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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 399-ii House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE HEALTH COMMITTEE
Thursday 17 March 2005 MS TRISH LONGDON and MR COLIN HOUGHTON DR STEPHEN LADYMAN MP, MR CRAIG MUIR and MRS ANNE McDONALD Evidence heard in Public Questions 192 - 346
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Health Committee on Thursday 17 March 2005 Members present Mr David Hinchliffe, in the Chair Mr David Amess John Austin Mr Keith Bradley Mr Simon Burns Mr Jim Dowd Dr Doug Naysmith Dr Richard Taylor ________________ Memorandum submitted by The Health Service Ombudsman for England Examination of Witnesses
Witnesses: Ms Trish Longdon, Deputy Ombudsman, and Mr Colin Houghton, Head of Continuing Care Team, examined. Q192 Chairman: Good morning colleagues. May I welcome you to this session of the Committee, and particularly welcome our witnesses. Could I place on record the Committee's thanks to you both for coming before the Committee and for your cooperation with our inquiry, noting that we have met informally and we appreciate the time you have given the Committee on this issue. Would you mind briefly introducing yourselves to the Committee, starting with you Ms Longdon. Ms Longdon: I am Trish Longdon. I am the Deputy Parliamentary and Health Service Ombudsman. I should say, in introducing myself, that Ann Abraham would really have liked to have been here herself - this is a very important issue and something in which, as you know, she has a very real interest - but, sadly, she had a prior engagement which involved a large number of people that it would have been very difficult for her to cancel. So, her apologies, and also she has asked me to say that if there is anything she can do subsequently to help, she would very much like to. Mr Houghton: Good morning. I am Colin Houghton, Head of the Ombudsman's Continuing Care Team. Q193 Chairman: Thank you. I think it is worth saying that I did speak to Ms Abraham and I understand the circumstances. We are grateful for her help in this inquiry. Could I begin by an opening question along the lines I asked with the witnesses last week. At the heart of this issue is something that has dogged our discussions on policy for many, many years, which is how we establish the dividing line between health and social care and if there really is a dividing line. Do you have any thoughts on this? In policy terms, what might we as politicians do to address an issue that really is at the heart of the problem we are talking about today? Ms Longdon: I think we are probably not best placed to answer that question from the evidence that we have from the complaints that come to us, other than perhaps to reinforce the point that actually the complainants who come to us come to us very confused about the whole issue: confused about what health care is; confused about the terms that are used; and confused about the distinctions that many people as providers make but which of course are meaningless to the users of those services. We have a very large amount of evidence to demonstrate that there is a real issue. In terms of solutions, I am not sure we are well placed to suggest that. I am sure there are others who are far better placed to suggest how that might be addressed. Q194 Chairman: You wrote to the Department recently - and I think it was Mr Houghton who signed the letter - with regard to continuing care funding and registered nursing care contribution, expressing concerns about the confusion between these two areas and free nursing care, especially at the higher band. I gather that you may have received a reply to your letter. Is it possible for that to be made available to the Committee? Or could you indicate whether the concerns you have expressed, which are quite strong concerns, have been picked up in the reply from the Department? Ms Longdon: You obviously will have an opportunity to talk to the Department directly. Q195 Chairman: Of course. Ms Longdon: And I am sure they will want to answer for themselves. But, yes, we have had a reply, and the Department have said that they too understand there is some ambiguity that they will want to address as part of the new National Framework. We are content with their statement that it is actually difficult to address the ambiguity, and that it will take time to do that - although we would hope it will be done as quickly as possible - but that it is clear that people should be assessed for continuing care funding first before they are assessed for the RNCC band. Certainly, from the complaints to us, that has not always happened, so, in the meantime, while the clarification is going on, the view the Department have expressed to us is that they would expect that continuing care assessment to take place before an RNCC assessment has taken place, so that the individual in the family can be clear that they do not qualify for the full continuing care funding before they go on to look at the RNCC. Q196 Chairman: While I accept this is to some extent a holding file, that the issues are being looked at in more detail, do you get the impression from what they have said to you that the procedures to which you referred just now will in fact take place? Are they taking action to direct SHAs to ensure that action is taken along these lines? Is there some directive that has gone out, do we know? Ms Longdon: In principle our understanding is that there is. Colin may have some details. Mr Houghton: I am very pleased with the reply actually. It is very positive. It agrees with us on the nature and the manner in which these two streams of funding came about. They agree there is confusion and difficulties interpreting these. We are hoping to meet with my counterparts in the Department of Health next week, as soon as possible, to try to address this. We recognise that there is the forward look for the National Framework, but obviously our concern with the Ombudsman at the moment is that we have a lot of complaints at the moment solely about this issue of having higher band. People are saying, "Look, they should have continuing care. What is the difference?" I am looking forward to meeting very soon to try to work on this and to address this issue, and to see how we go about ensuring that, as I understand it, the 15,000 to 20,000 higher band cases have been looked at properly: continuing care first and then, if they are not eligible for continuing care, moving on to the RNCC bands. Q197 Chairman: In your letter there was reference to the RNCC being more restrictive within National Health Service continuing care. Has there been a response from the Department on that particular point? Or is that something you are going to discuss with them? Mr Houghton: I think that is something we are going to be discussing. Q198 Mr Burns: I think I am right in saying that the problems which led to you receiving complaints started from 1996. Do you have a breakdown of the number of complaints you have had for, say 1996/7, and 1997/8, and 1998/9? Is there any way of finding out when the most critical time was for the most complaints? Ms Longdon: No, we do not have that information. In fact, the issues that we looked at were looking backwards. Most of our complaints have come in since the Ombudsman issued her report in February 2003 drawing attention to this issue. Before that, we did not have large numbers of complaints coming in, so we were not in a position to identify the volume. I think everybody was surprised by the volume of people who were affected. Q199 Mr Burns: When the Ombudsman's report drew attention to a wider audience that there was a problem, presumably a lot of families would have thought, "Ah, that must have been a problem we suffered from in ..." - whenever it was. When they started complaining, you would know about which time period they were talking, because they would say, "Mother went into a home in 1996" - or 1997 or whenever. Would you not have the statistics as to when the problems were occurring? Ms Longdon: When we got the really large number of complaints which have come to us since that report - normally we do not have large numbers of complaints and we have received over 4,000 complaints since then - in the first instance, because of the Department's response to the Ombudsman's report - which was to say that there would be a retrospective review of those cases - we passed the complaints we received to the Strategic Health Authorities and said, "You have undertaken to review these properly." Therefore we did not retain that information; we sent it to them. That information is something you would probably need to look somewhere else for, I am afraid. Q200 Chairman: Do you also have any thoughts on geographical location: where it is that you have received substantial complaints from? One of the issues we talked about last week was that some people seemed to be more aware of the issue by various mechanisms. Easington Working Men's Club seemed to be one organisation that appeared to assist people in that part of the world. The word got round. A serious point. Can you identify particular pockets of problems in certain parts of the country from the information you have? Ms Longdon: The information we have is partial. It is dependent upon a complaint being made to us, therefore we would not tend to have the whole picture. But we are dealing with complaints by Strategic Health Authorities in batches. We have some information about where we have the most complaints and where we are taking those forward. I am not sure that we would be able to say there is a causal link between that and local publicity. The causal link might be between that and how satisfied people have been with the process that they are being put through. We can provide information. If you want it, we could get it to you subsequently by SHA about the number of complaints we have received. Q201 Chairman: If you do not mind, that would be very helpful. The other issue that came up was that perhaps more middleclass people are aware of this than people who are less well informed. You probably cannot draw any great conclusions from the geographical information, but it would be interesting to see it, so we would be grateful for that. Ms Longdon: Could I just add that in our report we draw attention to the fact that anecdotally we have some concerns about everybody who needed to know having been captured by the publicity. Anecdotally, we would support the concern, and we are seeking an assurance from the Department that they have done what they felt appropriate to identify people. Q202 Dr Taylor: Going on with the quality of the assessments, because this is something that really concerns us: last week we heard that the criteria from Strategic Health Authorities may be largely similar but that the interpretation of these at PCT and lower is variable and really quite unsatisfactory. That rather matches the statement in your review to us, which is really quite damning, that: "In more than half the cases my Office examined we found that the assessments had not been carried out properly. The problems included poor quality clinical input to both assessment and decision-making, inadequate documentation, failure to consider changes in a patient's health care needs over time, and lack of involvement of, and poor communication with, patients, carers and relatives." That is awful. That is a totally damning statement of the way the process is going, and it fits, again, with witnesses last week who said that the system is just not working. What suggestions do you have? You say the services should be expanded - "expand local capacity" - and obviously improve training. Can you help us to know how that expansion should be done? Ms Longdon: If I may start by saying that it is a worrying picture. The report is there on the records to address that. But some people are doing much better than others and therefore there is much good practice from which to learn. Our suggestions in the report are two-fold: (i) that you have to have clear, comprehensive criteria that everyone can understand - that is, professionals and users of a service - and (ii) that the tools that people are provided with to help them to do this well - and some people are doing it well - are shared very publicly and clearly, so that we build on good practice and get people following that good practice. Q203 Dr Taylor: I would love to know what you understand by tools in this sort of circumstance. Ms Longdon: I will hand you over to Colin for this. Mr Houghton: These will be methods of assessing someone's health care needs against the criteria. I know it is easier said than done, but, for example, focusing on such difficult words as: "intensity" "complexity" and "unpredictability" - which are there in many eligibility criteria, but where not a lot of work has been done to try to pull those out and examine them and see exactly what they could mean for national criteria. Q204 Dr Taylor: Should it just be a table, a chart that people fill in? Mr Houghton: No, more than a tick-box one. We have had experience of quite sophisticated assessment tools which, at the end of the day, fall down to a scoring system, whereby you have to get above a certain number in a certain number of health care domains in order to qualify. I think it probably needs a more holistic approach, to stand back and look at it, and not to decide, "That one qualifies and that one does not." We do not have all the answers to this. I think a lot of work needs to be done on this. That is why we are so pleased that we are getting involved in looking forward to the National Framework, so that we can contribute to this. Q205 Dr Taylor: So the aim with the National Framework would be that there is a single national assessment tool that