House of Lords
Wednesday, 9 October 2013.
Prayers—read by the Lord Bishop of Oxford.
Introduction: Lord Mendelsohn
Jonathan Neil Mendelsohn, Esquire, having been created Baron Mendelsohn, of Finchley in the London Borough of Barnet, was introduced and took the oath, supported by Lord Levy and Lord Janner of Braunstone, and signed an undertaking to abide by the Code of Conduct.
NHS: Health and Social Care Act 2012
To ask Her Majesty’s Government what assessment they have made of the cost to clinical commissioning groups and other parts of the National Health Service of tendering and legal fees in the commissioning of services under Part 3 of the Health and Social Care Act 2012.
My Lords, Part 3 of the Act does not change the requirements on clinical commissioning groups when they tender health services. The rules are the same as under the Public Contract Regulations 2006, introduced by the previous Administration, and as set out in the rules for commissioners.
My Lords, the noble Earl will recollect our debates on the Health and Social Care Act 2012, when repeated assurances were made by Ministers that clinical commissioning groups would not be forced to tender out services. However, all the evidence to NHS England and the advice which clinical commissioning groups are getting from their lawyers suggests that under Section 75 of the Act, they have to do so. Does the noble Earl agree that that is an awful waste of money and effort, and that all it is doing is fragmenting services?
My Lords, commissioners do not have to use competitive tendering for all services. First, acute elective care—which represents the vast majority of NHS services—is not secured through competitive tendering at all, and that will continue to be the case. Secondly, a single-tender action may be justified on the basis that there is only one provider able to meet the clinical quality and safety standards that the commissioner requires. There will be guidance coming out on that, and draft guidance has already been published. Any confusion that exists among commissioners should be clarified by that means.
My Lords, would it be fair to say that the noble Earl is somewhat between Scylla and Charybdis on this issue? On the one hand tendering is certainly more expensive but, on the other, if tendering does not take place, is there not a real risk that services will be offered at the price that the market will bear rather than the one that it really costs the health service? The health service has not always managed to cost out its treatments effectively.
The noble Lord makes a good point. There is, I think, a desire on everybody’s part not to see competition result in a race to the bottom on price. That is why we have specified that commissioners must make clear what standards they expect and apply those consistently to whoever is tendering for the service in question at a price which reflects a fair value. We believe that the current rules protect the NHS but also protect those bidding. I emphasise that competition will not be pursued as an end in itself; it will be pursued as a means to drive up quality.
My Lords, it is quite clear that there are certain kinds of services that benefit from being grouped together and provided by large providers who can do so economically but to a high quality. However, there are other services that are better provided locally by people who know the circumstances and are often working in relatively small charitable bodies; for example, in the mental health sector. It is very difficult for these to tender in the way that larger companies can. Can my noble friend give me some reassurance that the Government recognise this dilemma and are trying to find ways in which smaller, local, charitable providers in certain areas can be protected, facilitated or encouraged, so that we are not simply taken over by larger corporations, which may not be in the best interests of patients?
My noble friend makes an important point. I think that it is common to all sides of the House that charities and social enterprises play an important part in providing NHS care. They have done so for many years, and give patients more choice of where and how they are treated. We have a set of rules which, at least in theory, should protect those groups of providers. If a commissioner fails to take account of providers who are capable of providing a service and simply, for example, rolls over an existing contract, then it is open to the provider in question to complain to Monitor, which will be the adjudicator of any anti-competitive conduct.
My Lords, with reference to the last question, would it be possible to give voluntary and charitable groups that wish to provide services in some kind of consortia financial help and encouragement in order to help them form those consortia? These do not just happen because people want them; they need time and effort to be formed.
My Lords, that has already happened to an extent, not least under the previous Government, who made sure that the nascent social enterprises that were formed out of transforming community services were set up on a sustainable basis. However, we have built into the 2012 Act a provision which prevents active discrimination in favour of one sector or another, so government help specifically for a particular sector is, I am afraid, not legally possible.
Is the noble Earl satisfied that the commissioning processes under NHS England relating to the commissioning of highly specialised services will take full account of the important necessity of concentrating these highly specialised services in a smaller number of major centres? Is he also satisfied that the interests of the Rare Disease Consortium under the Rare Diseases Advisory Group of NHS England will be fully recognised in the processes to which he is referring?
Surely my noble friend can confirm that, broadly speaking, the tendering processes under the Act have gone well and are broadly within budget. Although there are various dimensions to the tendering process as raised by my noble friend from the Liberal Democrat Benches, nevertheless, in broad terms, we are well satisfied with the way that it has gone. If there are differences and small amendments are necessary, will my noble friend confirm that those will be looked at speedily?
Licensing Act 2003
My Lords, the Government have rebalanced the Licensing Act 2003 to give local communities stronger powers to achieve the Act’s objectives, including reducing crime and disorder. For example, licensing authorities can now raise a contribution from premises that supply alcohol late at night towards the costs of policing and wider action. Newcastle is scheduled to be the first area to introduce a late-night levy, as it is called, on 1 November.
My Lords, I thank the Minister; that was a more encouraging reply than I had expected. I am glad that the scenario that he describes is likely to cover all of England. The dossiers that have been compiled on matters that concerned both Houses of Parliament in 2003 are very surprising. It was a major concern of the two Houses that there would be proper protection for residents in areas where they might find their peace damaged as a result of late-night licences. In my area the offences have been quite extraordinary. If, when I spoke during the Bill’s passage, I had thought that there would be behaviour of this kind between midnight and 3 o’clock in the morning in my area in south London, I would have been much more active about it. Is there is a way to protect older and vulnerable people from the disorder that comes from late-night drinking, particularly after people come out of venues? People who live in almshouses near me tell me that their lives have been made quite impossible.
There may be particularly vulnerable people, of course, and old people are among them. One of the things that we have done with the existing licensing laws is to rebalance the Licensing Act so that there is a vicinity test; as long as evidence exists within a local community concerning the disruption that can be caused by late-night drinking, it is able to submit this to the licensing authorities. I can give the noble Viscount more encouragement: Milton Keynes has also voted in favour of a late-night levy, which is likely to come in next year. The Anti-social Behaviour, Crime and Policing Bill will also encourage the noble Viscount it is making its way through the Commons and will shortly arrive here, and will greatly empower communities in this regard.
My Lords, the Government’s alcohol strategy puts the cost of alcohol harm to the economy as a whole at £21 billion. That includes £3.5 billion for the health service, where overstressed A&E departments, for example, have to cope with an influx of people after midnight who have drunk far too much. Has my noble friend any estimate of the benefits, in terms of reduced costs, of the Government repealing the 2003 Act altogether?
My Lords, I acknowledge that the Government have made some changes. However, is the noble Lord content that the rebalancing has moved sufficiently? Many people believe that it has not. During the debates in the Commons on the Bill to which he has just referred, there have been attempts to extend the way in which licensing authorities can take into account public health issues. Given the Government’s commitment to devolution on public health issues, why will they not move on this front, in the way that the Scottish Government are now moving?
The noble Lord has taken a great interest in this subject. I have always valued his contributions and look forward to his contribution to the debates we are likely to have on this Bill. I am sure that these arguments will be presented when we have the opportunity. Meanwhile, I am grateful for his acknowledgment of the progress that the Government have made in this difficult area.
Will my noble friend continue to liaise with the Department of Health to ensure that we reduce the number of people admitted to A&E departments who are clearly the worse for drink—often as a deliberate ploy, having had what they regard as a good night out? If we could tackle it from that end, perhaps we could help to move the culture change on even further.
Noble Lords will know that there have been a number of ideas on this issue. Chief Constable Adrian Lee from Northamptonshire suggested the idea of drunk tanks, which I had to read about to understand. This has generated some public debate; it is the sort of thing which clearly the Government will look at, because anything that can relieve the burden on hospitals must be a good thing.
My Lords, I declare my usual interest. Is the Minister aware of the excellent project in Ipswich, Suffolk, that has been going on over the past year? On a voluntary basis, retailers, major supermarkets and off-licences, working with police and others, have withdrawn the sale of the strongest canned and bottled beers and lagers. On that voluntary basis, it seems to have had a beneficial effect on the quality of life for people, particularly in the centre of Ipswich, and has reduced anti-social behaviour. Does the Minister agree that this should be encouraged in other city centres?
Yes, I would certainly vouch for that. There has been a lot of co-operation from the retail trade. I met representatives of the Association of Convenience Stores at the Conservative party conference, where they had a meeting. They are very supportive of retail initiatives of this sort. This morning I met Richard Antcliff, the chief anti-social behaviour officer in Nottinghamshire, and I went to Nottingham to see the work being done in that city to reduce alcohol abuse. Communities can do an awful lot on this issue and the Home Office would encourage any such initiatives.
My Lords, following on from the last question, does the noble Lord not agree that although there are obviously deficiencies in the way that the 2003 Act has operated, which give rise to some of these difficulties, one of the main problems is the enormously wide availability of alcohol at very low prices? Do the Government have any plans at the moment to address that?
Licensing of alcohol in retail outlets is, of course, in the hands of licensing authorities, but the pricing has been challenged—and, indeed, I have been challenged by noble Lords in this House on this issue. The Government have announced the policy on this; there will be a policy whereby drink cannot be sold at cost plus duty plus VAT, which in effect puts a floor on cheap sales of alcohol. I think that that should be encouraged.
Housing: Under-Occupancy Charge
My Lords, there are no plans to suspend the removal of the spare-room subsidy policy. A formal evaluation of the policy is being carried out; this has already commenced and will be conducted over the next two years. To support people transitioned to this reform, we have more than trebled the discretionary housing payment fund to assist those facing extreme difficulties.
My Lords, two-thirds of the families affected are disabled—fact. Half of those in a recent sample are already in arrears—fact. Most local authorities are limiting discretionary payments to three months only—fact. Furthermore, there are no smaller properties to move to—fact. So disabled families cannot work, pay, obtain financial support or move. When will the Government have the guts to admit that their policy is impossible as well as cruel and follow our commitment to repeal it?
My Lords, there were a lot of issues buried there. I will just point out that, when you look at the disabled figures, and if you look at the people on DLA, which is an independent measure, the figure comes down to 27% of the total. For those with the higher rate of DLA, it is 17%. I also remind the Opposition that this is a substantial saving measure. Some £500 million has to be found, and there is a degree of cynicism about whether you can find that through closing tax loopholes. I also ask the Opposition a question—
Will my noble friend explain why the Opposition are so opposed to the changes that are being proposed on the subsidy, when it will undoubtedly help people suffering from chronic overcrowding in social housing and will help young people who find it impossible to get single accommodation? Will not the effect of removing the subsidy be to correct the market failure in social housing?
My Lords, my noble friend is absolutely right. I have talked before about the 250,000 people living in overcrowded accommodation, with 1.8 million people on the waiting list. But the economic signals going on in the social rented sector are very odd. The demand from single people and couples represents each year 61%, for the latest year we have—and it has not changed much. The number of homes provided that have single bedrooms comes to only 13%. Over the past decade, the social rented sector has built virtually no new single bedrooms, at 30,000; that compares with the private rented sector, which has produced in that period 280,000. There is a real economic mismatch going on in terms of what we are encouraging the social rented sector to build, and we need to make sure that we are building the type of accommodation that people in this country actually need.
My Lords, the Minister is paying no attention to the effects on the people involved. Has he seen the report in the Daily Record, which says:
“The Tory minister in charge of the bedroom tax has told Scots with motor neurone disease to take in a lodger or have their benefits cut.”?
Will he apologise for this insensitivity and rethink this measure, that being just one of its many iniquities?
My Lords, I have not, of course, made any specific recommendations to people. Let me just go through the point. We are monitoring this change very closely. It is in its early stages as people start to adjust. We have put in a lot of discretionary housing payments; the total is £180 million this year. The early returns—and I stress they are early returns—show that local authorities are either managing those well or are underspending at this particular time.
My Lords, does the Minister accept that last week the courts ruled that a woman with multiple sclerosis was entitled to have a bedroom separate from her husband because otherwise her human rights were breached? The courts have now ruled that disabled children and disabled adults can have their own rooms. These savings are vanishing before our eyes, and there are no rooms for people to move into because there are no smaller properties. Do the Government accept that the National Housing Federation has described this policy on its six-month anniversary as being a “cruel failure”? Is that not right, and will the Government not change their mind now?
First, I congratulate the noble Baroness on moving to her new position. I look forward to many constructive exchanges with her, although perhaps not this one. We are currently moving to ensure that disabled children who need spare rooms will have them, and regulations on that are going through consultation. In the case of disabled adults where there was a judicial review, the judges decided that the policy was appropriate and did not breach any equalities duty.
International Day of the Girl
My Lords, the UK Government place a high priority on girls’ education. In 2012-13 UK aid supported 2.8 million girls in primary education and helped 270,000 to go to lower secondary school. In addition, the UK’s flagship Girls’ Education Challenge will help a further 1 million of the world’s most marginalised girls to receive an education.
I thank my noble friend for the informative Answer. However, she will be aware that 67% of illiterate people in the world are women and girls. Many have been denied access to education due to forced child marriage. This is a violation of girls’ basic rights and can lead to terrible consequences, such as death in childbirth. What is being done to ensure that Governments, particularly those in the Commonwealth and those in receipt of aid, are working to eliminate this appalling practice?
My noble friend is right in what she says about child marriage. It is of course a reflection of the low status of women and girls, which is why investing in education and the long-term cultural changes that result from it is so important. Evidence shows that education may be the single most important factor in reducing child marriage. We address this explicitly, for example in our programme in Ethiopia, and we have other programmes in development in the DRC, Yemen and Zambia, because we recognise the importance of this issue.
Will the Minister tell us what measures are being taken in this country to make sure that girls under 16 are not removed from school and sent abroad during the summer vacation for arranged or forced marriages? Will there be check-ups on girls to see who has not returned to school in the autumn term after such a practice?
The noble Baroness is right to highlight this issue. This is something that has come increasingly to our attention. There have been programmes of engagement with schools—she may know of the one in Bristol—and there is engagement elsewhere. Teachers have been asked to look out for girls who travel in the holidays and may not return, because it is extremely important that this issue is tackled.
My Lords, perhaps the House would consider it appropriate to congratulate Malala on her extraordinary contribution to this debate. I would be grateful if my noble friend could update the House on the Girls’ Education Challenge, which is designed to help up to 1 million of the world’s poorest girls access education.
I echo the support for Malala. Friday is the International Day of the Girl Child. That is the day when the Nobel prize in question may be announced. Of course, many of us hope that Malala’s contribution will be recognised. She has been extremely brave in maintaining her position, and has done so very eloquently. My noble friend mentioned the Girls’ Education Challenge. In the United Kingdom we have the world’s largest global fund dedicated to girls’ education, which will reach more than 1 million girls in the world’s poorest countries. That is extremely welcome and shows that we recognise the importance of investing in girls’ education.
My Lords, the noble Baroness will accept that no one will have been unmoved by Malala’s address to the UN. Malala talked about the fact that she was not the only young girl who lacked education or who was campaigning for education. How far is the noble Baroness’s department working to ensure that Malala’s and other girls’ dreams are realised, particularly in Afghanistan? Is her department supporting two of the girls who were attacked at the same time as Malala Yousafzai?
Malala has, indeed, emphasised that there are many others in her situation. It is those girls whom we wish to help. The noble Baroness will be well aware of the investment by DfID in both Pakistan and Afghanistan, particularly in education and especially in girls’ education. Often in poor families it is the sons who are sent to school first, if anyone is sent at all. One of the areas that DfID has been working on is ensuring that girls, too, go to school; that there are bursaries; that girls are safe in school and on their way to school; and that their education is then supported.
I pay tribute to my noble friend Lord Loomba for his work in this area. He will know that DfID works particularly in fragile states where girls are most likely to be in marginal communities. Those countries are very much recipients of our assistance.
My Lords, is the noble Baroness aware that in England, as well as elsewhere in the world, girl pupils are not choosing science and mathematics for further studies? This is a new turn, and what is extraordinary is that it is usually girls from minority communities who prefer these options. Is there something about attitudes in the classroom and of those teaching science and mathematics that discourages girls?
We are very much encouraging girls to go into the so-called STEM subjects. It is extremely important both for them and for the future of the country that those subjects are supported. If there is a particular problem in terms of particular groups not heading in that direction, I will look into that and get back to the noble Baroness.
Private Notice Question
My Lords, the Somerset pilot cull concluded on 6 October and current indications are that the pilots have been safe, effective and humane in delivering a reduction in the badger population of just under 60%. Natural England is considering an application from Somerset for a short extension of the culling period, as provided for under the agreement with the company there. In doing so, Natural England will take into account the practicalities on the ground. It expects to make a decision later this week.
My Lords, I declare my interest as a resident of the cull area, where the excellent police force is hugely overstretched as a consequence of the cull. The House will be aware that the Government have been unable to see the wood for the trees on this issue, ignoring their own scientific advice that a cull would be both costly and ineffective in tackling bovine TB, and I dispute the Minister’s statistics. As we now have new evidence that this ill thought-through policy is not working, does the Minister agree that extending the cull will only compound the Government’s error of judgment?
The purpose of the cull trials was to establish that this could be undertaken safely, humanely and effectively. The judgment on these will be made by an independent panel but our initial view is that they have been met. The contractors have worked under difficult conditions and considerable provocation and have been scrupulous in their attention to safety, which is the absolute number one priority. A figure of 60% is a significant achievement and the Chief Veterinary Officer endorses that this will lead to a reduction in the disease in cattle.
My Lords, this cull went ahead against the balance of advice from the scientific community, in particular that such a limited experiment was unlikely to yield much in the way of useful information. Does the Minister agree with me, however, that we have indeed learnt something important? We have learnt that those responsible for this so-called experiment are so incompetent that they could not even make a reliable estimate of the number of badgers.
My Lords, I simply cannot agree. I repeat what I said in answer to a similar question earlier this year. The report following the visit to the United Kingdom by the European Commission’s bovine tuberculosis subgroup in March 2012 stated:
“It is however of utmost importance that there is a political consensus and commitment to long-term strategies to combat TB in badgers as well as in cattle ... There is no scientific evidence to demonstrate that badger vaccination will reduce the incidence of TB in cattle. However there is considerable evidence to support the removal of badgers in order to improve the TB status of both badgers and cattle”.
My Lords, is it not very early days to be saying that this experiment is not working? The trial has only just begun. Surely we have to wait until some time after the cull has ended to see whether the incidence of TB in cattle has dropped. At that stage, will the Government also look at other forms of wildlife and see whether there is a recovery in the numbers of hedgehogs and ground-nesting birds which have been ravaged by badgers in the past?
My noble friend makes an important point. As I said in answer to the noble Baroness, Lady Royall, these judgments will be made by an independent panel. However, as I also said, our initial view is that so far the humaneness, safety and effectiveness tests have been met. I am grateful to my noble friend for his suggestions.
My Lords, the Minister said that the culls can be regarded as a success because they have met the criteria of being “safe, humane and effective”, but they have not been effective. The pilot culls have now failed one of those three in that they were set up within six weeks to meet the legal licensing target. What evidence do the Government have that any extension of the cull could increase TB infection, which would add weight to the calls to abandon these pilot culls?
No, my Lords, I am aware of no such evidence. Indeed, as I said just now, the Chief Veterinary Officer endorses that what has happened so far will lead to a reduction in the disease in cattle, and that any more we can do will further contribute to a reduction.
My Lords, I accept that badger-borne bovine TB is the despair of the agricultural industry, but has the ministry ever made any calculation of how much bovine TB is non badger-borne? If it has not, how can it possibly indulge in detailed experiments, including culling, unless this information is to hand?
My Lords, does not the Minister have to reflect on the point raised by the noble Lord, Lord May? We were told by the experts that there were 2,700 badgers in the area concerned, and we are now told that the experts think there were actually fewer than 1,400. If the experts who supported the policy got the numbers so wrong in the first place, does that not undermine public confidence in the policy as a whole?
