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Most importantly was the Minister's placing on record the absence of a diminution of funds for research. That statement will be looked at carefully by a number of organisations that have been in touch with us about such matters. He will be aware that that has been an issue. It is important that people should have the confidence of knowing that we can match our research effort, and the sustainability of that effort, to the profile of disease and demographics that we can see coming down the track, rather than looking at things on a purely historical basis. We fully support the increase in the efforts being made, which we advocated well in advance of the Government's decision to increase the funding for, and the emphasis on, dementia research for instance. The costings discussion has been helpful. On that basis, I can confirm that our amendments were probing amendments, so I beg to ask leave to withdraw the amendment.
'(4BA) The Secretary of State shall report annually to Parliament the compatibility of any new regulations and guidance relating to the provision of personal care to a person living at home with the European Convention on Human Rights.'.
This is an important group of amendments, and the Minister will understand why. Amendment 31 seeks for a report to be presented to Parliament on the human rights compatibility of the Bill, reflecting the apparently shaky legal ground that the Government are on. Amendment 27 seeks a similar report into costs. To some degree, my anxiety to press that amendment to a vote might have been ameliorated by the Minister's most recent comments, in his response to the previous group of amendments, about the fact that there would be a review of the costs, including the members' costs and so forth, at quite a fine-grained level over, I think he said, 18 months or two years. That is obviously important in ensuring fairness in the system, as well as the clarity that will be needed.
That said, uniquely, the impact assessment looks at costs for only two and a half years, so if we did not have a review within 18 months or two years, we would get pretty short shrift. The impact assessments that this Government have produced with Bills have habitually looked at costs over a 10-year period, so to get only two and a half years on a policy area covering such obviously long-term projections as this one does seems mighty unusual, if not a touch opportunistic. The costings are therefore somewhat shaky to say the least. I was therefore pleased that the Minister was able to set out at least some clarifications, corrections and admissions of error in his letter to the shadow Health Secretary, my hon. Friend the Member for South Cambridgeshire (Mr. Lansley), on 8 January.
Amendment 45, standing in the name of the Liberal Democrats, seeks a report on the numbers. It is amazing to find out that the Government have very little of the hard data on which their policy is based.
On amendment 31, the Bill comes with a lengthy justification, by comparison with other Bills, of its rectitude in the face of the Human Rights Act 1998. Its length should alert the Committee to the Government's nimble footwork in the face of their own legislation. The Government's problem is that the Human Rights Act prevents discrimination on the basis of residence. The Secretary of State and the Minister's argument is that such discrimination is allowed in certain cases and that the Government have the latitude to discriminate in that way. So much for us all being equal under the law. It was that very discrimination that my right hon. Friend the Member for Charnwood (Mr. Dorrell) sought to highlight in one of his earliest contributions today. I therefore hope that he will have the opportunity that he was looking for to discuss the issue in our debate on this group of amendments.
I am pleased that the Joint Committee on Human Rights is looking into the matter. I hope that that process will be concluded before the Bill goes to the other place, because it really needs to be. Through you, Mrs. Heal, I hope that some urgings might be made in the right direction, in order to speed up the Joint Committee's work, because of the speed with which we are considering the Bill in this House-I dare say that the Government will wish to push for the same in the other place-and because there is already an absence of the accompanying guidelines and regulations, either in
draft form or actually published, that are so important for the Bill. The fact that we do not have the Joint Committee's report in advance, as is normally expected, makes us worried that an attempt could be being made-I put it no more strongly than that-at a sleight of hand.
Mr. Dorrell: My hon. Friend has had the benefit of reading some papers that I have not read. Did I hear him right? Was he really saying that although there is a general prohibition on discrimination on the grounds of residence in the European convention on human rights, the Government's position is that it does not apply to Governments and that Governments are allowed to exercise such a discretion on the grounds of residence that others are not allowed to exercise?
Mr. O'Brien: I will expand slightly on that point as I proceed, because it is a bit fine-grained and quite technical. However, in essence, his concern is confirmed, I am sad to say, in that there is effectively a get-out in such circumstances, by and behalf of Governments. That is highly challengeable, and therefore causes me concern; hence our amendment, which would require a report. The Committee would welcome that, given the importance that the whole House attaches to what appears on the front of Bills, namely a certificate, as required under the Human Rights Act, from the Secretary of State in presenting a Bill on First Reading to assure the House that it is compliant with the European convention on human rights. This Bill carries such a certificate, from the current Secretary of State.
