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5.45 pm

My hon. Friend the Member for Eddisbury has tabled the amendment in recognition of the fact that the Government are creating a policy context that will be fraught with anomalies and difficulty. The only way that it could possibly work would be if Ministers had the power to change the law virtually on a weekly basis-I use the phrase again-to prevent pressure from building in a way that would make the system unsustainable. That is particularly true given the Government estimate that the policy will cost £537 million. My hon. Friend
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the Member for Ilford, North (Mr. Scott) has already made the point that half of that cost would be unloaded on local authorities with no additional money being provided to them. I have talked to local authority leaders of my acquaintance about this issue. To believe that they will have sitting around in the next few years the kind of money that will be needed to meet the additional burden that the Government have imposed on them, and that they will not need additional resources, is simply to live in Liberal Democrat land.

Mr. Syms: I have no great disagreement with amendment 11. I have thought about it, asked a few friends about it and I am perfectly happy with it.

I think that amendment 12, which is a Henry VIII clause, is well drafted. I am not sure whether we fully understand the implications of the Bill. We have heard from the Minister that there will be a sort of big bang approach and that by this October all care will be free. We have also heard about the financial arrangements for local authorities, and I am not sure how robust they will be. I suspect that there might well be arguments, case law and disagreements on this issue, so it would be quite useful to have the ability to amend the legislation-even by regulation, whether by negative or positive procedures-as we do not know how this story will unfold.

My right hon. Friend the Member for Charnwood (Mr. Dorrell) has set out some of the difficulties regarding definition, and, at some point, the House might need to introduce regulations to make the system more workable. If we create a cliff edge by saying that care is paid for for those who stay at home but not for those who go into a care home, which means that some in the latter category might have to sell their home, we will be creating a pretty big incentive for families to try to keep people out of care homes. Given that the nature of the debate will change, we need a Henry VIII clause, and amendment 12 provides that perfectly well.

In terms of public policy, I would be more confident about the way that things will unfold if I had more confidence in the financial arrangements. I referred earlier to the potential £250 million to be found from savings. When we get to October, real money coming into local authorities will suddenly disappear; they will still have to fund the cost of care, but they might not have the resources to do so.

We have not discussed whether there might be a case for transitional arrangements, or whether there will be enough people to provide services to people in their own homes. Amendment 12 is therefore important, because it would enable the Secretary of State to return to the House with legislation covering new circumstances arising from the changes to home care introduced by this Bill that we cannot predict or fully understand at present.

As was mentioned earlier, the Health Committee is to produce a report in due course that may inform the public debate. If amendment 12 is adopted, that report may result in further changes.

The Government are consulting and may have to provide guidance. Will that guidance be presented through a statutory instrument, or will it have no statutory basis? We need to hear how the Minister intends to proceed. It would be useful if, when he sums up the
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debate, he takes the opportunity to set out what consultations and guidance the Government are undertaking. When does he expect the results to be reported? We need to be fully aware of the shape of things to come.

Amendment 12 is useful, although I agree that Oppositions do not usually propose Henry VIII clauses. However, events may unfold in ways that we do not expect and, as I pray and hope, we may well form the Government after the next election.

Mr. Stephen O'Brien: In the light of the contributions made by my hon. Friend and others, and in advance of the Minister's remarks in reply, it might be helpful for me to confirm that this is, in fact, a probing amendment and not one that will be forced to a Division. I believe that the amendment has led to an extremely helpful discussion, and I hope that what I have just said has changed the tenor of the debate on this particular group of amendments.

Mr. Syms: That is useful information, although I may call the vote myself.

I think that amendment 12 is useful, not least because it gives the Minister the opportunity to set out what the Government are going to do in a little more detail, and because it looks forward from where we are today to the big bang approach in October. It is very important that more information is put into the public domain. The scheme's shape and funding must be made clear to local authorities. Its success or failure will not rest on whether Whitehall pulls a lever, but on lots of hard-working people in local authorities around the country being able to support and implement it in the way that the Government intend.

Phil Hope: We have had an interesting debate on this amendment. My hon. Friend the Member for South Thanet (Dr. Ladyman) described it as an "open ended carte blanche free hand to redesign the whole of the personal care system by diktat"-what a temptation that possibility offers! It is very strong, but unfortunately I am unable to support this probing amendment.

A number of important points were made in the debate. In moving the amendment, the hon. Member for Eddisbury (Mr. O'Brien) once again challenged the extent to which the Bill and its proposals for free personal care for people at home with the greatest care needs were congruent with the Government's thinking on developing a national care service. I am absolutely convinced that it is a step along that path, as I said in the debate on the previous series of amendment. I set out then everything that we had done over the past 12 or 18 months to develop and improve this country's social care system, and I think that this proposal is simply another feature of that.