everybody should use. Mr Houghton: That is what we are proposing - with appropriate guidelines. Q206 Dr Taylor: Going back to the quality of assessment, in some places you say it is really being done very well. Can you point to any group of staff which is better at doing it, which it is essential should be involved? Are there any lessons from the places where it is done well that we ought to know about? Ms Longdon: The start is that this is a multidisciplinary assessment, and therefore you have to make sure you have involved in the assessment the people you need to have involved in that assessment. For us that is a decision that is not always taken at the outset, so an assessment might be made by an individual from one specialism rather than making sure that it is multidisciplinary and reflects the needs of the individual. Therefore, I think an important start-point is to make sure you have involved in the assessment the people you need to have involved in that assessment. Q207 Dr Taylor: The areas from which the complaints came, was it fairly obvious they did not have the right representation on multidisciplinary teams? Or is that a simplification? Mr Houghton: In some cases it became obvious from looking at the nursing notes or the care home notes, that there were, for example, regularly occurring psychological needs. With the best will in the world, a single nurse looking alone at these may not be able to pick these up or may not see the significance of them when seen in a pattern of behaviour. Q208 Dr Taylor: Are the members of a multidisciplinary team laid down anywhere, as to who should be on it? Or is it left to the trust PCTs? Ms Longdon: The difficulty in that is that who should be there is so dependent on the needs of the individual. Individuals with a variety of needs are being assessed under these criteria, and therefore it is a matter of judgment, clinical judgment in many cases, about who should be represented in any individual assessment. It is not possible to say, "The answer must be X." People do have to exercise judgment and be flexible and tailor that to the individuals concerned. Q209 Dr Taylor: Would absolutely clear criteria reduce the need for training? Or is the need for training still absolutely paramount? Ms Longdon: There are a number of areas of training to which we have drawn attention in our report. One is, overall, the fact that this is an area in which there was not a lot of knowledge and expertise. Indeed, the work that has gone on over the last few years has developed that hugely, but there is a lack of real understanding of these issues and at many local levels. So there is a general issue of capacity; there is a specific issue around certain of the elements of the assessment that need to be undertaken; and then there are other general issues, for example around communication, which are very relevant to the way people understand what is going on. Q210 Dr Taylor: Finally - and I do not really understand this - how does the single assessment process fit with your idea of a national assessment tool? Mr Houghton: I think if the tool was to form part of the single assessment process - which, as I understand it is not universal across all trusts, all Strategic Health Authorities, at the moment - then I think that single assessment process, with the appropriate tool as part of it, would be a help. Q211 Dr Taylor: So it is part of it. Mr Houghton: Yes. Q212 Mr Bradley: In terms of the multidisciplinary team where there is good practice, is it clear who is responsible for pulling that team or those individuals together? Are there different people in different trusts responsible for taking the lead on determining who should be involved in that wider review? Mr Houghton: It varies, I am afraid, between the trusts. In some cases, certainly where there is an appeal tier with a Strategic Health Authority, there is a clear lead given and a clear person who brings it all together. In other cases, there is not a second tier at all and it goes straight into the complaints procedure. So it does vary a lot. Certainly, as part of the National Framework, we can contribute the areas where we see that it appears to work very well, and I think we could pull something out of that. Q213 Mr Bradley: Do you have a view of who should take that critical lead? Ms Longdon: That is a matter to which we would certainly want to contribute, but I am not sure we are saying that we think we have the answer as to that way forward. Q214 Chairman: One of the issues, following on from what Keith said, came out last week. We were talking about demarcation between health and social care and health and social care professionals, and it was apparent from the evidence of Ms Kath Atlee, who I believe works in Hounslow PCT, that in their area they have joint commissioning arrangements, so that is working multi-professionally in a collective way. But that was not the case in other parts of the country from which we sought evidence, including my own part of Yorkshire. Do you have any thoughts, in looking at the feedback you get from complainants, as to whether the way in which people operate professionally at local level has a bearing on the outcomes that might be presented to you? Would this joint commissioning model perhaps assist in addressing some of the problems that you face in other parts of the country? Ms Longdon: I do not think we have the evidence to back up a view on that. We have some examples but I do not think we have a considered view about joint working. Mr Houghton: Where there are examples of that joint working and it has been set out clearly to the carers and relatives: these are the people who are going to make the decisions, this is the process - and, even more, when they are invited to be part of the process - then we get less complaints from those people because everything is set out. A lot of the complaints we get are (a) "We think it is a wrong decision" and (b) "We do not understand the system." Q215 Chairman: So you do feel that the way people operate locally has a bearing. It may not necessarily be in terms of joint commissioning, but including users' families in the process is helpful. Mr Houghton: Yes. Ms Longdon: Absolutely. We are very clear that including the families/the carers is very helpful and would certainly represent good practice. Q216 Dr Naysmith: To probe a little further, what you are saying is that you know of examples of good practice, they are probably different in different places, but you do not want to recommend any particular one until the whole thing has been examined a bit more closely. Is that really what you are saying? You want to look at these places where there is good practice and see what you can draw out of that to recommend more widely. Ms Longdon: Certainly. That is because we are well aware that our knowledge depends on people having complained in that area. There will be some areas that we do not know about and they may have wonderful practices that we do not know about, so our view is that we would want to contribute what we know in order to inform a better way of doing things but we do not pretend that we have all those answers or all the information. Mr Houghton: One of the things we did when looking at this whole area was to take a reality check and make sure that we are not setting some gold standard for these assessments that no-one can achieve. But we have seen excellent examples throughout the country of the way assessments have been carried out, so we know that it can be done. I would like to go on record as saying of all the Strategic Health Authorities that they all have good points that we can pull out, and, although in our report we put down lots of examples of not so good practice, none of those are all concentrated in one Strategic Health Authority. There are pockets and areas in all of them where there is practice that we think is great, and if we can replicate that and bring that together then I think there is good hope for the future. Q217 Mr Amess: Primary Care Trusts could not have greater powers and bigger responsibilities, as they appear to have at the moment, and there could not be any greater challenge for them than deciding who exactly would be eligible for NHS continuing care. Your good organisation has made proposals about these panels and what they should be composed of and how perhaps their decisions be challenged. Could you elaborate a little bit on what your proposals are actually trying to achieve. Ms Longdon: We are interested in good administration of a clear framework, which actually delivers across the country the right answer for the individuals that are going through this process, in a way that takes account of their differences - because people who are seeking this support are very different - but in a way that also ensures that people are treated consistently across the country. Q218 Mr Amess: What are you proposing? Ms Longdon: We are proposing that there should be a National Framework, a single set of criteria that are applied across the country which needs to be developed. We will contribute to that development, but that is clearly something that is a matter of policy for the Department of Health to lead on. Within that, there should be examples of how you can undertake this process well in your local context. We also want to work with others, in sharing our knowledge of what works with others, in order to come up with examples of what works so that people can use that. Those are the two key changes we are proposing. Within that we are saying there must be more training, there must be better documentation, and there does need to be some clear monitoring of what is going on so that everybody is clear as to what is working and what is not. Q219 Mr Amess: Who do you specifically think should sit on these panels? Who should appoint them? What should their backgrounds be? Ms Longdon: What we can do is to share some of the details that we have of good practice. We could let you have those subsequently, as examples of where we can see things working in detail - not saying that it should be the way, but that this is a way that we have seen working as good practice to contribute to your deliberations. Would that be a helpful way forward? Chairman: Thank you. Q220 Mr Amess: What do you see as the role and remit of these review panels? Ms Longdon: I am sorry? Q221 Mr Amess: You are not being terribly specific, if you do not mind me saying. I asked the question: Where are these people going to come from? Who is going to appoint them? What is their background? What are they going to achieve? I understand what you are saying, and I am not wishing to be rude but that is not exactly what I asked you. Ms Longdon: I think the question you are asking us is probably not one that as the Ombudsman's Office we are in a position to answer. Q222 Mr Amess: Okay. Ms Longdon: Because we have a view which we want to share but we do not claim to have the overall picture or the position to make that level of detailed recommendation at this point. Q223 Mr Amess: But you obviously want to get it right otherwise you are going to be flooded with so many problems. Ms Longdon: Absolutely. And therefore we are really keen to be part of this, and to add the information that we can and the help that we can about good practice - and just the sort of thing we were talking about which you can take from other areas. It is not just about what is a review panel, but we feel it is something we will contribute to rather than something we want dogmatically to say, "This is the answer." Mr Houghton: One of the problems with the Ombudsman's Office is that we only deal with complaints. When people are happy and there has been a good decision and they are happy with it, we do not see it. Even in some cases where we say, "We don't think this is right. Can you do a reassessment?" they do not then necessarily - although a few people do - come back to us and say, "Great, it was done. Excellent. I am happy now." So we do have slightly one point of view. Mr Amess: Thank you. Q224 Dr Naysmith: Could we look a little bit at the retrospective review of the funding decisions. We touched on it a little bit earlier, but could we explore it a little bit more deeply now. In your written evidence you describe: "flaws, often systemic, in the way retrospective reviews were carried out." Could you elaborate on that, with some examples of the flaws that you found in the way the process is carried out? Mr Houghton: We have set some of these out in the follow-up report. By systemic we mean that in certain trusts or in certain Strategic Health Authorities they have a process. Where we see that part of that process raises concerns with us, that has been replicated on every individual case. That is what we call our concerns about the systemic flaws. Examples are only looking at one particular timeframe, so that, if a relative has been in a care home from 1998 to 2000, they will do an assessment based on the last six months. As you know, people's health care needs can vary, they can go up and they can go down. Also, where people have psychological needs - I saw that you had Barbara Pointin here last week - sometimes psychological needs are not taken into account. Other examples are where, for example, someone will go into a nursing home, look at all the nursing home notes, prepare a summary of their view of what that health care portrayal presents, and then present that to the decision panel. The decision panel will only have that summary and not the full notes, so someone is already interpreting something before it ever gets to the panel. Those are some examples. Q225 Dr Naysmith: It sounds a bit to me like the Benefit Agency medical assessments sometimes for benefit. If you do not get the full information the first time and people get turned