"No external legal advice was sought on this matter."-[ Official Report, 8 December 2009; Vol. 502, c. 293W.]
We know that the Government are concerned, and not just because of the extraordinary length and somewhat defensive nature of the note in the explanatory memorandum, to which my right hon. Friend might find it helpful to refer. That concern is now being picked up elsewhere, not least by a commission by which the Government have set great store-indeed, they brought it into existence precisely to look into such questions. The Equality and Human Rights Commission has expressed concern that
"this proposal appears to cut across the options set out in the Government's Social Care Green Paper."
"Care must be taken to avoid creating negative trade-offs for other people still with considerable needs trying to access care at home. For instance, if the proposal actually further reduces the sums available to help those with less critical needs, but who could benefit substantially, including helping them to retain work or remain socially active, it may just serve to increase those whose needs more rapidly become critical."
I hope that the Minister will take this opportunity to confirm that the strength of any defence in a court of law would depend on the purpose of the Bill. In the compliance statement, the purpose of the Bill is about
"enabling, supporting and encouraging more people to avoid or delay entering residential accommodation".
"Funding care to those in need at the time of their need,"
which is also what the Prime Minister said at his party conference. Is that a "legitimate aim" for the purposes of the Human Rights Act? The record will no doubt show the Minister's response, which will undoubtedly be prayed in aid by highly paid human rights lawyers. I dare say that he will have taken a lot of advice before making his prepared remarks.
The Government's defence is also that the proposal is a "proportionate" measure, which goes some way to answering my right hon. Friend's question. What is the legal status of that defence, given that the Bill has such a small benefit for costs-if any, as has been accepted-that, according to the impact assessment, it has little overall effect on public sector manpower and public expenditure, and that it helps no more than 5 per cent. of the so-called at-risk population?
The Committee will be interested to know that there is no statutory definition of the word "home", although it appears in a number of statutes, such as the Housing Act 1985. That was the Act that legislated for the right to buy, a right that has seen people gain property, as well as the social mobility attached to that, only to have to sell it to pay for their long-term care. Part of the problem that we are now facing is with precisely that generation. The 1985 Act speaks of a person's "only or principal home". There have been many cases concerning the definition of that phrase. I will not take up too much of the Committee's time, but hon. Members should be aware of the succession of cases on that issue, which include Crawley Borough Council v. Sawyer in 1988, Ujima Housing Association v. Ansah in 1998, Amoah v. Barking and Dagenham in 2001, which will be of interest, and Hammersmith and Fulham v. Clarke in 2001.
That is an important succession of cases, because many of them link home with the intention of the resident to occupy it rather than with the occupation itself-so intent appears to be what the law relies upon. What happens in law if an individual is able to define the care home in which they reside as their home? The money resolution, as we know, if not the legislation per se, would make provision for the funding of that person's care. By proving that a residential care home is their home, could an individual make themselves eligible for free personal care?
If the Minister does not have a ready answer, he can be fairly sure that the courts will seek to provide one in the due light of day if the Bill becomes an Act. I hope he will take this opportunity to guarantee that the Bill will not be open to legal challenge on human rights grounds. Is he confident enough to commit the Government to funding the full costs of any successful legal challenge on those grounds? Moreover, will he place the internal legal advice in the Library, given the germane points that have now been raised as a result of great concern, not least admitted by the fact that the explanatory memorandum has had to go to such lengths without the decisiveness of a conclusion that one would normally look for with such an important matter as supporting a Secretary of State's certificate on the front of a Bill?
This is not merely a case of lawyers dancing on the head of a pin, which some might argue is the closest to angels they will ever get. Professor Malcolm Johnson of the university of Bath has said that for people with high needs-those requiring care for more than 30 hours a week and typically dementia patients-more complete, appropriate and cost-effective care can be delivered in a care home. That is backed up, according to the noble Lords Joffe and Lipsey in the other place, not least by the Personal Social Services Research Unit-known as PSSRU-and the London School of Economics, which is doing the costings for the Government's social care models.
