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Personal Care at Home Bill
[Relevant documents: The uncorrected transcripts of oral evidence taken before the Health Committee on 3 December 2009 and 7 January 2010, on Social care, HC 22-iii and iv.]
[Sir Alan Haselhurst in the Chair]
The Chairman of Ways and Means (Sir Alan Haselhurst): In view of the selection of amendments to clause 1-the only substantive clause-I am not minded to allow a debate on clause stand part. That is open to reconsideration if there is any great gap in the discussion. I have tried to select a wide range of amendments and I hope that that will enable all the main issues to be debated.
3.48 pm
Mr. Stephen O'Brien (Eddisbury) (Con): I beg to move amendment 9, page 1, line 7, leave out from 'in' to end of line 8 and insert-
(iii) warden controlled accommodation;
(iv) care home without nursing;
The Chairman: With this it will be convenient to discuss amendment 10, page 1, line 8, at end insert-
'(2A) After subsection (4) insert-
"(4A) In subsection (4) "care home"-
(a) in relation to England and Wales, has the same meaning as in the Care Standards Act 2000 (c. 14), and
(b) in relation to Northern Ireland, means a residential care home as defined by Article 10 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (S.I. 2003/431 (N.I. 9)) or a nursing home as defined by Article 11 of that Order."'.
Mr. O'Brien: The background to this Bill is the fact that social care provision is currently means and needs-tested. The needs test places an individual in one of four categories-critical, substantial, moderate or low. The mean test assesses assets. If someone has more than £23,000, including property, they are liable for the full cost of their care. Those who have more than £14,000 are liable for some of the cost. After the assessment of needs, and if someone is below the means threshold, the council will agree a care plan with them. For those in the critical or substantial groups, that may include entry to residential care; otherwise, care will be provided in the domestic setting. Free personal care will be targeted at critical needs only through regulations to be passed on the back of this Bill.
I hope that that was a useful scene-setter, because we should be under no illusion about what is happening in the Chamber today. The Secretary of State has said, in relation to this group of amendments and the Bill-it is effectively a one-clause Bill, because its substantive operation is in only one clause-that he wants to make social care one of the top three election messages. He did not say "priorities"; he used the word "messages".
The Prime Minister announced the policy under discussion in his address to the Labour party conference, where it was cleared with only 20 minutes to spare. The policy goes utterly against the grain of the Government's Green Paper on social care, not least because it is being funded from general taxation. The impact assessment on costings covers only two and a half years, because the Government know that the expense will sky-rocket after that. It is perhaps some small consolation that the Government are behaving like a Government who may not be in office in the next Parliament.
Nothing attests to the politics of the measure more than the fact that we are discussing it in a Committee of the whole House-a procedure normally limited to excessively controversial legislation, particularly legislation that is in free-vote territory. The Government are rushing the Bill through to prevent the fullest possible scrutiny. We will do our utmost to get through all the groups of amendments today, but I fear that that will be at the expense of the necessary wider scrutiny of the underlying issues of the policy behind the Bill. Another small consolation is that the fiercest attacks-certainly if the record to date is correct-will come from the Government's own side when the Bill continues its pell-mell progress in the other place.
The Secretary of State has said that he wants to create an "unstoppable momentum" for reform of social care. This piecemeal measure, which affects around 270,000 people-not even 5 per cent. of social care users-has already put a spanner in the works of the Green Paper process, preventing the full publication of the costings, so Ministers claim. Making the Bill work will put a spanner in the whole process of reform which, I fear, is the social care legacy the Secretary of State is aiming to leave. That comes on top of the point of order that I just raised with Mr. Speaker, prior to you, Sir Alan, taking the Chair for the Committee of the whole House. The impact assessment was prepared in a way that has not stood the test of time-even in the weeks since the publication of the Bill.
Amendment 9 would prevent care from being provided free of charge for more than six weeks to someone in any of the named institutions. It is deliberately a probing amendment, so that we can get to the bottom of the matter in the glare of the fullest scrutiny on the Floor of the House. I confess that we have had only smoke and mirrors from the Government on the matter.
Amendment 10 simply defines a care home. The Northern Ireland proposal is not relevant, but why has the Minister gone for the convoluted phrase,
"the provision of personal care to a person living in accommodation that an establishment provides to the person together with the care"
rather than using a statutory definition that is already in force?
Dr. Stephen Ladyman (South Thanet) (Lab): I am grateful to the hon. Gentleman for giving way at this early stage in his speech. Somebody living in "extra care" accommodation-one of the categories that his amendment would exclude-is by definition living in their own home and able to organise care services separately from the tenure of their own home. Even for the purposes of probing, what possible justification can there be for proposing to exclude "extra care"?
Mr. O'Brien: I am glad that the hon. Gentleman recognises that amendment 9 is a probing amendment. Quite genuinely, it probes the Government on the difficulty of their definition of home and the answer to the question what is a home. I hope he bears with me, because we will discuss the matter in some detail in relation to an amendment on transitional arrangements-I am sure he will immediately understand the connection between those and "extra care". The reason why "extra care" is particularly relevant is that the Government have chosen not to pick up the definition that already exists in statute, which was the point I was making when he helpfully intervened.
