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12 Jan 2010 : Column 587

I hope that that gives the right hon. Gentleman the reassurance that he sought-that this matter is being taken extremely seriously, as the issue betokens. If our generation ducks this one, we will be in grave danger. My plea to the Minister is, as I have said repeatedly from the Front Bench, that there could be a way to gain a better and more consensual approach, given that we are all in this together. At the moment, this has fallen somewhat flat, as the Minister has not formally invited me or Liberal Democrat Front-Bench Members to have a consensual chat about these matters. I would be very happy to participate in that, even if it were completely off the record, not least because there is a precedent-this relates partly to the amendment-for something along these lines in respect of pensions. There has been a greater degree of consensus on how to find a way forward on that subject, which was also a challenge for us and will be for those coming down the track. It is important to place that on the record in the light of the quite proper rejoinder of the right hon. Member for Coatbridge, Chryston and Bellshill (Mr. Clarke), who wanted to probe my amendment; whether or not it is a probing amendment has yet to be decided.

It is important to bear in mind the fact that the Bill amends the Community Care (Delayed Discharges etc.) Act 2003, whose purpose was to deal with what could have been described in legal terms as the mischief of bed blocking. Section 15 removed the limit at which care could be provided free of charge. I assume, although it may not be the case, that even if someone joined the social insurance risk pool mentioned by my hon. Friend the Member for Poole-the Government's Green Paper partnership option, for instance, is still very much under consideration-that would not count as a charge, in which case the Bill could make such a model possible. Given that Tony Blair promised reform 12 years ago, would it not be best for us to produce a consensus to make full reform of social care possible through the Bill? The amendment was intended to give us a genuine opportunity to consider that question.

Several hon. Members rose -

The Chairman: Order. Before I call the next speaker, let me point out that although there are clearly serious matters at the heart of this debate, I have allowed some tolerance of the wider conceptual debate. However, I am not sure that we would be best served by the inclusion of a wider conceptual debate on every group of amendments, and I shall be paying attention in that regard.

Dr. Ladyman: I think there is some common ground between the hon. Member for Eddisbury (Mr. O'Brien) and me. I agree that this measure must, at some point in the future, be swept into a more comprehensive and consensual package. I also believe that that comprehensive package must include some sort of asset protection scheme for those who go into residential accommodation, although I do not favour the scheme suggested by the Conservatives.

The hon. Gentleman said that the Bill had been dreamt up by the Prime Minister at short notice and cleared in time for a conference speech. I do not know whether that is true, but I do know that the Conservatives' response in the shape of their proposed asset protection
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plan was dreamt up in the seven days following the Prime Minister's speech, in time for their own party conference.

Mr. O'Brien: I am happy to put on record that some of us had been working on the scheme for about three years. We were very glad to note that there just happened to be decent timing for its announcement.

Dr. Ladyman: I believe the hon. Gentleman; millions wouldn't.

As I have said, there is some common ground between us. I agree that we need to sweep this measure into a more comprehensive package. However, the hon. Gentleman's proposed way of doing that is completely irresponsible. It is not just that the Secretary of State would be given power to introduce a complete social care system by diktat. If the hon. Gentleman looks at the 2003 Act, he will see that regulations which, by implication, he would allow the Secretary of State to draw up would not even be subject to an affirmative vote in Committee. They would be subject to a negative prayer. So not only would the Secretary of State be able to introduce a system costing tens of billions of pounds every year without debate on the Floor of the House; he might not even have to take part in a debate in Committee if the Opposition did not spot his proposal and pray against it.

I assume that the hon. Gentleman had a gleam in his eye when he said that he did not know whether amendment 12 was a probing amendment, and that he is, in fact, probing. I hope that my hon. Friend the Minister will respond by saying that he agrees with me that this package should ultimately be part of a much more comprehensive reform.

Greg Mulholland: I do not think that anyone could disagree with what has been said by the hon. Member for South Thanet (Dr. Ladyman) and, indeed, the hon. Member for Eddisbury (Mr. O'Brien) about the need for a consensus. All along, much of the concern about the Bill has been that it is a partial solution which will help only a small number of people. We can, however, disagree on whether that would be a good step forward or unhelpful. There are different views on that.

