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Lord Hunt of Kings Heath : I understand the point that the noble Lord is making. I shall give it consideration.

Lord Smith of Leigh : I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 240 to 249 not moved].

Clause 52 agreed to.

Clause 53 [Care Trusts where directed partnership arrangements]:

Earl Howe moved Amendment No. 250:

The noble Earl said: In this amendment I come back to the territory that we covered when considering Clause 20. Clause 53 sets out the circumstances in which the Secretary of State or the Welsh Assembly may use powers of direction to bring about the formation of a care trust. One of the prior conditions of doing that would be that the relevant authority has to be of the opinion that an NHS trust, a PCT or a local authority is not exercising any of its functions adequately. We need a little more substance here. As the clause reads, it could mean that if a local authority failed to exercise any of its health-related social services functions or any other of its functions adequately, the Secretary of State could take the situation in hand and impose a care trust structure. The threshold of failure is not specified. Taking it to an extreme, it could result from a difficulty over a single aspect of an individual service.

The scope for a Secretary of State to impose his will on a local authority or on a NHS trust on the basis of a judgment that he appears not to have to justify seems extraordinarily wide. It cannot be right for the Secretary of State not to allow the failing body every opportunity to put its house in order. There should be a requirement for him to make representations in a conciliatory fashion before invoking his Clause 53 powers. As my amendment states, it should be a sine qua non of invoking the powers that the body was failing in its performance to a significant extent and not in a trivial sense. I very much associate myself with

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Amendment No. 253 tabled by the Liberal Democrat Benches. I wish I had added my name to it. I am sure that it would help the Committee if the Minister explained the circumstances in which these powers might be used. Furthermore, I hope that the noble Lord can confirm that their use is likely to be rare.

I am sorry to come back to the same theme, but it is very important for all concerned that the whole process is transparent. The reasons for an intervention should be put in the public domain. The local authority should be given a chance to respond. The Secretary of State's opinion really should be based on an independently prepared statement or report--by whom and by what means is the process triggered of assessing and deciding upon failed performance? How transparent would that all be? I beg to move.

Baroness Barker: This is an important clause. We know the disruption which can take place where a health service comes under major scrutiny. Previously in Committee the noble Baroness, Lady Cumberlege, talked about the Bedford case.

When the care trusts include social care services the potential disruption to vulnerable people will be immense. Members of the Committee on these Benches have tabled amendments to try to make sure that these measures are taken in consultation with local people. If these powers were invoked, someone would have to step in on an interim basis and provide services while matters were sorted out. For those reasons these powers should be used extremely sparingly. That is the main motivation for our amendments.

7.15 p.m.

Lord Hunt of Kings Heath: The background to the clause and the concept of a direct care trust goes back to a theme that is running throughout our debates, which is the responsibility of the Secretary of State to ensure high consistency of service. We know that the history of the NHS and social services is one of extremely patchy provision where we can identify the highest possible quality of service being provided alongside neighbouring authorities providing very poor quality services. We have no reason to apologise for trying as hard as we possibly can to iron out some of these inconsistencies. I am absolutely convinced that our approach is the right one.

I have already talked about earned autonomy--incentivising organisations to do their best. Care trusts are an example of earned autonomy. Those good effective organisations which really want to make partnerships work will probably go down the care trust route as voluntary care trusts.

The other side of the coin is that we must be prepared to intervene where it is clear that organisations are not performing satisfactorily. I see the directed care trusts being part of the philosophical approach.

What do we mean by the word "inadequate"? If one says that a person or organisation is inadequate that is a fairly serious allegation. Inadequate means that

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services are failing. Failure will normally be identified through the mechanisms that are in place--inspections, reviews and joint reviews, as well as the robust performance assessment process in local government and the performance management process in the NHS. We have in place agreements about when an inspection or a review has identified weaknesses in services.

Once a review of the inspection report has been confirmed, action plans are agreed and appropriate monitoring processes are put in place which can measure whether improvements are being made. If they are not, in the case of social services, a direction can be made which identifies the statutory duties to be met. Although in the NHS the triggering mechanisms may be different, the response--the production of recovery plans--is similar.

We are not using the word "inadequate" lightly. It is perfectly possible to be exercising services to a significant extent, but doing so poorly. In these circumstances we would not be able to address failure, which is an unacceptable situation.

Noble Lords are once again challenging me to describe in graphic detail where and when we might intervene. The reality is that we can all think of cases where local agencies have failed effectively to provide services which could be provided much better under one management or through one pooled budget. We know of examples where there is just poor co-ordination between acute, community and social service departments: for example, where an NHS body fails to provide adequate services to a client group such as older people, which then has a very difficult impact on social services authorities. One could have a situation where an NHS trust provides poor quality and inappropriate services to people with learning disabilities. There are well-documented cases of local authorities which are definitely failing where there has had to be intervention.

I want to assure noble Lords that the power in the clause will not be used lightly or frequently. However, it gives us an opportunity to act when other methods are not appropriate. This is a power of last resort, to be used where delegating a function to another body would make a positive change and allow the staff and the services to start again on a new lease of life.

The hallmark of care trusts is flexibility. I believe that the ability for the Secretary of State to direct in those cases where it is clear that partnership arrangements either will not be set up or are not working is one tool in our general armoury of improving services. But it will be used sparingly. The overall thrust of care trusts is to encourage a voluntary coming together by health and local governments.

Baroness Masham of Ilton: Perhaps I may ask the Minister who will actually do the inspections? Also, one of the problems of social services and health services working together is the problem of finding convenient times to have joint meetings.

Lord Hunt of Kings Heath: I know that in the mythology of health and social care, organising

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meetings involving GPs and social workers has sometimes proved to be difficult. We need to work at that real problem.

In relation to inspections, it is fairly clear that one has inspections through the National Health Service in our performance management regime, the Commission for Health Improvement, and so on. In local government one has the Social Services Inspectorate and all its mechanisms. Clearly in a care trust one is talking about services provided both under the NHS and social service legislation. Therefore, one needs a co-ordinated approach to perform assessment and inspection.

The challenge, which I accept, is for us to ensure that that is a co-ordinated approach rather than the duplication of effort. Clearly we must avoid that.

Lord Smith of Leigh: I share the view of my noble friend that it will be unacceptable for either party to fail. Some clients may not have a second chance if they are let down by these services. For that reason, a directed care trust may be the solution.

I take the important point made by the noble Baroness, Lady Cumberlege, during her remarks. If one of the parties is not performing well, there will be an interregnum before the directed care trust can be established. During that time, services will remain inadequate. The Committee needs to be reassured that adequate support mechanisms, whether they are for a local authority or a health authority which is failing, will be in place. Thus, when the directed care trust is then set up, it will be in a position to meet the needs of service users.

Lord Hunt of Kings Heath: My noble friend has made a fair point. I agree that one cannot simply come along and say, "That one has got to become a directed care trust". Clearly, proper processes of decision-making must be followed, which would involve, in all cases bar those in which a dire situation had developed, adequate levels of consultation. Of course I accept that in the circumstances of what might be described as a shotgun marriage, it would be necessary to ensure that adequate support was made available for the staff who would have to make the new care trust operate.

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