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Lord Smith of Leigh: My Lords, I speak to Amendment No. 38A which is in my name. I apologise to noble Lords for returning to the health service ombudsman's ruling on continuing care. However, I shall approach it from a different perspective and try to avoid repeating earlier comments. First, however, I declare an interest as a leader of a local authority and as vice president of the LGA.

The four cases considered by the ombudsman involved individuals who had made contributions for their continuing care, which was essential to enable them to be discharged. They should have been the responsibility of the health service. While it was right for the ombudsman to consider first the cases involving individuals who had made personal contributions to their care, those personal contributions were dependent on the fact that they had savings of more than £16,000. We cannot expect that the forthcoming review will not find cases where individuals have savings of less than £16,000 and responsibility for paying continuing care costs lies with the local authority rather than the individual concerned. As we assume that this misinterpretation and misapplication of the guidance has, as the ombudsman's report states, affected all individuals, there are bound to be cases where health authorities should reimburse local authorities.

The ombudsman suggested a review, and the Minister has said that an appropriate review is taking place. I am sure that we will find cases where health authorities should pay money back to local authorities because of previous mistakes. The Bill provides for payments by local authorities for the problems it has caused the health authorities. However, I think it would be equitable if, before we embarked on new issues, we could resolve the continuing care problems. I hope that my noble friend the Minister will listen carefully and respond on those points.

Earl Howe: My Lords, I rise very briefly to speak to Amendment No. 39. Amendment No. 37, which proposes that weekends and public holidays should be discounted in relation to the defined period of notice

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for the discharge of a patient, closely reflects my own Amendment No. 39—although, in all honesty, I do not think that Amendment No. 39 sits quite so easily in the clause as does my own amendment. However, the noble Lord, Lord Clement-Jones, has put the case extremely well. I propose to do nothing except underline everything that he said, not least the strength of feeling in local government circles on this issue.

Baroness Greengross: My Lords, I shall speak briefly on Amendment No. 35 and touch on Amendments Nos. 37 to 39. In Committee, I was heartened to hear the Minister say that this Bill will be as tough and rigorous on the NHS as it is on social services departments. In Committee, I suggested that one way of achieving that may be to make the terms of the newly updated NHS workbook on hospital discharge subject to a direction from the Secretary of State and to delay the Bill's implementation until the Department of Health is reassured that that is indeed the case. More still can be done, especially given the recent findings which we have discussed today of the health ombudsman's regarding the NHS's responsibilities to fund continuing care. However, this new clause seems very good news.

I turn to Amendments Nos. 37 to 39, which were tabled by noble Lords on the Opposition Front Benches. As we heard, this group of amendments relates to the timing of a Section 2 notice. I am sympathetic to the arguments, which are those of the organisations rather than the older people themselves, that the period should not include weekends and bank holidays. But the truth is that if the procedures are good it should allow enough time in all but a few very complicated cases; for instance, when no suitable care home place can be found locally or where the person's home needs substantial alteration.

Therefore, I think it is right that social services departments should work to meet the deadlines imposed by the Bill as that will benefit older people who do not want to be left in acute hospitals for any longer than necessary. That is what the Bill is about, not the convenience of organisations, although I accept we must ensure that we do not place unworkable obligations on them.

In Committee, the noble Lord, Lord Turnberg, rightly pointed out that the moment a person enters hospital, plans should be put in place for his or her eventual discharge. It should be obvious then which cases are likely to be complex and need social services department involvement. Listening to the arguments on that point, I wonder whether a compromise might be to require the NHS body to give some kind of pre-notification notice—that sounds dreadful!—say, at five days, that it is minded to issue a Section 2 notice in three days' time. In most cases that would not be necessary as the various agencies should already be co-operating with one another, but it might be an extra safeguard to avoid early, unexpected or inappropriate discharge. I believe that the average stay in hospital is 11 days, which would give time for the process to be gone through and would ensure that social services departments are never surprised by a complicated

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discharge case. It would also allow time to take account of bank holidays and weekends, as Amendments Nos. 37, 38 and 39 suggest.

7.30 p.m.

Lord Hunt of Kings Heath: My Lords, I welcome the support of the noble Baroness, Lady Greengross, for the government amendments. She is right to suggest that the reordering of the clauses makes the position much clearer in terms of NHS responsibility. I have sought to reassure noble Lords that that responsibility is in my view as stringent as that of local government. I refer to the noble Baroness's suggestion in the context of good practice. It will be up to local bodies—NHS bodies and local government bodies—to work through the Bill's statutory provisions in practice.

I certainly accept that the whole question of weekends and bank holidays is important. I say to the noble Lord, Lord Clement-Jones, that we need to remember that the test for the discharge date is that it will be safe for the patient to be discharged on that day. Currently, the medical part of that decision is unlikely to be made at the weekend, but it is an important point as regards the discussion of which days count. I shall return to that matter in a moment.

Amendment No. 39, in the name of the noble Earl, Lord Howe, seeks to lengthen the amount of time that local authorities have to assess and make services available to patients. Although it sounds reasonable, we have to take into account what that means in practice. In practice it would mean that when a weekend falls within that period, the minimum compliance period would be five days and, in the event of public holidays which fall next to weekends, the minimum period could extend to six or even seven days. I have real concerns about stating on the face of the Bill that it is acceptable for local authorities to take a minimum of seven days to assess a patient and make services available for that patient. The minimum compliance period on the face of the Bill is a minimum, but there is a risk that the minimum will become the norm. I am concerned that the noble Earl's amendment could in some cases result in worse practice than is currently available in some parts of the country.