I do not think that it should. Our policy is evidence-based and we have taken every opportunity to acquire the latest and most up-to-date information from the pilot areas to refine the estimate of the badger population. All wildlife population estimates have uncertainty around them. Appropriate steps were taken to audit the process, including data checks and independent audits of these figures.
My Lords, does my noble friend recognise the vulnerability of deer in deer parks? Does he agree that they have to be looked at separately from the way that you look at cattle that succumb to TB? You cannot lock up deer from a deer park in a shed and humanely shoot them; they have to be slaughtered by high-powered rifles. What is my noble friend doing about the situation regarding the vulnerability to TB of deer in deer parks?
My noble friend asks a specific question and I will, if I may, take it away to consider the point about deer in parks. As regards the suggestion that deer may be a reservoir of TB in wildlife as well, we have established that badgers are a particularly good—if I may use that word—host for TB. They are the part of wildlife on which we really have to focus.
My Lords, will the Minister confirm that there is general scientific agreement that the badgers that are left after a cull have a greater propensity to carry over and pass on TB to cattle and that it is a fine balance between the numbers killed and those that survive? Is he aware that there is deep concern that the figures we are provided with are not robust and that the result may be an increase in TB, not a decrease?
My Lords, with the greatest of respect, I do not think that the noble Lord’s proposition is correct. The randomised badger-culling trials showed something quite different, which was that above a certain percentage of badgers culled—indeed, the first-year trials in the randomised badger culls were in the 30s of per cent—there was nevertheless a significant effect on the incidence of TB in cattle.
Cohabitation Rights Bill [HL]
A Bill to make provision for certain protections for people who live together as a couple or who have lived together as a couple, and to make provision about the property of deceased persons who are survived by a cohabitant, and for connected purposes.
The Bill was introduced by Lord Marks of Henley-on-Thames, read a first time and ordered to be printed.
Care Bill [HL]
Report (1st Day)
Clause 1: Promoting individual well-being
1: Clause 1, page 1, line 4, at end insert—
“( ) The Secretary of State in making regulations or issuing guidance under this Part must have regard to the general duty of local authorities, in exercising a function under this Part in the case of an individual, to promote that individual’s well-being.”
My Lords, as this is the start of Report, I declare my interests as chair of an NHS Foundation Trust, a consultant and trainer with Cumberlege Connections, and president of GS1 UK.
I am sure that the House would wish me to congratulate the noble Baroness, Lady Jolly, on her appointment to the Government and to the health team as a government Whip, and to thank the noble Baroness, Lady Northover, for her services.
The Bill places a responsibility on local authorities to promote well-being in the way in which they implement the provisions of the Bill locally. However, if the Secretary of State were to issue regulations without regard to the promotion of well-being, there is a risk that such regulations—or indeed guidance—could conflict with that well-being principle. That would put local authorities in an impossible position. This matter was the subject of considerable discussion and report by the joint scrutiny committee and we also discussed it in Committee. The Government have now responded to the points put by many noble Lords and I welcome the amendment moved by the noble Earl, Lord Howe. I also welcome Amendment 4, in the name of the noble Baroness, Lady Barker. I beg to move.
My Lords, I have added my name to the amendment in the name of the noble Baroness, Lady Barker, to add the words “and spiritual wellbeing”. This is an amendment that has been resisted in the past by my noble friend the Minister and I am somewhat confused as to why that should be. In 2002, the National Health Service was more than happy to add spiritual well-being as one of the conditions that should be applied to care that was given. I do not understand what has changed since. Has the NHS come to regret having these words in its remit? Does it find that spiritual wellbeing does not fit within the National Health Service today? Are people of faith who find that having an NHS that regards their spiritual well-being as important somehow more difficult to handle than atheists and people who have no faith at all? I should have almost thought that the reverse is true. When we come to what is euphemistically called end-of-life care, I should have thought that people of faith have something to look forward to, rather than atheists who, if they follow Richard Dawkins, are faced with a great black hole of oblivion. They might find that the end of life is rather more forbidding than do those who have faith.
I am very confused, therefore, as to why the Government find it necessary to resist this very minor and rather innocent amendment. It seems to merely add comfort to people of faith of all religions and could be inserted into this Bill without causing the Government any difficulty whatever.
My Lords, I support what my noble friend has just said. I have to say to the Minister that this amendment is rather necessary because there is a generalised belief that forces in our society are determined to marginalise that which has actually made our society and has had such an influence on the provision of healthcare for our people. The history of healthcare in Britain shows that it was fundamentally founded by those of faith. That does not say anything about anyone else, but it does say that if we want holistic medicine—I am not a great believer in anything other than orthodox medicine, so I am not encouraging all kinds of what I consider to be alternatives, which are best left alone—we have to understand that it is about the whole person, and for many people this is a most important part of the whole person. For this not to be in the Bill will be seen by many as another example of society specifically seeking to marginalise an important section of our community on whom we depend widely for many of our voluntary activities, and certainly on whom we have depended and do depend for our health services. I hope very much that the Minister will take this point seriously.
My Lords, I would like very briefly to support what my two noble friends have just said. Surely this is not the Government conceding to a secular society and surely they recognise that for many sick people, the spiritual dimension is extremely important. It is not a question merely of healing physical ills and curing physical diseases, it is a question of recognising that many people, particularly as they near the end of their lives, have a great need to fall back upon their faith, and that should be recognised and encouraged. For the life of me, I cannot see what the Government are doing here and I hope that my noble friend will be able to give us a satisfactory answer. I am only sorry that the Bishops’ Benches appear to be empty this afternoon because one would have liked to have heard a contribution from them.
My Lords, as someone who remains a Bishop, on behalf of my old friends on the other side of the Chamber, I would like to support this amendment. As the Bishop of Oxford, I remember visiting one of the brand new universities, which thought of itself in very secular terms. Nevertheless, the university was adamant that it should have a chaplain because it believed in whole-person care, and an essential element of whole-person care was the spiritual dimension. We need to take that into account.
We also need to take into account the fact that we now live in a multifaith society, and for those of some religions in particular, it is very important that they have someone with religious authority in contact with them in the final stages of their life. There are good reasons for supporting this amendment.
My Lords, I apologise for not being in my place for the start of this debate. As noble Lords will know, on these occasions such amendments are often tabled by myself and the noble Lord, Lord Hunt of Kings Heath. We do so because we support the right of Christian Scientists to have their beliefs respected, in particular their right to refuse treatment. That said, when we discussed this matter in Committee, while at that point the Minister was as sympathetic as always, he failed to draw a distinction that is important to people of faith, which is that between the use of the words “emotional” and “spiritual”. People of faith believe that matters which are spiritual are of a different order from those matters which are emotional. I have a degree of sympathy with their view. However, I also have a degree of sympathy with the Minister, who does not wish to put things into legislation that are unnecessary. I hope that he will, in this case, perhaps be a bit more sympathetic to the arguments that are being put forward.
The noble and right reverend Lord, Lord Harries of Pentregarth, is right that as a society not only are we becoming much more diverse, but in our everyday life we understand the importance of faith and spiritual matters to other people. For example, we would not for a moment think it acceptable to present somebody with a diet that was not reflective of their cultural and religious beliefs. In our modern day health and social care services we are increasingly adept at recognising people’s differences and accommodating them. All told, this is a small amendment which costs nothing but means an awful lot. I hope that the Government will be able to take it on.
My Lords, as the chairman of the All-Party Group on Humanism, I am not sure that I should actually be following the previous speakers. However, Amendment 5 in this group is in my name and I want to be nice to the Minister instead of telling him off. The Minister has listened to the concerns that we expressed in Committee about applying the requirement to pursue the obligation on local authorities in Clause 1 to the Secretary of State in his actions, particularly regulations and guidance, to promote well-being.
I congratulate the Minister on listening to those concerns and tabling government Amendment 138, which effectively meets the concerns that we have. I suspect that my co-signatories, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Greengross, would say that the Minister’s amendment may not be quite as elegant as ours, but we are not going to have a competition about aesthetics; he has met the point and I thank him very much for what he has done.
I warmly support that. I am happy with the parliamentary counsel’s draft, which is what the Government are going to move, and we have to understand that some lawyers are better than others at making drafts.
So far as the amendment of the noble Baroness, Lady Barker, is concerned, I hope that the Government will pay considerable attention to what has been said about it.
My Lords, I rise briefly to speak to government Amendment 2 on dignity and respect. I know that it was implicit in the well-being clause in the earlier versions of the Bill that we looked at, but I am very pleased that the need to ensure that all people are treated with dignity and respect has been brought out so explicitly. These are words that the man and woman in the street really understand; they get to the heart of some of the concerns about the type of social care that has sometimes been provided, which has fallen well below those standards, and caused some of the scare stories that we have heard so much about recently.
The noble Lord, Lord Bichard, and I raised this issue in Committee, but as he is unavoidably unable to be in his place today, I thank the noble Earl, Lord Howe, on behalf of both of us, for listening and for bringing this amendment forward.
My Lords, I am grateful to all noble Lords who have spoken and for the opportunity to discuss once again this important new well-being principle set out in Clause 1. The amendments in this group cover three important issues. The first of these relates to the application of the duty to promote well-being to the Secretary of State. In Committee we debated the link between the role of the Secretary of State and the duty of local authorities to promote the well-being of individuals. There was clear strength of feeling in the Committee that the Bill should make explicit reference to the Secretary of State having regard to the duty on the local authority to consider the well-being of the individual. An amendment in this regard is not essential because the local authority well-being duty is in any event a relevant factor for the Secretary of State to take into account when issuing guidance or regulations. However, I do recognise the strength of feeling and I am happy to clarify the position.
In response to the concerns, I have tabled Amendment 138, which explicitly requires the Secretary of State to have regard to the local authority well-being duty when issuing regulations and guidance. This achieves, I hope, the same ends as intended by the amendments tabled by the noble Lords, Lord Hunt and Lord Warner, and I trust that they will support the government amendment.
The second issue relates to the focus on dignity, to which my noble friend has just referred. In Committee, noble Lords expressed concern that personal dignity was not adequately reflected in the well-being principle, in spite of the change that the Government made to this effect following consultation on the draft care and support Bill. Let there be no doubt that the Government place the utmost importance on dignity and respect in care. These factors must be central to the well-being principle. In order to ensure that dignity is given due prominence in primary legislation, I am pleased to have been able to table Amendments 2 and 3, which give greater emphasis to personal dignity and respect as components of well-being.
The third issue in this group relates to another constituent part of individual well-being: spiritual well-being. My noble friend Lady Barker’s Amendment 4 would include an explicit reference to spiritual well-being in Clause 1(2). We debated a similar amendment in Committee. I said then, and I emphasise now, that the Government recognise the importance of spiritual well-being as a concept and understand the particular significance that it can have for some people, especially at the end of their life. We would absolutely not want an approach that excluded spiritual well-being from consideration where that was clearly of consequence to the individual concerned.
However, it is important to understand that that is not the approach which the Bill sets out. The factors included in Clause 1(2) contain high-level matters which should be interpreted broadly to fit the individual case. Spiritual well-being should be considered where it is relevant to the person’s overall well-being. Moreover, spiritual well-being is likely to be closely related to other matters, such as emotional well-being, which are listed in the clause.
In addition, local authorities must also consider the person’s views, wishes and feelings, as set out in Clause 1(3)(b). This provides a further clear direction to local authorities to have regard to personal matters, which could well include beliefs or other views that would promote an individual’s spiritual well-being. Although it is not explicitly mentioned, spiritual well-being is nevertheless accounted for.
I hope that I have reassured in particular my noble friends Lord Hamilton, Lord Deben and Lord Cormack, and indeed the noble and right reverend Lord, Lord Harries of Pentregarth—
Will my noble friend explain why the NHS has actually changed its policy on this? In 2002, new Department of Health guidance on NHS chaplaincy said that all NHS trusts should make provision for the spiritual needs of all patients and staff from all faith communities. It strikes me that the NHS is now rowing back on a previous commitment.
First, we are not dealing with the NHS; we are dealing with local authorities and adult social care. Secondly, the NHS has not rowed back on this. We have debated hospital chaplains on many occasions and I have made very clear the Government’s view that hospital chaplains perform an important role in the spiritual context. So on the NHS front, I want to reassure my noble friend that here we are dealing with local authorities and adult social care. I was trying to explain that the way in which this Bill is framed is perhaps different from how my noble friend has construed it.
If it does not make any difference to add this to the Bill, why cannot the Government accept that many people would feel much reassured by its addition?
I have been in my noble friend’s position—and he knows with how much respect I view him—and I cannot remember an occasion when I have said, “This does not make any difference” that it did not quite mean that. What worries me here is that it does not quite mean that. I should be much happier if he would please look again at this, because it is a matter which does concern people. If it makes no difference, surely we can do these things in order that people should not be concerned? Their not being concerned would make a difference.
I can do no other than to look at this again, but I want to reassure my noble friends that their concerns are groundless because of the way that this clause has deliberately been framed. It is framed in terms of high-level principles. It is not designed to exclude any form of well-being whatever. It is designed to look at the person holistically and to ensure that no aspect of well-being is overlooked. I shall of course have a fresh look at this question, but I ask my noble friends, and the noble and right reverend Lord, Lord Harries of Pentregarth, to understand that this clause has been framed in a particular way quite deliberately, not to exclude any form of well-being but to encapsulate all forms of well-being.
In other words, the provisions allow consideration of this and indeed many other matters where relevant. I hope that with these assurances the noble Lord will feel able to withdraw his amendment, and indeed to support the amendments which I have tabled.
The noble Baroness, Lady Barker, will respond to the point in relation to Amendment 4. Part of the confusion arises because the Department of Health seems to equate spiritual well-being with emotional well-being. I do not think that that would be generally held to be appropriate. Whether you have a faith or none, it does seem to me that by classifying spiritual belief within emotional well-being, the department has fallen into a pit of its own digging. I hope the noble Earl will indeed go back, and I assume that means this could be debated at Third Reading. Clearly noble Lords would wish to come back to it.
Whether this is for the noble Baroness, Lady Barker, or for the noble Earl, taking up the point raised by my noble friend Lord Warner, the chairman of the All-Party Humanist Group, my assumption would be that the duty on a local authority in relation to spiritual well-being would apply only when a person had a belief. Whether one defines humanism as spiritual I do not know—we are getting into deep waters here. I assume it is not intended that a person of no religion be required to be treated by the health service or local government as having a spiritual need.
We welcome Amendments 2, 3 and 138, and I beg leave to withdraw Amendment 1.
Amendment 1 withdrawn.
Amendments 2 and 3
2: Clause 1, page 1, line 8, at end insert—
“( ) personal dignity (including treatment of the individual with respect);”
3: Clause 1, page 1, line 9, leave out “, emotional well-being and personal dignity” and insert “and emotional well-being”
Amendments 2 and 3 agreed.
Amendments 4 and 5 not moved.
6: Clause 1, page 2, line 34, at end insert—
“( ) For the purposes of this section, “an individual” includes a person with parental responsibility for a disabled child.”
In the unavoidable absence of the noble Baroness, Lady Finlay, and at her request, I shall move Amendment 6 and speak to Amendments 8 and 9 tabled in her name and mine, and speak to my Amendments 46, 47, 48 and 58.
The first group of amendments concerns parent carers. The Care Bill is drafted to apply only to adult carers of adults. This means that the new rights for carers included in the Bill will not apply to adults caring for disabled children or to children caring for disabled adults. The Government have committed to address this disparity for young carers by bringing forward very welcome changes in how they will join up this Bill and the Children and Families Bill to meet the needs of young carers and their families. This is extremely welcome, but it will leave parents of disabled children as the only group of carers whose rights to assessments and support will be left behind.
Carers UK and other carers organisations have been deeply disappointed that parent carers’ rights are not being given the same recognition as other carers’ rights and that the legislative technicality of their rights falling under the remit of children’s rather than adults’ legislation risks them being left with inferior rights. These amendments include parent carers in three key places in the Bill in order to probe the Government’s intentions regarding parents of disabled children and how they intend to address the disparity with the rights of parent carers. The Government have put forward an approach which joins up the Care Bill and the Children and Families Bill for young carers—which is very much to be welcomed and on which the Government are to be congratulated—and these amendments call for them to do the same for parents of disabled children. If nothing is done about this, parents of disabled children will be left with lesser and inconsistent rights to assessment and support. The rights of certain groups of carers will be left at different levels in different pieces of legislation, which will be confusing for many people, and parents of disabled children, who already have difficulty accessing support, will find it even harder to participate in work and their community in any way at all.
In this Bill, the Government are improving the rights of carers for adults by removing the need to provide regular and substantial care in order to receive an assessment, removing the need to request an assessment of their needs, placing a duty on local authorities to provide services to the carer following assessment when they meet the eligibility criteria, and introducing a new well-being principle. All this is very welcome, but parents of disabled children also need support. They have often struggled to establish rights as individuals on a par with other carers, and they are at particular risk of having their own rights overlooked as individuals. Too often, they are seen only as parents and their needs as carers are not identified or supported. This was summed up for me this weekend in a conversation I had with a parent carer known to me. He and his wife have been caring for their 30 year-old, very disabled son who is physically and mentally disabled. They have been caring for him for more than 30 years and have had the usual struggle in trying to find any support. When trying to access respite care when the wife, who has diabetes, was severely ill, they were told, “But you’re not carers. These rights don’t apply to you. You’re only parents”. They are not only parents. Normal parents do not have to look after their child and do everything for him for 30 years.
It is three times more costly to bring up a disabled child than a non-disabled child. Parent carers are more likely to be reliant on income-based state support, and 34% of sick or disabled children live in households where there is no adult in paid work. They are also more likely to suffer relationship breakdown and divorce, and they are three times more likely to suffer ill health and health breakdown than parents of non-disabled children. They are also commonly very isolated and unable to get support that fits the whole family.
The Law Commission, I remind the House, recommended that existing duties to assess parent carers should be amended to make them consistent with the adult social care statute. The Government, I am afraid, have so far failed to act on this recommendation. I tabled similar amendments during the Committee stage of the Care Bill and the Minister responded. However, the Government’s response did not address the disparity that will arise for parent carers, who will have lesser rights to an assessment of their need for support and will not have the same rights to support services as other carers.
These amendments try to address that. In brief, they include parent carers in the well-being clause. The intention of the first amendment is to include the parents of disabled children in the duty placed on local authorities by Clause 1 to promote the well-being of individuals. They also want to prevent parent carers’ need for support arising in the first place. Too often parent carers reach crisis point, leading to high-cost interventions. In addition to the negative impact on outcomes for the whole family caused by mental or physical breakdown in the parent, relationship breakdown and unemployment, there are also substantial costs to local authorities, commissioners and indeed to the economy. The costs of mental ill health, as we all know, are rocketing. The cost of family breakdown is estimated to range from £20 billion to £40 billion every year.
The other amendment includes parent carers in the duty to make the assessment. The Bill is making it easier for adults to receive a carer’s assessment by creating an automatic right to one and removing the requirement that they provide regular and substantial care. When I see that in legislation I want to stand up and cheer. That is a great development. However, unless similar changes are brought forward for the parents of disabled children, they will still need to request a carer’s assessment from their local authority and do not have a right to one unless they are providing regular and substantial care. This disparity means that parent carers will be the only carers to have these additional barriers to support in front of them. This amendment seeks to include parents of disabled children in the duty on local authorities in the Care Bill to assess carers, which creates a lower bar to assessment than the current legislation.
I hope that the Minister will look favourably on these amendments. Will the Government give assurances that parents of disabled children will not be left with lesser rights? How will the Government ensure parity of rights for parents of disabled children and how will the Government act to join together the Care Bill and the Children and Families Bill—being considered in the Moses Room as we speak—to ensure that the families of disabled children are able to access support? Will the Minister commit to working with the Children’s Minister to ensure that the rights of parent carers are not left behind? Will the Minister assure me that, having worked so effectively with the Department for Education to strengthen the rights for young carers, he will do so again to strengthen the rights of families with disabled children?
