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Care Bill [HL]

Volume 748: debated on Wednesday 9 October 2013

Report (1st Day) (Continued)

Amendment 21 not moved.

Clause 5: Promoting diversity and quality in provision of services

Amendment 22

Moved by

22: Clause 5, page 5, line 19, at end insert—

“( ) the need to adhere to specific minimum quality standards and requirements in the commissioning and provision of services to adults, as regulations may prescribe;”

My Lords, I will also speak to Amendments 25 and 26 in this group and acknowledge the Government’s Amendments 24 and 27, which I will mention later. I start with Amendments 22 and 25. As many noble Lords have said, the Care Bill has the potential very significantly to improve the care of elderly and disabled people. However, there is also the possibility that only a part of that potential will be realised, particularly in the face of significant cuts to local authority budgets. Amendment 22 therefore places in the Bill a requirement for there to be regulations about how services are commissioned to ensure that they offer at least a sufficient level of quality to the individual. Amendment 25 ensures that home visits are not normally commissioned for less than 30 minutes. The amendments provide for a service of at least minimum quality, as I said, which will ensure the dignity of each elderly or disabled person. They also allow flexibility—which is important—for short visits, for example for the delivery of a meal or for giving an injection, and also for longer visits.

This became very clear to me when I met the director of the Bikur Cholim social care organisation, which has been in operation for many years looking after people in the Jewish community. The director told me that for a disabled, doubly-incontinent client, a morning visit cannot be completed in less than one hour. Dealing with the incontinence—and one does not want to go into too much detail about that—can be time consuming. A bath or shower is essential for a doubly-incontinent person; they need a change of clothes, possibly a change of sheets, to have food provided and help to get dressed.

When you think about all that, it is fairly obvious that you could not possibly do it in half an hour. However, in our financial context there is an increasing tendency to commission ever-shorter home visits, many lasting only 15 minutes, as has been well publicised on the “Today” programme twice this week. Indeed, a survey by the UK Homecare Association found that one in 10 visits already last only 15 minutes and the proportion of 15-minute visits has increased by 17% over the past five years.

Leonard Cheshire Disability has seen tenders for visits of only 10 minutes and, according to the person on the “Today” programme, these carers tend to take 10 minutes to take off what they describe as “their hat and coat”. I am quite curious about carers arriving in a hat and coat, but there we go. It means they would then have to shoot out of the door without their hat and coat. The mind boggles. This is a very serious issue and a tragic quote from a disabled client makes the point better than I can: “By the time they have got me to the commode and helped me to change, the time is up. I end up choosing between getting my meal prepared or having my commode emptied. Do I get a drink or do I go to the toilet?”.

Imagine having to make those kinds of choices. The public do not support depriving elderly and disabled people of a dignified service. Some 96% are critical of these very short visits for personal care; people understand about an injection, I think. Will the Minister clarify on the Floor of the House that a visit to deliver personal care, including, as it will inevitably, dressing, taking the client to the toilet or bathing, within a timeframe of 15 minutes is simply impossible and always will be. Therefore, one can say something pretty firm about it.

From the point of view of the carers too, workers complain that they have had to stay longer than 15 minutes in almost every visit, even though they are paid only for 15 minutes and they are not paid for their travel time either. As one said, “You just cannot possibly do this job in that length of time”. The question is whether we are giving sufficient priority to elderly and disabled people living at home. I think we have to answer, “Surely not”. The Minister, Norman Lamb, has very publicly criticised 15-minute personal care visits, but there is nothing in the Bill to prevent this practice from continuing and, indeed, from spreading further. The government amendments do not really tackle the problem, although I know that the Minister always tries very hard to do what he can. He will be aware of the 2,000 plus e-mails that have landed—not necessarily on his desk but in the office—within the past few days expressing concerns about this issue. It has concerned people very deeply.

I hope that the Minister can assure the House today that the Government will guarantee that our most vulnerable people can rest assured that their needs will be met and their dignity will be protected. This means, I fear, carers having enough time. I know, of course, that this means resources, so we are here coming down to priorities and where they really lie.

Amendment 26 is supported by the Care & Support Alliance of 70 organisations representing old and disabled persons, those with long-term conditions and their families. Clause 5 acknowledges the benefits of quality services but only requires local authorities to,

“have regard to … the need to ensure”,

that sufficient services are available. I am not quite sure how one has regard to those matters and then disregards them, so I am genuinely not sure what that means. The amendment would “require” local authorities to ensure that sufficient services are available to meet the needs for care and support of adults and their carers in their area. We are talking here about good planning of services over time, and also the planning of a comprehensive range of services for people with very different disabilities and needs being undertaken.

We take the view that the social care system is in crisis, too often leaving older and disabled people and their families without essential care and support; certainly, I take that view. Indeed, I emphasise that I fear that abuse of elderly and disabled people is very likely to be the next national scandal. We have had physical abuse of children; we have had sexual abuse of children. One has only to think about the love of parents for children to wonder, if parents are doing that to their children, how many elderly and disabled people may face abuse? I say this with the greatest possible sympathy and understanding for carers. How many of us can honestly say that we could live with, say, a dementing parent—I have had a dementing parent, so I have an understanding of this—year after year, without sufficient support, and always find the emotional, physical and every other kind of energy to provide that care, and often to give up your life to do so, without being reduced to behaviours of which one would be profoundly ashamed? If abuse occurs, we cannot blame the overburdened carers. It is up to us.

Meeting short-term needs is essential. This is not straightforward for people with fluctuating disorders. Somebody with multiple sclerosis, for example, can from time to time need full-time, 24-hour care. If that is not available, that person will have no option but to be moved into a residential home. Very often, the only space is in a residential home for the elderly. For, say, a 25 or 30 year-old, that is a deeply distressing experience, apart from being very expensive.

On the range of quality services, a tragic story about a deafblind man says it all. Some unqualified person delivered his breakfast but never told him where it was, so he went without breakfast for days. It was sitting on the fridge, but you have to have the training to tell you that you need to be very good on your communication. You could say that it is all very basic stuff, but this poor chap went hungry.