down, then, when you have an appeal with all the evidence there, people are given the money. Is it a bit like that? Mr Houghton: I think it may be. I am not sure. I observed a panel in operation last year, when I was particularly impressed. The health care professionals engaged in a full discussion. There was not any acceptance of, "That's what the nurse says. Let's look at the criteria. That is a take into account," there was a full discussion about, "What does this mean? Let's look at the raw material." I have to say it is quite time-consuming, but the good thing is that that was recorded and the decision that was finally sent to the relative in that particular case - which was not to get full funding - was completely set out. There was no doubt as to how the decision had been reached, what evidence had been used to come to that decision. I thought that was an example of good practice. Q226 Dr Naysmith: You said a minute or two ago there were some examples of bad practice, where you kept getting complaints from one or two particular authorities. Is there any evidence that they changed their tack when you sorted out these problems? Mr Houghton: Absolutely. My team have been visiting. We hope to visit all Strategic Health Authorities and we have visited ten at the moment. In almost every case, we have met them, talked to them about our concerns, and a really useful discussion has entailed. In almost every case, at the end of that discussion they have understood where we are coming from; we have understood some of the problems that they have had; we have agreed what was a good practice and what was a practice that possibly ought to be amended. Today, I have heard a couple of Strategic Health Authorities have agreed to take back for re-assessment the complaints that have been made to us, taken on board our concerns about the systemic flaws and are going to re-look at those. Q227 Dr Naysmith: Did they re-look at any of the ones they did about the same time where they have not had complaints? Or was it just the complaints you drew to their attention? Mr Houghton: I think that is phase two. We are getting them to look at our complaints first of all, to get them in the habit of doing these assessments properly, and then we will be looking at going back over previous cases. Q228 Dr Naysmith: A little bit earlier we were talking about how not every illness is covered by Strategic Health Authorities, and it tended to be those who are more articulate and so on who knew about the process. What should the Department do to ensure this does not happen, that retrospective reviews are available to everyone who should be having one? Ms Longdon: Again, I am not sure we are very well placed to give you advice on that. We have seen some examples. Some people have come and told us what they were doing, and that was interesting. We would suggest that more weight should be given to those PCTs and those SHAs who are working hard to publicise what is going on. Certainly, I do not think we have a simple answer which is: "We suggest X, Y or Z should happen." Dr Naysmith: Would it be too burdensome to recommend that every review should be looked at again, to see whether there was a possibility that it might have gone wrong? I do not mean in detail, but look at everyone assessed over a particular period and decide that there might be something here to look at. Q229 Chairman: Do you want to go away and think about that? Ms Longdon: I think so. Thank you, yes. Q230 Dr Naysmith: You state that, when giving redress to people wrongly denied continued care funding, the guiding principle should be that the individual gets proper restitution or their estate "should be put back in the position that they would have been in had the maladministration not occurred." Could you give us some examples of what you mean by that, and, of the cases you have received, which you are taking forward now with the Department that fall into this category. Ms Longdon: The statement we make is a general statement that the Ombudsman makes about all the complaints that have come to here, that people, as far as possible, should be put back in the position they would have been in. We are looking at some specific complaints that have come to us from individuals claiming that they have not been put back in the place they would have been, suggesting to us ---- Q231 Dr Naysmith: What are the sorts of things? Ms Longdon: Suggesting to us that they can demonstrate a link between actions that they took which have had implications for them. The sorts of examples we are looking at - and on which we have not made any decisions yet - are, for example, an individual who said they sold a house as a result of having to fund the care themselves; and an individual who said that actually she gave up her work in order to care for an individual herself. Those are the sorts of issues that have been raised with us at which we are presently looking to say what the answer would be. We have told the Department about the cases and issued a statement of complaint, and we are investigating the issue of the sale of the house at the moment. Q232 Dr Naysmith: That is, that giving up employment and giving up a house are two examples. Ms Longdon: They are two particular examples. Another issue is the rate of interest that people have received on the payments that they should have had and did not receive. That is quite a large one for us. It is another issue we are looking at. Mr Houghton: People may have a view that the only complaints we get are people saying, "I should have got full funding and I did not," but there is a whole range of complaints about delay, the way they were treated before panels. We do have a number of specific complaints about, "Okay, I have finally got continued care" - or the estate has got it - "but all I have got is retail price index and that is not enough. I want you to get me more." That is something we are taking forward with the Department strategically because probably there is an issue there in that we cannot look at an individual case. Q233 Dr Naysmith: What proportion of the time of your unit is spent on looking at these things? Mr Houghton: It is not large. Q234 Dr Naysmith: It could be quite complicated, and involve getting evidence going back quite a long time. Ms Longdon: It is. Q235 Dr Naysmith: It is not just a question of wrong assessments, but looking at other things as well. Ms Longdon: On the first point, in terms of the amount of work, complaints come to us in sort of waves, so that we are now hearing from people whom people accept did not get the full funding, and they are now coming to us to talk about what happened when they were finally awarded it. So these are complaints that have come in much more recently than some of the others. In terms of our workload ----- Mr Houghton: It is not great at the moment, but I am just not sure how many assessments are still going through the process out there, going through the appeals, local resolution, that will eventually come through to us. Q236 Dr Naysmith: What has happened since April 2004, since the Health Care Commission took over responsibility for this? Has it changed anything? Ms Longdon: We have an agreement with the Health Care Commission about complaints and about retrospective reviews. That is something that we have agreed with the Department of Health, with the health bodies concerned and with the Health Care Commission. That is, that, given that the people who are continuing the particular retrospective reviews have already been through a very lengthy complaints process and have then had their complaints referred back, but there was not the local capacity to review that and the Health Care Commission have not had an opportunity to build up the expertise in this particular area, therefore the Ombudsman agreed to exercise her discretion, with the agreement of everybody and very specifically with the agreement of the complainant, to entertain the retrospective review complaints directly rather than to go through the Health Care Commission, and the Health Care Commission have agreed with us that any complaints they get about retrospective reviews they will pass directly to us. Q237 Dr Naysmith: When will that arrangement end? Is it open-ended at the moment? Ms Longdon: No, it is not. It is to do with the retrospective agreements. We are clear that under the NHS complaints process, on which we issued a report very recently, complaints should go to the Health Care Commission before they come to us. Those that are about funding, after April 2004, under the new arrangements, will actually be dealt with by the Health Care Commission. We have offered with the Health Care Commission - we have a lot of contact with the Health Care Commission - that we will share expertise with them, so that we can help them up the learning curve in this area, so that they are enabled to consider those complaints. Q238 Dr Naysmith: Is the Department of Health not a little bit unusual in not offering compensation for maladministration? Ms Longdon: I think it is fair to say that the Department have offered compensation for the admitted fault in the retrospective reviews and they have made restitution in terms of the funding. We are saying: Is this all of it? So I think the principle is established that the Department have accepted that they needed to do something, and, indeed, they have paid out. I am sure they will tell you how much money they have paid out as a result. Q239 Dr Naysmith: That is not quite the same thing as maladministration, is it? Sometimes from some departments we get a sort of compensation payment for ---- Ms Longdon: I am sorry, I misunderstood. Q240 Dr Naysmith: That is what I am really asking about. Ms Longdon: We have the issue of what we would call "botheration payments" - payments which are about inconvenience or distress and worry - and we will ask for such payments where we consider for any complaint, on the parliamentary work and other health work, that people have been put through that. There is nothing to prevent the Department of Health making such payments and for local health bodies to make such payments, and, indeed, they do in a number of areas. We have examples where we have suggested that should happen and it has happened. Obviously, in cases where there are such a large number of complainants, as there are here, it becomes a broader issue. But those payments have been made, we have examples of those, and we think they are very appropriate. So they have taken place in particular examples. Q241 Dr Naysmith: In this area that we are talking about this morning. Ms Longdon: We know of one in this area. But in other areas too we know of them. Q242 Mr Burns: You will be aware over the last few years how many people have been grateful to the work of the Parliamentary Ombudsman, particularly with their original report and the follow-up report. Throughout the history of the Parliamentary Ombudsman, have there been many incidents where the Ombudsman has produced a report and found something going wrong and made recommendations, and you have had to then produce a follow-up report? Ms Longdon: I am afraid I cannot comment on the history. I do not know of that. Q243 Mr Burns: How long have you worked there? Ms Longdon: Two years. Mr Houghton: Seven years, including parliamentary. You mentioned parliamentary, do you mean parliamentary and health together or either? Q244 Mr Burns: Would you agree with me that it is, from your suspicion, very unusual for the Parliamentary Ombudsman to produce a follow-up report? Ms Longdon: Yes. Q245 Mr Burns: Would you also agree with me that when you produced your follow-up report it was fairly damning and rather surprising at the response in reality to the original report, in that you found that over half of the cases that have been reviewed were incorrect in some way; that there was considerable concern at the delays in sorting out this problem and providing justice for those who had suffered an injustice; and that it seemed that either this was happening because people just had no clue of what they were doing or there was a suspicion that, the longer it took, because of the length of time and human nature, there would be possibly less complaints or others that would be abandoned because the people were no longer alive, frankly, to contribute to the process. Which one do you think it is, or a combination of both? Ms Longdon: Certainly we are clear that what went wrong was a huge disservice to a large number of individuals and we have drawn attention to that. As you say, there was a lot of delay, there was a failure to communicate, decisions were wrongly made, and these are often frail, vulnerable people who are in the situation. We are very clear that in making this report to Parliament we were saying, "This is an issue that needs to be looked at and we need to get this right." In terms of the motivation of the people who were operating the service, I am not sure we are in a position to comment on that motivation. Our sense was that there were a lot of people, locally, working incredibly hard to try to make this system work in dealing with people - and perhaps getting it wrong, but not getting it wrong because they were deliberately trying to get it wrong but because they did not have the framework or the capacity and the competence in which to do it. I do not think we have any information to suggest that people were deliberately delaying things in order to achieve some other outcome, but the effect was that those delays were very significant and quite unacceptable. Mr Houghton: If I could endorse that. Between the period of the first report and the second report, the February 2003 and the December 2004 reports, not only did we have the complaints coming through, we had a great number of practitioners from trusts and