My Amendments 46 to 48 and 58 are about charging for carers’ services. They are supported by Carers UK and the Carers Trust. The current law includes the power to charge for meeting the needs of carers but very few local authorities use this power. As well as continuing to give local authorities the power to charge carers, the Bill includes a power to charge carers for arranging services for them. Local authority adult and social care budgets are under ever-increasing pressure and we must be concerned that carers may be looked to as a source of revenue. Carers already contribute a huge amount, often at great personal cost, as caring has a negative impact on their finances, health and well-being, and opportunities to engage in work and education. I make no apology for repeating the figure that I have quoted many times in your Lordships’ House—Carers UK has calculated that the contribution of carers is worth £119 billion a year in savings to the Exchequer. Charging a carer for support to meet their needs, often in order to help them continue in caring, risks being counterproductive by preventing carers accessing services and may even discourage carers seeking support. As a result, the adoption of charging policies would result in additional costs to local authorities.
Carers and the person or people they are looking after—we should remember that many carers look after more than one person—may not have the same income. In many cases, carers have had to give up work or live on a reduced income as a direct result of their caring responsibilities. They may not have access to the same income that enables the person they care for to self-fund their care and support. The cost of supporting individual carers is frequently minimal but the financial benefit to local authorities can be significant. The Government have identified that carers are the first line of prevention, and that properly identifying and supporting carers will prevent escalation of demand on statutory services. The Government’s own impact assessment of the Care Bill set out evidence on the cost-effectiveness of supporting carers: for example, by preventing or delaying hospital or residential care admission; by sustaining the caring role; by improving the health and well-being of carers; and by assisting carers to remain in or return to work.
A number of local authorities have individually examined the value of their care and support services and have concluded that supporting carers is very cost effective. Surrey County Council, for example, did a cost-modelling exercise which concluded that supporting carers helps prevent breakdown of caring situations, provides help in a manner that many families appreciate and avoids far greater costs for the provision of more expensive and intrusive care packages. This was also the conclusion of Herefordshire County Council, which recently reversed its decision to charge for carer services. It found that charging would risk increased pressure on social care budgets and that no additional income would be raised by the council because of carers’ low income. No advantage could be gained because of the negative effects of charging. I should declare an interest as patron of Herefordshire Carers Support, but I am sure that that had nothing at all to do with the decision not to charge carers.
I must also mention carers and the care account. Unlike for older and disabled people, the cost of services for carers will not accrue towards a care account. This means that, unlike disabled or older people, any services which carers pay for themselves, or which they are given through public services if they are deemed eligible, will not count towards the care account. In the care account model, any unpaid support that a carer provides for eligible needs will reduce the amount that the public will have had to contribute towards the capped-costs model. In other words, a carer’s contribution is counted several times over, yet they themselves may have to make increasing financial contributions which would not go towards their own care account for the future. There is nothing in the capped-costs model which recognises the contribution of carers and many carers will feel that it is unfair that they provide unpaid care and must pay for support which enables them to continue to do so. By any judgment, that is unfair.
The simplest way to resolve the issue of the care account not applying to carers is to remove charging for carer services completely. A care account for carers would be a hugely complex exercise in any case, and it would arguably be easier at this stage simply to protect carers from being charged for services. What is the Government’s rationale for leaving carers out of the care account? Do the Government agree that it would be far easier and more equitable if the Government removed charging for carers altogether?
Finally, I turn to Amendment 48; I apologise for delaying the House with all these amendments, but I might as well speak to them while I am on my feet. Amendment 48 is about services of an intimate nature which can only be provided to the disabled person. We considered this in Committee. There is no clarity in the Bill about what a disabled person’s service is and what a carer’s service is, which will lead to confused decision-making and carers being increasingly, or wrongly, charged for services. Under the current legislation—the Carers and Disabled Children Act 2000, which I had the honour of taking through your Lordships’ House—services provided to the disabled person in order to meet the needs of the carer cannot include services for the disabled person that are of an “intimate nature”. This ensures that disabled people keep control of their own services while protecting carers from being charged for services. This is a vital protection which is critical for carers. This amendment seeks to reintroduce this wording into the Bill with several clear purposes. The first is to ensure that disabled people will keep control of personal services. The second is to ensure that decision-making is made clearer for front-line professionals. The third is to protect carers from increasingly being charged for services.
Currently, the Carers and Disabled Children Act 2000 specifies that services provided to the disabled person in order to meet the needs of the carer cannot include services “of an intimate nature”. The Bill, as we know, introduces new rights to assessment for carers; new duties to provide services to carers following assessment; and the power to charge for services to carers that are provided to them and to charge for arranging these services. Disabled people can be charged for services provided to them, including if the services meet the needs of carers, but currently there is no definition of whom a service belongs to. This was a recommendation in the Joint Committee’s report when we scrutinised the draft care and support Bill: that the Government protect carers from being wrongly charged by including the wording at Clause 14.
This wording is very welcome because it prevents wrongful charging, but the Bill still leaves wide open the issue of how a practitioner decides to whom the service is provided and thus potentially charged. The new wording of the Bill opens up the possibility, I fear, that intimate care services for a disabled person could be provided to the carer and a whole new scale of charging developed. I do not believe that that was the Government’s intention when they changed the wording of the Bill, so that the definition of intimate care should be retained, with more detailed guidance to assist local authorities and carer centres in using the legislation. The reason this clarification matters even further is because of what I referred to earlier about the care account. There will be negative consequences if further clarity is not provided so I very much hope that the Minister will accept this and my other amendments and I beg to move.
My Lords, I am pleased to speak to our Amendments 7 and 10 and will speak mainly about young carers, as my noble friend Lady Pitkeathley has spoken strongly on parent carers for disabled children and the other key issues covered in this group. In Committee, we were deeply concerned at the very real danger and risk of young carers’ rights and their need for support failing to be addressed in either the Bill or the Children and Families Bill, so it is with great relief that we will be dealing today, now and later, with significant amendments relating to adult care assessments and young carers, local authorities’ duties to identify young carers and ensuring young carers are supported and are not forced to undertake inappropriate caring roles.
On young carers, it is somewhat frustrating that the Government amendments, which are an integral part of the package on young carers that locks in the links between the Bill and the Children and Families Bill, are to be taken in a later group. We need to see the picture on young carers as a whole to be reassured and clear about how the two Bills interact to secure young carers’ rights on support and assessment. Under the two Bills, the Care Bill links adult assessment where a young carer is supporting an adult with the young carer’s assessment, which will be undertaken under the Children and Families Bill. The ministerial Statement on the latter from the Department for Education sets out how it sees this working in practice, and we broadly support this. Our Front-Bench team on the Bill will be probing this further in Committee, which, of course, commences today.
We welcome all these developments. We have worked closely with the excellent National Young Carers Coalition and it has led calls for key changes in the two Bills. I am sure the Minister will agree that the NYCC has done a great job of bringing the plight of young carers to the attention of the House and to Ministers. I am pleased that the Government have now taken steps to ensure a twin-track, joined-up approach between the two Bills.
As the Bill has progressed, we have heard extensively why children and young people caring for a family member, parent or sibling can be so vulnerable to losing out on their education and on the things that they want to do with their lives and how their health can suffer as a result of having to undertake significant caring responsibilities. However, it is a shocking fact that too often young carers do not get the help they need. One of the reasons for this is that, under the current assessment process, the person they are caring for does not receive enough support and the needs of the whole family are often not taken into consideration.
We must remember that this can have a devastating impact on both the young carers and the cared-for person. As a trustee of our local carer support group in Elmbridge, I can say that we see this from both ends. Many of our registered young carers are delivering hands-on support and may be the only other person in the house. For example, if their parent has mental health problems—very often the most hidden of caring roles—the child may have to look after themselves on a daily basis, make their own meals and get off to school, as well as being supportive of the parent and carrying out tasks for them. At the same time, a disabled parent does not want to see their child overburdened with caring duties; they feel desperate and guilty when they require care and support that is not forthcoming as part of the care package, and the child just has to help—and usually wants to anyway. That is a dilemma.
That is why we sought to amend the Bill in Committee so that adults with care and support needs are assessed in relation to the presence of a young carer, so adult needs are met sufficiently and children are prevented from undertaking levels of caring that put their well-being, health and development at risk. The government amendments now put this into effect in the Bill and we fully endorse them as part of the package of changes that are needed.
That is also why our Amendment 7 to Clause 2 must be an important part of the package. We believe that the Care Bill is the right place for the law to be clear that adult services need to assess and meet adult needs first, but with a view to whether a child may be caring for them and providing the support as required. Children should not be picking up the pieces and left to provide part of the care package as a result of the failure of adult services to see and support them alongside children’s services.
Our essential aim has been to ensure that local authorities provide or arrange services to prevent young carers from developing needs for care and support, as well as preventing and reducing needs for adults and adult carers. We cannot have a situation where people have unmet care and support needs, which results in children and young people having to meet those needs.
Our Amendment 10 specifically deals with the issue of local authorities’ duty to identify young carers. We know that currently, adult social care services and health services routinely fail to identify children who may be caring for an adult, even when the adult is assessed, and that also applies to schools. As a result, children can continue to undertake harmful caring roles and end up developing needs for care and support themselves. The lack of a co-ordinated response between children’s and adult services remains an ongoing difficulty for young carers and their families. I hope that the noble Earl will recognise the need to address this problem.
On the other amendments in the group, we strongly support the intentions of Amendments 6, 8 and 9, which seek to emphasise parent carers of disabled children, both in respect of the well-being principle and in terms of preventing them undertaking inappropriate caring. Amendments 46, 47 and 58, in the name of my noble friend Lady Pitkeathley, seek to address the very real fears of carers and their organisations over carers being charged for key services that they are not currently charged for. My noble friend’s amendments represent an excellent opportunity to put carers’ minds at rest on this issue once and for all, and I hope that the Government will be sympathetic to this.
Finally, my noble friend’s Amendment 48 addresses the important issue of carers generally—not just young carers—being required to undertake inappropriate caring. We dealt with this issue in relation to the assessment process extensively in Committee and we strongly support this amendment. Support from family and carers should be considered as a way of meeting needs rather than as a reason for deciding that the person does not have needs or is not eligible for care. Carers must not be pressurised to provide care that they do not feel able to provide. I look forward to the Minister’s response on this.
My Lords, I rise very briefly to speak to Amendment 34 in my name. The purpose of this amendment relates to the definition of a carer, to ensure that it could include a young person as well as an adult. I wish to explain that I tabled the amendment before the extremely welcome Statement by the Secretary of State for Education earlier in the week, and the tabling of the new amendments on young carers. As other noble Lords said today in the Chamber, I very strongly welcome this. I know, from talking to both departments—the Department for Education and the Department of Health—that a lot of very effective work has gone on over the summer that has been very effective both at official and ministerial levels. I also very much welcome the fact that the National Young Carers Coalition has been very much involved in these changes, and I know that it has issued a statement welcoming them.
My Lords, I particularly support the amendment of the noble Baroness, Lady Pitkeathley. It is obviously important that the situation regarding children who are carers is properly focused. As your Lordships know, I am a vice-president of the Carers Trust and have an interest from that point of view. I have difficulty understanding exactly the scope of the clauses here, because the clause dealing with well-being talks about the “individual”. I assume that this includes the disabled child as well as the carer, and that the same is true even when the child is not disabled. If one has a carer, the child will be an “individual”, I assume. The adult definition comes in the next clause, Clause 2. Clause 1 refers to an “individual”, so I assume that children are included in that clause and therefore that the local authority, in performing its functions, has an obligation to have regard to the well-being of children.
My Lords, as my noble friend Lady Tyler said, Amendments 7, 10 and 34 in this group about young carers provide an opportunity within our debates to welcome the Written Ministerial Statement yesterday from my right honourable friend the Secretary of State for Education about the Government’s proposed amendments to the Children and Families Bill on the assessment of young carers. They give effect to the Government’s stated intentions to consolidate and simplify legislation relating to young carers’ assessments, making rights and duties clearer to both young people and practitioners. In the Government’s view, these provisions sit most appropriately within children’s legislation.
The right to an assessment of needs would be extended to all young carers under the age of 18, regardless of who they care for, what type of care they provide or how often they provide it. Local authorities would have to carry out an assessment of a young carer’s needs for support on request or on the appearance of need. The amendments also enable local authorities to align the assessment of a young carer with an assessment of an adult that they care for.
I believe that the government amendment will achieve the desired effect of my noble friend Lady Tyler’s amendment to Clause 10 by putting a young carer’s entitlement to an assessment on a similar footing to the provisions in the Care Bill for an adult carer’s assessment. I have also tabled an amendment to Clause 12 of the Care Bill, which we will debate shortly, that makes it clear that a local authority may combine an adult assessment with a child’s assessment, including a young carer’s assessment, provided all parties agree. The government amendment to the Children and Families Bill will also achieve the desired effect of Amendment 10 by requiring local authorities to take steps to identify the extent to which there are young carers within their area who have needs for support.
Amendment 7 would extend to young carers provisions in Clause 2 that require a local authority to provide services, facilities and resources to prevent or reduce needs for support among adult carers. Prevention is an important matter to highlight, but the Bill already makes sufficient provision on this issue, as it requires local authorities to have regard to overall family circumstances when fulfilling their duties under the Bill.
Clause 1 requires local authorities to promote an individual’s well-being in exercising all their Part 1 functions, including those in Clause 2. Domestic, family and personal relationships are specifically included, and such relationships could encompass parenting responsibilities, the adequate functioning of the family and the household and the impact of providing care and support on other members of the family. We do not think that it would be appropriate to refer to preventing the needs of young carers specifically. One means of preventing their needs will be, of course, to meet or delay the needs of those whom they care for, and this is clearly covered by the existing provision. There may be other means, which could include the provision of services directly to the young carer. However, such routes would not be appropriate for adult care and support to take, and we do not believe that a duty should sit within adult legislation.
We will make it clear in statutory guidance that all these provisions should take into consideration family relationships and circumstances, and I am happy to make a commitment that such guidance will refer specifically to the importance of preventing children undertaking inappropriate or excessive caring responsibilities. In addition, in drafting regulations about an adult’s assessment under the regulation-making powers in Clause 12, we will make it clear that a whole-family approach should be adopted, where appropriate. An adult’s assessment should then take into account the functioning of the family and the household, and the impact of providing care and support on other members of the family, including children.
I turn to the position of those with parental responsibilities for disabled children, which is an important issue. However, we do not consider it appropriate to include provisions within the Care Bill about the assessment of parent carers of disabled children, as proposed in Amendments 6, 8, 9 and 35 from the noble Baroness, Lady Pitkeathley. In the Government’s view, the main provision for assessing and supporting those caring for disabled children should be in children’s legislation, so that the family’s need for support can be looked at holistically. In most cases, the best way of supporting a parent carer of a disabled child and other members of the family is by the provision of support directly to the child concerned. It would not be appropriate for adult care and support to be undertaking an assessment of those needs, when adult support is not best placed to meet them. The view of the Minister for Children and Families is that there is already sufficient provision under Section 17 of the Children Act 1989 to provide for the assessment and support of children in need, including disabled children and their parents.
I turn to Amendments 46 and 58 from the noble Baroness, Lady Pitkeathley, about charging carers for support. We remain of the view that local authorities should retain the power that they have now to charge carers for support provided directly to them. Many local authorities do not impose charges on carers because they, of course, recognise the valuable contribution that carers make to society. However, some may choose to impose a nominal fee to cover a proportion of the costs of providing a particular form of support for carers—for example, a relaxation class or gym membership—and we do not think it appropriate to remove that discretion and flexibility. Indeed, removing the ability to charge even a small amount could result in the withdrawal of such services altogether.
The noble Baroness argued that the cost of caring should not count towards the care account within the cap arrangement. Local authority assessments take the support provided by carers into account in determining the care package. We are clear that the care package should count towards the cap, because that should ensure that all people receive the support that they need. We have heard from the care and support sector that the cap will provide carers, as well as care users, with the financial support to help them decide on the right care for them to help provide, and to reassure them that their families will not face catastrophic care costs.
I have some concern about the noble Baroness’s Amendment 48, which proposes that the provision of intimate services to a person needing care cannot be provided to meet a carer’s need for support. This would create a legal barrier that could significantly hinder the provision of a much-needed type of support to carers. Let me provide one example. It may be appropriate to meet a carer’s needs by providing a service direct to the person cared for. If some type of replacement care is provided to allow the carer to take a break from caring, it may look like home care delivered to the adult needing care, even though it is provided to meet a carer’s needs. The amendment would seriously limit the ability of local authorities to make such arrangements because it would provide that the care workers could carry out some activities, but not others of an “intimate nature”. That could leave a situation where the care worker was able to sit with an adult needing care but not take them to the toilet. That is likely to lead only to confusion, I suggest. We accept that clarity is needed about when a type of support should be considered to be provided directly to the carer, and when to the adult needing care. We will produce guidance on this matter, but we cannot support an amendment that sets such an inflexible rule in primary legislation.
I also reassure noble Lords that the Bill is already very clear that carers should not be charged for any form of support that is provided directly to the person needing care. Clause 14(3) makes it absolutely clear that local authorities cannot charge carers for services provided to the person being cared for. This would include services of an intimate nature.
I hope that I have reassured noble Lords that, together, the Care Bill and the Children and Families Bill provide a clear legislative framework to support local authorities to consider the needs of young carers and protect them from excessive or inappropriate caring roles. On the important issue of assessing those with parental responsibility for disabled children, we remain of the view that they are best supported through the provisions of the Children Act 1989. However, I have noted the concerns raised about those who care for disabled children having the same entitlement to a carer’s assessment as young carers and adults caring for adults will have through the respective provisions of the Children and Families Bill and the Care Bill. Department of Health officials will explore further, with officials at the Department for Education, the issues raised by the noble Baroness. I know that my noble friend Lord Nash is always willing to listen to the concerns of noble Lords on these and other matters.
I hope that I have also reassured noble Lords that the Bill is already very clear that carers should not be charged for support provided directly to the person needing care. However, I am conscious that I have not directly answered an issue raised by the noble Baroness, Lady Wheeler, about the need for identification of carers to ensure that there is no unmet need. It is important to support people to identify themselves as carers so that they can access information, advice and support in their caring role. My department is funding the Royal College of General Practitioners to raise awareness among health professionals. Health and well-being boards should also be identifying the numbers of carers in their local population through joint strategic needs assessments.
My noble and learned friend Lord Mackay asked whether children were already covered in the scope of Clause 1. They are covered in terms of the functions set out in Part 1 of the Care Bill. The local authority must have regard to the well-being principle in discharging any function under Part 1 that relates to children. They would be “individuals” in the case of the exercise of that function—for example, in the provisions relating to the assessment of children in anticipation of their transition to adulthood. I hope that that is helpful.
I have taken a little while to reply to these amendments, but I hope that I have been sufficiently illuminating to encourage noble Lords not to press them.
As we were on a roll there with the Department of Health and the Department for Education working together so successfully on the young carers issue, I rather hoped that we might do it also with regard to parent carers. I am very grateful that the Minister has not entirely closed the door on that. I will read very carefully what he said, but I reserve the right to come back to this issue at Third Reading. I am very encouraged by what he said about taking a whole-family approach, but I believe that it should include parent carers as well as young carers. I am grateful to him, too, for saying that there would be more clarity in guidance about the charging issues. As I said, I will read what he said very carefully, but I reserve the right to bring some of these issues back at Third Reading. In the mean time, I beg leave to withdraw the amendment.
Amendment 6 withdrawn.
Clause 2: Preventing needs for care and support
Amendments 7 to 10 not moved.
Clause 3: Promoting integration of care and support with health services etc.
11: Clause 3, page 4, line 3, at end insert—
“( ) NHS bodies must exercise their functions—
(a) with a view to ensuring the integration of services for the purposes of enhancing the health and well-being of people, in keeping with the duty on Health and Wellbeing Boards enshrined in section 195 of the Health and Social Care Act 2012; and(b) without hindering the efforts of a local authority to fulfill its duty under subsection (1) above.”
My Lords, in moving Amendment 11, I wish to speak also to Amendment 30. I also support the amendments in this group tabled by the noble Lord, Lord Best, but may respond to those later.