I very much welcome the Government’s amendments in response to these concerns but, unless I have missed something important—I confess that I may have—they do not seem to ensure that sufficient appropriate services are made available for vulnerable people. I am confident, nevertheless, that the Minister well understands the importance of this issue and very much hope that he can assure the House this evening. I beg to move.

My Lords, I support Amendment 22 but am concerned about Amendment 25. Is it wise to mention 30 minutes? I declare an interest as president of a spinal injuries association. Some of our members have broken their necks and are paralysed from their neck down. To get a paralysed person up, to do an evacuation of their bowels and to wash and dress them, using a hoist, might take at least three hours. Surely it is better to stress the individual’s needs rather than to set in stone half an hour. Providers of care may use that as a marker.

A visit taking 15 minutes, as has recently been in the headlines, is totally ridiculous. Having the choice of whether a carer takes someone to the lavatory or gives them a drink is unacceptable. If stress is put on the carer who cannot do the job in that time, they will leave and not do the job at all. The person needing care is left in a dangerous position if adequate care is not given. The amendments need to be flexible and aimed at an individual’s personal needs. I hope very much that the Minister will look at this and will do something to make it acceptable.

My Lords, I was the lead commissioner at the Equality and Human Rights Commission during a big inquiry looking at home care for older, frail people. We found that half of the people receiving such care were satisfied with it. Half were not. Mostly, the complaints were about breaches of their human rights. This is a terrible indictment of our care system: to be able to say that because of the care that is regularly given to people, their human rights are breached is absolutely unacceptable.

We know that the number of 15-minute care visits, as Leonard Cheshire Disability discovered this week, is going up: 60% of local authorities commission them and the number has risen by 17% in the past five years. I do not want to delay colleagues in the House for very long; it is just that you cannot do the sorts of jobs that the majority of people need in 15 minutes. Of course, one needs flexibility: to give somebody a dose of medicine does not take very long, but to really care for someone, which involves all the tasks that the noble Baroness, Lady Meacher, mentioned so lucidly and clearly, takes much longer. We need some way in the Bill of making absolutely sure that this cannot continue. It is absolutely disgraceful that we have to have this conversation at all.

My Lords, on reading carefully the amendments in the name of the Minister, I hope that he will be able to provide reassurance that his amendments will go further than Amendments 22 and 25 to which I have added my name and that they will be much more about the whole person and the whole person’s needs. I recognise that there are dangers in putting a timeframe around anything; there is the danger that it will be used as a so-called minimum standard, down to which people will drop. I initially wanted to support these amendments and I suppose, if I had a choice, I would have added my name to those of the Minister now, because there is a real problem if care is not adequate in quality and promoting well-being in that it creates dependency rather than reablement towards increasing independence. There is a sense of personal worth that goes along with being able to do things, however slowly, rather than having to accept somebody doing them for you because they are in a terrible rush. I hope that the Minister will provide us with a much wider reassurance than the words suggest at first glance.

My Lords, I was most interested to hear the comments of the noble Baroness, Lady Meacher, and I agreed with every word, but I do think the time limit specified would not be right and I strongly support Amendment 27. However, there are other aspects of this care issue that we have not really thought about.

One that is covered in Amendment 27 is about the well-being of carers. I find it very disturbing that a woman I know who lives in with a person needing pretty comprehensive care every Saturday and Sunday and stays overnight on both nights, is appallingly paid for this because she is self-employed. I said to her that I could not believe she was earning so little when it is such a very important job and so very time consuming. I told her I would look on the internet to see what she is entitled to as a minimum wage. It turns out that there is no minimum wage for a self-employed person. That quite stunned me; there is a great reservoir of people who would be willing to take on self-employed caring positions and do them for quite long periods, not rushing people, but not at her rate of pay, which worked out at a little over £2 an hour for all the hours she was there. I suggested that, since she had done training in care, she should work instead for the people who provide a service for the local authority. She followed that up and it turned out that she would not earn much more, because they are not paid for travelling time. Unless the organisation improved so that her two, three, four or 10 jobs—whatever it is—were almost next door to one another, the unpaid travelling time would constitute much more of her day than the time actually caring for people.

The other point raised by the noble Baroness, Lady Finlay, is that it is more than just physical care. We have heard much in recent days about people’s extreme loneliness, how they can go almost for days with hardly a word with anyone. That is a most essential thing in life, to feel that you have not been abandoned. The woman in the television report talked about taking your coat off, making your booking and going through it all, and how you are left with 10 minutes in the middle and then you book in a final 10 minutes to reverse everything. That is exactly what I remember from when I was chairman of local social services 30 years ago; that was exactly the same problem then.

These are not new problems; because there are so many more older people who need more care, and there is more awareness, with people wanting to stay in their own homes, this problem has grown, and we do not have the solutions to match the need. I strongly support the emphasis on the well-being of carers, which is mentioned in Amendment 27—that is important. People should feel that they are doing a worthwhile job and that what they are doing is helping other people. They should also be reasonably remunerated for it. There is so much that we would all support; I feel that all noble Lords in this Chamber want to see more help and more efficiently used help. Amendment 27 in particular covers a lot, but whatever offers can be made, so much the better.

My Lords, I apologise for not having heard the first part of the speech made by my noble friend Lady Meacher; I can only say how much I agree with her. In the past nine weeks, while the carer was away, I had the personal experience of doing two weeks’ full-time caring. I timed waking up, giving the medication, getting breakfast, rushing up to do my post while she was having her breakfast, and then attending to her personal care and getting her dressed. It took an hour and a half, every day, and that was just the morning.

On the point made by the noble Baroness, Lady Finlay, the minimum quality standards in the noble Earl’s amendment set a good standard. However, that needs to be supported by an assessment and care programme. There needs to be a proper assessment of what is required in terms of the total care, not just the minimum. We have a system for some of our residents in the retirement development where I live, where prevention to admission to hospital is done by an assessment of how much time care is required. Two people come from the unit—a nurse and a physiotherapist—and fully assess the patient. If there is a proper care programme, that gives the time element. Amendment 25 says “excluding travel time” and that a visit should not take less than 30 minutes. It is difficult to be so prescriptive, but if that was according to the care plan, it might go a long way.

