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Earl Howe: I express my thanks to the Minister for that very comprehensive reply. Obviously, I shall read carefully what he has said and reflect on it. I am particularly grateful for what he said about the two amendments regarding the definition of "welfare". That was most helpful. Of course, I understand that in any Bill of this kind a balance must be struck between the amount of regulation that will impose burdens, and considerations of protecting the public. However, at the same time, as the Minister will recognise, quite a lot of the regulation in Clause 20 is new if compared to the 1984 Act. I believe it is right that we should at least explore the rationale for each of the new provisions.

On the question of agency premises, I take on board what the Minister has said. Of course, it is important that there should be locked filing cabinets and secure record-keeping. However, there appears to be a provision in Clause 20(1)(f) which fits more neatly the point that he seemed to be making. That provision requires that regulations may,

I should have thought that the security of a set of premises would fit more neatly into that.

Lord Hunt of Kings Heath: I am grateful to the noble Earl for giving way. I am advised that he is quite right to point to that subsection. However, I am also advised that that might not necessarily extend to the keeping of records, which is why we have a specific power to make regulations about records.

Earl Howe: I am grateful. I must obviously take that very seriously.

As regards record-keeping, I stress that I am not in the least worried about that provision appearing in the Bill. Clearly, records must be kept and kept properly. But Clause 20(1)(f) seems to be a new provision compared with what is in the 1984 Act. It refers to,

    "the management and control of the operations of an establishment or agency".

It occurred to me that that would embrace record-keeping and I am all in favour of Occam's Razor applying wherever it can.

Lord Clement-Jones: This has been a slightly disparate debate with rather different amendments being brought together in this grouping. However, I know that the Committee will be grateful to the Minister for, in particular, his undertaking to look again at whether a definition of "welfare" is required. I am grateful too for what he said about Amendment No. 70 in the name of the noble Lord, Lord Rix, in terms of whether physical management is brought within the existing wording.

I thank the Minister for his assurance on the lead amendment, Amendment No. 46. I take that to mean that essentially he is saying that the regulation of care

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and other establishments will not work unless regulations are made in each of those areas covered by Clause 20. I am grateful for that assurance. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 47 to 49 not moved.]

Earl Howe moved Amendment No. 50:

    Page 10, line 41, leave out ("numbers of persons, or").

The noble Earl said: I kept this amendment separate from those in the previous group because the issues which I wish to raise under its umbrella are rather different from those which we have just been discussing.

On Second Reading, I spoke of my concern that this Bill and, in particular, the statements of minimum standards due to be introduced under Clause 21 for all their merits--and I understand the merits of wishing to have minimum standards--pose an extremely serious difficulty for many residential care homes which currently do not meet one or more or the proposed standards.

I shall expand on that issue when we reach Clause 21. But there is one aspect of it which I wish to raise now; namely, staffing ratios. One of the consequences of eliding the definitions of "care home" and "nursing home", as the Bill does, is that any attempt to arrive at a neat formula for staffing ratios runs into difficulties. Until now, residential homes and nursing homes have each had their own formulae to determine appropriate staffing numbers. They are not particularly sophisticated formulae but are based broadly on numbers of beds in use.

In so far as a formula can ever be acceptable to everybody, in the case of care homes and nursing homes, it has, in each case, performed a useful role. But with a single legal definition of a "care home" under this Bill, what possible formula will work? How will it be possible to assess the staffing requirement without knowing what are the needs of the individual user? The only way that I can see which would be fair to all would be to have in place some sort of nationally accepted mechanism for assessing such need.

Have the Government given any thought to that issue? What conclusions have they reached? Is the Minister aware of a system by the name of Minimum Dataset which is in use in a number of states of America, I understand, mandatorily, as well as in several other countries, which is designed to generate standardised data on the type and degree of services that are needed to deliver the desired outcome? Is there not a case for looking carefully at such a system in order to avoid what would inevitably become an unlevel playing field around the country and, what is more, an unlevel playing field which is difficult to level out?

Some of us were disappointed not to see in the Bill any role for the commission in planning and predicting the need for services in care homes and in assessing unmet need and regional variations in the level of unmet need. Do the Government plan to give the

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commission such a role, as was proposed by the Royal Commission on Long-Term Care? If they do, how do they believe that that could be done without some sort of accepted national formula such as I have described?

We return again to the point that it is not just the quality of management in an establishment which governs the quality of service; it is whether the purchaser of that service is purchasing the right sort of service to meet the needs of the user--in other words, whether the resources devoted to meeting those needs are appropriate. The commission should be assessing that.

Leading on from that is the whole question of fees. If the users in care home A have a different level of need from the users in care home B, that would argue for two different rates of fee. I realise that that is very difficult territory but I should be grateful if the Minister will tell me whether my logic is right--I do not mind if he tells me it is wrong--and, if so, how the Government approach that issue. I beg to move.