Strategic Health Authorities telephoning us almost on a weekly basis to say, "We are struggling with this criteria. We are trying to do our best. Can you come down and train us? Can you tell us what to do? Or, better still, can you come and sit on the panel and do this with us?" Of course, we had to keep our distance from that. I think there were considerable efforts to try to get this right, but they did not have the guidance or leadership at that time to get it right. Q246 Mr Burns: You may well be right from your experience. The only experience I have is one constituency case and, I must say, the performance of Essex Strategic Health Authority in carrying out the review in no way near reflects your experience. It was only through the PCT constantly badgering them and writing to the Chairman that eventually one got it given to. Do you also find it surprising, given the pressure - because there is considerable pressure from a variety of sources to resolve this and to right an injustice - that the minister responsible for sorting this out at government level eight times gave commitments that deadlines would be met in carrying out the backlog, including three in Parliament, and eight times those deadlines were missed and the commitments failed to be realised, to the point where he actually came before this Committee last summer to say that he was embarrassed by the situation? Do you find that surprising? Ms Longdon: Certainly - and we are on record as saying this - we were concerned that we were misled as to the timeliness of reviews - and, indeed, we then asked complainants to rely on those commitments that were given. So we share your concern that commitments were given and we therefore then said to a complainant, "You should go back to your SHA and it will all be completed by ...." - December/April/July - and therefore we are very, very concerned that we had assurances on which we relied which affected people. We certainly share that concern. Q247 Mr Burns: That is quite a strong word "misled". For the Parliamentary Ombudsman's Office to be misled is quite a strong condemnation. Who do you think misled you? Ms Longdon: We were assured ----- Q248 Mr Burns: By? Ms Longdon: By the Department of Health. Q249 Mr Burns: Are we talking about civil servants, ministers, both? Ms Longdon: I think I would want to check exactly where those assurances came from before I answer that. I would not want to mislead you on that, so we will let you know. Q250 Mr Burns: You are suggesting, so that I am completely clear in my mind, that it was either civil servants in the Department of Health or ministers who misled you about those commitments. Ms Longdon: They gave us an assurance that a timescale would be met on which we relied and which we passed on to complainants. That subsequently was not the case. Q251 Mr Burns: Presumably when those deadlines were not met and you felt you had been misled, you were aggrieved because you possibly felt embarrassed or you had let down people by your ----- Ms Longdon: We had let down complainants. Q252 Mr Burns: What did you do? Did you go back to the Department of Health to say, "Why have we been misled?" Ms Longdon: We certainly raised it with the Department of Health, yes. Q253 Mr Burns: Again, was it at ministerial level or civil servant level? Or will you check that? Ms Longdon: In each case, we will check. Q254 Mr Burns: What was the response? Ms Longdon: The response, I think as you know, was that a new deadlines was set and we were given access to that new deadline. We were told, "The deadline is now ..." - whatever it is - and then we relied on that deadline in terms of the decisions that we then took. Q255 Mr Burns: When that deadline was not met, presumably you felt misled again. Ms Longdon: We wrote a report, which is a matter of record, which says that we were concerned that the deadlines which we had been given and which the public had been given had not been met. Q256 Mr Burns: Do you find it extraordinary, given the history of this saga, that you had to write that report? Ms Longdon: I think our term would be: we find it "regrettable" that we had to write this report. Q257 Mr Burns: Presumably that is diplomatic for disappointed. Ms Longdon: We are disappointed. And it is regrettable because there are people who are suffering during this process. There are individuals there for whom this is terribly difficult. Q258 Mr Burns: We have a problem here in Parliament now, because up until 16 or 18 September last year we could table parliamentary questions and by individual Strategic Health Authorities we could get the information and track what had happened and what was happening to those complaints. Just before Christmas the Parliamentary Under Secretary blocked my questions seeking for further information on that. The Secretary of State very kindly agreed to supply it when he came before the Health Select Committee in early January, but, when the question was re-tabled, it did not actually get answered in the same format as the published charts in September by the Parliamentary Under Secretary, it just said that all but two Strategic Health Authorities had completed their cases. So, basically, we are being blocked. Are you being blocked, or do you know the answer to the question in a way that we cannot get that answer? Ms Longdon: Let me explain. We have said publicly in our report that we believe monitoring of the situation is important and there should be accountability around this issue. Therefore, how that is achieved is not what we have said. We have said that should be achieved. We would agree that there should be public information available around that. Do we have that information? I am not sure we do. Mr Houghton: No. Ms Longdon: No. Q259 Mr Burns: You do not have that information either. Ms Longdon: Nor have we asked for that information specifically in the form that you are suggesting. Q260 Mr Burns: Do you find it odd that Parliament cannot get that information in the original way in which the Government published it last September? Ms Longdon: Do we find it odd? I think we are saying that there should be information available. The form of that information is something you will clearly pursue. I think it is a matter of discussion about that. Q261 Mr Burns: The trouble is we cannot pursue it, because Parliament cannot get the information. I know the minister is coming here shortly. Maybe we will be able to press him further. Mr Houghton: The two areas of information that we would like and on which have been unable to get clarification are these. The Department have said that 20 per cent of all the retrospective review cases have resulted in restitution, but restitution could be the whole of the six-year period or for the last two months of people's lives. I think it would be useful to decide whether it was for the whole period or for a shorter part. The other point it would be useful to know is: When do they consider a retrospective review case has been completed? Is it when the first decision is made to the relative to say that is the decision? Because it is then an ongoing case from there, through the various appeal mechanisms - and for our own planning purposes really it would be good to know how many other cases are out there that are likely to come on to our doorstep. Q262 Chairman: Having listened carefully to the answers you have given, one of the issues that came out very strongly in the evidence session last week was over problems that have arisen in retrospective reviews over inadequate or completely absent documentation - which has caused immense problems. Is it reasonable to have expected the Government to have understood the difficulties that would occur with their lack of documentary evidence? Do you feel that level of knowledge should have been there in the Department of Health at the time you are looking at the arrangements for reviewing these decisions? Ms Longdon: We have said that everyone was surprised by the scale of the problem. We certainly were and therefore I think it would be difficult to say that the Department should have known. I think the scale of the issue is larger than anyone expected in February 2003. In terms of documentation, I think we have been quite surprised by some of the documentation or the huge absence of documentation and the difficulty of getting it. One of our suggestions is that for the future there should be some clear standards of documentation set out, both for the care records of the individuals and, I have to say, in terms of the records of the process of review itself, because there are deficiencies in both those areas. We have talked about a number of individual issues, where families have gone to huge lengths to try to track information that people have initially been told was not available but which subsequently has been found to be available. So I think there is an issue over tenacity and where you draw the line in trying to find records which, by their nature, have proved very difficult to secure. Mr Houghton: I agree with that. In one particular case, there were difficulties because the care home would not release the papers unless someone was going to pay for the photocopying. In the end, we stepped in and got the copies ourselves and provided them to the panel. Q263 Mr Burns: Do you already have the information as to what was said to these people, in terms of the cases you are dealing with, who are dead? Ms Longdon: No. Q264 Mr Burns: Do you think it is many? Ms Longdon: I do not think we have the evidence to give you that information. Of course, this has been going on rather a long time now and, therefore, in the circumstances of a complaint, the patient may be alive at the beginning and not be alive at the end. Certainly we have had complaints from estates of individuals as well as from individuals who are alive. Chairman: Are there any further questions? Could I thank you both for a very helpful session. You have indicated your willingness to come back to us with material arising from the session. We have picked up a rumour there might be an election in the offing. We are hoping to be able to produce something pretty quickly on this subject, so we would appreciate as quick a response as you can possibly give us. We are most grateful to you both for your help. Thank you.
Witnesses: Dr Stephen Ladyman, a Member of the House, Minister of State for Community Care, Mrs Anne McDonald, Head of Delivery Programme, Older People and Disability Division, and Mr Craig Muir, Deputy Director, Care Services Directorate, Department of Health, examined. Q265 Chairman: Would you like to introduce yourselves? Dr Ladyman: I am Dr Stephen Ladyman, Minister for Community Care and my colleagues are Mrs Anne McDonald and Mr Craig Muir who work most closely with me on this issue. Q266 Chairman: Thank you for your co-operation with this inquiry and the evidence you have given to us. We are most grateful. Perhaps I can begin by talking about what I feel to be the core issue at the centre of some of the problems we have picked up in evidence. I am sure you have noted some of the evidence we have had, and we have just heard from the Ombudsman about the information that they have picked up as a result of complaints. If I were to refer to a key feature of numerous inquiries that this Committee has conducted during my nearly eight years as chair, the whole debate around the margins of health and social care perhaps will come out as the most important issue that has never been resolved. You, as a minister, are landed with a problem that has not been addressed by successive governments in my personal view - and colleagues round the table might differ on this. Do you feel that we are at a stage where over and above the continuing care issue we need to be looking much more radically at how we address the problems around that divide. I am not sure how much money has been spent on this Committee in looking at the issues of health and social care and the problems arising around the margins, but I meet numerous officials all over the country whose entire work relates to arguing with somebody the other side of the fence - health or social care - about who is responsible for a particular individual's care. It struck me on many occasions that we must spend millions and millions of pounds employing suits on each side of the fence to argue with each other, when that money could go on funding care. We may even save money by moving in that direction. Do you have any thoughts on that? Dr Ladyman: Let me deal with the principle and then the practicality. What you are saying in principle is absolutely right. There are many disputes that arise because of it. If we just go back, for example, which is most often quoted in relation to NHS continuing care, the Coughlan judgment, that is quite often misinterpreted. The Coughlan judgment said that there is a maximum level at which a council which has a responsibility to provide funding for social care can be expected to provide that funding, and beyond that it is ultra vires. The Coughlan judgment did not make comments about NHS continuing care; it simply said: "Here is the most that a council's remit allows it to pay." In making that judgment, they acknowledged what you are saying; that this grey area between the two is a real problem. The question we then have to grapple with is the best way of resolving that. I know that you personally have always advocated health and social care coming back together again, which is more or less the situation in Northern Ireland. I have to say that from my discussions with people in Northern Ireland, even there, where the two things are put together, the situation is often just as difficult to deal with. Some people will tell me, "oh, yes, it works wonderfully", and some people will tell me, "no, it is chaotic". In the