My Lords, Amendment 151 is in my name. This is a very important group that goes right to the heart of our debates about the quality of care that is being given to many vulnerable people. You cannot distinguish the quality of care from the way in which care workers themselves are treated. I very much agree with the noble Baroness, Lady Gardner, on that.

In Committee I quoted from a Unison survey called Time to Care, and I will quote one or two statistics from it. In this survey, 79.1% of the staff surveyed said that they had to rush work or leave one care visit early to go to another. Some 56% earned between £6.08 and £8 per hour. The majority do not get set wages. Their turnover is very high: 57.8% of those surveyed were not paid for travelling time between visits. That is not the foundation for providing good-quality, comprehensive and continuous care.

We know that many people on these so-called zero-hour contracts have had to sacrifice time with their children in order to be available when their employer requires them to be—even if there is no work. Others are required to work exclusively for one employer with no guarantee that they work enough hours to pay the bills. The Opposition believe that employers ought to be banned from insisting that zero-hour workers be available even when there is no guarantee of any work. We should stop zero-hour contracts that require workers to work exclusively for one business, and we should end the misuse of those contracts where employees in practice work regular hours over a sustained period.

The issue of how care workers are treated and employed is directly linked to the arguments of the noble Baronesses, Lady Meacher and Lady Greengross, about 15-minute care visits. There is no doubt that there is widespread concern about the impact of local authorities setting what can seem to many to be arbitrary limits in the time allowed for care. I do not necessarily go along with the amendment sponsored by the Leonard Cheshire organisation, but the argument that it raises about care workers being asked to provide personal care, including supporting service users to dress, bathe, eat and go to the bathroom in a timeframe that simply does not allow dignity or respect, seems powerful.

Equally, I have noted the comments of the president of the Association of Directors of Adult Social Services, who cautions against taking a broad-brush approach in terms of the time that should be given to each client. The association agrees with Leonard Cheshire Disability that 15 minutes is not long enough to allow some homecare tasks to be done, but it says that there is a need for some flexible and truly personal approach, so that each person can be assessed and provided with the appropriate care. The noble Baroness, Lady Masham, made a powerful point that if one seeks to place in legislation a minimum number of minutes, the risk is that it would not meet some people’s needs. However, the problem is that if one starts to define it in legislation, it might become the maximum. That seems to be one of the great dangers.

That is why we need to look carefully at the noble Earl’s two amendments. I appreciate the fact that he has come back to your Lordships’ House with some amendments which seek to deal with the substance of the issues that we are talking about. In essence, they say that local authorities, in promoting the effective operation of a market, must first have regard to,

“the importance of fostering a workforce whose members are able to ensure the delivery of high quality services”,

which is in Amendment 24; and in Amendment 27 they must have regard to,

“the importance of promoting the well-being of adults … with needs for care and support and the well-being of carers in its area”.

The question for us is whether that is enough. I rather doubt it. That a local authority “must have regard to” does not seem a particularly strong message to local authorities. Where is the beef in that? Where is the leverage to make local authorities do the right thing in a context, which we must recognise, where they are extremely pressurised in relation to resources?

The reason why I tabled Amendment 151 is that, given that it is difficult in legislation to prescribe the kind of behaviour that we want from local authorities—for the reasons that we have already debated and which the noble Baroness, Lady Masham, illustrated effectively —one way to deal with this issue is through the regulatory system, as I said in Committee. Noble Lords will know that later in the Bill we will discuss the Care Quality Commission and already in the current Bill it states:

“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social services provided or commissioned by the authorities as may be prescribed”.

There is an opportunity for the Government to say that the CQC will take this on as a major responsibility, to review, monitor and, in some cases, take effective regulatory action, if they believe that the action of those people providing care, either in terms of how they have been commissioned by local authorities or by self-funders, is inadequate. However, the problem with the clause is that there is no guarantee that that is going to happen, because all we are doing is essentially giving the Government regulation-making powers. There is no certainty that this approach will be prescribed.

My Amendment 151 makes it clear that a duty would be imposed on the Care Quality Commission to undertake,

“periodic reviews and assessments of the standards of employment in health and social care provision with particular emphasis on workforce conditions which support continuity and quality of care, and are consistent with the wellbeing principle as set out in section 1”.

That would go very well with the noble Earl’s own amendments in relation to local authorities when we ask local authorities to have regard to this issue. It would give an edge or a guarantee that an independent organisation, or an organisation about to become independent, would monitor, report and, as a backstop, be able to use the regulatory powers at its disposal to intervene with regard to employment conditions or a very limited time allowed for visits to people who require care and support. I hope that the amendment might commend itself to noble Lords.

My Lords, I want to speak to all the amendments in this group—and, in doing so, I have tried to take myself back in time and then, like the Doctor in “Doctor Who”, come forward again quickly. How would I deal with this set of circumstances if I was a director of social services today, as distinct from the late 1980s and early 1990s? I do not envy them because I think that they have a very difficult job to do in balancing the resources available with the expectations of the public, which this Bill will increase. I am not sure that we crack the problem with any of these amendments, on their own. I remind the Minister that in Committee I tabled an amendment, so that we could debate this, which gave the Secretary of State powers to make regulations when there were unsatisfactory employment practices. I deliberately drew that amendment widely, because I do not think that we should just concentrate on the 15-minute visits. That is today’s problem—but we have a series of problems, and there could be another lot of problems with employment practices coming along a few months or years down the track.

At the moment, we have four areas in which there are concerns about employment practices. We have zero-hour contracts with exclusivity and no guarantees of working, 15-minute visits and unpaid travelling time, which I would suggest are all incompatible for the most part with the ambitions of this Bill. I am not saying that my previous amendment was perfect or right—and I am pleased that the Minister has come back with some attempts to grapple with these problems. I do not dismiss his attempts, because these are intrinsically difficult problems, but we need to future-proof this Bill against new practices that may creep up.

