, rejected this recommendation in a brief letter which did not address the concerns raised by the committee, and which was copied to the Scottish Parliament Justice Committee, of which the Justice Committee knew nothing until its attention was drawn to it by the Scottish committee—clearer evidence of the woeful incompetence of the Ministry of Justice could hardly be imagined.
The Government’s proposals, affecting as they do some 650,000 people a year who appear before tribunals, sit oddly with the retention as non-departmental public bodies of the Civil Justice Council, when only 63,000 cases, roughly 10% of those appearing before tribunals, come before the civil courts, and the Family Justice Council.
Moreover, as Lord Newton pointed out, administrative justice is not confined to tribunals. It extends to local authorities and important areas of administrative justice,
“including, in education, school admissions and exclusion appeals”.
He went on to say that,
“it also includes the whole area of decriminalised parking … They have nothing to do with the Ministry of Justice but they amount to important areas of administrative justice”.
For an essentially gentle man, Lord Newton went even further, declaring:
“The Ministry of Justice knows nothing—and, frankly, as far as I can judge, cares less”,—[Official Report, 28/3/11; col. 993.]
about these latter issues.
In debates on the Public Bodies Bill and subsequently, Ministers have shifted the basis of their argument to one of cost, yet the amount of the savings they predict are, even on the scale of the MoJ’s budget, let alone public expenditure as a whole, trivial—all of £700,000 a year, as the Minister has confirmed. The council’s running costs have already been reduced from £1.2 million in 2010-11 to that figure.
Where is the evidence that the MoJ, of all government departments, has the capacity to deliver the work hitherto carried out by the council and to press on with the work of improving the system, securing better decision-making and reducing the need for appeals, as opposed to putting obstacles in the way of appeals by withdrawing legal aid and advice or—as in the case of employment tribunals, which we debated last week—imposing fees which will deter claimants from using them? This, after all, is the department responsible for the fiasco of the interpretation service, for the problems of the single court issue of money claims, and for the recently exposed disaster of the electronic tagging contracts. This is the department that is pushing ahead with untested proposals in relation to the probation service and payment by results and which refuses FoI requests for information about pilot schemes that it abandons. Dickens would have rejoiced at the opportunity to satirise a department that combines all the vices of the Court of Chancery in Bleak House and the Circumlocution Office of Little Dorrit.
There is a more fundamental point. How can the Government, who are enacting legislation, promulgating regulations and changing structures in these important areas of administrative justice, and at the same time hugely reducing legal aid and advice, justify the absorption of an independent body with a remit to oversee the whole system and advise government? The Administrative Justice Advisory Group, which the department has set up, is in no way a satisfactory alternative, having, in the words of evidence given to the Public Administration Committee, no status, standing or budget of its own. It lacks a chairman and a secretariat, it is dependent on MoJ policy staff and it meets only twice a year.
What is the Government’s response to the nine recommendations made in the final report of the AJTC on ways to,
“maximise the robustness of this body”,
which, at the moment, has all the attributes of a watchdog equipped with neither bark nor bite? What is the position of the devolved Administrations in Scotland and Wales? Hitherto they have been represented on the AJTC. Will they establish their own councils once the AJTC disappears and, if so, what will be their relationship to the MoJ on areas of administrative justice covering non-devolved matters such as welfare or employment law?
The House will wish to pay tribute to the members and staff of the council who have been on organisational death row for three years but have managed to continue to discharge their responsibilities with exemplary fortitude. It is worth quoting further from the final report. It refers to the predicted nearly 100% increase in First-tier Tribunals for social security and child support to 807,000 cases a year by 2015-16 as illustrating the pressures with which the system will have to cope, exacerbated by the wholesale reduction of access to legal aid and advice, which we have so often debated.
The council questions, with reason, whether HMCTS, which is reducing the publication of performance data, is able to or has the independence to monitor performance. Its final report poses several questions about the role of HMCTS. I will quote from that report. The AJTC rejects,
“any suggestion that HMCTS is independent of government. HMCTS is not a judicial body”—
although it may have judicial representatives upon it—
“and it does not operate on an arms-length basis from its sponsor department. Rather, we believe that HMCTS as an executive agency of the Ministry is ‘as much part of government as the MoJ itself’, with MoJ Ministers being accountable within Parliament for what HMCTS does in the same way as they are for what their departmental officials do”.
The council concedes that,
“the constitution of the HMCTS Board provides some independence in the governance of the agency”,
although not its role. The council points out that,
“whatever the correctness of our view on the independence of HMCTS, such is not relevant to the separate question of the existence of and need for a body to offer independent advice to government, which is currently offered by the AJTC and in future could only possibly be offered by”
the advisory group, with all the limitations to which I have referred. The council raises a series of other points about the performance and the future of HMCTS, which are surely germane. The council makes the point that:
“The task therefore of ensuring effective scrutiny will be many times more difficult in future than it has been … Cutbacks in the availability of advice and legal aid and the introduction of fees … are likely to act as even greater barriers and disincentives to redress than restrictions in the availability of judicial review”—
about which there is also great concern—and, tellingly, that there are,
“disturbing signs that MoJ explicitly sees the use of fees as a mechanism to reduce demand on the tribunals system”.
Can the Minister deny these serious charges?