The amendment would allow a future Conservative Government to introduce changes to the care system, but the remarks made by the hon. Member for Eddisbury let the cat out of the bag. From what the right hon. Member for Charnwood (Mr. Dorrell) said, it is clear that the Conservatives see what the Government are trying to do as a perverse incentive and an anomaly. I cannot think why the right hon. Gentleman would want
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to put out a leaflet with his name on it in my constituency, saying that providing free personal care was an anomaly, and perverse.

I shall have to check Hansard to make sure that I wrote this down correctly, but the hon. Member for Eddisbury said, "We do not want to encourage a policy of free personal care for people in their own home. This is not the direction of travel of Conservative policy." It is interesting that the amendment has flushed out what I think is the true intent behind the Conservative position on these matters.

Mr. Dorrell: The Green Paper stated that free personal care was an unaffordable option. Is that still the Government's position?

Phil Hope: We are, of course, seeking to develop our proposals for the creation of a national care service. We are building on the best practice that I know goes on up and down the country. That includes things such as greater integration of the health and social care systems or, as we discussed earlier, making sure that people get direct payments, because we believe that personal budgets give people more choice in and control over their care.

In developing our thinking for the future White Paper, we are looking at all the options, just as we did with the Green Paper consultation. We will also look at ways to take those options forward.

It is true that there are problems with funding the whole of the care system in full through the tax paid by people of a younger age. I have made that point before in this House: the hon. Member for Eddisbury has repeated my remarks, and I am happy to repeat them again in this debate.

There has been a demographic change in our population. Where there used to be four people of working age to one elderly person, over the next few years that will become only two. It will simply not be sustainable to maintain a system of care provision by taxing those people, but we will bring forward our solution to that problem when we set out our proposals for a national care service.

In the meantime, I am not prepared to stand by and see people in their own homes with the highest level of care needs-and people at the critical level need help with four activities of daily living-having to run down their savings and drawing on the help of loved ones to pay for the support that they need.

That is why the Bill is important, and I am disappointed that the Opposition do not seem to support what it proposes. I am also disappointed that the Liberal Democrats have decided to drop their pledge to provide free personal care for older people.

Mr. Dorrell: I am very grateful to the Minister for giving way. I asked him a very simple question, and I listened to his reply extremely carefully. It was a long reply, but I think that it can be accurately summarised. It is that the Government still believe that free personal care for everyone is unaffordable.

Phil Hope: We will have to have that debate when we bring forward our proposals for a national care service. The questions will be to do with how we take those proposals forward, and what is a fair, affordable and
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simple system for providing better care for people, both in their own homes and in residential institutions as well. That is a debate that we will initiate in the near future, and I am looking forward to having it.

The right hon. Member for Charnwood said that our proposals were anomalous and acted as a perverse incentive, but when I challenged him he was unable to defend the home protection scheme that the hon. Member for Eddisbury proposed. That proposal is a private insurance scheme which, to protect a person's home-hence its name-covers only residential care. The costs are paid up front, although people need to have £8,000 to be able to afford it. It is optional-in other words, not everyone will take part in it-and partial. I have no doubt that it will exclude people with any underlying health condition, as they would not be able to get such insurance for the price £8,000.

The hon. Member for Eddisbury is going to struggle to sell his home protection scheme, because it would merely provide a small amount of support for a minority group of wealthy people. If he thinks that that will win him the next general election, he has another think coming.

Mr. Stephen O'Brien: I wish that the Minister would not assume anything about other people's policies without having studied them. The proposal does not make any exclusions for underlying conditions. All that has been subject to proper actuarial pricing.

Phil Hope: That is even more intriguing. We are seeing the policy crumble as the hon. Gentleman speaks.

There has been talk of consensus, although the hon. Member for Eddisbury has spoken about how he has not been involved in any such discussion. However, it is a little tricky to try and build consensus when the Opposition decide to run an underhand and irresponsible campaign on their website suggesting that the Government are intending to cut attendance allowance and disability living allowance for older people. That is simply not true, yet the Opposition continue to run their campaign. It is a form of politics that generates anxiety, uncertainty and fear among older people, and does not fit with the party's claim to be compassionate and progressive. If they carry on with such scaremongering, the Opposition will build no consensus with Labour.