On amendment 12, however, I too listened to the hon. Member for Eddisbury, and I do not think that any of us could have disagreed with the vast majority of the sentiments that he expressed, in his usual eloquent, if rather lengthy, way. Nevertheless, we should consider his speech in the context of the amendment. It reads:

I cannot see how that relates to the sentiments in his speech.

The concern of Liberal Democrat Members is that the Bill is a partial solution and not part of the existing consensus. The Bill came in the middle of the consultation on the Green Paper, and I even wonder whether those involved in the consultation and in drafting the Green Paper had any idea that a Bill was coming when it was announced out of the blue by the Prime Minister. The Bill came in through the side door, but the hon. Gentleman's amendment would give the Secretary of State the opportunity to bring in anything via the back door. That would be even more regrettable and take us further away from achieving a cross-party consensus, which is precisely what we need if we are serious about moving
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the debate forward. If the hon. Gentleman presses amendment 12 to a vote, therefore, we will not support it.

Mr. Dorrell: I congratulate my hon. Friend the Member for Eddisbury (Mr. O'Brien) on being the first Minister of the next Conservative Government to propose a Henry VIII clause, seeking powers to create law by order on a wide range of subjects. He will, of course, be the first of many. Indeed, I suspect that he will propose many other such order-making powers in the months and years ahead. I have no doubt that the hon. Member for South Thanet (Dr. Ladyman), like me, has proposed similar order-making powers in the past. Were he to read in detail some of the statutes that he has recommended to the House, he would see that they contain such powers.

Oppositions normally resist Henry VIII powers, rather than propose them, so I inquire of myself why my hon. Friend should have proposed such a wide-ranging order-making power. I have to say that I can see why he has done it. As the hon. Members for South Thanet and for Leeds, North-West (Greg Mulholland) recognised, my hon. Friend is in some sense responding to the challenge offered by the Minister, who, in response to the previous set of amendments, stressed that the Government consider the personal care at home policy an incremental change in the evolution of policy on social care delivery. That is, I think, the best gloss that can be put on the policy, and I congratulate the Minister on doing it.

As became clear during discussion of earlier amendments and debates on the Bill, however, in reality the policy will, if executed, create in the short term a series of clear anomalies. My hon. Friend is therefore seeking a power on behalf of the Secretary of State to create a safety valve allowing precisely the kind of incremental development of policy that the Minister said was the Government's intention. It is important to be clear why my hon. Friend's proposed safety valve will be so important so quickly, and to understand that we must recognise that we are dealing with a set of services for which demand is growing rapidly.

Ironically, the Government are creating a set of unintended consequences. They are saying that those living at home will receive tax-funded care, whereas those living in residential care will continue to rely on co-payment provision. I simply invite the Committee to consider which of those two funding packages is most likely to be able to respond to the very fast growing demand for these services in the years ahead. Is it the delivery of care at home, which relies on the ability of the Exchequer to pay for it, or the delivery of care in a residential context, which relies on a co-payment formula, requiring the care user to make a contribution?

5.30 pm

Mr. Tom Clarke: I am listening very carefully to the debate, and my mind keeps going back to any number of discussions we have had in the past on community care, such as about the Griffiths report. A consensus developed then, part of which was that many people would be encouraged to live independently in their own homes while being properly supported through proper funding. When, therefore, has the change come in? I ask that because community care has not been mentioned at all this afternoon. Are we going back on that position, or do we accept that many people will reserve the right to live in their homes and should be given support to do so?

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Mr. Dorrell: Like the right hon. Gentleman, I have a long memory on these subjects, and I agree with him that the debate on community care was motivated in large measure by a desire to provide-as the Minister rightly said-a proper package of care to encourage and enable people to live at home in the community rather than in residential contexts. That is what I was referring to when I said that the House should recognise that the statutory formula that the Government are now recommending to the House has a very sharp unintended consequence. We all agree that supporting people to live at home is what we want; everyone agrees that that is the better way of delivering care, and the right direction of travel, but it is that care package that is being cash-limited.

Phil Hope: The right hon. Gentleman says that everybody agrees that providing free personal care for people in their own home so that they can live independently is the right direction of travel. Why then does his party's Front-Bench team propose a scheme of home protection that acts as a perverse incentive to encourage people to go into residential care?