I conclude with a final quotation from the council:
“There is an inevitable risk that those who have access to the levers of power may yield to the temptation to use them to exclude or restrict challenges. And even if that temptation on occasion is resisted there will always be the suspicion that it may not be resisted on others. Effective oversight is necessary both to ensure that temptation is resisted and also to create confidence amongst citizens that it will be”.
I wholly endorse that view and I suspect that I am not alone. I beg to move.
My Lords, considering that this is the third time today that the noble Lord, Lord Beecham, and I have faced each other across the Dispatch Box—admittedly the other two times were in the Moses Room—he is in fine and feisty form. But his speech revealed what I think is the abiding problem of the Labour Party when looking at these matters: savings are always trivial and can be dismissed; always look for the firewall of a committee to get between a Minister and responsibility; and, if in doubt, appoint a consultant or, even better, a tsar. It is a philosophical difference between us. I really do believe that this is where responsibility lies and that the effective oversight he called for should be oversight in Parliament by parliamentarians to Ministers at the Dispatch Box. We will have to disagree on some of these matters, but I will try to answer a number of the points that he made.
The noble Lord mentioned the AJTC’s report on the Future Oversight of Administrative Justice. This final report was published on 17 July and the department has not yet fully considered the recommendations in detail. However, we thank the council for its constructive recommendations. We are already tackling many of the issues raised, such as the need for good-quality information and signposting, and the Right First Time agenda. We also welcome the AJTC’s invitation to parliamentary committees to take an enhanced role in scrutinising the work of the department in this area. We will consider the report’s recommendations as we progress our strategic work programme and build on the principles of fairness, efficiency and accessibility.
The noble Lord also asked about administrative justice in reserved sectors in Scotland and Wales. We are focused on ensuring that users of the system can expect consistency of service and adjudication, no matter where they access it. The MoJ has agreed to support the Governments in Scotland and Wales to complete their reform programmes. We believe that the change in approach will be beneficial to users by encouraging closer working between the bodies actually responsible for developing policies and implementing reforms. We have draft formal protocols between the UK Government and each of the devolved Administrations to oversee the system. These will include examining and addressing issues for users in Wales, Scotland and Northern Ireland accessing reserve tribunals.
The noble Lord asked what the impact of fees will be. We aim to promote a proportionate use of tribunals, and to encourage mediation and dispute resolution methods where appropriate. It is very difficult to predict the impact of the introduction of fees on behaviour, but it is reasonable to assume that if people have to pay for the process, they will consider more carefully whether they wish to bring a claim and their chances of success. This is not to say that this is the intention of fees. Actually, I am not sure that I believe that; of course the fees will have some impact on demand.
Does getting rid of an independent watchdog allow the Government to mark their own homework? No. The AJTC provides advice only. It has no powers to enforce action. It is in the interests of the Government to minimise the number of appeals that need to be considered by tribunals and courts by improving processes and getting decisions right first time. A layman’s suspicion is that in some departments, an idea has grown that somehow a court will pick up mistakes. We should be driving out that idea, and making sure that there is a philosophy and a culture of getting it right first time.
As I say, we appreciate the work of the AJTC. It is always difficult for people in a body that is going, but we thank them for their work, and we shall take into consideration their valedictory advice.
I hope that this evening we have been able to explain fully why the Government have decided to abolish the AJTC. Equally importantly, I have explained what is in place to ensure effective oversight and what more will be done by my department. In speaking to his amendment to the Motion, the noble Lord, Lord Beecham, expressed regret that abolition of the AJTC will remove independent oversight of the system at a time when it is undergoing major change. I simply do not accept that argument.
The fundamental point is that the major structural changes to the system are now complete. Effective oversight of the system is now in place. Reforms that make part of the system fairer, more efficient and more effective will of course continue—the strategic work programme we published in December sets out our immediate plans very clearly. These reforms do not require the oversight of a purely advisory body paid for out of public funds. New reforms will be subject to public consultation as with other policy developments. Full parliamentary scrutiny will continue, and existing protections will remain. There is therefore no compelling reason to continue funding a statutory body such as the AJTC.
The MoJ has a dedicated and experienced team of officials working to a focused and ambitious work programme. The programme is committed to improving the system for users. Users are and will continue to be at the heart of service provision. They will be represented, not only at jurisdictional user groups, but by the advisory group of expert representatives that we have now established. The group will be run at negligible cost. It will help to shape and guide the improvements that are required. That is proportionate and economical. It is effective and efficient.
We have committed to reporting to Parliament against our programme of work and we will be held to account by the Public Administration Select Committee and the Justice Select Committee. We shall appoint a chair to the advisory group which will provide it with an independent voice. The chair will be able to speak publicly, to Parliament, on behalf of the group and, by extension, on behalf of users of the system. This will include providing challenges to the Government on the detail of reforms such as those under way to legal aid and judicial review.
I have made the point previously—but it bears repeating—that undue emphasis is being put on the benefits that arm’s-length bodies can deliver. By doing so, we risk downplaying the checks and balances that are in the direct line of responsibility running from Ministers to the Floor of both Houses. As I have said, this is the place where responsibility lies. We need those responsible for the system to drive through the changes needed to improve the services for users and to be answerable for those actions at the Dispatch Box in both Houses of Parliament. I hope that the noble Lord will withdraw his amendment and that the House will approve the order.