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Lord Hunt of Kings Heath: I think that the noble Baroness, Lady Greengross, has put her finger on NHS responsibilities in this area. We are clearly saying that the responsibility of making the system work effectively is shared equally by the NHS and by personal social services. There is no question about that. I also say to the noble Earl, Lord Howe, that of course I want equity and fairness. That is why, in a full year, 100 million is being transferred from the NHS to local government, to help oil the wheels of the new system. That calculation is based on our estimate of the cost to local authorities.

It is important that the system should be fair to local authorities. I know that the noble Earl is doubtful about Clause 4(4)(b). The provision deals with cases in which,

the local authority has not made available to the patient the community care service decided under Clause 3(3)(b). My reading of the provision is that local authorities will be liable for a reimbursement payment only where the delay is solely their responsibility. It would be completely unfair to require a local authority to reimburse the NHS in cases where the delay occurred not only because a community care service was not available, but because the NHS failed to provide an essential part of the care package. Reimbursement would also be unfair in the case cited by the noble Baroness, Lady Finlay, in which hospital transport was not available. Surely that is the best indication I can give of our recognition that this is a whole-system approach.

Clearly it would be grossly unfair to penalise local authorities either as the noble Earl suggested, in terms of community health, or as the noble Baroness suggested, in relation to hospital transport. Consequently, when there has been a failure to arrange

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any part of the care package or discharge process which is not the local authority's responsibility, the local authority cannot be held liable for payment, regardless of whether the local authority has also failed to put services in place.

I come to the question of care homes, and I want to be very clear about this. My comments do not mean that the local authority has met its responsibility when it has assessed the patient and decided to provide a care home place but a care home place is not available. It does not mean that at all. At that point, the delay is still due solely to the fact that social services have not met their responsibility. Where a care home place is deemed the appropriate place for the patient, it is the local authority's responsibility to ensure that a care home place is indeed made available.

I take noble Lords back to some of our earlier debates on care home places when local authorities were criticised for how they relate to care homes, their inability to enter into long-term contracts, and the resources they have been prepared to pay for care home places. I believe that there has been significant improvement. National protocols have been agreed between the Local Government Association and the care homes. We are also seeing an increase in fees paid by local authorities. Yesterday I quoted the example of Barnsley, but other local authorities also have made long-term arrangements to have secure capacity. I believe that, in that case, it is right to place on local authorities the responsibility for ensuring that capacity is available.

The noble Earl gave the very interesting example of a Jewish patient who wishes to go to a Jewish care home. As I understand it, if a person is assessed as needing a place in a Jewish home, that is what the local authority must make available. If he is not so assessed, as I said yesterday when we discussed self-funding, the authority must make reasonable efforts to reach a compromise, or perhaps provide an enhanced home care package until a place in a Jewish home is available. If a person then refuses reasonable efforts or insists on nothing but a place in a certain home, then it is likely that that person will become a self-funder.

I think that that is exactly the same principle as we discussed yesterday in relation to self-funding. It is not acceptable simply to say, "It is that choice and nothing else", and then declare that person a self-funder if he refuses the choice. The local authority must make reasonable efforts to discuss the options with the person involved and attempt to come to a reasonable compromise.

As regards Amendment No. 81, I understand the point that the noble Baroness, Lady Finlay, is making. I realise that even exceptionally well performing local authorities may have a few unavoidable delays. I can see why she might think it unfair to penalise them for that. However, I am much more concerned about

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patients than I am about statutory authorities. I have to ask why subsection (4) should not apply unless, in the terms of Amendment No. 81,

    "the responsible authority has been responsible for either—

    (a) one delayed discharge of more than two weeks, or

    (b) two delayed discharges of up to one week each, in the six month period preceding the relevant day in subsection (4)".

If that threshold were accepted, does not the noble Baroness think that, as with all thresholds—I hope that I shall not go down the cynical route taken by the noble Baroness, Lady Barker—

Baroness Barker: I did not say that I was going to take that cynical route; I said that I should not be surprised if practitioners took that cynical route.

Lord Hunt of Kings Heath: I stand corrected by a very experienced practitioner in the field. I say to the noble Baroness, Lady Finlay, that there might be a tendency for departments which have met the threshold in her amendment to permit one delayed discharge to drift up to a week but to ensure that the magic number of two delayed discharges of up to one week each is not reached. The problem I have with the amendment is that it could take the focus off the individual patient and his or her needs and place it on concerns about the relevant statutory authority. That has been a consistent theme of our debates. At the end of the day, we are talking about a measure designed to build services round the individual. I hope the Committee recognises that I am sympathetic to local authorities where a matter is clearly not their responsibility. I hope that I have given assurances in that respect.

I wish to speak to Amendment No. 85 which stands in my name. This is a technical amendment which follows changes made to the Bill in another place.

5.15 p.m.

Earl Howe: I hope that the Minister will clarify one point. Where it is the NHS itself that is preventing the local authority from fulfilling its obligations under the clause—for example, where there is an absence of primary care services sufficient to meet the needs of the patient, or absence of physiotherapy or whatever it may be—am I right in interpreting the Minister's reply as saying that the local authority would still be held responsible in such circumstances?

Lord Hunt of Kings Heath: My understanding is that where the NHS has failed to provide an essential part of the care package, it would in those circumstances be unreasonable to expect the local authority to reimburse the National Health Service.

Baroness Barker: Does that therefore mean that the noble Lord accepts the premise in my Amendment No. 82, prefaced in Amendment No. 77?

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Lord Hunt of Kings Heath: I am not sure that I follow that. I attempted to make clear that each body has a statutory responsibility. The outcome in the discharge of a patient might well be that the local authority needs to provide certain services but also, as has been suggested by the noble Earl, there might need to be an intensive programme which needed to be provided by the National Health Service. In those circumstances, if the NHS failed to come up to the mark, it would be unreasonable to say that it was the local authority's sole responsibility that a problem had arisen with the discharge. Therefore, the penalty would not apply.

As I said to the noble Baroness, Lady Finlay, in relation to hospital transport, if hospital transport fails to arrive to take a patient from hospital to his or her home, or wherever they are going—and it has been decided that that is the way the patient should be transported—it would be grossly unfair to blame the local authority for that.

Baroness Barker: The Minister has given a perfect exposition of my Amendment No. 82. He will love that amendment as it concerns regulatory powers. Does he not agree that it would be helpful to have the explanation that he has given on the face of the Bill?

Lord Hunt of Kings Heath: Not at all. One thing I have learnt in your Lordships' House is that it is better to keep legislation as simple as possible. I believe that the words in subsection (4)(b) of Clause 4, "because, and only because", make the position abundantly clear.

Baroness Finlay of Llandaff: I should be most grateful if the Minister could clarify one further point. I fully accept his response in relation to failures by the NHS. However, is the NHS obliged to impose penalties on social services—even where it has good working relationships with them—in the event of an unforeseen occurrence such as a sudden very high rate of staff sickness within social services where delays inevitably occur? Or, will the NHS be allowed discretion to say that it fully accepts why the delays have occurred and will not impose penalties?

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