In Committee, we debated amendments promoting further integration of health and social care. As my noble friend Lady Wheeler said, we supported the view of the Association of Directors of Adult Social Services and the Local Government Association that the Bill should include a specific duty on NHS bodies equivalent to the duty on local authorities to integrate services and that this shared involvement should be enshrined in the Bill. Joint strategic needs assessments and joint health and well-being strategies should provide a strategic overview of how the health and well-being of local communities can be improved and health inequalities reduced. ADASS has long maintained that local health and well-being boards are pivotal in the delivery model in this respect and that the Bill must reflect this to bring about a wholly integrated accountable system that meets identified local needs and objectives.
The noble Earl, Lord Howe, said in Committee that he had no argument with the sentiments expressed by my noble friend and relied on Clauses 3 and 6 of the Bill and various other pieces of legislation, including Section 116 of the Local Government and Public Involvement in Health Act, which requires local authorities and clinical commissioning groups to have regard to the relevant joint strategic needs assessment and joint health and well-being strategy in exercising any of their functions, which would include their duty to co-operate and promote integration. The noble Earl also prayed in aid the prominence of health and well-being boards being strengthened through their role in signing off joint plans required as part of the £3.8 billion pooled fund between local authorities and the NHS to support joined-up and integrated working.
I certainly accept and understand those points but I would like us to go further. I argue that the measure should be much more explicit in the Bill in relation to the National Health Service’s duty of co-operation. We know that the current crisis in accident and emergency services which seems to be extending through the early autumn period is symptomatic of a health and social care system that is under huge pressure. If reductions in social care funding and support for the third sector mean that patients cannot be discharged from hospital that has a knock-on impact throughout the whole system. This Bill places major responsibilities on local authorities. Without the full co-operation of the National Health Service they will be very hard pressed to discharge those responsibilities.
The noble Earl is relying on this Bill and existing legislation but the fact is that so far this has not been sufficient. I refer him to a report published today by the University of Birmingham and Birmingham City Council entitled Turning the Welfare State Upside Down? The report says that our social care system is broken and increasingly unfit for purpose and that we need a big and bold response to tackle the crisis and ensure a decent and fair system for the future. The report is right to emphasise the need for close co-operation between social care and the NHS and to shape services around the needs of the individual. The problem is that the Government through their 2012 Act have created a disintegrated system instead of an integrated one and a system where fragmentation is rejoiced at and where the operation of a market is meant to drive a wedge between people who ought to be co-operating together.
I do not want to go back over this afternoon’s Oral Question, but clinical commissioning groups would have been surprised to hear the noble Earl suggest that it was entirely up to them whether or not services were put out to tender. They have been absolutely pressurised by NHS England to do that. NHS England is clearly under the direction of the Secretary of State: how could it not be when, according to government briefings over the last two weeks, the appointment of its chief executive is going to be the Prime Minister’s decision?
There is real concern that we have conjured up a very fragmented sector. As the noble Earl knows, we already have a system where physical health, mental health and social care have found it very difficult to integrate their services. As we have more older people with vulnerabilities and co-morbidities, the need for the systems to work together becomes ever more paramount.
Amendment 11 would put in the Bill an explicit requirement for the NHS, through the health and well-being boards, to play its full part in the integration of services. In Committee, the noble Earl was sympathetic to these sentiments but not to the amendment. I hope that, in the spirit of accepting wise words in this House, he will be prepared to be more sympathetic on this occasion. I beg to move.
My Lords, I rise to speak to the two amendments in my name and in the names of the noble Lord, Lord Hunt, and the noble Baronesses, Lady Eaton and Lady Barker. These amendments are carried forward from five which I tabled in Committee, all of which sought to give more prominence in the Bill to housing. I declare my interest as chairman of the Hanover Housing Association, which works exclusively for older people, and as president of the Local Government Association.
The overarching case for these amendments is that everyone's care needs are inseparably connected to the place where they live and where, for most older people, they spend all their time. The right accommodation can sustain our independence and well-being even if we face the illnesses or long-term conditions that afflict many of us in older age. The right accommodation can pre-empt and prevent the need for domiciliary and residential care and hugely reduce costs to the NHS and local authority social services. For younger adults with care needs, the right accommodation can enable a fulfilling life within the community, not hidden away in an institutional setting. The wrong accommodation can cause accidents and, indeed, mental health problems; keep people in hospital because their home will not have them back; and can force people into costly residential care.
This Bill is the chance to incorporate housing into the health and care equation so that these three interlinked dimensions can really work together. The noble Earl has worked hard over the recess to bring back improvements to the Bill. In relation to the housing issues, the noble Earl has noted that our concerns are shared by a number of Peers who feel that the Bill gives insufficient emphasis to the question of housing. He fully accepts the integral role of housing in helping meet care and support needs, and has told us that he sympathises with the arguments he has heard. I am very grateful to the noble Earl for the two amendments he has tabled to give greater prominence to the link between health, social care and housing. His response will be greatly welcomed by the Care and Support Alliance and, within that group, the National Housing Federation, which drafted the original amendments.
Government Amendment 28 to Clause 6 extends the duty of local authorities to co-operate with partners so that this duty will encompass housing associations—registered providers of social housing—which is a very significant step in absolutely the right direction. Government Amendment 12 to Clause 3 ensures that, in terms of the integration of services, housing will be classified as “health related” and will therefore be taken on board by clinical commissioning groups and the NHS Commissioning Board, NHS England. Both these changes are really positive and I congratulate the noble Earl for his farsightedness, once again, in improving the Bill in these two ways.
At the risk of appearing slightly churlish, however, perhaps I could press the noble Earl on the two issues that remain outstanding and are covered by the two amendments in my name, which have support from all parts of the House. In relation to advice, Amendment 15 to Clause 4 would ensure that people have access to good information on the options available to them in relation to housing requirements, spelling out both ways in which their current home could be made more suitable and the choices that they could make about a move to supported or retirement accommodation, such as assisted living and extra care housing.
Although the Bill ensures that advice on care services will be made available, the Joint Committee on the draft Bill strongly recommended that advice on housing options also be included. So far, this recommendation has not been taken on board. It is not an onerous extra requirement to include housing advice in the mix, particularly given that many local authorities already ensure that people get this advice. Indeed, the Local Government Association supports this amendment. The Minister pointed out in Committee that information and advice on specialist housing options should be included when housing information is supplied. This amendment adds the prompt for such housing advice also to be included when guidance is given on care matters.
A move to a more suitable place can be suggested for a younger adult with care requirements. Sources of support for helping an older person to downsize, perhaps in decluttering the attic or sorting out the garden shed, can be recommended. For those who stay put, there is often so much to be done of a practical nature in making life easier for an older person and reducing their dependency on paid carers or family carers. From replacing hard-to-turn taps with long-handle lever taps for someone with arthritic hands, or fitting firm banister rails to the stairs, right through to converting the bathroom to fit a walk-in shower or installing a stair lift, all such adaptations can delay or prevent the need for more intrusive and expensive care provision. With good advice, paying for those adaptations can be covered by disabled facilities grants or equity loans, just as advice for a younger adult with care needs can be given on how the costs of renting a more suitable home can be covered.
Last Friday, I had the great pleasure of visiting the brilliant Centre for Independent Living in Knowsley, jointly funded and staffed by the health, social care and housing services in this borough. The centre brings together all the key elements of a truly holistic service. The occupational therapists are there, as are the care and repair team who can organise reliable builders and advise on grants, the wheelchair and aids teams, and the handy persons who do small improvement jobs. All the different disciplines and specialisms come together in Knowsley’s centre. It helped some 5,700 people last year. About half were referred by GPs, and health needs are therefore often the trigger, but the solution may well be in meeting the individual’s requirements within their home or, indeed, in pursuing a housing solution elsewhere, such as a move to extra care. So when a local authority gets it right, as in Knowsley, it really can do a fantastic, joined-up health, care and housing job. Good advice that covers the housing dimensions is the start of this process.
Amendment 23, the second amendment in my name and those of the noble Lord, Lord Hunt, and the noble Baronesses, Lady Eaton and Lady Barker, would complete the picture. This amendment again does not add significantly to the burden of responsibilities for local authorities. It falls within the “have regard to”, not the “must”, part of Clause 5, but would mean that in seeking to manage the market for care provision, local authorities should have regard to the housing situation facing those with care needs in their area. It raises the profile of housing in this context so that the different parts of local government all take it into account in their policies and strategies.
The amendment would mean that those within local councils responsible for social care would concern themselves with housing requirements, no doubt by feeding the necessary information into the planning system to influence future housing provision. In devising their strategies, health and well-being boards would consider whether more and better housing should be a priority, whether more disabled facilities grants or support for home improvements could play a greater part in preventing the need for intensive personal care, or whether extending a handy person service would not pay for itself almost instantly. This amendment would mean integrating housing considerations into the shaping of care markets, as well as integrating care considerations into the shaping of housing markets. That would benefit everyone.
I congratulate the Minister on the two important government amendments which give added emphasis to housing. I hope that he is able to go further and take on board these relatively modest but entirely sensible additional changes to the Bill.
My Lords, I rise to support Amendments 15 and 23. I would draw attention to a welcome tribunal judgment in Middlesbrough last week concerning the decision by Redcar and Cleveland Council on the under-occupancy charge. A woman, who is disabled, won an appeal against the decision of her local council which the council claims it took in line with DWP guidance. The tribunal concluded:
“In considering whether there is under-occupation of the appellant’s property, the local authority have not taken into consideration her disabilities and her reasonable requirements, as a result of these, to sleep in a bedroom of her own”.
Redcar and Cleveland Council said that it had properly applied the law as it stood when it decided this case but that the tribunal had introduced an additional test of reasonableness which did not appear in the Department for Work and Pensions guidance. Amendments 15 and 23 would remove a great deal of the doubt that has now been raised. Amendment 23, which refers to access to suitable living accommodation, must include access to suitable sleeping accommodation. That requires there to be a separate bedroom if reasonably required. Amendment 23 would also make it clear that there is a requirement on a local authority to provide access to suitable living accommodation for a person who needs a specific amount of accommodation to enable them to lead a full life.
There is now a great danger for the Government in a large number of tribunal hearings as a consequence of the decision that was made in Middlesbrough last week. One way of avoiding this is for the Government to give a clearer definition of what “reasonableness” is. Amendments 15 and 23 define what is reasonable. I hope that the Minister will agree to look further at this issue in order to ensure that adults who have care and support needs have access to suitable living accommodation. That is clearly not the case at present and it is unfortunate that a large number of people with disabilities are being placed in an impossible situation because of the under-occupancy tax.
My Lords, I rise to support Amendments 15 and 23 in the name of the noble Lord, Lord Best. Contemplating the need for changes in lifestyle, managing illness and losing the ability to live independently are very daunting and stressful experiences for many elderly people. The proposals in Clause 4 for local authorities to provide information and advice are crucial in enabling people to have the knowledge they need to make decisions with which they feel comfortable. It does seem that the Bill as drafted has a major omission—the absence of advice on housing options.
I worked as a councillor in a northern metropolitan area for many years. I noticed on many occasions that elderly people were totally unaware of some of the opportunities that were available to protect them. I will give the House one example. An elderly lady asked whether I could help her by getting the electricity board to repair the light on the other side of the footpath across her garden. When I pursued the case, it transpired that because this lady was physically infirm, she was unable to reach her bathroom and lavatory, so she was crossing her garden in the depths of winter to use an outside lavatory. The reason she needed the light was in order to get to it. She was totally unaware of the possibility of making adaptations, with help from the local authority, to provide her with a downstairs bathroom. These kinds of incidents reflect the reality of what elderly people know about in terms of services. It is not good enough to say, “They will find out about them somewhere”. If it was part of this provision, that would be a great advantage to all.
My elderly parents lived at home until they were in their 90s. My father was 96 when he died, and my mother was 95. They were fortunate because I was aware of the adaptations that could be provided for them—small things such as grips, handrails and the like. They enabled my father to cope with the infirmities of my mother and for the two of them together to enjoy independent living. But, as I have said, most elderly people are not aware of this provision. When looking at options for care, most people would not think of asking the local authority about housing options. As a local authority person, I am always cautious of giving extra tasks to local authorities, but I know that this part of the Bill would not create a huge burden because local authorities already provide information about the care-related housing options that are available in their area. The point is that those options are not joined up and they do not come under the provision that this clause as drafted would give. I strongly support the amendments of the noble Lord, Lord Best.
The issue of the shaping of markets under Clause 23 is also important. We are always in danger of the right hand not knowing what the left hand is doing. Criticism is made of departments doing one thing on the one hand and another thing on the other. There is now a requirement on planners to look ahead and make provision for the numbers and types of homes that are needed. Surely the two things should be brought together as indicated and that health provision should advise and direct the planning process in terms of what will be needed in the future. I warmly support both amendments.
My Lords, I apologise for having only just come into the Chamber, but I have been at an important meeting with representatives from a children’s heart unit. However, this Bill is also important, particularly these amendments. What the Minister gives us assurances about in this House does not always happen on the ground. The matter of housing provision for disabled people has caused aggro up and down the country. People are worried about it. If the Minister can be helpful today, that will do a lot of good.
My Lords, I support the noble Lord, Lord Best, in relation to Amendments 15 and 23. Obviously, we welcome the government amendments to which the noble Earl, Lord Howe, will speak shortly, but it seems that the amendments tabled by the noble Lord, Lord Best, point to areas where the government amendments do not really meet the needs. Amendment 15, on making available information about housing adaptations and on specialist and accessible housing as a key requirement of a local authority’s information service, was a clear recommendation of the Joint Committee. The noble Baroness has just illustrated why making such information available is so important. It could be very helpful in terms of avoiding the need for people to receive long-term care. We should not underestimate the challenge people face when simply trying to find their way through the system. We find it complex, so how much more difficult must it be for those with little experience of the care sector and the housing system? I believe that Amendment 23 is critical to the success of the Government’s own housing amendment. It would ensure a three-way integration that would be an explicit part of a local authority’s duty to promote efficient and effective local markets for meeting care and support. It would particularly ensure that it has regard to the importance of adults’ access to suitable living accommodation.
We know that many local authorities are doing this without any prompting from the noble Lord, Lord Shipley, or my noble friend Lord Beecham. I recently came across the housing for an age-friendly city programme. It seemed to be a really good illustration of how, if a recognition of the changing needs and support of older people is at your core, and you supply a range of care and support housing options as an alternative to residential care, it makes the essential connection between, for example, managing a long-term illness and living in the right accommodation, and the importance of extra care housing schemes that enable people to live independently for longer.
I also just came across a One Housing Group initiative in Islington. It is a scheme designed for 14 people who spend a maximum of 14 days in the centre as an alternative to acute NHS admissions. It has a drop-in centre and an emergency helpline, and this crisis recovery house helps 550 people a year. It keeps 87% out of hospital admissions. It was commissioned by the health service but it shows the interconnection between housing and health.
In responding to the noble Lord, Lord Best’s amendments, I hope that the Government might be prepared to reconsider this and come back at Third Reading with further amendments.
My Lords, I am sorry that I missed the beginning of this debate but I was with the noble Baroness, Lady Masham, listening to Sir Bruce Keogh explaining how the mess around paediatric surgery was going to be sorted out.
I lend my support to Amendments 11 and 15. I remind the House that many years ago, in the good old days, housing and health were together in the same ministry; there was a united ministry covering both health and housing. We have lost something by that separation. I think that the NHS needs to be given a push on integration, so I very much like the amendment of my noble friend. Too often the NHS forgets that it could help itself by working more closely with other interests, and it would be a timely reminder in this piece of legislation to get that message across. As the noble Lord, Lord Best, has said, we have missed many opportunities over a long period of time, to bring housing into the party as the population has aged. All it has done is increase the burden on adult social care and the NHS. It would be a missed opportunity if we did not rectify some of that now.
My Lords, I very much agree with noble Lords that housing, along with health, and care and support, should be considered as the three legs of the stool. In relation to housing we are clear about two things: first, many types of housing can be provided as a means of meeting or preventing care and support needs—for example, extra care housing. That is why accommodation is listed as a way of meeting needs in Clause 8.
Secondly, housing is a wider determinant of health; simply having a roof over your head can have an enormous impact on your health and well-being. To reflect this, the “suitability of living accommodation” is listed as part of well-being in Clause 1(2). I hope that those two points in particular will serve to reassure the noble Baroness, Lady Masham.
Amendment 12 clarifies that housing is a “health-related” service, and that both local authorities and the NHS are required to promote integration between care and support, health and housing. This makes the importance of housing explicit not only in the integration duty in this Bill but in the comparable duties on the NHS in the 2006 Act. I hope noble Lords will welcome that.
In Committee, noble Lords also expressed the view that we needed to clarify that local authorities are required to co-operate with providers of services, including providers of housing services. Amendment 28, again in my name, does just this. The non-exhaustive list of the types of “other persons” we expect local authorities to co-operate with would now include certain providers of health, care and support, and housing services. However, we cannot add these bodies as “relevant partners”, as public law is limited in the extent to which it can place duties on such private bodies.
I hope I can reassure the noble Lord, Lord Best, and my noble friends Lord Shipley and Lady Eaton that it is a key principle of the Bill that where any type of housing is provided in relation to a person’s care and support needs, that must be considered part of “care and support”. It follows that where housing or accommodation is provided to meet—or indeed prevent, delay or reduce—needs for care and support, local authority duties to provide information and advice, and shape the market, must include such types of accommodation. I undertake that these matters will be made clear in statutory guidance.
However, we must be clear where the boundaries lie between responsibilities for care and support, which will include many types of housing, and for general housing that is not related to care needs. Amendments 15 and 23, tabled by the noble Lord, Lord Best, risk blurring this divide and creating overlap and confusion between housing and care and support. In that respect, there is, I am afraid, a fundamental problem with these amendments. Providing information and advice about general housing options and ensuring that there is sufficient suitable housing available is clearly the responsibility of the local housing authority, which is not always the local authority responsible for care and support in that area. It simply is not reasonable to ask local authorities, in their care and support functions, to carry out those other functions.
Turning to the amendments tabled by the noble Lord, Lord Hunt, it is incontrovertible that local authorities and relevant partners must co-operate in order to ensure both integration and safe and timely transfers of care; indeed, the Bill already requires this. Clause 6 requires that local authorities and relevant partners co-operate with one another where relevant to care and support. Subsection (5) of this clause sets out some key examples of when this duty should be used. There can be no question that this duty would also apply to promoting integration.
With respect to integration, Clause 3 requires local authorities to promote integration while carrying out their care and support functions. Consequently, this applies to Clause 6. Further, the co-operation duty requires the relevant partners, including NHS bodies and local authorities, to co-operate with one another in the exercise of their respective functions. Such co-operation is inexorably linked to the integration duty.
I am in complete agreement with the noble Lord, Lord Hunt, in his Amendment 11 that it is imperative that NHS bodies are also under a duty to promote integration. That very thing is achieved by Sections 13N and 14Z1 of the NHS Act 2006, as amended by the 2012 Act, which Clause 3 is intended to reflect. Far from the legislation driving fragmentation, it is actually shot through with duties around integration of services. Although I appreciate the noble Lord’s intention to add further symbolic focus on integration, I do not consider it necessary to make further provisions in this regard, and I am sure he will appreciate that we should not be populating Acts of Parliament with provisions that are legally unnecessary.
That is not to say that integration of services is not important. As part of the spending review in June, we announced the £3.8 billion integration transformation fund, which will provide the biggest ever financial incentive to integrate services. The disabled facilities grant, which funds housing adaptations, is part of that fund. This will make housing a central part of local plans to integrate services.
The current discharge guidance, Ready to Go?, is clear that discharge planning should begin at or before admission, that patients should be assessed by a multi-disciplinary and multi-agency team and that certain matters should be taken into account when performing such an assessment. Further, the assessment required by Schedule 3 is the same as the one specified by Clause 9. As a result, Amendment 39 would give the power to specify in regulations that such an assessment should be carried out jointly, and Clause 12(1)(b) allows regulations to specify what the local authority must have regard to in carrying out that assessment.