I cannot remember where the hon. Gentleman was in his ministerial career at the time of the Care Standards Act 2000; he might not at that stage have reached the Health team. Section 3 of the 2000 Act, passed by this Government, defines care homes thus:
"For the purposes of this Act, an establishment is a care home if it provides accommodation, together with nursing or personal care, for any of the following persons."
"persons who are or have been ill...persons who have or have had a mental disorder...persons who are disabled or infirm...persons who are or have been dependent on alcohol or drugs."
However, an establishment is not a care home if it is
"a hospital...an independent clinic; or...a children's home...or if it is of a description excepted by regulations."
There is therefore already something in legislation that could have been helpfully used for the purposes of describing what is meant in the Bill by being in one's home or not in one's home. I hope that the hon. Gentleman will understand that the Government rightly need to be probed on that issue, because it will have a major effect on whether people qualify for the help that it is intended they should receive. Free personal care at home will be of significant interest to those who qualify for it and those who do not.
Mrs. Joan Humble (Blackpool, North and Fleetwood) (Lab): Just to be helpful, I want to continue the discussion about extra care housing, which is referred to by amendment 9. The explanatory notes for the Bill specifically say that extra care housing qualifies under the new arrangements that the Government want to put in place. I am therefore bewildered that the hon. Gentleman should propose in his amendment to exclude extra care housing, because it can be the individual's home. I am listening with interest to his definition of residential care, but we also need to clarify what is meant by a person's own home, and the explanatory notes include a reference to extra care housing.
Mr. O'Brien: Given the way in which the amendments have been selected and the Chairman's strictures at the outset of consideration, I am conscious that, to stay in order in our debate on amendment 9, I shall have to postpone a more detailed discussion about extra care until our debate about transitional arrangements, which is where it will feature most strongly. I hope that the hon. Lady will bear with me, because the issue warrants discussion. However, as she will recognise, amendment 9 is a genuinely probing attempt to elucidate from the Minister, we hope, how we can get a much clearer and, more importantly, more secure definition of those who are likely to be eligible. After all, that is what will matter most to the people whom we are talking about, who are the most in need and, often, the most vulnerable.
Mr. Stephen Dorrell (Charnwood) (Con): Do not the two interventions that my hon. Friend has just taken illustrate a rather broader point than the narrow definitional point? The effect of his amendment 9 has been to draw the Committee's attention to those who are excluded from the category of people who benefit from the Prime Minister's election pledge. Should we not focus on why one group of people benefits from that pledge and why another does not? Those interventions illustrate the injustice of the new anomaly that, effectively, the Bill will create.
Mr. O'Brien: I am extremely grateful to my right hon. Friend, whose expertise and experience in this area are matched by none in the House and few outside it. We know the provenance of the Government's proposals as set forth in the Bill-we know that it was a rushed job, with only a 20-minute clearance time between decision and announcement at the Labour party conference-but even putting that to one side, he is quite right that it is vital to consider who is to be included. That question warrants proper scrutiny, because the fact that some people will be included means, by whatever definition is used, that the rest are excluded, and that will cause potential injustice.
My right hon. Friend will find that that is so from our discussions on later amendments, although I am conscious of how difficult it will be to remain in order, because things are so tightly drawn, not least the selection of amendments. That has been extremely constrained by the deliberately tight drafting by the Government of the money resolution, to try to exclude discussion on the much wider processes promised in the Green Paper and suggested by others, who have made some extremely interesting and sensible proposals in considering the reform of the whole of social care, rather than one small aspect of it, relative to the overall demand. I suspect that my right hon. Friend's concerns will be most clearly addressed when we come to an important discussion on compliance-how we ensure retained compliance with the European convention on human rights and the ability of the Secretary of State to issue the certificate under the Human Rights Act 1998, as stated on the front of the Bill. I very much hope that my right hon. Friend will have the opportunity to look at that aspect when we reach that point.
4 pm
Building on what my right hon. Friend has just helpfully mentioned, the Bill attempts to cut out residents of care homes from eligibility for free care. Last year, 50,000 people-yes, fortunate people, but also hard-working people who have done the right thing in investing, perhaps through a mortgage, in their own homes-had to sell their homes to pay for their long-term care, notwithstanding the fact that some sales did not occur until after people had died. That applied under a system that is available, but not often taken up, concerning whether people sell at the time they enter care or, indeed, when they leave it-under the home protection scheme or whatever.
Dr. Ladyman:
I want to ensure that the hon. Gentleman is not inadvertently misleading the Committee, as he has said-in his opening comments-that the means assessment for care includes people's savings and their property. That is not the case with this Bill, because it deals with people living in their own home, and the value of their own home is excluded from the means test in deciding
eligibility for care. The value of one's home becomes a matter for the means test only when people are going to leave their own home and go into residential accommodation.
