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The Lord Chancellor: My Lords, the most fundamental change brought about by the recent civil justice reforms is the introduction of active case management by the judges, with timetables set and policed by the courts. I entirely agree with what the noble Lord has said, namely, that the civil system can be sought to be manipulated in the same way as my noble friend Lord Williams of Mostyn acknowledged the criminal system could be. But the object of active case management is to prevent that happening. The court can, and should, apply strict sanctions for non-compliance with its timetabling orders; for example, it can strike out a statement of case or order costs against a non-compliant party. The financially stronger party will no longer be able to dictate the pace of litigation.
Lord Peyton of Yeovil: My Lords, is the noble and learned Lord aware how very welcome and encouraging his answers to this important Question have been? Further, will he concede that it is possible to take early action as regards this abuse of proceedings whereby very rich men can exhaust the resources of those much poorer than themselves?
The Lord Chancellor: My Lords, one of the objects of "hands-on" case management by judges is that it will deal directly with that situation. It is intended to bear down firmly on the twin evils of the law, which are excessive delay and excessive cost. This really puts the judges on trial to make case management work and deliver. However, I acknowledge that it requires a substantial culture change and a judicial determination
to impose tough sanctions to ensure that timetables are strictly observed and that unnecessary procedures are not indulged in for reasons of forensic advantage.
Lord Hoyle: My Lords, what the noble Lord, Lord Harris of High Cross, may be referring to is an action of defamation in which a wealthy individual, the defendant, appears to grind down a plaintiff of more modest means. Can my noble and learned friend the Lord Chancellor say whether the law in any way assists a plaintiff of modest means to bring or defend an action of defamation?
The Lord Chancellor: My Lords, that is a very particular question in relation to defamation. I know not whether the noble Lord who tabled this Question had in mind an action of defamation, but I can appreciate that in an action of defamation a wealthy defendant could seek to manipulate the system so as to grind down the plaintiff. As I say, case management is now designed to prevent that. Of course, the legal costs of bringing or defending defamation actions are high. I intend to bring into force early next year an important provision of the Defamation Act 1996 to help those of modest means involved in defamation proceedings. There will be a new summary procedure. This will enable a judge to decide a case--where the defendant has no reasonable prospect of success whatsoever--without a jury and to decide it without the high costs of a long-drawn-out litigation. The remedies include an order that the defendant publish a suitable correction and apology and pay compensation of up to £10,000. Defendants of modest means will also benefit from this procedure because a judge can strike out a hopeless claim; that is, one where there is no reasonable prospect of success.
Lord Thomas of Gresford: My Lords, does the noble and learned Lord accept that his proposals to remove legal aid from personal injury actions permit wealthy insurance companies to grind down their opponents and that they have shifted the balance in favour of the insurance companies when personal injury actions are brought?
The Lord Chancellor: My Lords, I do not accept that. I have to say to the noble Lord--as I think I have said to him before during our debates on the Access to Justice Bill--that this Government won the general election on a pledge that they would treat schools and hospitals as their major spending priorities. We did not pledge that legal aid should be our number one spending priority. Lawyers who have vested interests in maintaining the slack old ways of conventional legal aid will simply have to learn to live with that fact. Most personal injury cases which are worth while can be funded perfectly well through conditional fee agreements provided by the private sector. Scarce public funds should not be allocated to funding cases which can be effectively pursued by other means.
Residential Care Homes
2.53 p.m.
Lord Laming asked Her Majesty's Government:
- What are the responsibilities of local authorities for the continuing care of the elderly people they place in independently run residential homes.
The Parliamentary Under-Secretary of State, Department of Health (Baroness Hayman): My Lords, local authorities have an ongoing responsibility for people they support in residential care. We are aware, however, that local authorities do not always keep placements of older people under regular review. In our White Paper Modernising Social Services we have made it clear that when people are admitted to a care home case reviews should be carried out by the local authority within three months, and thereafter at least once a year.
Lord Laming: My Lords, I am grateful to the Minister for that helpful reply. Does she accept that local authorities have moved from being the dominant providers of residential care to being principally purchasers of care? That being so, does the Minister agree that it is important to remind local authorities that they have a continuing responsibility both to ensure that a placement is appropriate for the needs of the individual and of good quality, and also regularly to review an individual's needs, as these change over a period of time?
Baroness Hayman: My Lords, the noble Lord obviously speaks with a great deal of experience in this area. In 1990 policy guidance was issued to remind local authorities that they should review the needs of people in receipt of services, whether those services were provided by local authorities or commissioned by them. The noble Lord is right to point out that we should recognise that regular reviews offer benefits both for the individual and for the service as a whole. Under the fair access to care services initiative, we are taking steps to ensure that local authorities will be required to undertake regular reviews. We are consulting on the details at the moment and we intend to issue draft guidance to them in April 2000.
Baroness Gardner of Parkes: My Lords, what can be done to help those people who undertake to pay for their own care in a home--they may choose to do so because they want to be independent or they may do so for some other reason--but find after a time that they run out of money? As I am sure the Minister knows, these people find themselves in a difficult position because local authorities can be unwilling to accept responsibility for these people who have tried to be independent. Can the Minister say how we can make life simpler and more seamless for these people?
Baroness Hayman: My Lords, the responsibility to review care will apply to the care needs of all people, whether they are in local authority homes or in
independent residential homes, when they are funded by a local authority. However, as the noble Baroness rightly points out, not everyone is funded by a local authority. The House has considered some of the problems that can arise in that situation, most recently when we considered the Statement that accompanied the report of the Royal Commission on long-term care. Some of the fundamental, underlying problems of the funding of long-term care have to be analysed in the context of that report.
Lord Clement-Jones: My Lords, what has been the fate of the report of the committee which looked into standards of residential care in homes for the elderly, which I believe was submitted to the department in January? Further, what progress has been made by the national beds inquiry into the whole issue of delayed discharge from acute beds into residential homes which has been caused by the lack of clear eligibility criteria?
Baroness Hayman: My Lords, the noble Lord, Lord Clement-Jones, pinpoints a number of areas. He is right to suggest that we have to make sure that we have in place proper hospital discharge policies that take into account both the need for adequate hospital care but also the need for adequate provision of non-hospital care when that is most appropriate to the needs of the individual. That entails co-operation and partnership between local authorities and health authorities. It also entails--I come back to the issue of reviews--ensuring that placements continue to be appropriate. I believe that the reviewing of a placement after three months is particularly important. We are interested in fostering independence. We have to consider whether placements--which are often allocated as the result of an emergency situation--are still appropriate or whether they might be more appropriate for others. We do not want placements to become permanent by default.
Earl Howe: My Lords, is the Minister aware that many independently run residential homes are being squeezed by government in two ways? On the one hand, they are constantly being told to raise their standards of care but, on the other, they are told by local authorities to accept below inflation levels of fee increases, notwithstanding nationally imposed pay increases for nursing staff that are well above inflation? Does the Minister acknowledge that this squeeze is placing many residential homes in a very difficult financial position indeed?
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