Examination of Witnesses (Questions 320-339)
17 MARCH 2005
DR STEPHEN
LADYMAN MP, MRS
ANNE MCDONALD
AND MR
CRAIG MUIR
Q320 Mr Amess: This is not to try and
trip you up, but I am sure you would accept that the reason Barbara
Pointon got full funding was because she took the case to the
Ombudsman, so the Ombudsman I would have thought in that regard
should be congratulated.
Dr Ladyman: Let me make the role
of the Ombudsman in this clear from the Department's point of
view. We set up a system with checks and balances, one of which
is the Ombudsman. We set up the Ombudsman to be the independent
arbiter of when we make mistakes, and that is what she is doing.
Yes, I congratulate the Ombudsman. I congratulate the Government
for putting in place an independent check on the system to ensure
that ultimately everybody does get what they deserve.
Q321 Mr Amess: In dementia we are told
that as people decline they become less likely to qualify for
the continuing care because they become more passive, but they
still have considerable complex needs which can be overlooked
by emphasis on stability. This is going back to your original
reaction to the point I made. I think it is a little more difficult
really.
Dr Ladyman: It is difficult. As
the Committee knows, I do have personal reasons for feeling very
sympathetic to people that are in this position, and these are
the issues that we need to thrash out over the next 12 months.
If people can come up with sustainable ideas for how we can continue
to pursue this and do better, then absolutely I will see to it,
assuming the Prime Minister puts me back in this seat after the
election, that those things are pursued. These are very, very
complicated issues. Everybody wants simple criteria, but frankly
simple criteria are often crude criteria, and crude criteria will
leave people who we want to support outside the system. The criteria
we end up with may have to be more complex than people want, in
order exactly to try and deal with these issues where people clearly
should have a need for it. Having said that, will we go down the
route of free personal care, which would be a way of resolving
this point at a stroke? No, absolutely we will not. It would cost
£1.5 billion at today's prices, not the £1 billion incidentally
that the Liberal Democrats cost it at. That is a matter of record.
I have provided data in the House of Commons Library and in the
official record as to how that has been calculated, and so nobody
can argue with those figures. They have been checked independently.
By 2050 at today's prices the cost of free personal care will
rise to somewhere between £8.5 billion and £10 billion.
That will be close to 1% of gross domestic product. There is just
no way that that is a sustainable system. We will not go down
the route of saying we will resolve the complexities of this problem
by having free personal care, because it would be profoundly dishonest
to say it. If I said it today, some minister will have to sit
here in three years' time telling everybody why it is being withdrawn,
and I will not go down that route.
Q322 Mr Amess: Thank you for your frankness
in that regard. The other issued raised by the Pointon case concerned
the location of continuing care and whether fully-funded NHS continuing
care could be provided to people in their own homes. When you
answer that, can you san whether or not you are considering the
issue about making direct payments to these people?
Dr Ladyman: First of all, NHS
continuing care can be delivered in any environment, in your own
home, in a nursing home, in a residential home with nursing—wherever
is the most appropriate place for your care. In that, it differs
to those areas of the United Kingdom where they have gone down
a free personal care route because, as I said, in those areas
they have to maintain the long-stay hospitals. Mrs Pointon's husband
would not get free NHS continuing care in her own home in those
areas. Her husband would be put in a long-stay hospital. In that
respect at least England I think is more civilised in these matters.
One of the issues we are going to have to face up to over the
next 12 months that we need a lot of debate and a lot of thinking
about is this issue of the practicalities of saying people can
have NHS continuing care in their own home. To get NHS continuing
care you need the regular involvement of health care professionals
and those health care professionals are a scarce resource. If
you reached a point where you had to have a doctor sitting in
the front room all day in order for you to stay at home everybody
would say that was not realistic. There is a grey area between
where it is realistic to support you in your own home and where
it is not and that is one of the things we have got to debate
over the next 12 months, where we define that grey area. The second
thing you talked about was direct payments. The law is clear,
the National Health Service cannot make direct payments. So if
you receive NHS continuing care you cannot receive that through
a direct payment. What I have found, which is true in Mrs Pointon's
case, is that health officials and local council officials have
had to work together innovatively to interpret the existing legislation
in order for her to continue to use direct payments or something
close to direct payments and in order for her to continue to provide
for her husband's care in the way that was the case before she
became eligible for NHS continuing care, because we did not want
to see a disruption in his care. They have had to work innovatively
in order to stay within the law and continue to support her in
doing that. The question is whether we should be expecting people
to work innovatively in order to get round the law or whether
we should just change the law. That is something we can debate
over the coming months.
Q323 Mr Amess: Finally, you and I are
both English and I am sure when you said about England being more
civilised you were not suggesting for a moment that Scotland and
what they decided to do was being less civilised in this regard.
