Health and Social Care

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Mr. Burstow: On that point, the Minister referred to the guidance, which I believe is LAC 98/19. As I do not have that guidance before me this afternoon, will he tell me whether the guidance specifically states what the Minister has said today, which is that there is a clear liability on the local authority to make good that payment.

Mr. Hutton: I shall have to let the hon. Gentleman know. I do not have the guidance in front of me. I wish that I did. It would speed up the process.

The law is the law. I am not sure that it would add value if the Department were to tell local authorities, ``It is your obligation to obey the law, and if you don't you have to make financial compensation.'' I can see the hon. Gentleman's point—that that would put the issue beyond doubt and everything would be clear—but as I understand it, there is no doubt about the legal situation, and the issue has been properly addressed by the Department.

Mr. Burns: Was that guidance issued by the Department as a direct result of the court decision on Sefton?

Mr. Hutton: With the greatest respect, I cannot say. I will correspond with the hon. Gentleman on that. The guidance predates my time as a Minister in the Department by several months and I am not aware of the events leading up to the issuing of that guidance. It was issued by my right hon. Friend the Member for Brent, South (Mr. Boateng), now the Minister of State, Home Office, and so I simply do not know the answer—although apparently it was issued before the Sefton case.

Mr. Burns: But the Sefton case was in 1997.

Mr. Hutton: That is what I am informed.

Mr. Hammond: I think this is a related subject—I am sure that you, Mr. Maxton, will tell me if it is not. Will the Minister clear up something else? He will be aware of the practice of some local authorities of applying heavy pressure on care home owners not to admit residents as self-payers unless they can demonstrate a certain amount of capital above the upper threshold. That puts potential self-paying residents in a difficult position. Is there any legal basis for councils to involve themselves in the decision by private care home owners to admit self-funding residents? Will he make it clear that the Government deprecate any attempt by local authorities to limit people who are self-funding from being admitted into care homes simply because it is possible that ultimately their capital will be exhausted and they will become a charge on the local authority?

Mr. Hutton: As the hon. Gentleman will recognise, that is likely to be the case for many self-funders—not all of them, it obviously depends how long they stay in residential care. These are complicated matters, as I am sure that the hon. Gentleman would accept. We want local authorities to treat self-funders fairly and properly—in the same way that they would treat people who are not self-funding. They have a responsibility to do that and we want people to receive the right information at the right time so that they can make the appropriate arrangements in their best interests.

I am now informed that the guidance was issued after the Sefton case, so I hope that that clears up the issue. Whether that was directly as a result of the Sefton case, I do not know, but I will deal with that in correspondence.

Dr. Brand: In his correspondence, will the Minister also explain how people can seek redress if the law should be broken—either wittingly or unwittingly; either through delay or through false or mistaken advice being given? The mechanism open to individuals to seek redress is extraordinarily complex, and we all will have had cases brought to us in which it is almost possible to call the local authority to account without going through the courts, which of course is not open to many people.

Mr. Hutton: It is obviously in everyone's best interest for those issues to be properly dealt with by the local authorities in the first place. If that has not happened, redress must be sought in the appropriate way: if the matter has been brought to the attention of the local authority, it should sort it out and avoid prolonged arguments about who should pay for what. Other jurisdictions may be able to benefit the resident who feels unfairly treated: the local government ombudsman and ultimately the courts are there to enforce and uphold the law. I very much hope it would not have to come to that. My understanding is clear: local authorities have a specific duty to take responsibility for people when they meet the criteria for financial assistance within the means test. If they do not do that in a timely fashion and someone loses out financially as a result, the issue can be addressed sensibly and amicably by the local authority accepting its responsibility. If that does not happen, I am afraid that the resident will have to use other means at his or her disposal.

Mr. Burns: As the Minister has kindly promised to write to Committee members about Sefton, in the light of his last comments, will he tell us in the same correspondence whether the people who lost out living in the Sefton local authority area were compensated after the court case and guidance?

Mr. Hutton: I shall certainly try to advise the hon. Gentleman about that matter. If my memory is right, the Sefton case was dealt with in an earlier circular by my Department, but I will check so that we get the correct information. The circular that we are discussing in the context of the hon. Gentleman's amendment deals with a different, separate point about at what moment the local authority should assume responsibility. In the Sefton case, the legal status of the upper and lower capital limits was the issue in question.

Mr. Hammond: I may have missed this, but in the Minister's response to my earlier intervention, I did not get a clear understanding of whether his answer was that a local authority does or does not have a legal right to seek to intervene in a self-funding placement simply on the basis that it may eventually incur the liability due to the exhaustion of capital. Will the Minister be clear about the matter? Does a local authority have any legal right to make such an intervention?

Mr. Hutton: I am not sure that it does. I must take specific legal advice on the matter and I will inform the hon. Gentleman and the Committee when I have it.

This has turned out to be one of those debates that has gone wider, deeper and broader than I anticipated when I flicked through my notes as to how to respond. It has been useful and we have discussed some interesting issues of both principle and practice that relate to how people in care homes should be treated. If members of the Committee, speaking as constituency Members of Parliament, came across such a case involving an older person, they would be determined to ensure that that person was properly compensated. I certainly would, because I believe that that is an entitlement.