What I like about Amendment 151, in the name of my noble friend, is that it puts things very clearly in the court of the regulator, and enables the regulator to look at both providers and commissioners. On some of this, providers are doing only what they are asked to do; they are responding to what the commissioners are expecting of them. So we cannot just blame the providers, although I would like to blame some of them, when local authorities are engaging and encouraging them, in some parts of the country, to engage in practices that are totally incompatible with the aspirations of this Bill.

Where do we go from here? I still think that the Minister might be wise to consider the idea of taking a regulation-making power for the Secretary of State, but I equally accept that that may not produce change fast enough. I found Amendment 27 noble in spirit but a little unclear about what its effect would be. Therefore I come back to Amendment 151. Of all the amendments, I think that is the one that gives me more confidence that there is a capacity to respond to concerns about commissioning practices and provider practices. I do not like the idea of a time limit for visits being set in this Bill because I would not want to be running a social services department with that kind of limitation on my ability to deploy my staff in a sensible way and in the best interests of the service users.

I do not think that we have cracked this problem fully. I think my noble friend has come forward with a better way of getting a grip on these issues, where the regulator picks up noise in the system about these unsuitable employment practices and can take some action both on the commissioning side and on the provider side. My only concern is that there is a later amendment that slightly moves the CQC away from intervening in local authority commissioning, which I think would be incompatible with what we need to do to tackle some of the problems covered by this group of amendments. I hope the Minister can tell me that I have got that bit wrong, but my reading of a later amendment is that it removes the CQC from actually monitoring the commissioning of adult social care.

My Lords, perhaps I might be permitted a word before the end of the debate. I supported these amendments in Committee and am happy to do so again this evening, though I take the points that have been made about being too prescriptive about time limits in Amendment 25. I think the essential point is that the Bill introduces a number of important new duties and responsibilities designed to enshrine the right values at the heart of our care system—for example, the primacy of the well-being of the individual. However, these values are only as good as the services that are put in place to give effect to them. It is not enough simply to put empty principles into legislation. The Bill needs to contain concrete requirements that will help to guarantee quality in the services that are delivered.

The Government’s amendment requiring local authorities to have regard to the well-being principle when commissioning services is welcome, but I do not feel that it is clear or specific enough to underwrite even the very modest guarantee of quality sought by the amendments of the noble Baroness, Lady Meacher. It provides no assurance that the practice of commissioning very short personal care visits will stop. It also fails to commit the Government to producing regulations that set out in greater detail what should count as quality commissioning. From those points of view, I still feel that the amendments of the noble Baroness are in every way to be preferred.

My Lords, I begin by thanking noble Lords for the excellent debates that we have had on these topics in Committee and again this evening. As the report by Leonard Cheshire Disability highlighted earlier this week, we need to move away from overly prescriptive commissioning, which focuses on price and time slots, to consider how local authorities can deliver better outcomes and quality care. I therefore fully agree with the principles behind the amendments that noble Lords have tabled with regard to poor local authority commissioning practices. Of course, noble Lords will be aware that Clause 5 requires local authorities to promote a market in high-quality services and specifically requires authorities to consider this duty when arranging services to meet people’s needs. This would make it very difficult for local authorities to commission services in 15-minute slots where doing so undermines the quality of those services.

Clause 5 also requires local authorities, in fulfilling this duty, to have regard to the need to ensure there are sufficient services available to meet people’s needs. With regard to Amendment 26, it is important to recognise that local authorities can achieve this only through working with providers in their area. We therefore do not believe that it would be appropriate to require local authorities to ensure sufficiency of services independently. This could lead to local authorities finding themselves forced into providing services where a market had not developed otherwise. Therefore, I cannot support the amendment tabled by the noble Baroness. She asked me to clarify what “having regard to something” means. Where that duty is present, it is not something that local authorities are able to ignore. In other words, if they have to have regard to a particular thing, that is not something they can disregard. Rather, the clause as drafted is intended to recognise, as I have said, that sufficiency of services can be achieved by local authorities only when working with providers and not by local authorities alone.

It was clear in Committee that, in the view of many in this House, the Bill as it stands does not go far enough in relation to poor local authority commissioning practices. We have reconsidered our position and developed our own amendment, Amendment 27, in the light of the concerns raised. This amendment would require local authorities, when commissioning services, to consider the effect of their commissioning decisions on the well-being of the people using those services. Our approach has some significant differences from and, I would argue, three clear advantages over, the approach suggested in Amendments 22 and 25, which seek to prohibit specific commissioning practices and in particular to require homecare visits to last at least 30 minutes. The first advantage is that our approach sends a clear message on the face of the Bill that commissioning services without properly considering the impact on individuals’ well-being is unacceptable. We believe, in the light of the arguments expressed in Committee, that it is important that we are able to send this message on the face of the Bill.

Secondly, our approach also explicitly prevents local authorities making decisions about how they commission services without giving due regard to the impact on individuals’ well-being. This goes a long way towards achieving the objective we all share of tackling poor commissioning practices while maintaining local authorities’ ability to decide the most appropriate approach to commissioning services for the people in their area, and acknowledging that the underlying issues here are cultural and cannot be tackled by legislation alone.

Thirdly, our approach has a singular focus on the outcome that we all want to achieve of promoting individuals’ well-being. Consequently, our approach is holistic of all poor commissioning practices and future-proofed against new practices that could emerge without risking the creation of perverse incentives through taking an overly prescriptive approach. Moreover, our approach is also holistic of commissioning for all types of care and support, not merely focused on one area: that is, not just on personal care.

In contrast, there are three reasons why I cannot support the approach set out in the amendments of the noble Baroness, Lady Meacher. First, it is important to recognise that local authority commissioners do not act in ways that undermine well-being because they want to, but rather because they do not recognise the effects of their decisions or feel unable to commission in other ways. As the president of the Association of Directors of Adult Social Services has argued, we should be careful of assuming that,

“simply by abolishing 15-minute slots a magic wand will have been waved, and improvements automatically achieved”.