In a response to me of 8 December, the Minister said that residential care would remain an "appropriate setting" in which to meet some people's care needs. If, because of financial concerns, the measure keeps people at home who really ought to be in residential care, it could be seriously detrimental to the mental and physical health of many frail people. That is why all the third parties are arrayed against piecemeal reform in this area. To some degree, there has been a certain circularity in the arguments over previous groups of amendments, not least in discussions with the hon. Member for South Thanet (Dr. Ladyman).
Amendment 27 deals with costings. I repeat my rather lukewarm welcome, given the Minister's assertions at the end of the debate on the previous amendment grouping, but it is important to state from the outset and on the record that this care is not free. Someone must pay for it: in the short term that will be the beneficiaries of public health campaigns, and, it has been argued, the taxpayer and Cancer Research in the long term. We heard the rebuttals that the Minister sought to pray in aid at the end of the previous grouping, so we must take them as they were put forward, but someone somewhere has to pay. The proper phrase that should be used is "free of charge", but I dare say that that would spoil the slogan on the Prime Minister's already printed election leaflet.
As we have said, the Secretary of State has rejected taxpayer funding for social care reform, but the Prime Minister thinks it is a good idea. It is right to have some public services, like our NHS, that are free of charge, but we should never forget that they are not completely free. Indeed, it was the current Secretary of State himself who recommended that patients be given an indicative receipt for the cost of their care. I am sure that the Minister is more than well aware of the record of when the Secretary of State said just that when he was a Minister. The problem with Labour Members is that they continue to think of taxpayers' money as Government money. Increasingly, with their party facing financial as well as, one hopes, electoral bankruptcy, we should be concerned that they do not look to taxpayers' money as some form of re-election fund.
The Government have estimated the cost of the measure at £670 million a year. "Estimated" is the right word. Table 2 is dependent on figures drawn from the unpublished modelling for the Green Paper, and the full model remains unpublished. The model used to estimate the flows in and out of residential care has not been published. The model referred to in paragraphs 5.12, 5.13 and annex B of the impact assessment is still under development.
This is also the model on which estimates of savings are predicated. According to paragraph 4.6, the costs of the whole policy are still being modelled and the assumptions are going to be tested through consultation with stakeholders, which runs until 23 February. We have already discussed that point about the timetabling.
The number of individuals who are FACS-critical critical is estimated from a secondary analysis of data from the English Longitudinal Study of Ageing-an analysis that has not yet been published. Little is known about the number of younger adults who fund their own home care. The figure of 110,000 should be "treated as an estimate", as I was told in a written answer.
The estimate of people for whom reablement is successful is based on the experience of a single local authority, West Berkshire. The Minister has told me in another written answer that the Department does not hold equivalent data for other councils. Perhaps he would like to spell out the reasons why the Government feel that West Berkshire is representative of Britain as a whole.
The estimate of home care spend in annex B of the impact assessment is an estimate plucked out of the air, for which the Minister has given no justification, while the estimate of the costs of reablement are also plucked out of the air. When I asked the Minister what the minimum and maximum costs of reablement were, he replied that he understood that there was a "wide variability" in "different councils" and that the "derivation" of a cost of £1,000 was "clearly stated" in annex B of the impact assessment. What does annex B say? It says:
"It has been estimated that reablement costs £1000 a person (roughly 30 hours of reablement at £30 an hour)",
but we have no sources for where either of those figures referring to the number 30 came from, so we have to ask whether these have just been made up. The costings assume that only 10 per cent. of the people who currently go into residential care will instead stay in their home to receive free personal care. Is that really tenable-that faced with the choice of paying £25,000 a year in a care home, or free care in their own home, only one in 10 will take up the free option?
The Government have persistently refused to extrapolate their calculations beyond 2012, so we have had to do it ourselves. Using just a linear projection, the costs will double to about £1.2 billion a year by the end of the next decade. The excuse given to me in a parliamentary answers was:
"We cannot reasonably make these extrapolations because of the levels of uncertainty",
"the unknown detail of any future national care service and the unknown future economic climate"-[ Official Report, 16 December 2009; Vol. 502, c. 1323W.]
The Minister also mentioned an uncertainty that aspects of people's behaviour would change as a result of the "introduction of these proposals", and that the policy would be reviewed after 12 to 18 months to "ensure" that there are "no perverse incentives". This is a funny way of doing policy: to set the hare running and if it all goes wrong, we will revisit it-a kind of microcosm of the last 12 years, one might suggest.
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