For reasons that I have tried to explain, the amendments tabled by the hon. Member for Sutton and Cheam do not clarify the position. The law is clear about responsibilities and when they are triggered on the part of the local authority. We have dealt with the issues that he raised in statutory guidance under section 7 of the Local Authority Social Services Act 1970, which, as he knows, local authorities are required to follow unless they have compelling reasons not to do so. The position in law is clear and it is backed up with clarification and guidance. Therefore, his amendment, well intentioned and honourable though it is, is not necessary.

Mr. Burstow: As the Minister said, this has been a useful debate on the issue. I am grateful to the hon. Member for Hastings and Rye for his contribution in raising concerns from his experience in his constituency. The Minister has gone some way towards giving the assurances that Age Concern and I were seeking. The law is clear, but it is apparent that the practice in a number of local authorities is not. The Minister has made some helpful comments about the current statutory guidance. I hope that he and his officials will reflect on the debate and re-examine the existing guidance to satisfy themselves that the clear statement that the Minister has given the Committee today is the clear statement that local authorities are left with too, so that when dealing with such matters the local authorities are doing what the Minister, quite rightly, said should happen. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Schedule 1


The following is the Schedule inserted in the Health Act 1999.



    Application of Schedule

    1. This Schedule applies where, under any arrangements under regulations under section 31, any functions of a body (``the transferor'') are to be exercised by another body (``the transferee'').

    Orders transferring staff

    2.—(1) The Secretary of State may by order transfer to the transferee any specified description of employees of the transferor.

    (2) An order may be made under this paragraph only if any prescribed requirements about consultation have been complied with in relation to each of the employees to be transferred.

    (3) In sub-paragraph (2) ``prescribed requirements'' means requirements prescribed for the purposes of that sub-paragraph by regulations made by the Secretary of State.

    Effect of order on contracts of employment

    3.—(1) The contract of employment of an employee transferred by an order under paragraph 2—

    (a) is not terminated by the transfer, and

    (b) has effect from the date of the transfer as if originally made between the employee and the transferee.

    (2) Without prejudice to sub-paragraph (1)—

    (a) all the rights, powers, duties and liabilities of the transferor under or in connection with the employee's contract of employment shall by virtue of this sub-paragraph be transferred to the transferee, and

    (b) anything done before the date of the transfer by or in relation to the transferor in respect of the employee or his contract of employment shall be deemed from that date to have been done by or in relation to the transferee.

    (3) Sub-paragraphs (1) and (2) do not transfer an employee's contract of employment, or the rights, powers, duties and liabilities under or in connection with it, if he informs the transferor or the transferee that he objects to the transfer.

    (4) Where an employee objects as mentioned in sub-paragraph (3), his contract of employment with the transferor shall be terminated immediately before the date on which the transfer would occur; but he shall not be treated, for any purpose, as having been dismissed by that body.

    (5) This paragraph is without prejudice to any right of an employee transferred by an order under paragraph 2 to terminate his contract of employment if a substantial change is made to his detriment in his working conditions; but no such right shall arise by reason only that, under this paragraph, the identity of his employer changes unless the employee shows that, in all the circumstances, the change is a significant change and is to his detriment.

    Effect of order on pension rights

    4.—(1) An order under paragraph 2 may provide that, in the case of an employee of any specified description who is transferred by the order, paragraph 3 shall not apply in relation to—

    (a) so much of the employee's contract of employment as relates to relevant pension provisions, or

    (b) any rights, powers, duties or liabilities under or in connection with that contract, or otherwise arising in connection with the employee's employment, and relating to such provisions.

    (2) If an order under paragraph 2 provides as mentioned in sub-paragraph (1), the order may in relation to any such employee make such provision (if any) as the Secretary of State considers appropriate with respect to all or any of the matters mentioned in paragraphs (a) and (b) of that sub-paragraph.

    (3) The provision which may be made by virtue of sub-paragraph (2) includes provision—

    (a) for any such employee's contract of employment with the transferee to have effect with any specified modifications;

    (b) for relevant pension provisions of any specified description to have effect in the case of any such employee with any such modifications.

    (4) In this paragraph ``relevant pension provisions'' means the provisions of an occupational pension scheme within the meaning of the Pension Schemes Act 1993, with the exception (if the order under paragraph 2 so provides) of any provisions of such a scheme falling within a description specified in the order.

    Divided employments

    5.—(1) Where an employee is to be transferred by an order under paragraph 2 but is to continue to be employed for certain purposes by the transferor, the order may provide that the contract of employment of the employee shall, on the date on which the employee is transferred, be divided so as to constitute two separate contracts of employment between the employee and the transferor and between the employee and the transferee.

    (2) Where an employee's contract of employment is divided as provided under sub-paragraph (1)—

    (a) the order shall provide for paragraph 3 to have effect in the case of the employee and his contract of employment subject to appropriate modifications; and

    (b) paragraph 4 shall similarly apply only so far as appropriate in connection with the employee's employment by the transferee.''.'.—[Mr. Denham.]

Brought up, read the First and Second time, and added to the Bill.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

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