end it comes down to how closely social care and health professionals are working together; how well they understand each other's needs and are discussing these issues and are making sure they understand where funding of particular types of care should come, and the structure does not much matters. If professionals have that sort of relationship and understanding, then it works well; if they do not, then irrespective of the structure, it works badly. When you see the Green Paper Adult Social Care, we will be addressing some of the ways we see we should be moving to try and address that divide and get people working more closely together. Q267 Chairman: Yesterday I tabled a question for next week's health questions, which you will be relieved did not come out in the raffle, but it was this: what would your estimate be of the costs of administering the demarcation between health and social care? One of the problems the Treasury has with the statutory background to social care being national systems which require means-tested provision, the NHS side of it is free, and any Treasury minister would be very concerned if we were to suggest combining the two areas, and make the social care entirely free. That would have significant financial implications. However, what struck me is that we have never come up with an estimate of what it costs to police that demarcation line. Do you have any thoughts on that? I know that the amount of time we spend as a committee and the amount of time the Ombudsman spends investigating these cases, and the amount of people we have got - an absolute industry involved in arguing it from a health care or social care agency aspect as to who is responsible. We have cost shifting and cost shunting; we have the Delayed Discharges Bill, and it still continues. There is a huge amount of money that could be saved that would offset the implication, surely, of moving in the direction where we have entirely free care, and we end the division that no-one can define between health and social care. Dr Ladyman: I agree with you that there must be a cost to it. We have not got an estimate for how much it is. I am not convinced it is as substantial as you think it is, and as we move forward and talk about how we should be doing this over the next hour, if we move forward to providing an easier framework for making these judgments, then I hope we can gradually eradicate those disputes. I think personally, although I entirely accept the public do not understand it, that it is possible to distinguish between the two, and we do need to do that because, as you said, we cannot provide all social care free at the point of need. The Treasury would just never accept it under any government of any colour, red yellow or blue. We already spend £12.5 billion on adult social care, under the current system where people contribute to the cost of it. We know roughly speaking that there will be four times as many people needing care by 2050; and their needs will be far more intensive. The fastest growing cohort of the population at the moment is people over the age of 100. To suggest that we could quadruple the cost, and then go further and not charge people and make it all free at the point of need is just utterly, utterly impossible to comprehend. We do have to keep a distinction between the two, because I am afraid it is inevitable under any flavour of government that people will have to contribute towards the cost of their social care. Chairman: I do not think it is fair to throw in fiscal measures that might be taken to recoup the money from people who do not need that support, but that is a factor that we should throw in. I was struck yesterday - you said you think it is possible to define the distinction between health and social care, and I wish you well on that one because I have met thousands of people who cannot. Yesterday, we had a lobby of people from the Alzheimer's Society - and you probably met some of them yourself. It struck me, talking to a number of people who were caring for parents with Alzheimer's or dementia, that it really seems totally wrong to suggest that somehow in a complaint of that nature, at some point you are moved from one section to another and nobody really knows when that happens. We will probably come back to that. Q268 John Austin: Can I come back to the confusion about the eligibility criteria and particularly the Ombudsman's report. You have partly accepted the recommendation of the Ombudsman's report in carrying out the review and asking SHAs to carry out reviews across their areas. Dr Ladyman: Why did you say "partly"? Q269 John Austin: You did not fundamentally adopt the national criteria and review ----- Dr Ladyman: We are going to move to a national framework and we have those discussions to have as to exactly what that national framework will include. Q270 John Austin: Initially, you got the SHAs to review the criteria. Dr Ladyman: That was the initial stage, yes. Q271 John Austin: Some of our witnesses have suggested that that has reduced the postcode lottery from 95 to 28, but there is still a difference of interpretation between SHAs on those criteria. Dr Ladyman: That is undoubtedly true, but there was another stage in the process as well, do not forget. As well as asking the 96 health authority criteria to be replaced by criteria adopted by the strategic health authorities, as a department we also published criteria that they should base their criteria on, so there was a central national criteria, and then the SHAs, where each expected to adopt their local processes and criteria to the national system, and then were expected to go and make sure that they had advice that the system they were proposing to use locally was compliant with our national guidelines and legally compliant. The framework was sound on a legal basis. You are right that on the face of it we only reduced it from 96 to 28, and therefore there were 28 different postcode lotteries; but actually those 28 were based on the national guidelines, so there should have been far more consistency between those 28 than ever there was between the 96 they replaced. We did that because, frankly, going from 96 to one, at a time when we had this huge review to carry out, our judgment was that it would just have been an impossible task to do that. We are taking what we see as being a progressive approach to meeting the Ombudsman's recommendations, and having got the 28, having gone through the review, we will move from here to a national framework, and we will have that discussion over the next 12 months. Q272 John Austin: You are giving an indication that the new national framework will effectively have a single set of eligibility criteria. Dr Ladyman: Certainly. There may be differences. We will have to talk to the SHAs, because we have to accept that there are two parts to the equation. First, there is the eligibility criteria, and secondly the process you have to go through in any particular local area in order to have that assessment made. Some areas have different problems than others. In a city strategic health authority it is easy to get people together to carry out multi-assessment cases. In a rural environment it might be different, and there might be differences in the way people want to carry out the reviews that are necessary in order to meet their own local pressures and local issues. Broadly speaking, we want to end up with a system where absolutely everybody in England will be able to say, "the assessment I have had would have come to exactly the same conclusion, whether it was held in London or Carlisle or wherever it was. Q273 John Austin: The new national framework will have a single set of national eligibility criteria. Dr Ladyman: We have those discussions, but my belief is that that is where we will end up. This is a consultation; we are bringing the 28 strategic health authorities together to identify best practice. They are giving us a very clear message. They want to have one single set of national eligibility criteria, so my belief is that is what we are very likely to agree with. If, in the course of these discussions, we find that is not practical, we will have to have something different. At the end of the day the key has to be that a constituent of ours in one part of the country must know that they would have had exactly the same decision wherever they had that decision made anywhere in the country. Q274 John Austin: In the report of the independent review it refers to SHAs saying there had been a staggering lack of guidance from the Department. Would you ensure that that it is not the case in the future? Dr Ladyman: I would not accept that at all. We worked incredibly closely with the strategic health authorities and with the Ombudsman. I have not heard what the Ombudsman has just had to say to you, but I would be surprised if she has not pointed out that we work very closely with her, and when they bring issues to our attention we do try and follow them up. Equally, when strategic health authorities have identified that they have had problems, whether it is a problem with a lack of understanding or practical problems, we work very closely with them to try and resolve the issues. I would dispute that, but people's perceptions are their perceptions. Q275 John Austin: My understanding was that one of the recommendations of the Ombudsman's report was that the Department should review their guidance to strategic health authorities on eligibility for continuing care, and that was not done, was it? Dr Ladyman: What the Ombudsman would have liked in the first place was for us to move to a single set of national criteria, and we took the view that that just was not a practical option when we had a huge retrospective review to carry out, when each of those cases which were previously considered - the errors had been made because of the attempt to try and carry them out under 96 sets of criteria. It was just too much of a task to go to a single set of national criteria and a national system in the time that the Ombudsman wanted us to carry out the review. That is why we took a pragmatic view that we would go to 28, and now having done that and made what we believe is substantial progress, we have taken the further step of saying we will now go to the national framework. We are agreeing with the Ombudsman. We have got to where the Ombudsman wanted us to be, but we got there perhaps over a greater length of time than she would have really wanted. At least we got there, and I do not think we would have got there if we had tried to do it in one step. Q276 John Austin: I am not suggesting one step, but I was a member of this Committee ten years ago when we said there was basically inequity in local eligibility criteria. Would you agree it has taken rather a long time to accept the recommendation that we made ten years ago? Dr Ladyman: I am certainly very happy to suggest that the Government of ten years ago made mistakes! Q277 John Austin: You mentioned the way in which you were seeking to co-operate with the Ombudsman, and we are aware of the letter that the Ombudsman sent to the Department regarding the confusion in SHAs on the whole procedure of assessments under continuing care funding and RNCC, and there was a suggestion that in some areas the assessments were being done in reverse order. Dr Ladyman: Which of their letters was that? Q278 John Austin: The letter to Ms McDonald on 1 February 2005. The Ombudsman told us earlier that there had been a response, but I wondered if that response could be put in the domain of the Committee. Dr Ladyman: I am happy to let you have that. I suspect you are probably entitled to ask for it under the Freedom of Information Act, even if I did not want to give it to you. I am happy to give it to you. Q279 Mr Burns: As we have been talking about the Ombudsman, last September you very helpfully made a ministerial statement about the current situation with regard to the reviews, and with that statement you had a very comprehensive chart by strategic health authority on the number of complaints that had been received on different timescales, the number of cases that had been completed in their review and the percentages of those that had been reviewed, and those that were successful to the individual, i.e., the complaint was upheld and money was paid to them as a result. Of course, life has moved on since then, and Parliament likes to know about these things. Why did you block my question in December when I asked you to update those figures? Dr Ladyman: Block? Q280 Mr Burns: You refused to answer it. Dr Ladyman: No, I did not refuse to answer it. What I wanted to do ----- Q281 Mr Burns: What did you say then, if you did not refuse to answer it? What was the answer to the question? Dr Ladyman: I had said that from a certain point we stopped collecting the data. My understanding of your question was that you were asking me to overturn that decision and keep collecting the data. Q282 Mr Burns: No, my question actually was the question asking for the figures that you had given in September, which from memory went up to March 2004, be updated to July 2004. You said that you did not keep the figures any more and you would not publish them - though of course your Secretary of State came to this Committee in early January and when told about this told the Committee that we could have that information. When he wrote to the Committee he then said that all strategic health authorities had now completed their reviews on those timescales bar two, which was not altogether a comprehensive answer along the lines of your answer of September 2004, but it suggested that you had the information, or the Secretary of State would not have been able to give that answer. I therefore ask the question again: why will you not publish the