Amendment 31 adds the relevant Minister for Jobcentre Plus to the list of relevant partners who are under a duty of reciprocal co-operation with local authorities. This is so that jobcentres and local authorities work together to help adults and carers access employment or training where this is one of their desired outcomes of day-to-day life. Co-operation between local authorities and jobcentres in aligning personal budgets and welfare payments was considered a positive aspect of the right to control pilots.
My noble friend Lord Shipley referred to the spare room subsidy. To recognise that some people need additional space in their home due to their needs for care and support, the Government have trebled the discretionary housing payment scheme. This includes an additional £25 million to support those affected by the removal of the spare room subsidy. That is in addition to £20 million for which disabled adults who do not live in specially adapted accommodation may apply.
I hope that I have convinced the House of the strength of the provisions for integration and co-operation between health, housing, care and support and that the co-operation duties support discharge planning and assessment, and where appropriate support people into employment and training. I hope that I have also convinced the House—and the noble Lord, Lord Best, in particular—of the need for a clear boundary between care and support and housing generally in relation to information and market shaping. I hope that he will be sufficiently satisfied with my explanations.
My Lords, it is good to know that after due consideration the noble Earl is satisfied with his own amendment. On the housing amendments, the noble Lord, Lord Best, will make up his own mind, but it struck me that he is relying on the difference between the local authority as the local housing authority and the local authority as the care authority. He is of course right to say that in county shire areas in some places it is a different function. However, there remains a concern, given that in relation to care and support we are talking about difficult circumstances, often with vulnerable people, over whether the appropriate advice and support will be given. No doubt the noble Lord, Lord Best, will reflect on that.
On my Amendment 11, on integration, the noble Earl relies on existing duties of co-operation on the NHS, and Clauses 3 and 6. Where I fundamentally disagree with him is on the impact of the 2012 Act. The noble Earl may not be aware of just how difficult it now is for the NHS to put a cohesive plan and programme together in every locality, because the current incentives do not encourage that integration. I know that he warns us against putting what he thinks is a superfluous clause in the Bill—but this Care Bill is vitally important. It revises social care legislation and adds the foundations of the implementation of the Dilnot commission. It would be very helpful if there were an explicit duty of co-operation on the National Health Service, because we will not bring about integrated care without the full support of the National Health Service. On due reflection, I would like to test the opinion of the House.
12: Clause 3, page 4, line 10, at end insert—
“( ) For the purposes of this section, the provision of housing is health-related provision.
( ) In section 13N of the National Health Service Act 2006 (duty of NHS Commissioning Board to promote integration), at the end insert—
“(5) For the purposes of this section, the provision of housing accommodation is a health-related service.”
( ) In section 14Z1 of that Act (duty of clinical commissioning groups to promote integration), at the end insert—
“(4) For the purposes of this section, the provision of housing accommodation is a health-related service.””
Amendment 12 agreed.
Clause 4: Providing information and advice
13: Clause 4, page 4, line 12, leave out “and maintain” and insert “, maintain and facilitate access to”
My Lords, I shall speak to Amendment 18 in this group as well. I have already expressed my support for the Bill, which will make a huge difference to the lives of users of social care services and their families. However, a little more can be done to reform the Bill in the areas of information and advice, and also complaints and redress. I welcome the fact that the Government have recognised this issue and that the Minister has tabled amendments on their behalf. This shows that the Government accept the need for proactive engagement around information and advice, the importance of understanding when and how people access information, and the need for a focus on identifying those who would most benefit from it. These issues reflect exactly the thrust of my amendments except that, unlike the Government’s, mine relate to all information and advice about care and support, not just financial information and advice.
While I welcome the emphasis on proper access to financial advice, it seems a bit inconsistent not to apply this proactive approach to all forms of information and advice about care. For example, even when considering financial options, it is difficult to disentangle these from information that is needed about other aspects of care such as the choice of providers. It might even apply to housing, which was addressed in the debate on the amendment of the noble Lord, Lord Best.
At a time when local authority budgets are under increasing pressure, it is all the more important that people needing social care services are supported to efficiently access all existing sources of support fairly, equitably and transparently, and that local authorities are held to account for the decisions they make about distributing resources. Consumers have to feel that they are in control of their own care, understand what support they can expect and have the ability to speak up when they are treated unfairly. My amendments are designed to further these aims and I am grateful to Which? for assisting me in validating the consumer detriment aspects of this argument.
First, in Amendment 13 to Clause 4(1), as well as the local authority having the duty to,
“establish and maintain a service for providing people in its area with”—
care and support information, I would like to see the local authority having a supporting obligation to “facilitate access to” that service. Secondly, my Amendment 18 to Clause 4(4) would expand the local authority’s duty of information and advice provision beyond those to whom it is being provided to also include those,
“who would benefit from receiving it”.
These amendments would ensure that in fulfilling their duties relating to information and advice, local authorities have a proactive strategy to reach out to those in their area who would benefit from such information and advice, recognising that not everybody will request it and may not proactively approach the local authority. The focus for the local authority should be on improving outcomes through targeted information and advice that people can access at the right time and in the right way. The first of these amendments was raised in Committee and the Government responded that statutory guidance would make it clear that in order to fulfil the duty around information and advice, local authorities will need to facilitate access to it. However, I believe that this does not go far enough—the principle of proactive outreach should be a central part of this duty and therefore should be in the Bill.
The second amendment pertains to the same aim. Clause 4(4) was added to the revised Bill in response to concerns raised by the draft Care and Support Bill Joint Committee that the Government’s plans for information and advice provision by local authorities were too focused on online provision when we know that many older and, indeed, many younger people prefer to access information through different channels, such as by telephone or face to face. This addition, which states that information and advice must be,
“accessible to, and proportionate to the needs of, those for whom it is being provided”,
was intended to address this and concerns raised by the committee—I was privileged to be a member of it—that people who need it would not have a right to more intensive forms of support, such as advocacy.
Research for Which? has shown that often the problem is that people do not know what they need to know. One carer said, “It’s a chicken and egg process—before you can find the answer you’ve got to know that you’ve got a question that needs answering.” People also need information and advice at key pinch points; we know this. This amendment would ensure that local authorities consider these when designing their information and advice strategies. For example, people often see their general practitioner as a focal point for information and advice about care, and while the GP may not always be in the best position to give this advice, local authorities can proactively engage with GPs and other health services in their area in order to ensure access to information and advice about care for those who would otherwise slip under the radar. I beg to move.
My Lords, I support the amendments of the noble Baroness, Lady Greengross. She is so right in saying that people very often have no idea what questions they need to ask and what services they may be entitled to and therefore this aspect of the Bill is far more important than it sounds.
However, I shall speak to Amendment 21 which, in a way, takes us a step further and would ensure that vulnerable people with current or foreseen complex needs receive information and advice in a way that they can understand; also that the information and advice takes full account of their complex personal position. This may sound simple enough, but, in fact, an untrained person with a leaflet on local services, probably including lots of irrelevant information, is quite likely to leave someone more confused than they were before the visit. In fact, if local authorities do not want people to find their way to services that they need, a rather weak and unstructured approach to information and advice is probably the best way to achieve that result, but in the longer run, such a cynical approach will be highly costly.
My few remarks are based on a briefing from the College of Social Work, which has had the benefit of input from front-line social workers, managers, recent directors of adult care and academics, all of whom are very conscious of and concerned about the efficient use of resources. They would not say lightly that one should be developing a service such as this for information and advice unless it were really important. For people without dementia or other disorders which make it particularly difficult to comprehend the world around them, information and advice can probably be provided by less trained people without any great loss.
As was said in Committee, the aims and principles of the Bill are welcome. The College of Social Work is concerned, however, that many of these principles will not be fulfilled in practice. We hope, with the aims and principles in mind, that the Minister will agree to some further clarification in the Bill, or in regulations, on the key role of skilled social workers in supporting and protecting some of the most vulnerable people in society through their involvement at the information and advice stage.
Key stakeholders were grateful that, in Committee, the noble Earl, Lord Howe, recognised the point of this amendment. He said that,
“some authorities have also used qualified social care staff as the first point of contact and have found that this can be effective, efficient and timely, helping people to the care and support that will help them most”.
At that stage he envisaged that,
“guidance will set out the clear expectations of what the local authority’s service should cover or what it should seek to do in order to ensure that the information and advice is sufficient”.—[Official Report, 9/7/13; col. 216.]
The aim here is to ensure, by including the appropriate wording in the Bill or in regulations—I fully accept that having it in regulations would be perfectly satisfactory—that professionally qualified social workers will be deployed in sufficient numbers, including at the information and advice stage, for people who really need that level of expertise. As I have already said, those with complex needs may be a relatively small number of people. This should ensure that these particularly vulnerable people are put in touch with the most appropriate services for them. This could avoid the need for more intrusive and expensive interventions at a later stage.
I shall make most of my remarks on the subject of advice and information on Amendment 20, which is a more broad-brush amendment, but I shall just comment on the government amendments in this group, on advice—that is Amendments 16, 17 and 19. I remind the House that I speak as the unremunerated president of SOLLA, the Society of Later Life Advisers, which accredits, to a gold standard, advisers who can help old people on financial matters.
It would be churlish not to say that the government amendments mark a small step forward, in that for the first time they represent a recognition that independent financial advice can be necessary. To that extent, I welcome them. However, I have to say right away that it is impossible to read the briefings we have had without realising that they have caused great disappointment, particularly among financial service people who are determined to get this right. The Equity Release Council says that the government amendments do not go far enough.
In trying to put my finger on the point, yes, they recognise independent advice and financial advice, but they do not recognise the need for that advice to come from people who are properly qualified to give it. It is not enough to have Tom, Dick and Harry advise in this field. It is not enough, even, for local authorities to send people to see people who they may think are quite plausible advisers, such as Citizens Advice: they do not know the complications involved in giving financial advice, particularly to people who have got some money and need to make sure that it will provide them with the care in a home that they want. They need proper, regulated financial advice, given by advisers who can be called to task by the Financial Conduct Authority if the advice they give is not sufficient, who have to follow the rules set by it and must have the kind of qualifications required by it. Therefore, in my view the Government are some way short of what is required in these amendments. It is to repair that lack that I shall later move Amendment 20.
My Lords, I think I am right in saying that in the Inuit language there are more than 300 words for snow. I suspect that if historians were to go back through the annals of the British Civil Service, they would come across thousands of ways in which officials have briefed Ministers to say “no” to requests for advocacy. During the 20 years that I have followed these sorts of issues, during which advocacy has became part of social care, Governments have had to find ways to say, “It’s a very good thing, but we’re not going to fund it”. It was therefore a real joy to see the Government’s Amendments 118 and 119 in this group.
It is fair to say that the Government have taken on board the arguments that have put forward by a wide range of people. We know that the changes to the care system and the complexity of those changes, not least those stemming from the Dilnot recommendations, mean that we are now into a level of complexity which individuals on their own—even those who are fairly well informed—will find extremely difficult to manage. Therefore I very much welcome the Government’s Amendments 118 and 119, in which they recognise that there will have to be advocacy services. I also welcome the Government’s commitment to set aside funding for that.
The Minister will accept that his Amendments 118 and 119 fall somewhat short of my proposal in Amendment 38. I would therefore like to raise a few questions which result from the fact that the government amendments are of a much tighter scope than my proposal. I welcome the amendments, but there are several issues that I wish to ask the Minister about.
Subsection (2) of the new clause proposed in Amendment 118 states that independent advocates will,
“represent and support the individual for the purpose of facilitating the individual’s involvement”.
Advocacy in its truest sense is about much more than involvement—it is about enabling people who need help to achieve the outcomes they want. The word “involvement” is not defined, although it is used a lot in the Bill. Will the Minister say whether advocates will have a full advocacy role or whether this is just about securing the involvement of people?
Secondly, I come to individuals who qualify to have an advocate. Subsection (4) of the proposed new clause is quite clear that that is reduced to people who have substantial difficulty in understanding and retaining information, in making judgments by weighing things or in communicating their views. What is not in the Government’s Amendment 118 is a right of access for the advocate to access those people. Under the Mental Capacity Act and the Mental Health Act, where advocates are appointed they have a statutory right of access to people and a statutory right to interview those people in private. Given that we are talking about some fairly vulnerable people, would it be possible to ensure in regulations that advocates have a statutory right of access?
The third thing that is missing is that although the Government have taken this welcome step, there is absolutely no duty upon the local authority to listen to what the advocate has to say. That is a huge omission in the process; could it be dealt with in regulations? To echo the points made by the noble Lord, Lord Lipsey, it is important that people are properly trained for the roles that they will undertake in this extremely complex set of conditions which they are dealing with. Again, under the Mental Capacity Act and the Mental Health Act advocates have to be properly trained. Can that be dealt with in regulations?
Finally, can the Minister say whether it will be possible to include a general provision that in future, if additional circumstances arose in which it would be to the benefit of a person to have an advocate, they could have access to one? I am sorry to sound less than pleased—I am, in fact, very pleased by what the Government have put forward—but with a few more minor adjustments in regulations we could have something that is a great step forward.
My Lords, I will make a few remarks about three separate subjects that are covered in this group of amendments. First, I congratulate the noble Baroness, Lady Barker, on her tenacity on the subject of advocacy. I very much support what the Government are doing to try to respond to that, because it is a view that many of us across the House have had for some time. The Bill was deficient in terms of advocacy for those who need that kind of help and support.
I will make one remark in relation to my noble friend Lord Lipsey’s remarks, which we will go into a bit more under the next amendment. I remind the Government of the mis-selling of pensions and insurance in the financial services sector. They would do well to dwell on that before they eliminate the idea of some regulation. I see the argument that not all types of financial advice need a regulated financial adviser. However, some types of that advice need a regulated financial adviser. My peace offering to the Government is the following. If they thought a bit more about this, given what happened in the financial services sector, it may be possible to separate out the types of financial advice and deal with it in regulation, where we need both regulated and unregulated people. At the moment, the Government are being too broad-brush in ignoring some of the complexities, particularly around equity release and deferred payments, which may be equally as complex as any of the pensions and insurance issues that were being rather gaily sold by untrained people in the financial services sector.
I take issue with the noble Baroness, Lady Meacher, on Amendment 21, drawing on my six years as a director of social services. In the 1980s, we set up a care management system where care managers did not have to be qualified social workers. These people were putting together packages of care after an in-service training course, which enabled them to deal with some very vulnerable people with quite complex needs. It is not necessary to have a social worker. Many local authority departments over the years have developed benefits advice services that run alongside their social work colleagues, which give financial benefits advice to vulnerable people who need to be helped to find their way around the social security system. I caution the Government against not going down that path. With all due respect to the professional advice that the noble Baroness, Lady Barker, has had, qualified social workers are not necessarily very good at giving some of the advice that we are talking about.
Even more to the point, we should not divert a scarce resource such as qualified social workers into this area of activity when we do not need to. I remind the noble Earl that we are seeing, in the children’s services, a 50% increase in the number of children coming into care in a four-year period. The real need for social work skills and resources is in some of those other areas of work that local authorities have to deal with. However modest the numbers may be—and this amendment does not limit them that much—we do not need to divert scarce social work resources into this area. They need to go into some of their higher priority work, particularly in the area of children.
My Lords, we shall come to Amendment 20, in the name of my noble friend Lord Lipsey and that of other noble Lords, including me, in a moment. However, I want to ask the noble Earl about the point raised by the noble Baroness, Lady Barker, in relation to independent advocacy. The noble Baroness raised a pertinent point about what responsibility there is on a local authority to engage with the advocate. I hope that the noble Earl will provide the House with more information. Clearly, this is a step forward, which is to be welcomed, but one needs some assurance that the advocacy system will work effectively. It would be helpful to know what the noble Earl’s department thinks might be the appropriate response of a local authority where an advocate has come to the fore.
I have a great deal of sympathy with the amendment of the noble Baroness, Lady Greengross. It is one thing to provide information support grudgingly; another to be proactive in doing so. Perhaps the noble Earl would comment in particular on Clause 4, because there is a world of difference between Clause 4(1), in which a local authority must,
“establish and maintain a service for providing people in its area with information and advice”,
and Clause 4(2), which goes on to describe what type of advice. This does not assure us that a local authority will be effective in doing so. I should be grateful if the noble Earl would explain how this will be monitored. Will the Government have a role in reviewing the effectiveness of local authorities in providing that?
If one is resident in an area where the local authority does not seem to provide an effective information and advice service, what recourse does one have? I assume that there would be judicial review and the ombudsman, but those are heavy-handed approaches and it would be helpful to know whether the Government have thought through ways in which members of the public can draw attention to failures to provide effective information and advice in some local authority areas.
That might pick up on the amendment relating to the use of professionally qualified social workers. My noble friend Lord Warner, with a great deal of experience, has suggested that even in areas where there are complex needs, a qualified social worker need not necessarily provide this support. None the less, one wants some assurance that sufficient provision for support will be given. Again, it comes back to the issue of how we will monitor the performance of local authorities.
My Lords, perhaps as a point of information in response to the noble Lord, Lord Warner, I should clarify that my amendment does not suggest that qualified social workers should provide financial advice, for example. The important point about the role of these qualified social workers is that they are used to co-ordinating services for people and would be well aware of the need for financial and all sorts of other advice. Therefore, in relation to people with very complex needs, they are in a good position to make sure that all the bits of the jigsaw are actually provided. That was the objective behind the amendment.
My Lords, let there be no doubt at all that in the Government’s view high quality, accessible information is vital if we are to realise the aims set out in this Bill. We heard some excellent arguments in Committee about financial advice, advocacy, accessibility and signposting to other sources of information and advice. I hope that the amendments we are tabling today, and the commitments that we can give about our work with the sector on statutory guidance, will persuade noble Lords that we have listened to what we heard in Committee and have acted accordingly.
The noble Baroness, Lady Greengross, has tabled two amendments, Amendments 13 and 18, which state that local authorities should facilitate access to information and advice and that they should be accessible to those who would benefit. Amendment 21, tabled by the noble Baroness, Lady Meacher, proposes regulation-making powers which specify when social workers should provide information in complex cases. Following consultation, we made clear that information and advice must be accessible to those who have a need for them in relation to care and support. It says exactly that in Clause 4(4). Local authorities will have to meet the information needs of all groups, including those who often find it most difficult to access information, such as those with sensory impairments, people from BME backgrounds, people who are socially isolated or who have complex conditions. We are absolutely clear about that.
“Accessible and proportionate”—the words that we use in the Bill—also mean ensuring that information and advice are available in the right format, in the right places and at the right time. A vital aspect of this is making them available face to face and one to one, by phone, through leaflets and posters as well as online. When appropriate and most effective, that advice should be given directly by a qualified social worker. There will be other occasions when information and advice are best and most appropriately provided by others. We are working with all interested parties on what this means in practice and on translating this into the statutory guidance.
Amendment 18, tabled by the noble Baroness, Lady Greengross, seeks to ensure that information should be accessible and proportionate to those who would benefit. We consider this amendment to be unnecessary. The duty to provide information and advice applies to a local authority’s whole population—including those who would benefit from that. Each local authority will need to tailor the service to its population’s needs. I can confirm to the noble Baroness that the detail about how to do this will be covered in statutory guidance, and we are working with stakeholders, including carers and user groups, to make sure that we get this right.
The Government have also listened carefully to concerns expressed about the provision of information and advice on financial matters. We have in response tabled Amendments 16 and 17, which seek to make clearer the active role that local authorities have. Amendment 16 requires local authorities to have regard to the importance of identifying individuals who would be likely to benefit from financial advice. This encourages a more active role for local authorities to consider whether people would benefit from financial advice. Amendment 17 means that local authorities must seek to ensure that adults understand how to access information and advice on the range of financial options available to them.
There are various options for people who could benefit from financial advice relating to care and support, both regulated and non-regulated. Our amendments highlight the importance of ensuring that people understand how to access the variety of advice available independently from local authorities. They mean that local authorities must seek to ensure that adults understand how to access the different financial advice available to them, thereby supporting people to make informed choices.