Mr. Dorrell: With respect to the Minister, I did not say that we are in favour of a direction of travel that provides free personal care to people living at home; it is important that I make that clear. What I said was that we favour a direction of travel that encourages people, on a realistic funding basis, to live at home. That point has been made by the Minister and several others in the course of this debate. We want a funding basis for social care that encourages people to live at home.

The Government, however, are saying, "If you live at home, the taxpayer will pay." That is great, except that it means that the formula for the delivery of social care that we all favour is the one that is cash-limited. Ministers may not agree with this, but the hon. Member for South Thanet has said again today-and I whole-heartedly agree with him-that the formula for the successful delivery of social care that meets the underlying demand at a quality level that we would want to deliver has to involve a form of co-payment. That element of flexibility has to be in the scheme if in the years immediately ahead we are to be able to deliver the quality of social care that we want at affordable cost.

Dr. Ladyman: I reaffirm again that I agree that a form of co-payment has to be made. I regret that we have had to come down this road so quickly, because it has not been possible to get consensus on the form of co-payment. If the Conservative party had at any point during the Green Paper discussions suggested that it would consider some form of compulsory co-payment as well as the voluntary co-payment schemes in the Green Paper, there might have been a basis for discussion, but the Conservative party said it would only consider supporting voluntary schemes. On that basis, there can be very little likelihood of arriving at a consensus.

Mr. Dorrell: As I have said, I have great respect for the hon. Gentleman in this area, but I do not understand the logic of what he just said. He says that he believes, as I do, that the successful delivery of social care requires co-payment, and he then says that agreement could not be reached with the Conservative party. I do not know what discussions took place between the Front-Bench teams, but I know that irrespective of
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whether those discussions were successful, he is using that as an excuse to justify a formula for the delivery of social care at home that does not rely on co-payment at all. It contains no element of co-payment; it is fully taxpayer-funded, and that is what makes this model unsustainable.

I make the point again, because it is important, that this approach creates a completely perverse incentive. The hon. Gentleman and I agree that providing the necessary flexibility for a realistic funding package for social care must involve co-payment. In the Government's view of the world-if this Bill is passed-where does co-payment apply in the social care context? The answer is only in a residential care context. In other words, the Government are setting up a formula that will restrain the ability of people to live at home, because the taxpayer will not be able to afford it, and that will, at the margin, shift people into residential care, because that is the basis on which the funding formula will work.

Norman Lamb: Does the right hon. Gentleman agree that this approach provides not only a perverse incentive, as he describes, but a central unfairness, in that someone who has critical needs and who is at home gets their care paid for fully but someone who, through no fault of their own, has to be cared for in a care home does not? That is unfair.

Mr. Dorrell: I agree completely with the hon. Gentleman, and I sought to focus on that point in our debate on the earlier group of amendments. By creating this distinction between personal care delivered at home and personal care delivered in the residential context, we will create a cliff edge. As one group will be cash-limited, because the Treasury is extremely cash-constrained and likely to become more so, and the other group will be less cash-limited, we will create a completely perverse incentive in the direction of the residential context, not the care-at-home context.

Mr. Scott: The Select Committee on Health, on which I am honoured to serve, is examining this area and taking evidence. The crux of the matter is that its suggestions might be of use to this debate, might provide a way forward for the entire Bill and might answer some of the questions that my right hon. Friend has rightly raised. Does he agree that its suggestions could provide some of the answers to these problems that we are debating?

Mr. Dorrell: I agree entirely with my hon. Friend that all the work of the Health Committee and, indeed, of those who are formulating responses to the Government's Green Paper on social care policy development-presumably, that was one of the things that prompted that Committee to engage in its inquiry-is being pre-empted by this proposal. This measure is extremely good news and I understand why the Minister thinks it is popular among those who will benefit from the care that will be provided free. He said in his response to the earlier debate that we cannot wait until we can create a perfect world before moving forward, and I agree with that. However, when a Government move forward on an incremental basis, the Minister has an obligation to recognise the consequences of the incremental stages,
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step by step. That is the basis of the charge that I set at the Government's door; it is not that this proposal is undesirable for the people who will benefit from it-of course it is desirable for them-but it will create a series of perverse consequences and perverse incentives, several of which have been mentioned in this debate. I suspect that the Minister and his officials have probably thought those through and thought, "Oh goodness, how do we put a gloss on this?" However, nobody in No. 10 has properly thought them through.