It is important to recognise the limitations of legislation in tackling this issue. We have heard during this debate some appalling examples of people having to choose between being fed and being cleaned as a result of homecare visits being commissioned for too short a time. Local authorities that commission such services are palpably failing in their duty to meet people’s needs. That they still commission such services demonstrates the fact that the underlying problems here are cultural and cannot simply be legislated away. Banning specific poor practices will only lead to other poor practices emerging. Instead, I strongly believe that we need to work with authorities to enhance commissioners’ understanding of the effects of their commissioning decisions on individuals’ well-being and of how they can commission more effectively.

My Lords, I agree with the noble Earl that the commissioning policies of some local authorities are called into question. However, are there some issues here regarding the resources they have available? Is the overall reduction in local authority expenditure not also responsible for some of these policies?

My Lords, we certainly know that the reduction in resources has had some effect. However, it is interesting that the feedback from local authority chief executives and directors of adult social services suggests clearly that the detrimental effect on the provision of adult social care is not as dramatic as one might suppose from the drop in local authority budgets. This is partly because of the funding provided by my department to local authorities to make up some of the gap. I would not wish to say that there has been zero effect. We think, from the feedback, that the volume of services has diminished by about 5%. This is 5% too much, in most people’s eyes, but may not be as significant as some have feared.

My second point is that central prescription risks prohibiting practices that may, in some circumstances, be consistent with high-quality care. For example, 15-minute homecare visits could well be appropriate in some situations, for instance for helping people to take medication, which is not a process that takes very long at all. Further, using legislation to ban specific processes may result in perverse incentives arising, without addressing the actual problem. A number of noble Lords made that point.

Thirdly, legislating for a specific period of time for which homecare visits must last risks reinforcing one of the key problems here: inappropriate use of time and task commissioning. Instead, we need to move away from overly prescriptive commissioning practices which focus on—

My Lords, I apologise for intervening, but I want to make clear that there is absolutely no prescription: there is flexibility. It is simply saying that you cannot do a personal care visit of less than 30 minutes.

I do understand that and apologise if I implied anything different. I was seeking to make the point that once you specify a period of time in a Bill it starts to look prescriptive, even if that is not the intent or the effect.

As I was saying, we need to move away from overly prescriptive commissioning practices that focus on price and time-slots, to consider how local authorities can deliver better outcomes and quality care. None the less, there is more that we can and will do to tackle poor commissioning practices. There is a role for regulation. We are therefore proposing an amendment that will make it clear that the CQC may, with approval from both Secretaries of State of DH and DCLG, undertake a special review of local authority commissioning of adult social services in cases of systematic failure. Subsequent to any such review, CQC could issue an improvement notice in the event of a non-substantial failing and recommend special measures to the Secretary of State in the event of substantial failings.

We also intend to issue statutory guidance specifically on local authority commissioning. This will be a valuable opportunity to influence local practice. In particular, we will include in this guidance clear examples of high-quality and poor-quality commissioning practices to support local authorities to develop and improve their own approach.

As well as tabling Amendment 27, we have also, in response to points raised in Committee, tabled Amendment 24, which will require local authorities to consider through their commissioning decisions the importance of fostering a workforce able to deliver high-quality services when shaping local markets. This amendment is, of course, not just about local authority commissioning practices but more widely about how the local authority can work with the market in its area, including with providers from which it does not commission services, to foster a high-quality workforce. This reflects our strong belief that the characteristics of the workforce, including opportunities for learning and skills development, have a direct relationship with the quality of the care that individuals receive. Improving the capability of the workforce through continued skills development and appropriate working conditions is therefore a key component of market shaping.

I therefore fully agree with the intention behind Amendment 151, but I note that the CQC already has powers to take into account standards of employment as part of its inspection of providers. A separate duty on the CQC to undertake periodic assessments of employment standards would duplicate what the commission is already able to do and compel it to undertake assessments of a very specific nature. For that reason, I cannot support Amendment 151, tabled by the noble Lord, Lord Hunt. It is vital that we give the commission the time and freedom to develop its own performance-assessment methodology. In the fullness of time, this may mean that ratings consider employment standards, but this should be a matter for CQC to determine after considering the views of key stakeholders.

I am grateful to the noble Earl for giving way and I imagine that we can debate this more fully when we come to his amendments around CQC independence. However, there is surely a distinction to be drawn between the way that the commission does its work and the overall strategic framework in which it does it. I should have thought that it would be appropriate for Parliament to lay down that it would be right for the CQC to focus on standards in the care sector. Does the noble Earl agree that you can draw a distinction between the framework that is set out in legislation and the way in which the CQC does its work—and I very much support the idea of its independence?

Earl Howe: Yes, I accept that distinction, but Parliament has already vested in the CQC considerable scope to focus on any aspect of a provider it wishes to, which could well include its employment practices. It is not as if, when the CQC moves in on a provider and conducts an inspection, it cannot decide for itself that the employment practices are the mischief that it needs to investigate most closely.

Can I be clear about something arising from what the noble Earl said? I am struggling with whether the CQC can look at these employment practices only as it plods its way around the country, one authority at a time, or whether, if it starts to pick up something—either from looking at one or two authorities or from public reactions—it can commission a generic review or study of commissioning practices across the country. I am not clear what the noble Earl is saying about this—whether the commission has to work its way through authority after authority, or whether it can make a generic review of particular practices.

My Lords, I was distinguishing between providers and commissioners. The CQC can do thematic reviews under, I believe, Section 48 of the Act, but we are talking there about providers. As regards commissioners, we are proposing in a later amendment to give the CQC powers to conduct special reviews where concerns have been raised about a particular local authority or NHS commissioner; there would not be periodic, regular reviews. However, the CQC will be looking at every provider over a period of time. The amendment from the noble Lord, Lord Hunt, specifically addresses the ability of the CQC to examine providers. I was saying earlier that it already has the necessary powers to do detailed work in whatever area it chooses.