I stress that the minimum compliance period on the face of the Bill is a minimum. We have taken powers in the regulations that allow us to specify the minimum period. I shall discuss those later. The number of days on the face of the Bill should be the number we expect all local authorities eventually to achieve for all patients and as soon as possible for the majority of patients.

Of course, working practices in both the NHS and social services will have to change to achieve that. But they ought to do so. That is the whole point. I refer to the poor performance of so many statutory agencies in parts of the country. Working practices must change. The whole purpose of the Bill is to provide the right incentives to ensure that that will happen. I understand the points that were made about bank holidays in particular and, to a certain extent, also weekends. In

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Committee, I said that the Government were considering those points. We have not yet reached a conclusion. I shall take into account the further points made today. I have no doubt that we shall discuss the matter again at Third Reading.

I hope that noble Lords will accept that, although I am still prepared to consider the issues concerning bank holidays and weekends, I shall not give a commitment tonight. I am certainly wary of putting anything on the face of the Bill to suggest that we are moving away from the minimum compliance period. We are aware that the aim of the Bill may pose real challenges for statutory organisations. However, delaying individuals' discharge from hospital inappropriately can have a very negative effect on their future lives. Therefore, we need to be careful that we do not allow statutory agencies to make excuse after excuse after excuse and to walk away from what the Bill is intended to achieve.

I turn to Amendments Nos. 38 and 47, which appear to want to introduce a complaints procedure for both NHS and social services which must be completed before the patient is discharged. I wish to repeat a point I have already made; namely, that the Bill does not affect the right of an individual to make a complaint to the NHS or social services about the care he or she has received. We shall make it clear in guidance that any complaints by patients about the NHS decision on whether or not they are eligible for fully funded continuing NHS healthcare should be dealt with promptly before any dispute under this part of the Bill commences. We have already discussed the steps we shall take to ensure that those decisions are made promptly and at the correct stage in the discharge process. If such a complaint arises after the Section 2 notice has been given—the steps we are taking, and the step I announced in a previous debate will mean that that should be the exception rather than the rule—the social services authority will at that point effectively assess the patient as not needing any community care services from it because he or she needs continuing services from the NHS instead. That means that the delayed discharge clock will not start and the patient will remain in hospital until the dispute about eligibility for continuing NHS care has been resolved.

I turn to Amendments Nos. 40 and 41. They are intended to provide local authorities with an incentive to fulfil the responsibilities they already have. The language in the Bill is clear and unambiguous in describing the circumstances in which the local authority will be required to make a payment. Subsection (4)(b) of Clause 4 states that if by the end of the relevant day,

    "it has not been possible to discharge the patient because, and only because",

the responsible authority,

    "has not made available for the patient a community care service which it decided under section 3(3)(b) to make available for him",

the responsible authority must make a payment of the amount prescribed in regulations for each day of the delayed discharge period. That is, local authorities will become liable for a reimbursement payment only

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where the delay is solely their responsibility. I believe that we have in the Bill a clause that is a great deal simpler and leaves less room for dispute than the suggested amendment. It is unambiguous that the local authority either makes a payment or it does not.

I turn to Amendment No. 45, in the name of the noble Lord, Lord Clement-Jones, which seeks to add to the money flows around reimbursement; it deals with where reimbursement payments should go and how the money should be spent. As I said in Committee, this amendment misses the whole point of the Bill. The point is to provide a financial incentive for social services to invest in community care services that are needed to prevent delayed discharge in the first place. It is not to establish a fund to spend on community service. It detracts from the very sharpness and clarity of relationships and responsibilities that the Bill will provide. The noble Lord, Lord Clement-Jones, wants to fudge the situation by creating a cosy community fund so that the money goes round and round but no individual statutory body will feel responsible for implementing the provisions effectively. In their own right, local authorities, acute trusts and primary care trusts could set up agreements and decide how to spend any resource. However, that would be for local decision and it is a far cry from the clarity that we wish to see in the provision.

I turn to the amendment tabled by my noble friend Lord Smith. He has enormous experience in this regard. I know that this involves a case in his own area but there is no doubt that overall his own authority and the health service in his area have done much good work in relation to delayed discharges. However, his amendment has already been covered by some of our discussion. First, I made it clear that in the case of continuing care, we will be directing the NHS to carry out a continuing care assessment prior to the issue of the Section 2 notice. That means that any dispute in this regard would already have been resolved. I have already spoken in detail to that point earlier.

In the case of the registered nursing care contribution, that would unnecessarily restrict the process and the incentives for the local authority to act quickly and—this is my real concern—could encourage local authorities to dispute every decision to avoid charges. That is why it is much better that any charges should be incurred and adjustments made retrospectively, following the outcome of the relevant reviews and appeals. The emphasis in the Bill must be on getting on with it and on sorting out what the individual patient requires and ensuring that that patient receives it. The issue may fall to dispute resolution but the key point is to ensure that the patient comes first.

That concludes my comments on the amendments. I believe that while I accept that legitimate points have been raised, we should resist the temptation to move away from the clarity in the Bill.

On Question, amendment agreed to.

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Clause 4 [Liability to make delayed discharge payments]:

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