Mr. O'Brien: I am grateful. The hon. Gentleman is quite right that the words we use in this place matter greatly, but I think that when he checks the record he will find that in my introductory remarks I used the word "assets" rather than saying "their own home"-quite deliberately, because of the distinction that he has rightly pointed out. The question of one's own home becomes relevant only at the time when one is being adjudged by proper assessment criteria as needing to leave that home in order to go permanently-or where it is expected to be permanent-into a residential care or other home setting. As we go through these definitional issues, it is important to recognise that these are real situations often involving vulnerable people in emergency situations.
Mr. Tom Clarke (Coatbridge, Chryston and Bellshill) (Lab): I have the feeling that we may have more time than the hon. Gentleman thinks; I cannot recall a clause being given a whole day for consideration, but we will make the most of the time we have. The hon. Gentleman is putting a quite serious amendment before the Committee, as it ranges from "extra care housing" all the way through to "care home without nursing" and "care home with nursing". If we were to endorse his amendment, what would be the implications, particularly financially, for local authorities?
Mr. O'Brien: I hope that the right hon. Gentleman has been listening-well, he has obviously been listening, but I hope that he heard my saying that this was a probing amendment, so the Committee will not have the opportunity to endorse it. As I said, it is deliberately intended to probe the Government's intentions on who should be included, as well as who should be excluded, as my right hon. Friend the Member for Charnwood (Mr. Dorrell) said. With great respect to the doubtless very thorough briefing prepared by Labour's backroom people, it would be helpful-particularly given that all the questions relate to the same issue-if it were recognised that tabling a probing amendment does not necessarily invite Members to pass it. The amendment was tabled as a probing amendment and it was designed to elucidate information from the Government. That is precisely the official Opposition's job.
I have already mentioned that the real debate on the issue will take place when we reach the amendment dealing with transitional arrangements, so I am keen not to get deflected by being forced to answer a question that really requires an answer from the Government. It is thus for me to ask the Minister whether he is happy with the drafting of provisions intended to cut out residents of care homes altogether. Are there no grey areas or any difficult marginal issues? Is the Bill drafted in such a way and is the money resolution so tightly drafted as to make it explicit that people who have done the right thing could none the less be automatically excluded because they own their own homes?
Is the Minister happy to put this issue on the backburner, since the Bill has thwarted the Green Paper's aim? The Minister has asserted outside the House that all this is consonant with the Green Paper process. On the contrary,
it has thrown a spanner in the works of the process of examining social care as a whole. That means taking account of those who own their homes as well as those who do not, and those who have assets as well as those who have none. It means taking account of very different levels of care need, and of problems relating to the interrelationship between health and social care. Many Members have reflected their constituents' concerns in referring to efforts to persuade the NHS and social care providers to be a little more flexible at the margins in order to prevent the terrible difficulties that people experience in trying to gain access to appropriate care and support.
I wonder why the Minister could not at least consider-we invited him to do so on a number of occasions-presenting this Bill in tandem with a measure similar to our home protection scheme. It would have been fine for him to claim authorship for it if he had wished. That would have dealt with the difficulties confronted both by homes and by those receiving care in them, as well as by those receiving care in a different setting. Is the Minister satisfied that what I hope he will accept is the somewhat clunky drafting of subsection (2) is strong enough to prevent a legal challenge?
On Second Reading, we drew attention to the dangerous impact that the subsection could have on residential care supply. If people are given an incentive to invest in extra care at the expense of residential care, that could distort provision. There is also another issue of more immediate concern. I shall exaggerate it for the sake of the argument, but I hope the Minister will accept what I say in the spirit in which it is meant. The whole point of scrutinising legislation is to ensure that a Minister has no defence if he subsequently says that the consequences of that legislation were unintended. If at this point I describe the problems and mischief that the drafting allows, and if those problems and mischief indeed come to pass, it will be wholly legitimate for me to say, "No, Minister, I warned you, and it was therefore entirely intended for this to go wrong", and the Minister will have no defence.
When a care home owner wakes up on the day that the Bill is passed and seeks to outsource provision to a company that he or she wholly owns, will it still constitute care and accommodation provided by "one establishment"? What, in fact, is the legal definition of "establishment"? Can the Minister confirm the possibility of a loophole in the legislation? He has confirmed to me in a written answer that
"It is open to any residential care home to reshape their service".-[ Official Report, 8 December 2009; Vol. 502, c. 281W.]
Will he also tell us the potential cost of the exploitation of such a loophole to the taxpayer? What if 100 per cent. of those in care homes with critical care needs became eligible for free personal care? I would have hoped that if the Minister could not answer that question now he might write to me, but he has already said that he is not prepared even to do that.
The legislation was drafted in haste on the basis of a back-of-the-envelope impact assessment. The Minister has already confessed in writing that that impact assessment was wrong and needs to be corrected. It consists almost entirely of estimates. Given the mess that the Labour party has made of our public finances, it is more important than ever for the Committee to be informed of the potential liabilities of the taxpayer should there be loopholes in the Bill.
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