Baroness Gardner of Parkes: My noble friend has raised a number of points and I wish to add more questions to what he has said. He mentioned the question of fees. There were stages in the past when the fees for nurses went up and up until they reached the point at which all local authorities decided they would pay only a maximum amount. That helped to control the prices.

But if certain standards are imposed on the care home--there must be X number of staff--it may be impossible to comply with that and keep within the price which the local authorities and the Department of Health are prepared to reimburse.

I am greatly concerned that much of this care legislation is designed specifically to ensure that all those services are paid for 100 per cent by the people in the homes or, in cases of need, by someone who pays on their behalf, as opposed to being paid for by the National Health Service. Of course, that is free at the point of delivery. We still have no satisfactory clarification on that. There has been clear demarcation in a court case with regard to care which should come under the National Health Service and be totally free to the patient and care which should be paid for by the patient. That issue arises here. We must be quite sure that a major purpose of this Bill is not to push a dividing line between those two aspects in order to ensure that as many people as possible have to pay.

As the Minister knows, I believe that we should look again at the whole of the National Health Service rather than trying to find different ways of dividing up the cake. My noble friend said that the Bill creates a single, legal definition of a "care home". Therefore, it is defining the difference between national health provision and a care home.

Lord Hunt of Kings Heath: I am sure that we are all indebted to the noble Earl, Lord Howe. In his short amendment, he has opened up an enormously wide area for debate. I hope that Members of the Committee will forgive me if I duck the opportunity of

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rising to the challenge in particular of the noble Baroness, Lady Gardner, in terms of the funding of long-term care and so on. The noble Baroness will know that the Government set up a Royal Commission. We are still considering the deliberations of that commission and both the majority and minority reports.

I should say also, in relation to the specific question of the impact of regulation on the costs of running such homes, that we are likely to deal with that issue, as the noble Earl suggested, a little later in our debate this evening. But I recognise that it is a matter of considerable interest and, clearly, it is a matter at which we must look extremely carefully.

This Bill is about maintaining the public interest. It will help to raise standards in those establishments where many vulnerable people are receiving care and support.

I turn to the specific issue raised in relation to staffing and the specification of staffing numbers and ratios, to which the noble Earl has drawn our attention. The first point I wish to make is that current legislation governing nursing homes contains similar powers for specifying numbers of staff. We start from the premise that we would not want to introduce legislation that actually weakened existing law in this area. I should also say that the quality of care provided by social care agencies must now relate closely to the number of staff available and their quality and training. Setting standards as to numbers is an important element of the process of regulation.

Under Section 25 of the Registered Homes Act 1984, health authorities may make it a condition of registration of a nursing home that a specified number of nurses with particular qualifications must be on duty at specific times, the numbers calculated according to the number of patients and their condition. In this way, health authorities can ensure that an adequate standard of nursing care is provided. In the Bill, we wish to take forward this power and extend it to cover the staffing arrangements in other residential establishments or agencies. I should say to the noble Earl, Lord Howe, that we will ensure that the commission takes a reasonable approach and is not too prescriptive.

As noble Lords are aware, Clause 21 gives Ministers the power to set minimum standards. These will have to be followed by the commission. Its decisions as to whether regulations and national minimum standards regarding staffing levels are being met will need to be based on the assessed needs of those receiving the service, including their dependence on others to carry out their activities of daily living as well as their need for nursing care or general support and supervision. The minimum standards, in particular, will flush out the details of that. The staffing requirements will vary according to type of home. I hope that that gives the noble Earl some assurance on the point he raised.

I should also say specifically in relation to ratios that the noble Earl might have pointed to the standards proposed in Fit for the Future? that set a ratio of qualified nurses to unqualified care assistants for residential and nursing homes for older people. I

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should stress, as I have stressed before, that this is a consultation document. While I think that there are many things in it that are extremely valuable, there are other matters which, as a result of consultation, we would wish to change. We are not convinced that adopting ratios is the only way to approach staffing requirements. I should certainly be happy to look at Minimum Datasets and any other suggestion as one way forward. I do believe that at the end of the day effective regulation does require that a view is taken about issues to do with staffing.

6.30 p.m.

Earl Howe: I am once again extremely grateful to the Minister. Obviously, the whole question of staffing ratios is an important matter. I do not seek to evade that point for one second. Neither would I suggest that the law should be weakened in any way. My point was simply how do you specify what the correct ratio should be when user needs vary so very widely once one has brought together those two definitions?

The Minister was most helpful in a number of things he said, particularly that assessed needs will govern staffing ratios that are laid down for each type of care home and that minimum standards will vary according to the type of home that is under consideration. I am grateful also for the assurance that the Government's approach to the proposals in Fit for the Future? are being approached with an open mind by Ministers. I think that is good to hear. I know that some of the feedback that the department has received has been positive and some not so positive. Provided that we know that nobody is wedded rigidly to the proposals, I think that does give us some comfort.

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