Dr. Ladyman: I wish to clarify again for the right hon. Gentleman the point I was trying to make. Because the Conservative party has drawn a series of red lines that it is not prepared to discuss, according to all its public statements, it was clear to the Government that a consensus could not be arrived at in anything like the near term. A group of people with very serious needs-people with Parkinson's disease and Alzheimer's being the primary ones-are struggling at the moment, so as it was clear that we were not going to get agreement on the comprehensive package and the methods of co-payment to fund it, on which he and I agree, this Bill was necessary in the short term to address their short-term needs,.

Mr. Dorrell: I invite the hon. Gentleman simply to consider the point that I have just made: what will be the consequences of each incremental step that he is inviting us to take? If he agrees with me that the consequence of this policy formulation is to create an incentive in favour of residential care rather than care at home, for the reasons that I have set out, and if he agrees that in the long run we must provide a funding base for social care that includes co-payment, all I will say to him is that if, perchance, there were a Labour Government after the election-I profoundly hope that there is not-and if he were a Minister in it, I would look forward to hearing him make a speech from the Dispatch Box that explained to the House why it was a good idea to have free personal care ahead of the election whereas after the election that would evolve into a system of payment through co-funding for personal care delivered at home. That is the policy that I believe that he supported until the Prime Minister made his statement at the Labour party conference, and I believe that any incoming Labour Government would have to revert to it after the election-perhaps even before October 2010.

Mr. Stephen O'Brien: I am most grateful to my right hon. Friend for giving way before he moves on from his quite proper riposte to and, to some extent, rebuttal of the statement made by the hon. Member for South Thanet (Dr. Ladyman). In his earlier intervention, the hon. Gentleman justified the necessity of introducing the Bill, notwithstanding his adherence-quite rightly-along with the rest of us to the process of the Green Paper, suggesting that it was somehow impossible to obtain consensus and that it was all the Conservatives' fault. He prayed in aid the idea that there was no consensus because we Conservatives were not prepared to sign up to compulsory contributions. That has been a concern for us, and we have certainly found a way forward with voluntary contributions. However, the Government have not said that they are in favour of compulsory contributions either. On the contrary, they
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have said that there is a Green Paper process and that they have not come to any kind of conclusion. It is impossible for the hon. Gentleman to assert that any consensual discussions have collapsed when there have not been any such discussions. Moreover, the reason that he prayed in aid was not even proposed by his Government.

Mr. Dorrell: I agree with my hon. Friend and repeat the point that I made in my earlier response. It is odd to say, "The Conservatives would not agree with us on a voluntary co-payment basis, so we are going to go to a fully tax-funded model." I simply do not understand-

Dr. Ladyman rose-

Mr. Dorrell: I shall give way to the hon. Gentleman one more time, but I think that I have given him enough lives on this subject.

Dr. Ladyman: I have been very grateful. I want to put a point to the right hon. Gentleman on which I think we can both agree. Yesterday, the Liberal Democrats were 100 per cent. in favour of free personal care for everybody and today they appear to be totally opposed to free personal care for anybody.

Mr. Dorrell: It is worth inviting the House to work out how long it is since Northern Rock or the Lehman Brothers collapse, and how long it has taken the penny to drop in the Liberal Democrat mind that the world has changed. Anyway, it is nice to see that the Liberal Democrats are back in sight, probably, of the land of reality. They are not there yet, but they are working their passage back. We look forward to welcoming them there again at some point in the future.

I have talked about the need to put a safety valve into the system, which is why I believe that my hon. Friend the Member for Eddisbury took the unusual step for an Opposition spokesman of proposing a Henry VIII clause. We have already touched on one other element to which I want to return, because it is important. It relates to the earlier amendment tabled by my hon. Friend. In response to the definitions of which residential units would qualify for free personal care and which would not, the Government were at pains to say that extra care housing constituted "home" but that a care home without nursing did not constitute "home". One does not have to be a great expert in this area to work out that if there is one category of "extra care housing" and another of "care home without nursing", they will fall on different sides of the dividing line. The Secretary of State will need a regulation-making power, and what is more he will need to use it on a weekly basis, roughly, to keep the definitions of those two categories separate in a way that would maintain the viability of the policy.

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