A particular point that I want to bring out here is that the Government do not believe it would be appropriate to require local authorities to make direct referrals. For the most part, local authorities do not possess the necessary expertise, and there is a risk that a referral leading to poor advice could bring a significant burden of accountability on to the local authority. We will work closely with stakeholders as we produce the statutory guidance to understand how different types of financial advice, including regulated financial advice, might be of benefit for people in different situations, as well as the active role of local authorities within this.
Amendments 14 and 19 seek to simplify and clarify Clause 4 and to respond to specific concerns raised in discussion in Committee. Amendment 14 simply re-words Clause 4(2)(d) in a more concise and understandable way. This makes the clear and unambiguous statement that the information and advice service must cover how a person can access independent financial advice on matters relevant to the meeting of needs for care and support. Amendment 19 responds to concerns raised about the potential confusion, particularly in the financial services industry, over the term “independent financial advice”. The amendment clarifies that the term means financial advice independent of the local authority.
I turn to the amendment proposed by my noble friend Lady Barker about the importance of access to independent advocacy. The Bill requires local authorities to involve adults in the assessment, care planning and review processes. Most people will be able to carry out this involvement on their own and many others will have family or friends who are able to represent their views. However, in the light of what we have heard from noble Lords and other stakeholders, the Government accept that some people may require independent assistance to make this involvement a reality, which is why we are bringing forward Amendments 118 and 119. These are very similar to the amendments in the name of my noble friend Lady Barker. I shall address in a moment the questions that she put to me.
Following close work with the sector, we agree that the people who need this assistance most are those who have substantial difficulty in understanding, retaining, using or weighing the necessary information to allow this involvement, as well as those who have difficulty in communicating their wishes and feelings. For these people, our amendment states that local authorities would be under a duty to provide an independent advocate if there was no appropriate person to represent the individual who was not also involved in that person’s care or treatment. This would usually be a friend or family member. The Government’s amendments go further by proposing a similar duty to provide independent advocates to facilitate people’s involvement in the safeguarding processes. We consider it vital that people are at the heart of these processes, rather than having these processes done to them.
My noble friend asked about the term “involve”. The change in the duty to involve a person as opposed to consulting them in the assessment, care planning and review processes was made as a result of public consultation. It represents a significant shift by changing the emphasis on the process from being one that is led by the local authority to one carried out jointly with the individual. In practice, this means that people will need to be actively involved throughout the process, meaning that local authorities take their views into account rather than being able to perform tick-box assessment exercises, which is sometimes the accusation now. This fits with our whole approach to reforming care and support, shifting from a paternalistic view and a system where the authorities know best to a system that is driven around people and their individual preferences.
My noble friend also asked about the right of access. We know that there have sometimes been issues around independent advocates being unable to access a person, resulting in their being unable to perform their role properly. Proposed subsection (2) of government Amendment 118 requires an advocate to be made available to the individual, and the duty of co-operation in Clause 6 requires relevant partners of a local authority to co-operate in such matters. The regulation-making power at proposed subsection (7)(d) in Amendment 118 allows us to make provision as to the manner in which independent advocates are to perform their functions. This will allow the Government to specify that advocates will need to see the individuals, among other things. We have not yet made decisions about the specific content of these regulations, as we will work collaboratively with all interested stakeholders to produce them.
The regulation-making power will allow us to specify the manner in which independent advocates will carry out their role. There are two main ways of quality-assuring the work of advocates, which was another issue raised by my noble friend. The first is through the commissioning process, whereby local authorities set out what they expect of the advocacy service in terms of quantity and quality and monitor it through performance indicators and regular meetings. Secondly, the department has also funded a sector-specific quality assurance framework, whereby organisations start by carrying out a self-assessment and then are visited by assessors, who examine and report on the quality of the work. This is called the quality performance mark, and many commissioners require it.
My noble friend asked about the possibility of a general provision to allow for future circumstances where advocacy is appropriate. I can tell her that the regulation-making powers in proposed subsection (7)(c) of Amendment 118 allow us to do that. Statutory guidance will go into more detail about when advocacy would be appropriate.
I turn to the question posed by the noble Lord, Lord Hunt, about how we will monitor effectiveness and what recourse individuals have. First, by putting care and support law into a single statute, we are ensuring that local authorities are clear about their care and support obligations. As public bodies, they are obliged to comply with these legal obligations, and we can rightly assume that they will do so. In some circumstances, an individual bringing legal proceedings against a local authority may be able to argue that an authority’s failure to comply with such duties has adversely affected them, and hence a failure to comply could be subject to a legal challenge. We will, however, be coming on to debate the role of the CQC in this context, and I can perhaps elaborate further on our thoughts on the role of the CQC at that point.
I hope that by bringing forward these amendments we are showing that we have listened carefully to the many representations we have heard on the issue of advocacy and are demonstrating the Government’s commitment to improving outcomes for some of the most vulnerable people using care and support. I hope that they will receive the support of the House. Further, I trust that noble Lords will note that we have listened carefully about the importance of financial advice and will support the amendments that we are proposing, which encourage a more active role for local authorities. Finally, I hope that noble Lords are persuaded about how important we believe the statutory guidance on information and advice to be, in which we are committed to addressing in detail important issues, such as integration with areas such as health and housing and making information accessible to all.
My Lords, I start by thanking the Minister for his very detailed response to these amendments. I am encouraged by what he said. I was, in my remarks, trying to broaden this issue so that integration is about the information and advice that people need and is not always restricted to financial advice and information. It is much broader. Obviously, the proof of the pudding in this is going to lie in what actually happens, and whether we get the sort of integrated approach to this that we hope underlies the philosophy of the whole Bill.
I am sorry that this provision cannot be in the Bill, but I am less worried about that than the eventual result of these measures. The slight muddling around the word “independence” will come out when we consider the next group of amendments and discuss the difference between regulated and independent. The two can be muddled, with regard to “independent” and “regulated”, when thinking of lots of different models for financial products, for example, and “independent” from the local authority. That all needs to be very clear in the minds of those who seek advice and those who are giving advice to very frail and vulnerable people to whom this needs to be clear, broad and helpful, and as well meaning as I know the Minister has in mind for it to be. I beg leave to withdraw my amendment.
Amendment 13 withdrawn.
14: Clause 4, page 4, line 22, leave out from “matters” to “, and” in line 24 and insert “relevant to the meeting of needs for care and support”
Amendment 14 agreed.
Amendment 15 not moved.
Amendments 16 and 17
16: Clause 4, page 4, line 28, after “particular” insert “—
( ) have regard to the importance of identifying adults in the authority’s area who would be likely to benefit from financial advice on matters relevant to the meeting of needs for care and support,( ) ”
17: Clause 4, page 4, line 32, after “arise” insert “, and
(iii) to understand the different ways in which they may access independent financial advice on matters relevant to the meeting of needs for care and support.”
Amendments 16 and 17 agreed.
Amendment 18 not moved.
19: Clause 4, page 4, line 34, at end insert—
“( ) “Independent financial advice” means financial advice provided by a person who is independent of the local authority in question.”
Amendment 19 agreed.
20: Clause 4, page 4, line 41, at end insert—
“( ) The Secretary of State—
(a) has a duty to ensure through national public awareness campaigns that there is a high level of public awareness and understanding of the terms and implications of the cap on the cost of care; and(b) shall publish annually a report on the levels of such awareness and understanding, including the results of a representative poll of adults.( ) Regulations must make provision for when a local authority must refer an adult with care and support needs, or who is making plans for meeting such needs, to a regulated financial adviser; and for when a local authority may refer such an adult for such advice.
( ) The advice and information made available to adults with care and support needs must include—
(a) advice on housing options; and(b) tailored information for individuals with specific medical conditions and complex individual needs.”
My Lords, perhaps I may start with a procedural point. We have had these matters under discussion for quite some time, and the first three Peers named on the amendment—myself, the noble Lord, Lord Sharkey, and the noble Baroness, Lady Greengross—had a most useful meeting with the Minister and Norman Lamb from another place on 12 September. There was complete agreement at that meeting that, if it was at all possible, we wanted to go forward on the basis of consensus on the matters of advice and information, and I am sure that that is right. However, I think it fair to say that we are not quite there yet.
The Minister very kindly agreed to share with us his notes for his speech in reply to the debate this evening in advance so that we could consider them, because many things that he might want to say are very relevant to whether we have a picture for advice that really does the job—sorry to mix the analogies. The Minister fulfilled his kind promise, but only at 2.41 pm this afternoon, and I have not had a chance to digest his words, nor to discuss them with my colleagues, whose names are on the amendment. He also suggested that we should have further talks if they would be helpful, particularly, he said, between Report stage days. Clearly we are not considering finished business here. All I am asking is that there should be agreement from him and from the House that if either he or we think that an amendment at Third Reading is appropriate and necessary—it may well not be—he will not resist it on the grounds that we have thoroughly debated it. This is open territory and we are trying to find a way forward. In that way we can avoid any Divisions this evening. I would be grateful if the Minister would agree.
That is marvellous. That makes it much easier.
As I said, I think we are making headway, but I do not think we are necessarily there. There are three elements to this amendment: the information campaign, which the noble Lord, Lord Sharkey, will concentrate on in his remarks; special groups and housing, which the noble Baroness, Lady Greengross, will address; and I will concentrate on the issue of advice.
Why do I spend so much time banging on about advice? This is an incredibly complicated area. The financial products are very complicated, and many people do not have a natural understanding of them. We all sort of know what a pension is. How many people, even in this House, know what a point-of-use care plan policy is? Who would be able to evaluate whether it was good value for money or bad? There is a large gap in the degree to which people know and understand the kind of products that can be involved here and the issues that can arise.
There is not a lot of this advice about, by the way. Some 53% of councils did not even refer people in care homes for independent financial advice. Only 7,000 of the 53,000 self-funders in care homes have had appropriate financial advice. A point-of-use policy can ensure that they can go on paying for their care however long they happen to stay in the home. Their whole lives are at stake, yet hardly more than 10% have received the financial advice they need.
This is costly not just to the individual but to the councils. Nearly one-fifth of self-funders end up falling back on the state to pay. It costs councils £435 million a year, which is a substantial sum. Much of this could be avoided if people got appropriate financial advice. I do not think that this is not common ground with the Government, but it is, I think, a reason why the Government need to make absolutely sure that they get it right in what they do.
The need for financial advice has greatly increased as a result of the Dilnot scheme. The scheme has no stronger supporter than me, except possibly the Minister. I think it is a very good outcome to a very long and protracted debate. Nevertheless, it does make a lot of things more complicated. I will give an example that I gave in an earlier debate. You can apply for help under the means test and find that you are worse off if you get it because, although you get a little help under the means test, you lose attendance allowance if you get any means-tested support at all. I was amazed when I found that out, and I study this every day. How many people would know that unless they had the right kind of financial advice? That could come from citizens advice bureaux if their computer systems were up to it, but you really want an independent adviser to help you in the round. I do not think that is very controversial.
It made me wonder why the original clauses in the Bill—and, as I argued earlier, even the revised clauses—are rather weak. I think I detected the answer in the Minister’s reply to the previous debate. What everybody is terribly worried about is a council saying, “Go and see Jones down the road. He will give you the right advice”. If that advice later turns out not to be very good, that person will not sue Jones or go to the Financial Ombudsman Service; he will sue the council. That seems to me a perfectly reasonable point. However, at the other end it does not work, either. It is no good if the council just hands him a list of financial advisers and says, “Why don’t you ring one of these chappies if you are not happy?” because that will not cause people to do it. What we are looking for is not a direction to go and see X, nor a vague offer that something might be a good idea if he wanted to do it. We need to nudge people pretty firmly in the direction of getting financial advice. Of course, any individual is free to say that they do not want that advice; that would then be their lookout.
I am not sure—and the House will judge when it has heard the Minister’s remarks—that even now we have cracked the dilemma of how we nudge. However, many local authorities are making very good progress in this field—for example, Nottinghamshire and West Sussex, which we have discussed before—setting up fora in which the local authority, independent financial advisers, citizens advice bureaux and the voluntary sector all co-operate and provide a service to people. Incidentally, some councils are doing this because they absolutely need to for the benefit of their own budget. A whole lot of people are moving out of inner London who are self-funders but who do not have enough money to go on self-funding forever. They will impose an impossible burden on those councils. The go-ahead ones are going ahead and the ones who do not like this area are not doing anything at all. That is why we need more vigour from the Government on this issue.
Furthermore, I am not convinced that enough is being done to get the regulation system up to speed. Regulation of advisers in this field was only reluctantly embraced by the old FSA. I am not sure that the new regime is doing very much better. I hope that the Government are doing enough to push it to take this issue seriously. Not enough is going on to make sure that enough qualified advisers are coming forward. It is a very good job for an adviser now that the old ways of making money by flogging people dodgy investments are becoming increasingly difficult. This is a very good field and I would advise any reputable financial adviser with the right knowledge to think seriously about going into it. It is very satisfying work and can be rewarding. However, I do not think enough of it is going on.
I see here a great shortfall—to which my amendment would be only one part of the solution, but an important part—between what is needed and what is actually happening. It is crucial that the House satisfies itself that the Minister’s department really is gripping this and not being paralysed in the headlights by thinking, “Oh, dear, some poor local authority or the Government may get the blame if this goes wrong”. The whole Dilnot scheme depends on getting advice right. It is as strong and as simple as that. If it fails for the lack of dealing with the advice problem, we as a nation, and many older people, will be the poorer as a result. I beg to move.
My Lords, I will speak to the first part of this amendment, but before I do so I will register my strong support for the remarks made by the noble Lord, Lord Lipsey, a moment ago, especially with regard to the provision of independent and regulated financial advice.
I think it is common ground that the Dilnot reforms will fail unless the public understand what they are and what their implications are. I think it is also common ground that there need to be vigorous communication campaigns to make sure people do in fact know about and understand the implications of the reforms. Where there seems to be a difference between the Minister and those who supported a similar amendment to this in Committee is over who should be directly responsible for ensuring that these campaigns take place and that they have an effective form, and over how their effectiveness is assessed.
The amendment before us gives the Secretary of State a duty to ensure through national public awareness campaigns that there is a high level of public awareness and understanding of the terms and implications of the cap on the cost of care. In his reply to a similar amendment in Committee, the Minister simply noted that the Bill as it stands places a duty on local authorities to provide information and advice, including on the cap system. In later correspondence, for which I am very grateful to the Minister, he expanded on the point. He noted that, first, the funding reforms create a shared interest on the part of local authorities, government and the financial services industry to make sure that people are aware of the reforms and have access to the right information and advice at the right time so that they can plan and be prepared to meet their care and support needs. Secondly, the Government want to act in partnership with these key stakeholders to get this right, building on the effective relationships already established. Thirdly, the Government are seeking views in a consultation on the design and technical implementation of the funding reforms, which includes addressing the best way to proceed to raise awareness of these reforms nationally and locally.
The Minister’s remarks make it clear that there are lots of interested parties in this communications endeavour, but they entirely overlook the question of leadership. A campaign as vital as this needs leadership. I maintain that that leadership can come only from the Secretary of State. Local authorities, almost by definition, cannot easily lead in any national sense. As for the financial services industry, it is convinced that the information campaigns need clear, well defined leadership, and is quite clear that it cannot come from that industry. Who would believe facts on the reforms presented by somebody trying to sell you something? In fact, the ABI has told me that it believes that the public information initiative should be led by the Government. That is what part 1 of this amendment would do—give the Secretary of State leadership and responsibility.
The other areas where the Minister may differ about a communications campaign are how high to set the bar and how to explicitly make it plain that it is not just the terms of the reform that have to be understood but the implications of the terms of the reform. It is not much good being aware of the facts if you cannot work out what the facts mean for you. However, the difference over how high to set the bar for a communication campaign is critical. As the noble Lord, Lord Hunt, pointed out a moment ago, the Bill states only that local authorities must establish and maintain a service for providing information and advice. The Bill does not set any measure for whether anyone actually receives or understands this information and advice. It does not set targets of any kind.
You can easily see a situation in which local authorities can, at least technically, fulfil a duty to provide advice and information without providing much of it, or knowing how many people are reached by it and how many of those reached understand it and the implications it has for them. That would be an entirely unsatisfactory outcome and certainly not what the Government intend. We need to make sure this does not happen and that is what part 1 of the amendment would do. It calls for,
“a high level of public awareness and understanding of the terms and implications of the cap on the cost of care”.
At Second Reading, the Minister said:
“The Government will adopt a strategic approach to maximising the public’s understanding of the new care and support system”.—[Official Report, 21/5/13; col. 827.]
The key word is “maximising”. The amendment gives written substance to the idea of maximisation.
The first part of the amendment contains a paragraph which would require the Secretary of State to publish annually a report on the levels of awareness and understanding of the reforms,
“including the results of a representative poll of adults”.
When we discussed this requirement in Committee and subsequently, the Minister felt that reviews of understanding and awareness would naturally follow in the normal course of things, and I am sure that is the case. However, the special nature of these reforms and the need to be able accurately to measure progress in informing people and keeping them informed calls for a more definite and more regular assessment. The Minister also felt that the kind of annual survey we proposed might be very expensive. I have had extensive experience of these surveys in business over the past 20 years and I can reassure the Minister immediately that the kind of annual survey this amendment proposes would have an essentially trivial cost. That is why, for the sake of clarity, the amendment makes reference to a “representative poll of adults”. This kind of survey would, in fact, cost very little, would be very easy to administer and would be exceptionally quick in delivering results.
I will close by saying that I strongly believe a large-scale national information and advice campaign is necessary for the success of our reforms. I believe that any such campaign must have appropriate targets and that we should see on a regular basis how these targets are being met. I believe that any such campaign must have clear leadership, and that direct responsibility for that leadership should be the duty of the Secretary of State, as the amendment proposes. I very much hope that the Minister will be able to agree with at least some of it.
My Lords, I fully endorse what my two esteemed colleagues said regarding the need for appropriate financial advice. I am still of the opinion that people should be referred to regulated advisers, who are best placed to advise them on the full range of solutions open to them. However, to avoid repetition, I will briefly concentrate on the paragraph in Amendment 20 dealing with other areas of concern about which we have already talked in some depth, such as housing. People with specific medical conditions and complex needs are reliant on suitable housing provision. We should also not forget the needs of their carers in this regard. The local authority will need to engage with agencies and organisations such as the CABs and Age UK in an integrated way. This should be part of providing a relevant local advice and information envelope.
Plainly, there is no point in getting appropriate financial advice if, through no fault of the adviser, faithfully following that advice cannot be guaranteed to lead to good care outcomes. Those outcomes may be consequent upon ensuring that things such as the suitability of the individual’s housing and accommodation are included in any wider fact-finding conducted by the local authority alongside any care or financial assessments it performs. That housing suitability will probably depend on the complexity of the care package that the individual’s needs disclose. Those needs will probably derive directly from the specific set of conditions and symptoms that the individual faces.
No one would expect a local authority to be familiar with every possible combination of health and social circumstances that an individual may face, which is why close working alongside local agencies and organisations such as the CABs and Age UK in assuring the existence of a complete, competent advice and information envelope is so important. Indeed, it is my firm view that the quality of that integrated approach to care management may well be the key determinant on which successful outcomes depend. I urge the Minister to adopt our amendment, as we believe that it would go a long way to ensure more effective and efficient outcomes for both the service user and the taxpayer.
My Lords, I declare an interest as chairman of the Association of Professional Financial Advisers. One of the areas that regulated financial advisers are most concerned about is that they should be able to do the job that they are there for. I am concerned that recent “reforms” have meant that there are fewer people available to give advice and fewer people getting advice. One of our problems is that this means that people get bad advice. They say something to their friend round the corner, or somebody says “I think so-and-so’s OK”, or they have read something in the newspaper. One of our difficulties here is that the perfect gets in the way of the good. People are frightened to say things like, “here is a list of people” or “here is somebody I have used”, in case they then incur some kind of responsibility. Yet if we do not help people to find someone who can give them advice, the very people who most need advice do not get it. I am concerned that this is becoming almost a social problem in the sense that those who are best off and least need advice get the best advice while those who are less well off and need advice do not get it because we have got ourselves into this mess.