information? Dr Ladyman: You did ask that question and we did give you an update, which referred back to our written ministerial statement, and then gave you the latest figures that we had. The fact of the matter is that the review cases that we were asked by the Ombudsman to look at were those people who had been wrongly assessed in the past. As time goes on, after we had carried out all of those review cases, we continually had to review current cases. Current cases come in all the time, and the data is becoming increasingly confused. This was one of the reasons for a lot of the controversy and a lot of the headlines over the previous written ministerial statements - all the people the newspapers said were being denied the care they deserved. There is confusion in the strategic health authorities between the current cases that are coming in, people who are now applying for continuing cases, and the review cases that they were being asked to provide. It is becoming impossible to separate the two sets of figures. Q283 Mr Burns: Why? Dr Ladyman: For one thing, there is an administrative cost in separating the figures. Q284 Mr Burns: Why can the Secretary of State give the answer in a slightly different form, but you cannot? The Secretary of State's answer to our committee was that all of the reviews had been carried out except in two SHAs. That suggests that to produce that answer, he has the figures, because if he did not have the figures he could not give that answer. Dr Ladyman: That implies that we have had the recovery and support unit ring the strategic health authorities and say to them, "have you completed all the review cases that you were asked to review?" - and all but two out of the 10,000 cases that we have been asked to review - review cases - there at this moment, as far as we are aware, 13 cases that still remain outstanding. If you want me to give you a month-by-month account of that, then I can give it. That is an administrative overhead, and I just do not want to impose on the strategic health authority. Q285 Mr Burns: Hang on, Minister. When it suits you, you are quite happy to provide those figures, i.e., in September last year when you made a statement to Parliament, when you were making progress so it looked good for you - you were quite happy, despite what you are now saying about administrative burdens and costs - to provide that information. But when the going gets tough and the information might not be quite as helpful to your department, you then suddenly start saying there are administrative problems, there are costs. If the Secretary of State ‑‑‑‑‑ Dr Ladyman: If the information we produced last September was helpful to the Department, you were not reading the newspapers. Q286 Mr Burns: No, it was helpful to the Department because it was showing that you were making progress. It was singularly unhelpful to the department because yet again you had missed one of the committed deadlines that you had given in public and to Parliament to have those cases reviewed; so in that respect, no, it was not helpful. It was helpful because we had a better idea through the information of what the current situation was. My question is - and you have just said that you think there were 13 cases that have not been completed. If you know there were 13 cases, providing you are correct, then you, I would suggest, know a little more about the figures or you could not come out with the figure of 13. My simple question is: why can Parliament not have these figures? Dr Ladyman: I am telling you the figures that I know, and that is by ringing the strategic health authorities and saying to them, "how many of your review cases are still outstanding at this moment?" The answer I am told is that there are 12 cases outstanding. There is another one been done - there are 12 cases outstanding. I can tell you for 8 of them the strategic health authority responsible, and the reason that they have given us is that they have had some staff shortages. The other four are delayed partly because of the need to get notes from the private sector, who have not been able to provide them, and partly at the request of representatives of the patients who have asked for the decision to be delayed for one reason or another. Those are the only 12 cases that I am aware of from the review cases that are still outstanding. We have got those figures by ringing the strategic health authorities and saying to them, "how many other review cases are still outstanding?" If you were to ask me other questions, though, such as, "how many cases are you currently considering; and how long are those cases taking?" there would be an administrative overhead on the strategic ----- Q287 Mr Burns: I am not asking that question. Dr Ladyman: I am giving you the answer to the question you wanted: there are 12 cases outstanding. Q288 Mr Burns: I can see that we are not going to get any further, and I must say that I do think it is an abuse of Parliament that you are not prepared to provide those figures when you were quite ready to in September of last year. One other question slightly leads on from that. We had evidence, as you know, from the Ombudsman's office before you, and their report states that they believe they were misled by the Department on this whole issue of carrying out the reviews and the deadlines. Do you think that is a fair criticism? Dr Ladyman: Absolutely not, and I would be amazed if that is actually what she said to you. Perhaps the stenographer ----- Q289 Chairman: We will check the record as to exactly what was said, because there was quite a lengthy exchange about this. One of the issues that I asked about was in relation to the evidence we received last week over the difficulties in respective reviews because of the lack of records. Dr Ladyman: Absolutely. Q290 Chairman: And the appalling state of records in some of the private care and nursing homes. Did that come as a surprise to you as a minister that these difficulties were so severe in reviewing these cases? Dr Ladyman: It did come as a surprise to me, but on reflection I realise that probably it should not have come as a surprise to me because the fact of the matter is that when assessments were being made by this process, since 1995 when the original decision was to have local criteria, people were carrying out these reviews in good faith. I do not suppose any of them considered for one second that ten years later somebody was going to have to go through their notes and try and see how they made those decisions and why those decisions were made. I suspect that people were making decisions; decisions were reported to people. I have no doubt there was record-keeping at the time associated with those decisions, but after a period of time I think it was perfectly reasonable, especially since by definition many of these people will unfortunately have passed away - the people who keep these records probably assumed nobody was ever going to want to go through these things for financial purposes. It has been a huge task to get the records back from a lot of these things. I was a bit surprised about the complexity of it all, but on reflection perhaps we should not have been surprised. What I take exception to in relation to what Mr Burns has said is the suggestion that the Department misled the Ombudsman. I have no doubt that we may have given figures in good faith that subsequently we have had reason to revise or we have given information in good faith which subsequently it has turned out we have needed to correct. I can accept that that might have happened, but the notion that either me or my officials would have misled the Ombudsman, I take very great exception to. Chairman: It would be helpful if the record was checked, and you can respond subsequently to what was actually said. Q291 Mr Burns: You can look at the record, but the word "misled" was used, as any member of the public here listening, and all my colleagues round this table listening - and just to narrow it down, their going away in answer to a question to try and clarify whether they though that applied to ministers or to civil servants, and then are reporting back to us. They are not reporting back to us as to whether or not it was misled; it was who might have misled them but it was ministers or civil servants. Q292 Chairman: I think there was a bit more qualification than Simon has suggested. That is a personal view. We will check the record, and obviously you can come back to us on that. Dr Ladyman: Before we go off this subject, to be frank with you I would take exception as well to the Ombudsman dividing it up like that. If she feels she has been misled, I have misled her because officials work for me and for the Secretary of State and I will take responsibility for any information that she was given, and I will deal with it if anybody has actually; but I can tell you that none of my officials have at any time misled anybody. We may have made errors, and I have no doubt that errors can be pointed to, but I take great exception, and I will take exception with the Ombudsman as well if the record subsequently proves that she is suggesting we have misled her, because that is simply not the case. I have struggled to give accurate information, and when I cannot provide accurate information I have held up providing any information until I know I can provide accurate information. Q293 Mr Burns: I think it is on the deadlines that the review is being carried out, not on the individual pieces of information. Dr Ladyman: Let me comment on that. Yes, we did make commitments for the speed that the review would be carried out. At the time we made those commitments we based them on estimates of the cases we knew about at the time, based on our discussions with the Ombudsman and our discussions with the health authorities. Having made those commitments and the publicity about this that was in the newspapers, there was a huge amount of publicity which generated then a huge amount of more cases that we had not estimated for. In the periods that we said we would complete the review we completed as many cases as we knew about at the time we made commitments. However, more cases came in and that was why some deadlines were slipped. The reason that I provided those written ministerial statements, far from wanting to provide information that was helpful to the Department, it was entirely because I felt that Parliament had not been given accurate information in the first place, through no fault of our own, and therefore I made those subsequent written ministerial statements to make sure that Parliament had the information that I felt it was entitled to to clear that up. Q294 Mr Burns: We do not want to perpetuate this for too long, but just one! You gave a commitment that all the cases up to either December 2003 or March 2004 would be completed by July 2004; and your ministerial statement of September 2004 shows quite clearly that was not the case - you had done about 88 per cent of ----- Dr Ladyman: If you look ----- Q295 Mr Burns: So there was a commitment broken that contradicts what you have just said. Dr Ladyman: If you look at the number of cases that we knew about, that we were talking about when we made that commitment, we completed as many cases as we knew about at that time. The fact that some cases turned out to be more complicated and therefore overshot the deadline we did not know about at the time, and the fact that far more cases came in so we had a bigger body of cases to deal with, we could not estimate at the time. We dealt with as many cases as we knew about at the time we made those commitments in the time that we said we would carry out those reviews. Q296 Mr Burns: Your statement just has been contradictory because you gave two qualifications; one was the cases you already had that turned out to be more complicated; but you knew about them at the time you made the commitment. You may not have known how complicated they were, but you knew at the time you made the commitment that all cases would be done by 31 July, and you failed to meet that deadline - so the statement you have just given is contradictory. Dr Ladyman: It is not contradictory at all. I cannot remember the number we knew about at the time when we suggested deadlines for completing them. We completed X cases in that timeframe. Some of the cases at that time though turned out, for the reason the Chairman has said, to be far more difficult to deal with than we thought because we had to recreate records and go back to people's memories and re-examine patients where possible in order to make the assessment. That was something we had not factored in in the original case, so I entirely agree that he review of some of the people who we knew about at the time we made those deadlines, went over the deadline. The number of cases we knew about at that time, however many thousand it was, we dealt with that many thousand cases inside the deadline; so we were working at the pace that we said we would be going to work at. It turned out that far more cases then came in that we had not factored into the equation, and some of them were more complicated than we thought. We tried to deal with those as best we could; and of course the advice we were given throughout this was that the people doing the reviews should prioritise the living. So cases where we were dealing with people's estates were given a slightly lower priority than people who were still alive. I felt that was the right advice to give and I stand by that. Q297 Mr Burns: Sorry, did you not just say that some cases became more complicated so that you could not complete them in the time - that you knew about? Dr Ladyman: I do not know how many different ways I can try and say this to you, Mr Burns. Q298 Mr Burns: You are contradicting yourself. Dr Ladyman: I