If amendment 12 is a probing amendment, I do not understand the impact that it might have on particular groups. I have made it clear that the intention underlying the Bill is that people with the highest care needs should be supported to live at home. I want to make it clear that we think it is important that adults who are part of an adult placement scheme do not miss out on this opportunity, so it is important to make it explicit, even if we do not do so with a broad set of regulations that the hon. Member for Poole (Mr. Syms) would welcome, that for the purpose of the Bill, adults on an adult placement scheme, who are often adults with learning disabilities who live with another family, are to be considered as living at home.

In our opinion that is the only situation that is required to be excepted from the six-week restriction on the free provision of personal care in accommodation where care is provided as an integral part of that accommodation. In other situations, it should be clear that people are living either in accommodation where care is provided as an integral part of that accommodation
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and are not eligible, or are living at home and may qualify for free personal care. So to give the Secretary of State further regulation-making powers, as described in amendments 11 and 12, although attractive, is unnecessary. I therefore ask the hon. Member for Eddisbury to withdraw his amendment.

6 pm

Mr. Stephen O'Brien: The debate has been useful and necessary to help elucidate what we are all trying to achieve-a much more holistic approach to the reform of social care. I confirm that, as I made clear in an intervention, the amendment was a probing amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Stephen O'Brien: I beg to move amendment 13, page 1, line 17, leave out

'(including the exercise of a discretion)'.

The First Deputy Chairman of Ways and Means (Sylvia Heal): With this we may take the following: amendment 16, page 1, line 20, at end insert-

'(c) exempt a local authority from providing personal care free of charge to a person eligible for or in receipt of continuing care.'.

Amendment 41, page 2, line 9, at end insert-

'(5A) After subsection (4E) insert-

"(4F) The Secretary of State may by regulations authorise a local authority to make transitional arrangements for a person moving from or to accommodation that an establishment provides to the person together with the care."'.

New clause 5- Portability of care packages -

'The Secretary of State shall make regulations to introduce a standardised assessment process to ensure portability of care packages between authorities.'.

Mr. O'Brien: I confirm that amendments 13 and 16 are probing amendments, the former about what the discretion in the Bill might entail, and the latter about how the policy will work in respect of continuing care funding. It is vital to obtain clarification from the Government on both issues. I hope the Minister will be able to tell me and the rest of the Committee what discretion is referred to in proposed new subsection (4B)(a).

On amendment 16, in the last quarter almost 45,000 people across England were in receipt of continuing care-a number that is likely only to increase. It represents about 10 per cent. of the total number of NHS beds in the country. What proportion of those would qualify as FACS critical? FACS is shorthand for the fair access to care services guidelines published in 2003 to provide councils with a framework for setting their eligibility criteria for adult social care, and thus to lead to fairer and more consistent eligibility decisions across the country.

The guidelines are being revised in the light of the Commission for Social Care Inspection report entitled "Cutting the Cake Fairly" and give the criteria for low, moderate, substantial and critical categories. The Bill deals only with those with critical assessed need. I assume that many of those in receipt of continuing care would qualify as FACS critical. If that assumption is right, will not the policy of free personal care seem to primary care trusts the perfect opportunity to offload people back on to local authorities? That is important,
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particularly as we face such tightened fiscal and financial conditions in the coming months and years. Whether the Minister or any of us likes it or not, there will be temptations for anybody in charge of a budget to see where they can offload their responsibilities.

Will the Minister also clarify whether the Coughlan judgment in the Court of Appeal in July 1999 makes the NHS specifically, or the state in general, liable for the funding of care, so long as it is free? The continuing care funding question points to a wider question of how the policy will work across the health and social care divide. Could the free personal care fund be rolled up into a joint budget?

Given that we are talking about the crossover between NHS and social care, will the Minister give some clarity to the noise that we have been hearing in the Health Service Journal about the Secretary of State's plans to hand social care over to the NHS in toto, in order-in the words of an "unnamed source"-to

He seems to have retracted from that position, I am glad to say, but is now saying:

The Minister hinted at something along those lines in response to the previous group of amendments. That is nothing new. Its progress has been hindered so far only by the Government's constant reorganisation, as we have argued, of the institutions within our NHS. I am glad to see that the Secretary of State said last Thursday in his evidence to the Health Committee:

I look forward to the Minister's progress reports on that.

Amendment 41 addresses transitional arrangements. I promised the hon. Member for South Thanet (Dr. Ladyman) that we would return to that. Has the Minister thought about how transition might work, particularly as people will be moving from free care to care for which they are charged? Transition also raises the question of what happens if someone ceases to have critical care need. The Minister has confirmed in written answers to my parliamentary questions:

let us leave aside the split infinitive-

and that if no longer critical,

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