I am not in a position to say that this or that amendment is ideal, but I hope the Minister will accept that, in today’s circumstances, unless we give clarity to people and make it relatively easy and simple for them to go to get advice, they will not go and will not be able to.
I have two more short points to make. First, we have concentrated on the simplicity of the advice when you get it, which seems to me to be the wrong place. It is the simplicity of getting the advice that really matters. Very often, the advice that is given may not be all that simple, because the circumstances may not be all that simple, but if the simplicity of getting the advice is right then it can be moved through more effectively.
Secondly, in considering these amendments and, indeed the Bill—at this stage and going forward—I hope the Minister will realise that one of the problems about seeking advice is that the language used is incomprehensible to anybody but the professional. I find this embarrassing: I once sat on an FSA committee designed to try to make more people more financially literate and spent my whole time asking superior people in the finance world to explain to me what they meant. I discovered that they did not always know what they meant. There is a sort of language which is used and batted backwards and forwards between these people. There is a terrible fallout in this. I remember that a friend of mine was asked for advice—not about finance, but about how to buy a theatre ticket—by a man had never gone to the theatre before but whose wife wanted to go to something. She explained and dealt with it but a friend of hers said, very superiorly: “Of course everybody knows how to buy a theatre ticket”. My friend asked, very simply: “Could you buy a football ticket”.
That is one of the problems, so I hope we can try to do this in a way which is comprehensible and simple and which does not mean that the most needy are unable to get the service they need.
My Lords, I rise to support this amendment and, particularly, to talk about the first two prongs of it. I do this partly from my experience as a member of the Dilnot commission. I remind the House what that commission said on the subject of an awareness campaign. We made only 10 recommendations, one of which was a very strong one because we had been incredibly depressed by the evidence given about people’s understanding of the present system, let alone the new one. When you have 60% of the population thinking that social care is provided by the NHS, you have a bit of a problem explaining to people how the system operates. Since they have not even mastered the existing system, you have to make a really big effort to get across some of the messages about the changes to it.
You could argue that it is a bit like Africa: if you have never had a landline and go straight to mobile phones it might be easier to make the change. Many people will not carry a lot of baggage about the existing system, but we do need to work really hard on this issue. That is why we said:
“To encourage people to plan ahead for their later life we recommend that the Government invest in an awareness campaign”—
we used the word “invest” very deliberately—
“This should inform people of the new system and the importance of planning ahead. This campaign could be linked into the wider work to encourage pension savings”.
Those three sentences were worked over very carefully and we said exactly what we meant on those issues. We said them as strongly as that because we thought that, to some extent, the success or failure of the changes encompassed in the Bill depend on that awareness campaign. I have not seen the Minister’s reply, but I have a suspicion—because I know how health Ministers get briefed—that there will be something about how this is not appropriate stuff to put in the Bill. I can see that there is some strength in that argument but if we are not to put it in the Bill then the Minister has got to start to tell us, in detail, what the Government are going to do.
The Government have had more than two years to think about this. We were made to produce a report very quickly indeed: within 12 months. It is now more than two years since it was produced and I should have thought we could expect a reasonably detailed plan from the Department of Health about how it is actually going to make the public aware. It would be nice if the Minister accepted the amendment, but if he is not going to, we need to know: where is the budgetary provision for the awareness campaign; what work has been done on the selection of people to help run the campaign; when it will start and how long it will go on for. How much are you going to pay for this? Do you accept the idea that all good awareness campaigns have some kind of follow-up arrangements? The noble Lord, Lord Sharkey, has suggested an annual survey and I would not disagree with that. As he rightly said, these surveys are, from my experience, relatively cheap to do. Given the sums of money we are talking about in the Bill, this would be a very modest thing to do and there is certainly no point in having an awareness campaign if you are not going to check up whether there has been any increase in awareness.
There is a raft of issues where we need to have some detail from the Government on what they have been doing on this recommendation for a couple of years. If we have not got a very convincing story, we have to consider putting this in the Bill, to generate some energy and action in this area.
I turn to the second prong, which we have already talked a little bit about under the previous group of amendments. I strongly support what my noble friend Lord Lipsey said, and I want to return to the issue of mis-selling. We have had some serious problems in this country about the way the public has been sold financial products and we ought to be able to learn from history over that. It is not any old Tom, Dick and Harry who can give sensible advice to people about complex financial issues. The noble Lord, Lord Deben, is right: many of these issues are complex and you need a simple system to get to the advice, but the advice is not always going to be simple.
Let me illustrate that with the sort of circumstances that families and older people may be faced with. It is fairly common that an older person is going to give up their house; their spouse has died and they will have to give up the house. The family might well want to have a conference about what they do with that house. There are several options: they could keep the house and rent it for income; they could go for equity release; they could go for deferred payments; or they could go for a point of care plan, as my noble friend said. Choosing the best thing to do from some of those options is not straightforward; it will require someone who knows their way around some of these issues and can give advice to people and their families on how to make a sensible, good decision that fits their particular circumstances. The Government have to give more consideration to this.
I accept that not every issue will be complicated and there could be some circumstances in which the financial advice does not need to be given by a regulated financial adviser. However, the Government now have to do the legwork on separating the sort of situations where regulated financial advice is needed from those where one can be more relaxed about it. If we do not give guidance of some standing and credibility to local authorities, we put them in an invidious position because they will be damned if they do and damned if they do not. They need some advice on the sorts of circumstances in which they, to discharge their obligations under the terms of this piece of legislation, can point people clearly in the direction of advice that is likely to be appropriate to that person’s circumstances.
Lastly, I wish to make a point to the noble Earl about the Secretary of State’s new obligation under government Amendment 138 to have regard to the local authority’s requirement in Clause 1 to promote well-being. The Secretary of State is now pretty much in the same position as that of the local authority when he is producing guidance and regulations. It is at least an arguable case that he would not be fulfilling that requirement unless he put in place some credible arrangements for sound financial advice being given to people and he helped the public to understand the details of the arrangements of the new scheme that the Government were implementing. I am not a lawyer, but it would be worth a punt by going to lawyers to argue that the Secretary of State would be in breach of his new obligations if he took a cavalier approach to financial advice and awareness of the new scheme.
My Lords, I, too, support the amendment. I thank the noble Earl, Lord Howe, for giving us an assurance that this matter can be brought back at Third Reading, which is very helpful to our debate.
As several noble Lords have said, many people find dealing with financial products very complex indeed. They also find the system of social care funding to be complex. How much more complex will it be when the Dilnot provisions in the Bill are introduced? My noble friend made the point that many people misunderstand the current system. Many people think that social care is free at the point of use until they suddenly reach a situation where either they or their relatives are faced with catastrophic issues around long-term care. Even in relation to Dilnot, my noble friend Lord Lipsey pointed out in Committee that many people think there is this cap of £72,000 but, as we know, it is much more complex than that. The £72,000 cap is based on the fee that the local authority will pay for people who are not self-funded, but we know that self-funders, in essence, subsidise those who go into care that is in one way or another funded by the local authority because they meet the means-test requirements. Of course it is not free because there then have to be hotel costs, which Dilnot estimated to be about £12,000 a year. This matter is therefore very complex and many people find dealing with financial issues very difficult.
I was very struck by a report produced two or three weeks ago by the Association of British Insurers, which looked at annuities. The range of rates of return for annuities is quite extraordinary. The ABI figures showed that people who fail to take advice or shop around for their annuity are settling for retirement incomes that in some cases are nearly a third lower than those they could receive from the best deal. Indeed, the new rates published by the ABI show that the best conventional annuity pays out 31% more than the worst, equating to a difference of more than £1,400 a year in retirement income for a £100,000 pension. The gap between the best and the worst is up to 46% for enhanced annuities available to those with ill health or certain lifestyle characteristics such as smoking.
One would have thought that in the case of annuities, when people have been paying into a fund for years, and when, it is hoped, most retire in good health and full cognisance of their faculties, they would be able to find their way around the system to ensure that they did not stick with just the fund into which they are paying their money but shopped around. However, the evidence seems to be that the public in general find annuities difficult to work with. If people cannot find their way around the annuity world, how on earth can they be expected to find their way around the complexities of finances when having to make very difficult decisions in terms of the cost of care?
I agreed with the noble Lord, Lord Deben, when he pooh-poohed the idea that local authorities should fear making available to members of the public information about where they might seek regulated financial advice. If we are worried about local authorities becoming liable if they provide information on where people could receive proper financial advice, this is deferring to a risk-averse culture at the expense of the public interest.
I think that there is a consensus around the House that something more needs to be done. I hope that the noble Earl will listen sympathetically to all noble Lords who have spoken and will come back on Third Reading with much more clarity and a reassurance that the Government recognise there needs to be a widespread, effective campaign in relation to financial awareness. We need to be satisfied that people will be able to find their way to proper, regulated financial advice.
My Lords, I begin by thanking the noble Lord, Lord Lipsey, my noble friend Lord Sharkey, the noble Lord, Lord Hunt, and the noble Baroness, Lady Greengross, for the amendment, which covers a number of distinct issues relating to information, advice and awareness of the reforms to care and support funding. I am grateful to them all for meeting me over the summer to discuss these issues so constructively.
A number of speakers, including the noble Lords, Lord Hunt and Lord Warner, stated that public awareness of these matters, particularly on the potential cost of care, is woefully low and that this needs to be addressed. My noble friend Lord Deben made some telling points in that connection. The Government agree that if we are to realise in the fullest sense the benefits of these reforms, it is critical that people are made aware of them and what the reforms mean for them. There is absolutely no dispute on that point. I explained in Committee that Clause 4 requires local authorities to provide information and advice on care and support, and that this must be accessible to their whole population. This will need to include information on the capped costs system.
However, we accept that local awareness-raising alone might not be sufficient. Furthermore, we accept that the department has an important role to play at the national level. For an awareness campaign to be successful it needs to be delivered in partnership—national and local government working alongside the wider care sector. We do not believe that a specific duty in the Bill would achieve this and we do not think that it is necessary. It is not necessary, for one thing, because we are already building a partnership without legislation. We have embarked upon a joint programme with local government to implement the reforms, and I can assure my noble friend Lord Sharkey, and the noble Lord, Lord Warner, in particular, that awareness-raising will be a part of this. We are engaging with the voluntary sector, care providers and the financial services industry to make sure that we all play our part in communicating these reforms effectively. It is a joint effort and a joint responsibility.
To answer my noble friend Lord Sharkey, the public awareness campaign will be timed to coincide with the coming into force of the key elements—that is, April 2015 for most; April 2016 for the capped costs system. I can assure him, too, that the Government do not intend to shy away from the need to raise public awareness.
Turning to the second limb of the amendment, the Government are not convinced that it is proportionate to require the Secretary of State to conduct a poll and publish a subsequent annual report on awareness of the capped costs system. However, we do agree with the need to monitor the effectiveness of the reforms and the Government have committed to conduct post-legislative scrutiny of all new legislation. Moreover, recognising the need to improve data on public understanding of care and support, we have also taken steps to develop and include new survey questions for the annual Health Survey for England. The new questions will be used to monitor and track public awareness over time. If questions are included, fieldwork will be conducted throughout 2014, and the report will be published at the end of 2015. These data would provide us with a baseline against which we can evaluate changes in public awareness. The survey is conducted annually, so there is scope to include the questions in subsequent years. Additionally, there are already questions in the English Longitudinal Study of Ageing— ELSA—which capture public awareness of care and support and expectations of how it is funded. Some data are already available and the next set will be available at the start of 2016. Together, these steps will inform the ongoing implementation and policy development process that will take place in the years to come. I hope that is helpful to my noble friend and provides him with some reassurance.
We are currently consulting about the design and implementation of the funding reforms. Through this we are seeking views about how best to raise awareness of these reforms nationally and locally. We will consider the responses carefully before deciding on the way forward. I can assure the House that this will include a role for the department nationally.
The next part of Amendment 20 would introduce a regulation-making power to specify circumstances where local authorities must, and where they may, make referrals to financial advisers regulated by the Financial Conduct Authority. Given that quite a bit of the ground covered in this amendment was discussed at length earlier in the debate, and relates to a number of government amendments which have been accepted by the House, I hope that noble Lords will forgive me if I do not rehearse all the arguments they have already heard.
The noble Lord, Lord Lipsey, emphasised the importance of people understanding the various products that are available. We agree that, in some instances where someone is considering a financial product such as a care annuity, financial advice should be regulated through the Financial Conduct Authority. However, there are many sources of valuable financial advice that do not need to be regulated and can be provided free of charge—such as advice on managing money from the citizens advice bureaux or from the Money Advice Service. In addition, the fact that financial advice is regulated does not mean that it is appropriate for care and support purposes. Very few regulated financial advisers currently have a qualification or expert knowledge of care and support, though we hope that this sector will develop over the coming months and years. In this context, the term “independent financial advice” covers both regulated and non-regulated advice.
The noble Lord, Lord Lipsey, also asked about the regulation of advisers in this particular field and what we are doing about this. The regulation of financial advisers comes within the remit of the Financial Conduct Authority. We have opened up discussions with the authority and with the Association of British Insurers on the regulation of financial products and advice.
From the comments of the noble Lord, I took it that he accepted that it would be inappropriate to require local authorities to make direct referrals where, for the most part, they do not possess the necessary expertise to judge between advisers. Requiring them to do so would present a significant burden and could result in a local authority making an unnecessary or inappropriate referral. There is the further risk that a referral leading to poor advice could be seen as the fault of the local authority, a point he acknowledged, bringing yet more of a burden of responsibility in increased disputes, and even legal challenge. We believe that the decision to take up financial advice, of whatever form, and the choice of adviser, should belong to the individual and not to the local authority.
In respect of the third limb of the amendment, about housing, this is very similar to Amendment 15 tabled by the noble Lord, Lord Best, which we have already discussed. If the noble Lord has any further concerns, I should of course be happy to speak to him separately.
With regard to the provision of information and advice to people with specific health conditions, this is primarily the responsibility of the NHS. For example, there is a wealth of tailored health and social care information on the NHS Choices website that is public-focused and available to local authorities to use however they see fit. Health and housing are, of course, vital for people using care and support. Clause 3 puts local authorities under a duty to promote the integration of care and support with health and health-related services. The House has accepted Amendment 12 to clarify that this incorporates housing, which includes joining up the provision of information and advice. We will address this in detail through statutory guidance.
I hope that this persuades at least some noble Lords that these issues are all being considered very seriously by the Government, as we work with local authorities and others to implement the reforms. On that basis, I hope that they feel able to withdraw their amendments.
My Lords, I thank the Minister for that reply and for the positive things that he said from which we can draw encouragement. I was particularly pleased to hear him talk about the national role of the department in information provision and confirm that there will be campaigns around landmarks in the Dilnot report to carry that forward. Equally, there are some things on which, if I may say so, he still is not quite there. Nobody advocates direct referrals—nobody. I accept his argument—everybody does—that you cannot just send people to say, “You have to go and see so and so”, or, “So and so is your man”. The other extreme is to say that you do nothing. You provide, for example, a list of suitably qualified advisers within the local authority area; you tell people how to get hold of them. We should not set up straw men, whom nobody is advocating, in order to fend off suggestions that need to be acted upon.
Some things the Minister said would be valuable to follow up in writing. I am sure that the noble Lord, Lord Sharkey, will agree with me that it would be fascinating to see the monitoring suggestions as a substitute for the poll that he suggested, because if they work, that is fine and we will not press it, but if they seem to fall short, that would be different. I think that there will be room to ask the Minister for further discussions with the movers of this amendment so that we can narrow even further the ground before us. I do not pretend to be fully satisfied as I stand here tonight. I gave my reasons earlier why I do not think that the Government’s amendments to the Bill complete the picture, but we are making progress, as we all want to, and we are having a good dialogue. With the Minister’s help, I want to carry that forward before Third Reading, at which stage we will see whether an amendment is needed. With that, I beg leave to withdraw the amendment.
Amendment 20 withdrawn.
Consideration on Report adjourned until not before 8.30 pm.
Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill
The Bill was brought from the Commons, read a first time and ordered to be printed.
EUC Report: Court of Justice of the European Union
Question for Short Debate
Baroness Corston (Lab): My Lords, in opening this debate, which seeks the Government’s response to the European Union Committee report on the workload of the Court of Justice of the European Union, it is important to stress at the outset that the Justice, Institutions and Consumer Protection Sub-Committee, which I have the honour to chair, has been interested for some time in the operation of the CJEU. In 2011, the sub-committee carried out an inquiry under the excellent chairmanship of the noble Lord, Lord Bowness, into the workload of the Court of Justice and produced a report in April of that year. Among other things, the sub-committee recommended that the number of advocates-general appointed to the Court of Justice should be increased; the General Court should consider establishing specialist chambers; and, most significantly, that the number of judges appointed to the General Court should be increased in order for the court to deal with its workload efficiently and to speed up proceedings.
Shortly after the report was published, the president of the CJEU put forward a series of proposals designed to increase the efficiency of the court. Most notable were the proposals to increase the number of judges in the General Court by 12 in order to tackle the increasing number of pending cases before the court. The Commission thought that increasing the number of judges in the General Court would be the only possible solution to the court’s workload problems, stating that,
“only by immediately increasing the number of judges . . . will it be possible to stem the flow of new cases and effectively tackle the backlog of cases”.
Member states generally agreed that the number of judges ought to be increased. However, agreement proved elusive, principally over the method for appointing the additional judges. In May 2012, the aspects of the president’s proposal dealing with increasing the General Court’s judiciary were dropped in order to facilitate agreement by the member states to the other parts of his proposals.
Subsequently, a Friends of the Presidency Group was established by the Council, comprising representatives from all member states with a view to examining the case for increasing the number of judges in the General Court. However, the group failed to reach any conclusions and the presidency put forward a proposal for consideration at the General Affairs Council on 11 December 2012 which included the appointment of nine additional judges appointed through a rotation system. The proposal was rejected by the member states.
At this point, the sub-committee decided to conduct a follow-up inquiry to determine whether the adopted proposals were having an impact on the workload of the court and whether there was still a case for increasing the number of advocates-general in the Court of Justice and increasing the number of judges in the General Court. The sub-committee wrote to the witnesses who had participated in the original inquiry and asked them to provide written evidence. Evidence was also heard from the Minister for Europe, the right honourable Mr David Lidington, in March. Shortly after we published our call for evidence, the CJEU requested that the number of advocates-general be increased by three, and after debates in both Houses of Parliament, as required by the European Union Act 2011, the proposal was agreed by the Council on 25 June. The first of the new advocates-general will be from Poland and is due to take up the post shortly. In line with the existing rotation, the other two will be of Czech and Danish nationality. They will take up their posts in October 2015.
In our follow-up inquiry we concluded that there was still a case for increasing the number of judges to the General Court. The latest statistics from the court indicate that there has been a reduction in the number of pending cases due to a fall in the number of new cases. The average time that it takes the General Court to dispose of a case has fallen by 1.9 months to 24.8 months. The sub-committee welcomed the decrease in the number of new cases but considered it a temporary respite. It argued that little could be inferred from the decrease in the number of new cases brought before the court as the long-term trend was clearly upwards. The sub-committee called on the Government to make the case strongly in discussions with member states to increase the number of judges and to urge member states to find a system of appointment of additional judges that safeguards the stability of the court and the quality of the judiciary. The Government responded to our follow-up report in July. They agreed with most of the conclusions in the report and appeared to be more positive about appointing additional judges to the General Court as a means to deal with the court’s backlog of cases. They also seemed to favour a merit-based selection process to appoint additional judges. The Commission also agreed with the follow-up report’s conclusions. It stated that “an overwhelming majority” of member states and MEPs supported the appointment of more judges to the General Court. However, the Commission cautioned that it is up to the member states to agree, by what is called “common accord”, a method for appointing additional judges.