Dr Ladyman: Absolutely not. I
do not know whether you have noticed but my boss is Scottish and
I think he would have words to say if I was suggesting that. The
point I was making is that it is constantly being put to us by
the lobby which represents older people and the lobby which represents
Alzheimer's sufferers and by people who I greatly respect—and
there was one writing in The Times yesterday, Clare Rainer—that
somehow free personal care is a moral issue and that we have taken
an ethically dubious position in having a system where people
have to contribute to their personal care, and that those parts
of the United Kingdom which have introduced it somehow have been
ethically and morally superior to us in their judgment. What I
am saying is that what we have got here is a sustainable position.
Others can make their own judgments in the United Kingdom as to
whether they have a sustainable position or not. We have a system
which helps the poorest, we have a system which helps the sickest,
we have a system which helps the vast majority of older people
and they get the care they need and it allows them to stay at
home longer than in other parts of the United Kingdom. I would
argue that we have actually arrived at a position which is not
only more sustainable but which has much to recommend it in certain
respects, and I would like people to look a bit more objectively
at some of the decisions made elsewhere in the United Kingdom
in order to reflect on whether they are asking for something which
they would pretty soon start to complain about if it was granted
in England. That is the argument I am taking back to those people,
ie do not ask for things which you may hate if you got them.
Q324 Dr Naysmith: I want to ask something
that is really slightly off what we have been talking about just
recently but it is something that I feel very strongly about and
it is also something I have a personal interest in. I ought to
declare that I am President of the Dementia Care Trust in Bristol
which provides respite care mostly for carers in the area round
about. There is quite a difference between the councils in terms
of how much money they are prepared to give for this service.
It seems to me, irrespective of who is paying for overall care
and so on in the home, that one of the things that makes it more
tolerable for carers, often relatives, to look after the sick
people in their home is the chance that they can get some time
off, it may be only three hours a week, which is absolutely crucial
in those circumstances. I just wondered whether it is possible
to try and ensure that that kind of service is more widely available.
Dr Ladyman: Absolutely. I agree
with you 100%. That is why we have made the Carers' Grant available,
which from 1 April will be £185 million across England and
we have said that we will keep that going at least until 2008
when the current Spending Review expires. That Carers' Grant is
there largely in order to pay for respite care for people. Incidentally,
it is one of the grants that are not available elsewhere in the
United Kingdom. It will be paid for with the money from not having
free personal care and which the Liberal Democrats would have
to scrap if they introduced their policy. I would say that £185
million is not insignificant. We have the carers' strategy which
requires councils to have plans in place to support carers with
respite care. Thanks to the Private Member's Bill that was recently
passed we have the Carers (Equal Opportunities) Act and we have
the previous carers' legislation on the Statute Book. The previous
carers' legislation means that every carer in England is now entitled
to their own assessment of their needs. They can have those needs
met with direct payments and they can be given money to pay for
their own respite care if that is what they want, or they can
use the vouchers that some councils operate for their respite
care. Because of the legislation which comes into place on 1 April
the council now has a duty to tell carers about their rights.
I believe that is a package of support for carers—we can
always do more and we will look to ways to do more—in England
which is going to start making some serious inroads into the problem
that you have identified because you are absolutely right, a break
is the best way of helping carers.
Q325 Mr Bradley: Let us go back to the
Coughlan case which you defined at the beginning of the session
and correct me if I am wrong when I say that the judgement was
what was the limit of the social care as opposed to the amount
of health care. Are you satisfied that the guidance and eligibility
is clear to the various authorities, that they understand that
judgment in the terms that you have expressed it and that they
apply it consistently? How do you monitor that compliance?
Dr Ladyman: Whether it is applied
consistently or not I would accept is an open question. One of
the things we have to do over the next year is get to a point
where everybody is applying it consistently. What I am confident
about is that the current criteria all recognise that when the
point comes at which social services say, "We cannot go further
than this because it would be ultra vires for us to go
further than this under the Coughlan judgment," NHS continuing
care kicks in. So there is no gap between a council's responsibilities
and NHS continuing care because the NHS continuing care criteria
in the 28 areas say something along the lines of when the council
leaves off, because it is known they think they have no legal
remit to go further, you might be eligible for NHS continuing
care.
Q326 Mr Bradley: And you are satisfied
that that trigger mechanism is actually happening in the way that
you are describing it and that they are not making that positive
judgment about that overlap to trigger the NHS continuing care?
Dr Ladyman: I am satisfied that
people understand that there is a point beyond which councils
cannot go and then NHS continuing care becomes the priority. Where
I am worried is that these issues are not black and white. When
you are supporting somebody in a family that has a complex condition—even
in the best systems things are slightly chaotic—it is difficult
to make judgments about whether all their needs are being met.