am not contradicting myself. Q299 Mr Burns: You are. Dr Ladyman: I am making it quite clear that we knew about a certain number of cases, when we said we would be able to complete these cases by a particular date. We underestimated the complexity of some of those cases, so some of those individual cases overshot the deadline. Q300 Mr Burns: Yes, so you did not meet the deadline. Dr Ladyman: That I accept entirely. However, we did complete within the deadline the same number of cases as we knew about when the deadline was announced. Q301 Mr Burns: That is a different issue. Dr Ladyman: It just so happens that by the time we reached the deadline there were several thousand more review cases to be carried out. Q302 Dr Taylor: Getting back to the national frameworks and the quality of assessment, last week we did not hear many concerns about the 28 sets of criteria. The concerns we heard were the interpretation of these criteria, for example the representatives from the Alzheimer's Society and from ICAS said quite clearly that the system was not working. Again, from the Ombudsman just a few minutes ago, we have got their statement: "In more than half of the cases examined we found that the assessments had not been carried out properly" with a list of the ways that these were not carried out properly. Under the new national framework, when you are thinking about national assessment tools will you be recommending just one set which will fit within the single assessment process? Dr Ladyman: In my mind - and we have to work with the National Health Service to identify this - the key is the single assessment process because that is the way we can make sure that in the future these reviews are carried out automatically. Individual patients should not have to understand this system in order to get their reviews; it should be a process that is automatically triggered and automatically carried out. The key to doing that is to have this built in to the single assessment process. In terms of the toolkits that we provide to do this, one of the reasons why we have started this review with the strategic health authorities is first of all to identify best practice, because some strategic health authorities are saying to us "we have a system that seems to work perfectly". They may be wrong about that; the Ombudsman may be giving them a telephone call in the next few weeks and telling them how wrong they are about it; but some of them believe they have a system that works very well. Where people think that, then we obviously want to adopt that as best practice. Whether it will be one toolkit for everybody or several toolkits we will have to discuss, because I am acutely aware of the difference between making assessments in urban environments compared with rural environments in particular. One way of doing things might not suit the entire country. Q303 Dr Taylor: The Ombudsman was very clear that there are examples of good practice. Is a potential disadvantage of a robust assessment tool that it really conflicts with professional judgment, or can you allow space for that? Dr Ladyman: I do not know whether my colleagues want to address that because they have been having the direct conversations with the strategic health authorities. My instinct is that there does need to be some room for a professional judgment, but how we build that into an objective process which presumably the Ombudsman will be keeping a beady eye on over the next ten years as well as she has over the last ten years, is the question that we have to address. If we can do that and still end up with objective criteria that everybody understands, then instinctively I would see that as being necessary. Ultimately of course professional judgment is part of the assessment. It needs to be the judgment of a group of professionals rather than a single professional, but there does have to be space for that judgment to be expressed. Ms McDonald: Certainly some of the SHAs have designed tools that give the general process and approach, and then there is some room for professional judgment based on the individual case, because obviously the circumstances may suggest that what the tool gives you needs to be adjusted. Q304 Dr Taylor: I was very relieved when you said, Minister, that the aim of the assessment will be to produce the same conclusion wherever it is carried out, so you are aiming for fairness. In relation to timing, with the dissatisfaction of the way the system is working at the moment, how quickly will you be able to get the national framework through, and I gather from one of our advisers that the single assessment process is not being implemented in the way that was envisaged or at the speed that the NSF anticipated. Have you any comments on that? Dr Ladyman: The single assessment process is being implemented very successfully around the country, and it is available everywhere. I would have to say that my experience is that it is working better in some places than others, but it is a complex process and it would be surprising if, when you needed to carry out multidisciplinary assessments, it was working perfectly everywhere. As far as the single assessment process and NHS continuing care is concerned, we have always made it clear that as part of the single assessment process, indeed as part of the review for registered nursing care, there should always be a determination as to whether NHS continuing care is appropriate as part of that. What I think we need to find a way of doing is ensure that all older people undergo the single assessment process. Sometimes what happens is that there might be ad hoc judgments that this particular old person is not ill enough to justify going through the process, and I wonder if that is where some of the errors get made and people find themselves being discharged without having gone through the single assessment process, and therefore without an automatic triggering of the review for NHS continuing care. That is one of the things I will be wanting us to be looking at over the year, because as you have already identified in your evidence, it is no good us just looking at NHS continuing care as if it stands in isolation; we have to look at it alongside the other issues like the registered nursing care contribution and the single assessment process and the way assessments are carried out in the community by social services departments. Q305 Dr Taylor: It is reassuring that you are mentioning that it will always be an automatic process, because we have had evidence that people who could be eligible for continuing care are just missing out and not being assessed, so we would welcome the automatic process. Dr Ladyman: Anybody being discharged from an acute ward, especially where the reimbursement system comes into play, we have given very clear instructions that any older person being discharged from an acute ward should have gone through the single assessment process and should have automatically been considered for NHS continuing care before discharge. We have given very clear guidance to all acute hospitals along those lines already. Q306 Dr Taylor: How do you plan to monitor that? Dr Ladyman: Under the national service framework, the National Director, Professor Philp, monitors the implementation of the single assessment process; and of course the healthcare commission have a responsibility to do it; and also I would be surprised if it was not becoming self-monitoring in that if somebody is being discharged from an acute bed, who might be eligible for NHS continuing care, then the local council will be picking up the bill, except for self-funders. Under those circumstances, it is in councils' interests, if they think the person might be eligible for NHS continuing care to make sure that they have been assessed for NHS continuing care, because then the council will not be paying the bills. Q307 Dr Taylor: So this could come to council scrutiny committees as well. Dr Ladyman: Absolutely, and I would encourage scrutiny committees to be looking at how the single assessment process is working both within their authority and within the local health service. Q308 Dr Taylor: Can you give us any idea how quickly you are going to be able to push the national framework through so we have a single assessment process, national assessment tools, agreed criteria? How quickly is it reasonable to think we can get that through? Dr Ladyman: You use the word "push". I want this to be done as quickly as possible. I am worried about pushing because this is such a complex area, and frankly it has not been done right and people have suffered as a result of it. I have said that before and I will say it again. I think the reason why it happened in the past - and I am not making a political point here and I am not blaming the previous government for it - was because decisions were made too quickly without too much thinking. I am loath to push decision-making. We have got to get this right this time. Q309 Dr Taylor: Can I change the word to "aim"? Six months? Dr Ladyman: My hope is that a minister can be sitting here this time next year, explaining how it has all been sorted out now. Q310 Dr Taylor: Do you have plans for a national training programme? Dr Ladyman: Yes. Ms McDonald: There are a number of steps in this. There is awareness by NHS staff, and training is an important step in that, and it is about bringing consistency as well. The national framework will have a number of levels, which includes both the criteria and the assessment tools, but also a training package and consistent information for users and patients as well so that we are improving awareness on four different levels. Q311 Dr Taylor: So you are aware of the need for training. Ms McDonald: Yes. Q312 Mr Amess: Sadly, the husbands of two of the constituents who came to the Alzheimer's lobby yesterday had died, so these decisions that are made about funding are pretty important, and primary care trust panels and their funding decisions will be at the centre of this. I wonder what you feel about these panels. Not all primary care trusts have them. How important do you feel they are and how do you see them working in the future? Dr Ladyman: Panels, by definition, are made up of human-beings, and human-beings make errors and judgments, and sometimes the judgments are not where you want them to be. We have to aim for a framework that everybody understands and aim for systems that can make assessments that are open and people can see what is happening, and ensure that there is an understanding by those people who have to go through the system as to what is going on. Do I think all the panels involved in these judgments meet those criteria at the moment? No, I do not. That is where we have to be, and that is what the next year has to be about - identifying how we get to a position where we meet those criteria. Q313 Mr Amess: Will your review address the role of constitution of these review panels? Dr Ladyman: Yes, I think everything is on the table. Q314 Mr Amess: All up for consideration. Dr Ladyman: Yes. Q315 Mr Amess: Can we then move to mental health. It is a very, very difficult area for us all to consider, but at the moment it appears that under the current criteria a great deal of emphasis is put on the physical aspects of disease. This certainly disadvantages people with dementia. This was highlighted in the Ombudsman case by Barbara Pointon. Will new criteria take this into account? Dr Ladyman: Let us just step back a second from what you have said. NHS continuing care should become available to you if you need the involvement on a regular basis of healthcare professionals in your treatment. That is the criteria. It is not diagnosis-specific. It does not say, "you have cancer; you can have NHS continuing care" or "you have got dementia, you cannot have". People with dementia are as entitled to NHS continuing care as anybody else. However, the judgment has to be whether they need, in order to maintain their condition or to improve their condition the regular involvement of healthcare professionals. If somebody with dementia does not need that regular involvement of healthcare professionals, then they will fall outside the criteria for NHS continuing care. If they do require the involvement of healthcare professionals, they will come inside the criteria and they will get their NHS continuing care, as was the case with Mrs Pointon. She did get for her husband NHS continuing care. I just take slight issue with you in the implication of what you are saying, that one type of condition rather than another benefits from this, whether you have a mental health problem, whether it is dementia, whether it is a physical problem, the criteria needs to be around how much involvement you need from healthcare professionals in order to support your condition. Q316 Jim Dowd: This was a point raised with us yesterday during the lobby, when I am sure most Members around the table met with constituents. The problem with dementia is that they need assistance with things that do not require healthcare professionals, with some of the simpler means of just staying alive. This would not qualify as healthcare professional assistance, but because of the nature, as a condition, they fall into that bracket. Dr Ladyman: That is right. They certainly need help with personal care - there is no question about that. Personal care however, under the current system - and we will talk about this later no doubt - is a means-tested service. For the poorest people in society, about a third of them, we pay all of the costs of their personal care. For another third we pay some of the costs of their personal care. Another third we expect to meet the cost of their personal care because they are people on significant incomes. The alternative is to go down a route of free personal