I return to the issue of local authority commissioning practices. As I argued, the underlying causes of poor commissioning are cultural, and we need to work with local authorities to tackle these issues. We are therefore undertaking a number of non-legislative activities, including the development in co-operation with ADASS of a set of commissioning standards. These standards will enable individual authorities to gauge their own effectiveness, and will support the LGA and ADASS to drive sector-led improvement.

In addition, we are working with the Towards Excellence in Adult Social Care initiative to support local authorities to seek continuous improvement in their adult social care functions, and in the outcomes achieved. This programme brings together local, regional and national stakeholders, and is focused on providing peer support and interventions by local government to share learning, find new ways of engaging local people, and use knowledge of what works, data and innovation to drive improvement in the quality of services.

I hope that these arguments, and the amendments we have tabled, are sufficient to demonstrate to the House that we understand and agree with the strength of feeling around these issues. For the reasons I have set out, I cannot support the amendments tabled by noble Lords, but I hope that the arguments I have made today will be sufficient for those noble Lords to feel able not to press their amendments. I do not yet know what the noble Baroness, Lady Meacher, intends to do with her amendment, but it may be helpful for noble Lords to know that the Government do not consider that a decision on Amendment 25 is consequential on Amendment 22.

My Lords, I thank the noble Earl for his thoughtful response and also all noble Lords who contributed to this debate. It has been very considered, and the points raised have been very important. These visits can require three hours of work, or one and a half hours—all sorts of different lengths of time. Whatever is decided ultimately must enable those visits needing that length of time to be undertaken in that way. I welcome the amendment of the noble Lord, Lord Hunt, and I am sure that the CQC has an enormously important role to play in this. I wonder whether the Minister would think it appropriate to require a thematic review of this issue to be undertaken by the CQC, bearing in mind the level of concern across the country about what is happening at the moment, which clearly is not acceptable in terms of these very short visits for personal care.

The noble Earl mentioned the 5% reduction in the budget for adult social care. It sounds small, but we all know that the adult social care budget has always been incredibly low—way below what it should be. Priority has never been given to this area of work, so a 5% reduction is pretty serious. There is a lot to be done. The noble Earl referred to guidance, regulations, and so on. I personally would welcome an opportunity to have a discussion with him about how, in the guidance and regulations, it might be possible to ensure that adequate priority is given to this area of work. This is really what we are talking about here.

My amendments are aimed at stimulating the debate. They are also an effort to draw out some commitments from the noble Earl, and to some degree I think we have achieved that objective. I do not know whether the Minister would be willing to have a conversation about what might be included in the guidance and regulations.

My Lords, if it will assist the noble Baroness, I will be very happy to have a conversation with her at a mutually convenient time.

Amendment 22 withdrawn.

Amendment 23 not moved.

Amendment 24

Moved by

24: Clause 5, page 5, line 22, at end insert—

“( ) the importance of fostering a workforce whose members are able to ensure the delivery of high quality services (because, for example, they have relevant skills and appropriate working conditions).”

Amendment 24 agreed.

Amendments 25 and 26 not moved.

Amendment 27

Moved by

27: Clause 5, page 5, line 26, at end insert—

“( ) In arranging for the provision by persons other than it of services for meeting care and support needs, a local authority must have regard to the importance of promoting the well-being of adults in its area with needs for care and support and the well-being of carers in its area.”

Amendment 27 agreed.

Clause 6: Co-operating generally

Amendment 28

Moved by

28: Clause 6, page 6, line 6, at end insert—

“( ) The following are examples of persons with whom a local authority may consider it appropriate to co-operate for the purposes of subsection (2)—

(a) a person who provides services to meet adults’ needs for care and support, services to meet carers’ needs for support or services, facilities or resources of the kind referred to in section 2(1);(b) a person who provides primary medical services, primary dental services, primary ophthalmic services, pharmaceutical services or local pharmaceutical services under the National Health Service Act 2006;(c) a person in whom a hospital in England is vested which is not a health service hospital as defined by that Act;(d) a private registered provider of social housing.”

Amendment 28 agreed.

Amendment 29

Moved by

29: Clause 6, page 6, line 37, at end insert—

“( ) ensuring that consideration of the early and co-ordinated assessment of an adult who may have care and support needs, following discharge from hospital or other acute care setting, is initiated upon admission to that acute care setting.”

My Lords, this amendment concerns discharge plans for people in hospital. I shall start by saying that, in response to my Amendment 87ZA tabled in Committee on this issue, the Minister was understandably reluctant to specify the particular circumstances in which the high-level aims of the general duty to co-operate, as set out in Clause 6(5), should apply. He felt that there should not be an exhaustive list of circumstances, such as discharge plan management, in which the power should be used, and said that he expected authorities and their relevant partners to co-operate when an individual was discharged from acute care under this clause. He asserted that Schedule 3 to the Bill sets out clear steps to ensure the safe discharge of a patient from an acute care setting, and that an assessment for care and support should be made before the patient is discharged, not afterwards. Clause 12(1)(b) already allows for regulations to specify other matters to which the local authority must have regard in carrying out an assessment. Given that this involves setting out procedural detail and related matters, he felt it more appropriate to set out such detail in regulations rather than in the Bill.

While I agree with much of that, my main point regarding the importance of discharge being included as part of admission planning into an acute care setting may have been misunderstood. The subject of discharge should be considered as part of the admission process, long before the actual discharge is instigated. That is the important point here, and I remain firm in my belief that it should be included in the Bill. The most important thing is the idea that discharge planning should be part of the admission process. We have all heard a large number of stories of people who have been discharged inappropriately because everything is decided too late in the day and no one is ready for the discharge. I personally could talk about two or three relatives aged 80 to 90 who have been dumped out of hospital in the middle of the night. Such instances are horrific, but I am afraid that they will continue unless we get this right.