You would always want to do more and give them more support and
councils will have the same feelings about whether or not they
have got to the point where they just need to say that it is now
a matter for the NHS. There are judgments in there and judgments
always fall on some part of the spectrum. Some people who perhaps
are caring for somebody in this condition will be saying to themselves,
"I think this needs more now. We need to move to NHS continuing
care". What we need to get to is a system where councils
and health providers—it almost comes back to where the Chairman
started us off from—are working so closely together that
there is a smooth transition between the two and I am not satisfied
we have got to that smooth transition yet. That is one of the
things we need to try and deal with over the next 12 months.
Q327 Dr Taylor: I want to try and explore
the confusion between continuing care and the high band nursing
contributions, but I think you said that in the letter we can
have that you wrote to the Ombudsman that confusion is explored.
Is that right?
Dr Ladyman: Yes.
Q328 Dr Taylor: In the longer term would
you plan to merge those two systems, recognising that they are
virtually indistinguishable?
Dr Ladyman: There are no plans
to do it at the moment, but we have this review going on and if
we find a way which is financially sustainable, which is easier
to understand from everybody's point of view, I am not going to
take the option off the table. I am not going to kid you either
that there are plans to do it at the moment. What I can assure
you is that anybody who is being assessed and who might potentially
be in high band nursing care ought automatically to be assessed
for NHS continuing care and a positive decision ought to have
been made as to why they are in one or the other.
Q329 Dr Taylor: So you will somehow make
clear, if there is a distinction, that there is that distinction
and you will describe that in detail?
Dr Ladyman: Yes. We will have
to do that. That is a minimum requirement that needs to come out
of the process that we go through over the next 12 months.
Q330 Chairman: One of the issues that
I have learned something from in this inquiry is that there
are certain incentives towards increased dependency built into
the system. We have had evidence from the Royal College of Nurses
where they were suggesting that there is a need for the eligibility
criteria to be reformed to reflect a change in emphasis on rehabilitation.
They said, "Currently the criteria focus on the level of
a patient's dependency. This creates a perverse incentive whereby
if a patient's condition improves the level of funding available
decreases." Is that something that you are conscious of and
is it something that you might be able to address?
Dr Ladyman: I had not thought
about it in those terms, but what I am absolutely committed to
is helping people maintain their independence. I believe that
the way we have adult social care and some aspects of health care
structured in this country at the moment encourages dependency
instead of independence. The Green Paper will make it absolutely
clear that we need a radical transformation of social care in
this country in order to support independence and to do far more
to support people's independence. I made a speech yesterday in
Leeds and in it I said that one of the things we also have to
do is to get away from this notion that dependency and independence
are at opposite ends of the spectrum. We are all dependent on
something. I am not independent and you are not independent, Chairman.
We rely on other people to do things for us, whether it is emotional
support, whether it is having the council take away our dustbins,
whatever it is. We are part of society. We are dependent on each
other. Nobody is completely independent. People who are frail
or who have disabilities are never going to be completely independent
just like the rest of us. They may need other types of support
in order for them to be able to support an independent life as
far as it is possible to do that, and that radical transformation
of adult social care which I am going to be publishing next week
talks about a shift over the next generation in the way we deliver
care and our attitudes to care and the way we assess risk and
how we try and eliminate risk at the moment when actually risk
is quite often what brings quality into our lives. It talks about
how we can help people stay at home more and, if they are not
going to stay at home, how we can help them maintain independent
attitudes and how we can be more proactive about helping them
to maintain their health and physical prowess. I hope all of these
things you will see in the Green Paper when it comes out.
Q331 Chairman: And you will look specifically
at the way the banding is affected?
Dr Ladyman: Absolutely.
Chairman: It does strike me as a very
perverse situation. If it is working in that way then we would
have to look at it.
Q332 Dr Naysmith: Minister, when we were
looking into delayed discharges a couple of years back the then
Minister and the Chief Inspector of Social Services both said
to us very clearly that the money that was provided through the
registered nursing care contribution should benefit directly the
residents for whom it was intended; in other words, they should
get the money and notice a difference. You will know, because
I have written to you a couple of times on the subject and I have
not been too happy with the reply, that quite often in that situation
all that happens is the home takes the extra money and there is
no benefit to the resident. What can we do about this? Are you
happy with that situation?
Dr Ladyman: Do I acknowledge that
some nursing homes have put their fees up in order to exploit
self-funders? I have no doubt that has happened.
Q333 Dr Naysmith: What can we do about
it?
Dr Ladyman: Anybody who is in
a nursing home and contributing to their own costs should insist
on having a clear invoice for the services that are being provided
to them and those services must clearly distinguish between their
board and lodging, their personal care and their nursing care
and must demonstrate that they are not being asked to pay anything
towards their nursing care. If people believe that they are being
asked to pay anything towards their nursing care then they ought
to complain to the manager of the home or, failing that, to the
local social services department or the Commission for Social
Care Inspection. Nursing care is delivered free by the National
Health Service and we reimburse nursing home owners for it. If
anybody has any reason to suspect that they are paying for their
nursing care then they need to complain and the Commission needs
to address that.