care. Let me emphasise - I am sorry that there are no Liberal Democrats here ----- Q317 Jim Dowd: Why? Dr Ladyman: Because I like to be rude to them to their faces rather than when they are not present. They deliberately mislead the public and people with Alzheimer's about what their policy is. Free personal care is not the same as if you go into residential care or a nursing home having your fees paid for you. You still have to pay your board and lodging, and in Scotland you still have to pay your board and lodging. I suspect if you were to do a poll of all those people from the Alzheimer's Society who came to see you yesterday, you will find a large proportion of them think that free personal care and free long-term care are synonymous. That is, frankly, a callous misinterpretation of policies on free personal care. Indeed, let me just say that one of the things we have done in England - when people go into a care home people say they have to sell their own home to pay their fees. In England, nobody has had to do that since 2001 because we have given every single council the money to put a charge on their property to be sold after their death. I am not saying all councils tell people about it and that all councils have made it as freely available as they ought to have done, but it is there. In fact, that is one of the things that would have to be scrapped in order to pay for free personal care, so under a system of free personal care more people will end up selling their homes in order to pay for their care. Secondly, the only comparative system we have in the UK to compare this with - if you are receiving care in your own home, once the cost of that care reaches a point where it is cheaper to put you in a care home, you are put in a care home. When your care in a care home reaches the point where it is more expensive to put you in a long-stay hospital, you are put in a long-stay hospital. NHS continuing care is not an issue in those parts of the United Kingdom because it does not exist, because you cannot receive the support Mrs Pointon got to stay in your own home anywhere else in the United Kingdom. Mrs Pointon's husband would be in a hospital - end of story, no argument, no caveats to it. That is one of the ways that people have misled the lobby and the Alzheimer's Society about what free personal care means. Q318 Chairman: In relation to personal care, particularly with people who have Alzheimer's and dementia, would you accept that if a person may not necessarily need care by a registered nurse - would you accept that 25 years ago a person with those needs would probably be in hospital getting care? Dr Ladyman: Yes. Q319 Chairman: Something very interesting happened. I am the only politician around the table who is not standing for re-election, so I am trying to make a genuinely objective point, that successive governments over a period of 25 years have allowed a quite profound change that has taken place where people would have received free nursing care, where they now have to pay for that nursing care that may indeed be provided by somebody who is not a registered nurse. Would you accept that that is a fair point? Dr Ladyman: I accept there is a debate around that. In parts of the United Kingdom the long-stay hospitals have been retained, so they do not need NHS continuing care. NHS continuing care was introduced as a concept to deal with the fact that in England policy was to remove the long-stay hospitals. This was a policy of the previous government which I happen to agree with - for once. I do not think hospital is the right place for older people if they can be supported in the community. Most older people tell me, by a huge, huge majority, that they want to stay in their own homes for as long as possible. When they cannot stay in their own homes, they still want to stay in environments that are close to being like their own homes, and where they can maintain their independence and dignity. We will be saying a great deal more about that in the Green Paper next week. You are right: if you keep the long-stay hospitals, if you keep a policy that says we are going to institutionalise old people as soon as they have care needs or as soon as they become a bit expensive, then you do not need NHS continuing care and you do not need to be having these complicated debates. Frankly, I do not think it is an election winner. Chairman: I am not disagreeing with you about the models at all; I entirely agree with you. But if I put to my Yorkshire constituents the issue that 25 years ago they would receive a form of care for absolutely nothing and now they are paying for it, one or two people feel a bit aggrieved about that. That is the point I was making. 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 per cent 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 per cent. 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. Q340 Dr Naysmith: Finally, we understand the Department has taken the decision that successful claimants will only be refunded money for the actual costs they incur perhaps with adjustments for inflation, but there is no question of compensation for things like loss of homes or people giving up their jobs which you heard about. Do you think that is fair? Dr Ladyman: Absolutely. I can understand why people may have some concerns about it. The vast majority of the £180 million in compensation has not gone to helping the individuals themselves; the vast majority of that money has gone into people's estates. If I was to say we will have compensation for people who sold a house and the price of that house went up, where does it stop? Somebody could come to me and say, "I was intending to invest this money in lastminute.com. I want to be a millionaire now please". Every penny that we pay in this compensation is coming from your local hospital and my local hospital and everybody else's local hospital. There is not some pot of money that the Chancellor can give to me that was not being earmarked for anything else; it comes out of the National Health Service budget. It is right that people get what they deserve. The principle that we have chosen is one of unjust enrichment. It is the principle that we believe would have been chosen if the matter had been decided in a court. We provide the money that we would have provided at the time plus the Retail Price Index in order to deal with inflation issues, but that is the limit of it. People are campaigning for us to give greater compensation. Let us put this on the record because this has not been stated clearly in public yet. We have not asked people to repay the benefits that they were claiming when they were being denied NHS continuing care and they would not have got those benefits if they had been getting NHS continuing care. We have not asked councils to recover the money that they were paying towards people's social care costs and they would not have received any of that money at the time if they had been receiving NHS continuing care. They would not have got the attendance allowance if they were getting NHS continuing care. We have not asked them to repay that. Some of the people did not pay a penny towards the care and they have now got compensation because their local councils paid all their care costs and at the point when they would have got NHS continuing care the NHS would have taken over the bills. The NHS has had to compensate those people even though not one penny came out of their pocket at the time and we are not asking for any of that to be recovered. Those people are saying to me I should take hundreds of millions of pounds out of the NHS to pay people for houses that they may have had to sell at the time ‑ and nobody has had to sell a house since 2001 ‑ and a lot of it will just be wasted money. If we were to assess all the benefits we could claim back I do not think they would be any better off anyway. Q341 Dr Naysmith: It sounds a bit like a field day for lawyers. Dr Ladyman: That is why we are sticking very clearly to the position that we believe is the one the courts would have decided if it had ended up in the courts. Q342 Dr Naysmith: I think the Ombudsman is pursuing the question of further compensation. Dr Ladyman: The Ombudsman is reviewing it. One of the things I would make clear to the Ombudsman is that ultimately her duty is to judge whether maladministration has taken place. Her duty is not to try and impose her political judgment over mine. I have made my judgment that we are working in a legally compliant way. I think we can defend that to her. I have made my judgment that it is not a good use of National Health Service resources to compensate people for all sorts of other things on top of what they are entitled to. The thing I would ask her to consider when she is reviewing this is to do some sums and balance the benefits that we could have claimed back from people with the potential extra that they may have got because of the price of a property going up over a period of time; the two are pretty near the same. Do we really want to be spending another five years going back through all this again working out what property prices were? Incidentally, if property prices are the issue, are those people who sold their property before the property market went down going to give the money back to the NHS? I do not think so. Q343 Dr Naysmith: I am sure the Ombudsman will have heard what you have had to say. Dr Ladyman: I am sure the Ombudsman will have heard it. I have had this conversation with her and my officials are having this conversation with her and we will continue to have it. Q344 Jim Dowd: It was put to us last week by Mrs Pointon and by others yesterday in the lobby that care can be defined by those who give it rather than the actual care that is being provided and judgments are made on the basis of that. That is the perception. Are you satisfied that that is not happening and that the distinction is about what care is provided rather than who provides it? Dr Ladyman: Absolutely. If you are talking about the eligibility criteria for NHS continuing care, clearly that includes the involvement of health care professionals. So to that extent it is defined by the people who provide that care because if anybody could provide that care they are obviously not health care professionals and therefore you may be eligible for NHS continuing care. This is a complex argument. What I think Mrs Pointon's case has demonstrated very clearly is the benefit of direct payments, because when Mrs Pointon's husband was being supported by social services the care package that they tried to provide directly was not adequate for her husband's needs, it did not meet the flexibility that she expected for her husband. She then moved on to direct payments where she is organising the care herself and immediately the standard of care was improved because she was in control of it. That is exactly why when we produce the adult social care Green Paper next week we are going to be saying direct payments for many people are the way to go and we need to do more to encourage people to use those direct payments. The issue that I was talking about in answer to questions by Mr Amess then comes into play, ie if you become entitled to NHS continuing care you are no longer allowed to organise the care yourself through direct payments and therefore you have to have a system of care imposed on you. That is an issue that we have got to sort out somehow. I have met Mrs Pointon, she has come to my office and I have had meetings with her to discuss her case and the way that her care was organised and the experience that she had and I entirely agree that we need to do better about the way we provide care and that is what I hope next week is going to be all about. Q345 Chairman: Mr Muir, I am conscious we have not included you at all. You have a very competent Minister beside you. Is there anything you would like to add? Dr Ladyman: He has been passing me lots of notes! Mr Muir: I do not think I need add anything, thank you. Chairman: Minister, we are most grateful to you and your colleagues for coming along this morning. I am conscious that this could be the last public meeting of the Committee before a General Election. As I will be disappearing in the election I would like to place on record my thanks to the Department for co‑operating with various inquiries. I would also like to thank the staff of the Committee for the excellent support they have given me over many years, our specialist advisers in this inquiry and many others and, in particular, my colleagues, friends and members of the Committee for their support. It has been an enormous privilege to chair this Committee and I hope we have made a bit of a contribution to improving things. Mr Amess: I think there is someone in the audience who has come ready with musical instruments perhaps to strike up a fanfare. I just simply want to place on record that throughout the two Parliaments that you have chaired this Committee you have demonstrated yourself to be firm, fair and you have displayed genuine convictions. It has been an honour and a good laugh to be a member of this Health Select Committee and your part in making our proceedings so valuable has been absolutely splendid. I know that I speak for my colleague when I say that we do wish you and your family well for the future. Q346 Chairman: Thank you very much. Dr Ladyman: On behalf of the Department of Health and the Government, may I also thank you for your chairmanship of this Committee. You have not always been a comfortable partner and occasionally you have come up with advice that we did not agree with, but we have always known how importantly you take these issues and we thank you for your efforts. Chairman: Thank you very much.
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