Clause 12 is not relevant here because it refers to a need for a care assessment as being an essential part of the discharge process from an acute setting into either supported home care or longer-term residential care. I want to ensure that it will be facilitated by eventual discharge being part of the admission assessment, which is a very different process that is gone through at a different time by different clinical staff. Including such a duty in Clause 6 would ensure that this happens, so that the eventual discharge stands more of a chance of being successful. The Royal College of Nursing has expressed the view that:

“We are currently seeing far too many people trapped in a ‘revolving door’ between community and hospital services”.

Ensuring a suitable discharge founded on appropriate admission from acute care would, in my view, go a long way to reducing this terrible waste of resources and its associated human misery. I beg to move.

My Lords, I am grateful to the noble Baroness, Lady Greengross, for allowing this debate. This is an important question and I agree that ensuring that an assessment is made around the time of the admission of a patient to a hospital or other acute care setting would help the process of the appropriate discharge of that person when the time comes for them to leave. One has to say that the context in which we are debating this is one in which the health and social care system is under extreme strain. The Minister will know that the accident and emergency performance, and the issue of the four-hour target, is proving to be problematic for a number of trusts, including my own, in September and October. Clearly, if the health service is having difficulties in September or October, in pretty clement weather, it does leave one with some foreboding about what is going to happen later on in the winter.

The Government have injected a certain amount of resource into the system—I think it is £250 million—which is labelled on the tin “to A&E departments”. The Minister will know that the money has not gone to A&E departments; it has tended to go to the clinical commissioning groups. While limited amounts have gone to A&E departments, in the main, this has been dealt with through urgent care boards. My understanding is that in a lot of areas they still have not decided how to spend the resources. This is partly because CCGs seem to be slow to make hard decisions, and partly because some are not spending the money because they say that they have not received it yet. The problem is this: if by the middle of October you still have not spent or committed yourself to those additional resources, it could take another three months. If, for instance, it was a series of care packages or it was extra resource for employing more nurses, it could take an awfully long time from the decision to spend the money to it actually being in place, and then for the money to be spent.

I am really using this as an opportunity to say to the noble Earl, Lord Howe, that there is a real issue at the local level of actually getting all the partners together and to agree the actions that need to be taken to ensure that we do not get the kind of discharge problems that we are seeing.

What is the cause of the issue of A&E performance? There has been some debate about whether it is partly due to the lack of accessibility and primary care. No doubt, there are serious issues involved which would suggest that that is a problem. However, the noble Earl may have seen some work undertaken by Matthew Cooke, who used to be the adviser to the Government on urgent care and was a consultant in my own trust at Heart of England. His work would suggest that the problem is discharge; that there is simply not the capacity in the community or among personal social services departments to provide the support that is required. However much the Government want to beat up A&E departments, unless we can sort out the capacity in the community, these problems will continue.

The noble Baroness’s amendment is really trying to get to the heart of this. She is saying that it is a real problem—not just for older and more vulnerable patients, but it is probably more directed at those patients—if the first time you start to worry about discharge procedures is when they have spent quite a few days in hospital. First, it takes a long time for the system to intervene; and secondly, it may mean that the patient stays in hospital too long. We know all the problems of institutionalisation, when people have greater difficulty in going back to their own home or into low-level community provision as opposed to having to go into care homes.

The noble Earl, Lord Howe, will no doubt say that this is not the stuff of legislation. However, because of the seriousness of the current problems in our health and social care system, it would send a very powerful signal to people working at local level about the absolute importance of starting discharge planning almost as soon as a person comes into A&E, and of the need to have an integrated approach. It would also give a signal to local authorities. At the moment there is a real problem because local authorities often play around with discharges by saying that they are not convinced that a person is ready for discharge. That is simply trying to ration expenditures. A signal to local authorities that that is also unacceptable would be very helpful.

I am glad that the noble Baroness raised this problem. It is a very important issue. I hope that the noble Earl may be able to help us with it.

My Lords, I care passionately about hospital discharges. In 30 years of working with older people and older people’s organisations, we have never managed, under any structure or formulation of the National Health Service, to get right the system of discharging people from hospital. I suspect that the noble Lord, Lord Hunt, is right that the Minister will resist attempts such as that of the noble Baroness, Lady Greengross, to address the issue through legislation.

From my work with voluntary organisations, and some work that I have done over the summer, talking to CCGs, there are two things that could have a direct impact on this. The first is to work with people in the acute sector, to get them to understand that very often voluntary organisations are and can be the answer to managing people’s admission to A&E and their return from hospital. At the moment, many CCGs do not see that voluntary organisations have any role to play in their work. As long as they are of that opinion, frankly, the position is not going to change.

Secondly, there are examples of very good hospital discharge planning. A number of Age UK branches have take-home-and-settle schemes. There is a hospital, I think it is in the Midlands, where a housing association has taken over a ward and turned it into a discharge facility.

My Lords, I am very glad that the noble Baroness has mentioned that. My own trust, the Heart of England, has an agreement with Midland Heart to do that. It shows that you can create capacity. My point is, that was negotiated four or five months ago. It is far too late for clinical commissioning groups to be messing around in mid-October, still pondering how they are going to spend the money. It will be January or February before they are going to be able to spend it.

I did not know it was the noble Lord’s hospital. I met the housing association a couple of months ago. Good examples of integrated systems that work include Torbay. The key is getting that information into CCGs. The sooner we do that, and the sooner they see that they have to be part of an integrated health and social care system, the more likely we are to be able to stop older people being, as the noble Baroness, Lady Greengross, very accurately put it, dumped.

I support the important amendment of the noble Baroness, Lady Greengross. I want to do so by telling a story and then putting a suggestion to the Minister. Like my noble friend Lord Hunt and me, he will have done his time touring hospitals as a Minister. We are usually shown the high points of the hospital’s achievements. Life changes a bit when you cease to be a Minister and you visit your friends and relatives in hospital. On visits to hospitals to see friends and relatives, because I am a nosy sort of person I have always looked to see whether there is a date for discharge on the charts. Some of these discharge dates are great works of fiction. When I have asked nurses about these discharge dates, quite commonly they say that managers have told them they have to have a discharge date—so it is something they have done for internal compliance purposes.