Q334 Dr Naysmith: That is a very clear
statement. Is it right to put the onus on the frail residents,
some of whom do not have relatives who can fight their battles
for them? Should it not be spelt out by the Department to the
nursing home owners that this should be provided to everybody
before they come in?
Dr Ladyman: It is. Standards of
information to people are dealt with in the National Minimum Standards
and we have just announced that we are going to review the National
Minimum Standards over the next year or so. During the course
of that review we will need to monitor how successful we are being
at insisting on this because once it is in the National Minimum
Standards then the Commission for Social Care Inspection should
be automatically inspecting whether the care homes are following
this rationale.
Q335 Dr Naysmith: I am not quite clear
what you are saying happens now that enables you to say confidently
that it should happen.
Dr Ladyman: The National Minimum
Standards set out what is expected in terms of information to
people who are in care homes and the Commission should be inspecting
that those standards are being met. Let me pluck some figures
out of the air. Let us say there were some people who were self-funding
in those nursing homes who were paying £600 a week for residential
care with a nursing contribution on the top and along came the
National Health Service who said, "We will pay the cost of
the nursing care which is £150." What should have happened
is that those residents' bill should have fallen to £500.
Some care home owners, I have no doubt from the letters I have
seen from colleagues and from my own constituency, took the opportunity
of saying, "If that resident could previously afford to pay
£650 a week and now they are only having to pay £500
a week then I am safe in putting up my residential costs to £600
a week because I know they've got the money in the bank to pay
it." So they immediately inflated their residential costs
to take advantage of the fact they knew there was an extra contribution
being made. As soon as this was realised—and this was prior
to me becoming a Minister—instructions were immediately
given by the Department, by my predecessor, about the standard
of information and invoicing and the other measures that should
be put in place to stop this happening in the future. Whether
it did eliminate it completely is a judgment call. Steps were
taken immediately to try and stop it happening as soon as it was
realised it was happening.
Q336 Dr Naysmith: Let us return to the
question of the retrospective review. There is a lot of evidence
that it has favoured the articulate and the well-informed and
that perhaps people who might have been entitled to payments have
somehow or other escaped the net; the trawl for people has not
been as sufficient as it might have been. Would you agree with
that? I know we talk about leaflets being put out and lunch clubs.
Dr Ladyman: It is an easy charge
to make but it is a difficult one to gather evidence for. Certainly
we did ask strategic health authorities to carry out a trawl of
people who they think might have been wrongly assessed and they
should have done it automatically. I would be surprised if we
have caught everybody in the net, but we tried. It may be that
some people who passed away and who have not got relatives to
have checked on this and to have read the newspapers should have
been reassessed and their estate reimbursed and that may not have
happened. Certainly instructions were given to carry out a trawl
to try and do it as well as we could, but this is an imperfect
world.
Q337 Dr Naysmith: Did the Department
consider reviewing all records of continuing care from 1996? I
know you were not at the Department then, but was that something
that was considered?
Dr Ladyman: I think we would have
to go back and consult our records to see how thoroughly that
was considered at the time and drop you a line and tell you.
Q338 Dr Naysmith: One of the things that
have contributed to the confusion, as we were hearing earlier
on, is the lack of sufficient good quality records. Is that something
that you really want to put right through a review of the standards
and regulations exercised by the Commission for Social Care Inspection
related to care homes? Is that the route that you intend using
to make sure that this does not happen in the future?
Dr Ladyman: The Commission should
be checking people's record keeping. The single assessment process
should be improving the record keeping. Maybe one of the things
we will have to do over the next 12 months is ask ourselves the
question how long after somebody's death we should keep these
records for. As I said to the Chairman at the outset, people who
were carrying out assessments in good faith back in 1995 could
not have had any possible idea that in 2005 we would want to go
through those records again and double-check their decision. How
long do we expect people to keep these records for? That is something
that we may need to consider.
Q339 Dr Naysmith: Is three years long
enough?
Dr Ladyman: If they had been given
an instruction that they should keep records for three years back
in 1995 we would have had all hell to pay now because we would
have done none of these reviews and we would have had no records
for any of these people. On that basis you could argue three years
is not enough. On the other hand, to expect us to keep detailed
health and financial records on every person receiving health
or social care for longer than three years is going to create
a huge administrative overhead. It may be that the National Programme
for Information Technology can help us here and this is one of
the things that we will have to look at because we will have electronic
record keeping of everybody in the health care system in the future.
I suspect the civil liberties groups will be knocking on our door
wanting to discuss how long we keep these records for, but if
we decide we do want to keep them then at least it might give
us a practical way of storing this information for longer.
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