Given the inability of member states to reach agreement on a method for the appointment of additional judges to the General Court, the Commission appears to have lost interest in the issue for the time being. However, the Legal Affairs Committee of the European Parliament, the JURI committee, continues to push for an increase in the number of judges. In June 2013, it agreed a report on the draft regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union by increasing the number of judges at the General Court. The report states:
“As a consequence of the progressive expansion of its jurisdiction since its creation, the number of cases before the General Court is now constantly increasing . . . resulting over time in an increase in the number of cases pending before that court and an increase in the duration of proceedings”.
“The General Court—in spite of its substantial efforts—can no longer handle the growing workload”.
The JURI committee has proposed a number of amendments to the draft legislation governing the statute of the CJEU which include an increase in the number of judges in the General Court by 12; that the additional judges should be appointed,
“exclusively on the basis of their professional and personal suitability”;
that there should be no more than two judges per member state; and that during a procedure to appoint one or more of the 12 additional judges, member states may submit nominations, and judges retiring from the General Court may nominate themselves. The report appears to be sound. It follows months of work by the rapporteur, Alexandra Thein, meetings in Luxemburg with officials from the General Court and the president of the CJEU, and discussions at five JURI committee meetings.
The proposals safeguard the geographical balance and representation of national legal systems as there will continue to be one judge per member state and no more than two judges for any member state. Appointing additional judges on the basis of their professional and personal suitability, as assessed by the Judicial Appointment Commission, seems quite sensible and hard to refute. However, Ms Thein proposes that the European Parliament should be receptive to compromise proposals from the Council or the CJEU. She considers that, given the urgency in appointing additional judges to the General Court:
“Any agreement is better than further delay.”
The report is due to be considered in plenary by the European Parliament on 10 December 2013.
The questions that arise for the Minister are: can the Government confirm whether they support appointing more judges to the General Court? If so, would they support a system for appointing those judges based solely on merit? Will the Government make representations to the Commission and the Council to adopt the JURI committee's report?
My Lords, I wish to do little more tonight than support the noble Baroness, Lady Corston, in her plea to the Government for answers to those questions and particularly that they ensure that additional judges are indeed appointed to the General Court as soon as possible. As the noble Baroness has told the House, the committee concluded that this was necessary some time ago while I had the pleasure of serving on that committee and nothing, to my knowledge, has changed. I am pleased to say that, from the Government’s response to the follow-up report, they now appear to agree that the case for increasing the number of judges has been well made. If that is indeed the case, I am pleased that they have been converted to the idea. As I have said on previous occasions, I trust that resources will not again be considered the problem.
A robust functioning legal system is invaluable. The rule of law in the widest sense is perhaps the greatest bulwark against bad government, and preserving the quality and effectiveness of the European Court system is important. The court is a vital institution for the proper functioning of the Union. Without the court we have nothing to buttress the operation of the single market which is so much more complicated than a trade deal and is, we are told and all agree, essential for our interests.
The question of resources should be put in the context of the sums involved. From an overall EU budget of the cost of the court is just over 0.25%. It is difficult to know how much the United Kingdom contributes to that because statistics do not give a breakdown. However, on the basis that we contribute something like 11.5% of our share to the overall EU budget, our share of the court budget would be £32 million.
Put into context, we are quite happy to spend some £25 million, if a Statement made by my right honourable friend the Foreign Secretary in July of this year is correct, on various international tribunes, all of which are very worthy, but are certainly no more important than the Court of Justice of the European Union.
The issue, as the noble Baroness, Lady Corston, has indicated, is how we appoint these additional judges. I am rather disappointed that paragraph 10 of the response says:
“The Government looks forward to examining detailed proposals in the Council”.
We all look forward to something coming; the question is, what are we going to do about bringing it forward? I understand and, to some extent, support the principle of a merit-based system, but if not, I am at a loss to understand why the procedures for the appointment of the advocates-general cannot be used.
I am sure that we are all delighted to see my noble friend the Minister on the Front Bench replying to this short debate on what, in the scheme of the many things with which she is concerned, may appear a small matter. It is nevertheless an important matter for the European Union. I will therefore perhaps trespass upon her good will to seek assurances from her that the Government will keep this matter, and other important matters within the European Union, at the forefront of the agenda at European Union meetings, taking positive steps to ensure that they are considered.
The United Kingdom could have great influence. Indeed, we often speak of our worldwide influence, so it would be good to know that that influence can be brought to bear within the European Union. There are matters which are not for the grand world stage, not the material of headlines but important nevertheless. If I may stray slightly from the topic, there are problems such as progress on the admission of Macedonia, Moldova, Transnistria, Serbia and Kosovo to name but a few. Of course, there is also the problem of more judges for the General Court—another kind of problem but one that needs a solution.
I believe that a British lead on such issues would be both welcome and constructive, and a change—if I may say so—from our apparent obsession with our relationship with the European Union.
My Lords, it is a great pleasure to be able to follow the noble Lord, Lord Bowness, and I very much agree with the content of his remarks. Not wishing to embarrass my noble friend in any way, or cause him any difficulties, I will also add that there have not been many occasions when I find myself strongly disagreeing with what he says on all sorts of different kinds of European matters. He has the reputation of having been an excellent chairman of the sub-committee before the noble Baroness, Lady Corston, and we were grateful for his guidance on many matters, particularly those in more recent times.
We are now coming to an important moment in the development of the European Union, albeit with at least one member Government who seem hesitant on a number of aspects. That is disappointing to the observers of the general scene in Europe. I hope that that attitude will change over time. The Government face enormous complications about how they will handle these matters in the UK’s political cockpit between now and the next general election, either with or without a change of Government, and with or without a coalition.
Under the provisions of the Lisbon treaty, the Court of Justice of the European Union, by the beginning of December next year, will undertake a much greater, with widespread consent and enthusiasm, and will need extra resources. Although there was a temporary dip, the workload is already showing signs of renewed increase and that will become a major element of its work in future as it deals with all aspects under the treaties—the contents of the two main treaties and dealing principally with the single market and all the things of greater complexity that flow from that as time goes on. One thinks of all the possible cases that will arise over trade marks, patents and intellectual property, as well as more mundane disputes that will arise between corporations, and between Governments and corporations in different member states, as the single market develops. There is still a lot of work to be done in the single market context. People tend to think that it is mostly completed, but that really is not true; it is an ongoing situation and the Court of Justice is going to be a vital part of that.
On the Government’s side, there seems to be a psychological reluctance to show any enthusiasm for these matters at all, which is a great pity. I am sure that that view is shared be members of the main European Union Select Committee, of all parties and backgrounds, as well as the sub-committees. Although scrutiny means the right to be critical about things that are either manifestly not in our national interest or against the practical interest of a particular piece of policy formation or political decision, the general picture should be more positive. As my noble friend Lord Bowness quite rightly said, the amount of money involved in making sure that this court works efficiently and properly on an expanded basis with additional judges—who, I personally hope, will be chosen on their merits, as has already been enunciated; we thank the noble Baroness, Lady Corston, for her opening remarks—is so minuscule as to be within any of the foreseeable elements of the European Union budget totals anyway. I think I am right in saying that year in, year out, the actual expenditure outlays of the European Union budget are below the allocated amounts from the previous decision-making period.
Although the idea that there should be hold-ups because there is an austerity programme that should affect everybody is right in terms of many other aspects of the Commission budget—the big stuff in the budget and the modernisation of that budget—it cannot be right to harm the effective functioning and future efficiency of this important body, which will be much more influential and powerful, quite rightly, in future in adjudicating on legal matters affecting all the member states and the various parties involved in those cases.
I share the disappointment that the indication in the debate on 23 July that this had to be done under the European Union Act was not greeted with much enthusiasm in this House, as we recall; indeed, there were members of the coalition who were very strongly opposed to it and thought that it was the wrong kind of procedure to bring in at this time on treaty-based matters, which are international treaties and should be treated on that basis in the future. Be that as it may, I was particularly pleased that one of the report’s main suggestions was:
“The Court should take further steps to encourage national courts requesting preliminary rulings to include a provisional answer”.
I think that is a very practical suggestion.
As has already been mentioned, the Government’s response was very unenthusiastic, which we found disappointing. The report states:
“On the most important reform, namely the increase in the GC’s judiciary, the Government ‘noted’ the recommendation while pointing out that they were seeking significant cuts to administrative spending over the following years and that any budgetary implications relating to proposals for reform of the CJEU would have to be consistent with their position”.
Bearing in mind the minuscule amounts of money involved, it seems to be more of an ideological reluctance to show any enthusiasm for the Court of Justice because of the very nature of the institution itself. That cannot be right, when it has been agreed under the Lisbon treaty as a vital part of the future development of the European Union, and is supported overwhelmingly by the other member states, including of course with great enthusiasm by the new member states, which do not fear this magical loss of pretend national sovereignty which seems to be an obsession of at least one of the political parties, or a good segment thereof, in this country. I cannot understand that.
I hope, therefore, that the Government, in the form of my noble friend Lady Warsi, whom we thank for coming to conclude this debate, will give us an encouraging answer on these matters. It is time to face up to these things. Time is short between now and the beginning of December next year for these matters to be resolved. The sub-committees are going into other areas, too, where the Government need to show greater enthusiasm: the big stuff in policy, the opt-outs and all that, which is a continuing saga to which I will not refer any longer.
The European Commission letter of 17 September says that,
“in line with the view of the House of Lords, the Commission is of the opinion that it is too early to tell to what extent the amendments to the Statute of the Court of Justice of the European Union which, together with changes to the Rules of Procedure of the Court, only entered into force last year, will lead to a decrease in the number of pending cases”.
That means that it did not really feel that that was going to be so in the future, as has been suggested. The letter goes on to say that,
“the Commission is pleased to see that an overwhelming majority both amongst the Member States and within the European Parliament support the idea of additional judges”.
The letter concludes:
“The Commission agrees with the House of Lords that an increase in the number of judges should be preferred over the creation of specialised courts”.
That is an extremely important point. I hope that the Government tonight will agree.
My Lords, it is somewhat paradoxical that this is the fourth time in the past two years that I, as European spokesman for the Opposition, have had to speak on this matter. I cannot think of any European topic on which we have had so many debates, other than our membership of the EU itself. Some people might say that to have four debates on the European Court of Justice in the space of two years shows that the House of Lords has got its priorities wrong in timetabling its business. That may be a true general point but in this case it actually demonstrates the persistence of your Lordships’ European Union Committee and the quality and commitment of its members to see that its recommendations are acted on by the Government. The noble Baroness, Lady Corston, and the noble Lord, Lord Bowness, are to be greatly praised for the determination they have shown in making this case for Court of Justice reform.
We last debated this in June, when we had to approve the Government’s support for three new advocates-general. There was a bit of self-congratulation that we had at least achieved something. The Polish advocate-general takes office this year and there are to be another two advocates-general by October 2015. This seems to be reform at a snail’s pace. There are very strong reasons why that pace should be quickened.
First, there is already a backlog. Secondly, it is overwhelmingly in our national interest. The coalition has made one of the prime objectives of its European policy the deepening of the single market in the areas of digital economy, energy and services. I can tell your Lordships that in all these three areas progress will be very dependent on the court and its judgments. The digital area is full of competing vested interests. The energy area is full of strong national incumbent companies that want to hang on to their monopoly positions. We had the services directive in 2005 and there has been a great deal of foot-dragging by some member states in its implementation. If you are to achieve your objective, all these things require a much stronger court that is able to deal with these issues in a more speedy way.
Thirdly, there is in 2014 the “communitisation”—in the European parlance—of justice and home affairs as a result of the Lisbon treaty, which means that vast areas of what has been intergovernmental legislation will come under the jurisdiction of the Court of Justice, increasing the workload again. Of course, we are going to be participating if we get our opt-ins in some of those areas.
As the noble Lord, Lord Bowness, and the noble Baroness, Lady Corston, have said, the argument about cost is really absurd. The court is 0.26% of the EU budget —one-quarter of one-hundredth of the EU budget. The EU budget itself is only 1% of EU GDP. If my arithmetic is right, and it may be wrong because I am getting a little rusty, the cost of the court is one forty-thousandth of Europe’s GDP.
In terms of Britain’s national interests, which ought to be at the forefront of this Government’s policy for Europe, there is indisputable academic evidence that the single market has permanently added 1.9% to British GDP. That is a result of our being members of the single market. Potentially, if we get what we want, it could be much more. The noble Lord, Lord Bowness, calculated that the cost of the court is roughly £30 million. That addition to our GDP is worth over £30 billion. When one thinks about the importance of the single market to our economy, it is absurd to allow some ideological points about the jurisdiction of the court to get in the way of sensible moves to strengthen its efficiency.
I hope that the Government will support the case for more judges. I should like to make one point. The noble Lord, Lord Wallace, answering the debate in June on behalf of the coalition, said:
“We are strongly in favour of additional members—not another 27 but another nine or 12”.—[Official Report, 10/7/13; col. 1484.]
We very much hope that will be agreed. It will be a pleasure if the noble Baroness, Lady Warsi, will reiterate that firm commitment given by the noble Lord, Lord Wallace, that British policy is to press for an increase in the number of judges in the court.
The noble Lord, Lord Wallace, went on to say that the problem lay in the difficulty of agreeing how the extra judges should be chosen: which member states would have them and which would not. This raises a difficulty of fundamental importance to the Government’s ambitions to see reform in the European Union. For instance, if we are to have a more efficient European Commission that does not over-regulate, we have to get away from every member state having a commissioner of its own, each with a portfolio of their own. That inevitably results in an extension of European action. We want a much more focused Commission. At the very minimum, there has to be some system of senior and junior commissioners. The equality of member states will have to be addressed in that case.
Similarly, if the costs of Europe are to be cut, it is absurd that there is a Court of Auditors in which every member state has an auditor with their own cabinet system. To cut the costs, it is necessary to move away from the principle of every member state having its own person. The question of reconstituting the court on a basis where not every member state gets an additional judge is at the heart of the reform agenda for Brussels. It is a fundamental point. The Government have to seize this and elevate it if they want reform to the top political level of the European Council. I urge the Government to press on and to pursue a genuine reform strategy for Europe. If they do that, they will have our full support.
My Lords, I am grateful to the noble Baroness, Lady Corston, for opening this debate, and also to all members of the sub-committee on justice, institutions and consumer protection—both for their report and for their continued interest in this matter. I am also grateful to members of the European Union Committee. I am grateful to the noble Baroness for her detailed opening remarks, some of which I may repeat for the record.
A well functioning European Court is in the interests of all EU member states. I accept the view of the noble Lord, Lord Liddle, that it is in our national interest too. The Government have consistently supported efforts to reform the court to uphold the integrity of EU law and to increase the capacity and efficiency of the court. We all benefit from effective EU law—including British businesses operating within the single market. I accept the views of the noble Lord, Lord Liddle, on that. In evaluating any proposed reforms, the UK has been keen to ensure a number of things. First, reform should promote the effective passage of justice. Secondly, it should be based on clear evidence of need. Thirdly, it should not place additional burdens on the EU’s budget. Fourthly, it should avoid full-scale treaty change; and fifthly, it should be acceptable to Parliament.
Since the European sub-committee’s initial report in 2011, several useful reforms have been implemented. These include increasing the number of judges in the Grand Chamber from 13 to 15; streamlining procedures by, for example, abolishing the requirement to read the report for the hearing in full; allowing for the appointment of temporary judges to the Civil Service Tribunal and establishing a new office of vice-president in the Court of Justice and the General Court. In the debate of 23 July 2012, when this House agreed to support these changes, my noble friend Lord Howell noted that they were fairly modest. The Government agree that their impact on the processing speed of the court is also likely to be modest. However, we believe that even a modest impact is to be welcomed. Given that these measures came into effect only towards the end of last year, it is too early to assess their substantive impact. We will monitor their effect over the coming months.
Moving to more substantive reforms, your Lordships will remember that earlier this year, the Government received the approval of both Houses to agree to increase the number of advocates-general at the Court of Justice to nine from 1 July 2013, and to 11 from 7 October 2015. The Government share the belief of the sub-committee that this reform will help the court to handle cases more quickly and improve the quality of decision-making. At the Council of Ministers meeting in June, the Government agreed to this reform. We expect the first of these additional appointments—a permanent Polish advocate-general—to be made soon. This appointment will bring Poland into line with the other “Big Six” member states, including the UK, all of which have permanent advocates-general. The two other additional advocates-general will increase the existing rotation system from three to five. Under the current arrangements, we expect that the first two, due to be appointed in October 2015, will be Czech and Danish.
In its request, the court sought to have the first additional advocate-general in post from 1 July 2013. Since this request was made only on 16 January 2013, and as the Council agreed to it only in June, this was always an ambitious timetable. The Poles estimate that their nomination process will take four months. We therefore expect that we will shortly be presented with the Polish nomination. The court and other member states are keen for the Polish advocate-general to be in post as soon as possible. The UK therefore stands ready to approve any suitable candidate.
Most of these reforms have concentrated on the Court of Justice, so there is now a need to focus on reform to the General Court. The Government share the European Union Committee’s eagerness for a resolution to the question of additional judges for the General Court. These negotiations have continued since March 2011, and still seem some way from a successful conclusion. While there is a case to be made for additional judicial appointments, the questions of how many more judges there should be, and how they should be appointed, remain open; as does the question of cost-effectiveness. In particular, the debate on selection method has reached an impasse. The political reality is that there is currently no agreement on any particular system.
The Government have a set of key priorities. Among other things, we want to ensure that the legal expertise and judicial memory of the court remain strong, that there is an appropriate balance in terms of the representation of common and civil law and that reforms are cost effective. Within this framework, the Government are maintaining a flexible stance in negotiations to help to facilitate an agreement. We are working hard to find a solution, and I assure my noble friend Lord Dykes that we are committed to finding a solution on which necessary agreement can be reached.
In response to the noble Baroness, Lady Corston, the Government believe that increasing the number of judges in the General Court could form part of the solution to the problem of the court’s backlog of cases but, alongside this, we think that the court must also review its working practices and processes to ensure that they are as efficient as possible. In this context, we are expecting the court to publish a recast of its rules of procedure later this year and to submit it to the Council for approval.
A merit-based system would better meet our priorities than the rotation-based systems previously discussed, and I should like to think that UK judges would have a good chance of nomination under those circumstances. The problem, however, is that there simply is not the consensus in the Council that would be needed to move towards a merit-based system. Many details still need to be worked out, and many states have strong objections in principle. That said, we are encouraged by President Skouris’ comments on the benefits and feasibility of a merit-based system, and we look forward to negotiations continuing.
I hear what my noble friend Lord Bowness said on budgets. In the current economic climate, there is an imperative on all the EU’s institutions to reduce their administrative costs. The Government have been clear throughout that any additional advocates-general or additional General Court judges should not result in an increase to the EU’s budgetary demands. We believe that the relatively small additional financial pressures of appointing the advocates-general can be met from within the court’s existing budget, which was more than €354 million for 2013, and which the court has underspent in previous years. When we agreed to these appointments at the Council of Ministers meeting of 25 June, we submitted a statement noting this expectation. Likewise, we will continue to emphasise that any additional reform costs must not create pressure for an increase in the EU’s administrative budget. During discussions on the annual budgetary framework next year, we, alongside like-minded member states, will press very firmly for costs to be met from within the court’s existing budget.
I note what my noble friend Lord Dykes said, but in the current economic climate there is an imperative to find ways to reduce administrative costs. In the same way that we have asked our domestic institutions to do more, we look to the EU to do likewise. I also assure him that we are heavily engaged on a wide range of European issues. My honourable friend the Minister for Europe regularly updates Members of your Lordships’ House on the broader issues raised by my noble friend Lord Bowness.
The Government are committed to promoting the effective passage of justice by the Court of Justice of the European Union. We believe that the appointment of additional advocates-general, alongside the reforms that the court has already made, will contribute to this goal. The Government will continue to work closely with the court, the Commission and other EU member states to identify and take forward both long and short-term solutions to the General Court’s backlog, and we will continue to explore the full range of options for structural reform in order to find a solution that meets the objectives I have outlined today.
Care Bill [HL]
Report (1st Day) (Continued)
Amendment 21 not moved.
Clause 5: Promoting diversity and quality in provision of services
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—
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.