in the second session of the fifty-third parliament of the united kingdom of great britain and northern ireland commencing on the thirteenth day of june in the fiftieth year of the reign of



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Monday, 17th March 2003.

The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers—Read by the Lord Bishop of Gloucester.

NHS Continuing Care: Guidance

Baroness Barker: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as an employee of Age Concern England.

The Question was as follows:

    To ask Her Majesty's Government whether they intend to accept the recommendation of the Health Service Ombudsman in the report NHS Funding for Long Term Care that national guidance on eligibility for continuing National Health Service healthcare should be reviewed.

The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, the Government will carefully consider the recommendation of the ombudsman regarding departmental guidance. I said in the House last week that we will carefully review the guidance. Once the process is complete, we will consider whether any further action is indicated.

Baroness Barker: My Lords, I thank the Minister for that Answer. Will the Department of Health also revise the NHS nursing-care guidance to ensure that both it and the guidance on continuing care are compliant with the Coughlan judgment and that older people are not subject to what the ombudsman repeatedly and unequivocally called "injustice"?

Lord Hunt of Kings Heath: My Lords, guidance on NHS-funded nursing care has consistently maintained

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a distinction between NHS-funded nursing care and continuing NHS care. We will be issuing guidance on NHS-funded nursing care in which we will make the same point as I have intimated to the House.

Baroness Greengross: My Lords, I take into account what the Minister has said. Does he agree that, because of the impact the Community Care (Delayed Discharges etc.) Bill and the ombudsman's findings, there could be a greater role for the NHS in arranging and funding the care of people who have left acute hospitals?

Lord Hunt of Kings Heath: My Lords, I am not sure that I follow that argument. As I have indicated, we will review the guidance, but that which has consistently been given to the health service is, in my view, clear about eligibility criteria for continuing care. The issue raised by the ombudsman is whether some NHS authorities have acted in accordance with that guidance. It is therefore far too early to say that the NHS might in future fund more continuing care cases. However, the ombudsman's report makes clear that the whole assessment and delayed discharge procedure needs to be sharpened up, and that is what the delayed discharges Bill is all about.

Earl Howe: My Lords, but does the Minister not agree that, until there is clarity on continuing NHS care and a patient's eligibility for it, it will be impossible to implement the provisions of the Community Care (Delayed Discharges etc.) Bill with the level of effectiveness for which the Government are clearly hoping?

Lord Hunt of Kings Heath: My Lords, I do not agree because I believe that the issue which arises from the ombudsman's report is not so much about the guidance that has been given to the health service, which follows from the Coughlan judgment, as about the way in which certain NHS bodies have implemented that guidance.

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Annex C of the current 2001 guidance clearly sets out the considerations which NHS authorities need to take into account. Of course we shall look again at the guidance in the light of the ombudsman's report, but it does not follow that there ought to be a major problem in the way in which it operates at local level if NHS authorities follow the guidance that has been set down.

Baroness Chalker of Wallasey: My Lords, will the Minister agree to look carefully at the interface of social services, which I pointed out to him last week, when under the guidance it is not found possible to continue NHS care but when someone continues to need nursing care outside the NHS? I believe that that interface in the guidance is still wrong and I hope that the Minister will take it into account in formulating the eventual legislation.

Lord Hunt of Kings Heath: My Lords, as I said in our debate last week, it is most important to ensure that people do not fall between any gap in the responsibilities of the NHS and of local authorities. I believe that the delayed discharges Bill, by encouraging both the NHS and local government to improve their assessment and delayed discharge procedures, alongside improvements in intermediate care, will tackle the issue raised by the noble Baroness.

Brighton West Pier

2.42 p.m.

Lord Lloyd of Berwick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as a trustee of the West Pier Trust.

The Question was as follows:

    To ask Her Majesty's Government when they expect to reach a decision on the application for a harbours revision order under the Harbours Act 1964 in respect of the West Pier Brighton, submitted on 3rd July 2001.

Lord McIntosh of Haringey: My Lords, there is one outstanding objection to the application and the Harbours Act 1964 requires that when that is the case an inquiry must be held. The Office of the Deputy Prime Minister has decided not to call in the planning application and if the applicants apply for an inquiry now, a decision on the harbour revision order could be made within five to six months. The noble and learned Lord, Lord Lloyd, will wish to know that the Government have expressed support for the Harbours Bill introduced by my noble friend Lord Berkeley to streamline harbour order procedures.

Lord Lloyd of Berwick: My Lords, in thanking the Minister for that Answer, I must express a certain degree of disappointment. The Minister will, I am sure, confirm that the restoration of the West Pier is a matter of some

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little concern, as it is our only grade 1 listed pier. Is he aware that since full planning permission has been granted, there is no longer any valid objection to the making of an order under the Harbours Act and therefore no need for a public inquiry? In those circumstances, an order could be made very much sooner than five to six months.

Lord McIntosh of Haringey: My Lords, the noble Lord says there is no valid objection. Unfortunately, the Harbours Act 1964, which is a very outdated piece of legislation, says that an inquiry must be held unless the objection is trivial or frivolous. It does not use the word "vexatious", which we use nowadays. There are those who think that the objection is vexatious, but I do not think it could be said to be trivial or frivolous. So we are stuck with the Harbours Act until something can be done to replace it.

Lord Dholakia: My Lords, I spent many of my student days in Brighton, and the piers were a great attraction. When I write my autobiography, it will be called "From Pier to Peer". With the West Pier falling to pieces and Palace Pier having recently caught fire, the structures have a very nostalgic value. Can the Government do anything to assist in preserving something which is so precious to our seaside?

Lord McIntosh of Haringey: My Lords, I agree entirely with the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Dholakia. We very much want both piers to be in full working order. For that reason, the Heritage Lottery Fund has already paid out 1.7 million for emergency work on the West Pier, and 14 million or more is set aside for restoration work once all the procedures have gone through. But we are, as I said, stuck with an outdated piece of legislation—the Harbours Act 1964—which says that there must be a public inquiry if there is any objection, unless that objection is trivial or frivolous, and we do not think it is. There are two other routes: first, the Bill of my noble friend Lord Berkeley would bring the Harbours Act up to date. Secondly, there is the possibility of a regulatory reform order, which would depend on a marine consents review that my noble friend Lord Rooker is undertaking. If that can be brought forward, the situation will improve. But neither would be retrospective—they could not apply to Brighton West Pier.

Lord Lloyd of Berwick: My Lords, does the Minister realise that while all this is going on, the pier is collapsing, and that unless something is done very soon, there will be nothing to restore? It is obviously for the Minister to decide, but it can be done on the basis that the only objection was based on a planning point, which has now gone. Therefore, the remaining objection, in so far as there is one, is trivial or vexatious, or any other word you care to use.

Lord McIntosh of Haringey: My Lords, I do not think lawyers should say "any other word you care to use". I should have thought they would have to be

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much more precise. I have pointed out that the term "trivial or frivolous" is a much stronger criterion than "vexatious", which we would use today. There are those who think that the objection that remains is vexatious. If the West Pier Trust wants to take a case against the objector on that, I suppose it could, but it is not a matter for the Government to override statute law. That is what we are bound by.

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