Although the suggestion of the noble Baroness, Lady Greengross, may not be right for the Bill, it is at the very least important for guidance. Planning on admission for discharge is needed. Present arrangements fail to communicate that to the social care world. It is now an internal mechanism for the NHS, not a mechanism designed to get people out of hospital into an appropriate placement as soon as they are ready to go. It would be a good idea to put this in the Bill, but at the very least this issue needs to be covered in some detail in guidance so that the NHS and the social care world are clear beyond peradventure what they are supposed to do when a person comes into hospital. If we went along that path, the world would be a better place and we would deliver some of the objectives of this legislation.

My Lords, I shall be brief since the hour is getting late. This amendment makes a very important point, though it may be better in guidance. One of the problems is that the pinch point is always A&E, and getting patients out is really difficult. At the moment, there is tokenism in planning discharge. It needs to be much more embedded in trying to predict people’s needs and having things in place. Until discharge planning really is part of looking ahead at the aims for the patient we are still going to have backlogs, because we are still going to be waiting for somebody to come in and do something.

My Lords, I should like to thank the noble Baroness, Lady Greengross, for tabling Amendments 29 and 125, on what is undoubtedly an extremely important issue, not just for the system but, most importantly, for the patients themselves. When someone is discharged from an acute care setting, care and support must be joined up to prevent unnecessary delays and readmissions that can be distressing to patients and their families and carers. The noble Lord, Lord Hunt, was absolutely right on increasing pressure on acute trusts, not least in A&E.

There is a mixture of reasons why this is occurring: the weight of patient demand; the acuity of patients who present at A&E, more of whom have to be admitted; workforce issues in some A&E departments; hospital discharge practices that may not be as efficient as they should be; an absence of follow-on care in certain locations or, indeed, adult social care services; and delays in installing home adaptations. One cannot generalise about this problem. One can say only that in many areas it is very real.

I will just correct the noble Lord on one issue: the £250 million that we have allocated to ease the pressures on A&E. Those moneys went to 53 NHS trusts before the end of September. They went to trusts that were most at risk of breaching the A&E standards. They were not chosen by Ministers or the Government. The process was led by NHS England and Monitor, so it was done on a structured and objective basis.

The point is that the chief executive of each of those trusts had to sign, if you like, for the money, but they did not get all the money. Most of the money went to clinical commissioning groups. Some of them are still meeting to discuss how to spend it, which is the worry.

At least we have given them more notice this year than they have had in previous years. Quite often, winter pressure money has been released into the system only around Christmas. We have consciously tried to do it several months earlier. While I acknowledge the truth of what the noble Lord said in certain areas of the country, I hope and believe that by the time the pressure becomes significant, those crucial decisions will have been made.

As the Minister has brought this matter up, I shall ask about the hospitals that got the money. York and Leeds got extra money, but Hull did not. Hull is one of the most deprived and difficult areas in the country. Will he look into it and let me know?

I will happily look into it, because I do not have with me the complete list of trusts and the factors that lay behind the decision that was taken by NHS England. I will certainly write to the noble Baroness about that.

Delivering joined-up, person-centred and co-ordinated care in a way that stops patients falling through the gaps in the system is of key importance to improving their outcomes and experiences. I believe it is incontrovertible that local authorities and relevant partners must co-operate in order to ensure safe and timely transfers of care. Indeed, the Bill already requires that. Clause 6 requires that local authorities and relevant partners co-operate with one another where this is relevant to care and support. Subsection (5) of the clause sets out some key examples of when this duty should be used. There can be no question that this duty would apply also to ensuring safe and timely discharges, and we do not see the need to add further detail to such broadly worded provisions. New guidance on discharge planning and on how local authorities should perform co-operation duties under Clauses 6 and 7 will be issued following the passage of the Bill.

Further, Schedule 3 to the Bill sets out a process around ensuring the safe and timely discharge of acute hospital patients. This not only requires the local authority, following notification from the responsible NHS body, to assess a patient who it appears may have a need for care and support before they are discharged but requires the authority to have the necessary care and support package in place before discharge takes place. The duties to co-operate apply to that process as well. In fact, to come back to the point that the noble Lord, Lord Warner, raised about guidance, the current discharge guidance, Ready to Go, makes it clear that discharge planning should start before or on a patient’s admission to hospital. We know that that does not always happen, but it is best practice, and has been best practice for some considerable time.

Amendment 125 would allow the Government to specify what the authority and its partners must have regard to when performing that assessment. Surely this is right. I reassure the noble Baroness that, as the assessment required to be carried out by this schedule is the same as the one in Clause 9, we already have this power in Clause 12(1)(b) of the Bill, which allows for regulations to,

“specify other matters to which the local authority must have regard in carrying out the assessment”,

and in Clause 12(6) which allows for an assessment to be carried out jointly.

I hope that I have reassured the noble Baroness that the Bill already requires local authorities and “relevant partners” to co-operate in the safe and timely discharge of patients and contains sufficient provisions to make such regulations and to issue guidance on this matter. With those reassurances, I hope the noble Baroness will be able to withdraw her amendment.

My Lords, I thank the noble Earl for his reassurance. The noble Baroness, Lady Barker, and I worked together for many years and she is desperate as I am to get this right because it has never yet been achieved. The stories are horrific about poor hospital discharges that have not been adequately planned from the time of somebody’s admission into an acute hospital. We really have to get this right now if we are to be in any way a civilised society.

I thank the noble Earl because he obviously has the same commitment as do many other noble Lords to whom I am very grateful for supporting this amendment. If the regulations are firm enough and closely followed, perhaps this time we will get it right. I hope so, and thank the noble Earl very much for his attention and interest in this matter, which is of very great importance to many of us. I also thank all noble Lords who have supported me.

Amendment 29 withdrawn.

Amendment 30 not moved.

Amendment 31

Moved by

31: Clause 6, page 6, line 44, at end insert—

“( ) the Minister of the Crown exercising functions in relation to social security, employment and training, so far as those functions are exercisable in relation to England;”

Amendment 31 agreed.

House adjourned at 9.57 pm.