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The Earl of Northesk: I am grateful to everyone who contributed to this mini debate. I confess that I am also slightly embarrassed. Normally, when one holds a debate, at least one person opposes the proposal. Curiously, even the noble Lord, Lord McIntosh, agrees with the principle of the amendment. There is utter consistency of view throughout the Committee that the amendment approaches an issue of considerable substance that needs to be dealt with. I am grateful for the Minister's response. I recognise that there is an overarching temptation, almost a seduction, to assume that the best way to deal with Net problems is to wait until everyone in the world gets their act together and to do it in that way. I do not necessarily agree with that, but that is by the by.
My real problem with the Communications Bill—and this issue was elaborated upon most perfectly by the noble Lord, Lord Avebury—is that it creates an enormous inconsistency, about which I remain truly concerned. I beseech the Government and the Minister not to have too closed a mind about the matter—if not on my behalf, on that of the noble Lord, Lord Puttnam, who has much more experience of these matters than me. I am embarrassed that the whole Committee, including the government Front Bench, is happy with the principles underpinning the amendment. For the moment, I am happy to withdraw the amendment. I shall read closely what the Minister has said. But I suspect that I shall return to the issue on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Davies of Oldham: I beg to move that the House be now resumed. In moving the Motion, may I suggest that the Committee stage begin again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
NHS Bodies and Local Authorities Partnership Arrangements (Amendment) (England) Regulations 2003
7.36 p.m.
Baroness Greengross rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 11th March, be annulled (S.I. 2003/629).
The noble Baroness said: My Lords, I have tabled this prayer to annul this statutory instrument because I think it deserves quite serious scrutiny in this House. I do not intend to divide the House but rather I wish to seek clarification on issues raised by it.
Several organisations have raised concerns about the regulation, most notably Age Concern England, of which I am the vice-president, Help the Aged and the Alzheimer's Disease Society. It is their concerns that I wish to bring to noble Lords' attention today. But, if the impact of the regulations were more widely understood, or if the consultation had been made more public and had lasted longer after the publication of the regulations in mid-March, I am certain that we would also have heard from other organisations. This statutory instrument relates not only to older people but anyone charged for social care—although, we know that the majority are likely to be older people.
As noble Lords will know, the background to this regulation is the Health Act 1999, which gave wide powers to the Secretary of State to define functions carried out by local authorities as health-related functions. That power is being used here to delegate certain administrative functions related to charging for social care to the NHS from local authorities. At first reading, it seems straightforward and uncontroversial. But the main worry is that there could be unintended consequences of what appears to be a minor administrative change but which may take on a wider significance and may be misunderstood by the public.
Given that last month's Budget, thankfully and somewhat belatedly, abolished the very unpopular hospital down-rating rule whereby older people's state pension was docked if they were in hospital too long, I am sure that the Government do not want people to feel—even though that is very much not the case—that the NHS is charging them for something they thought would be free. If that perception takes hold, it could do great damage and confuse an already very confused picture on the still-vexed question of what is healthcare and what is social care.
I understand why the regulation is being introduced. It makes administrative sense. But in what other areas is that likely to happen? I ask the Minister whether the regulations will also be extended to charges under the Supporting People legislation. After all, many local authorities will use the home-care charging policies to charge for Supporting People services more generally.
There are also some specific concerns such as confidentiality. Many more staff will now have access to confidential financial information—people employed by the NHS and social services. I am very much in favour of
greater joint working between them, which is an issue that this House debated at length when considering the Community Care (Delayed Discharges etc.) Bill before Easter. If they are to work jointly, they must share information. But, given the sensitive nature of financial information, the rules on who will handle it, and how it is handled, may need to be even stricter than they would have been if the information were available only within social services.I wonder whether it would help to avoid confusion, particularly among older people, about who is levying the charge if all financial information gathering were done only by NHS staff within the finance section of the trust or the partnership, and not by staff who are traditionally seen as health staff, such as nurses or other medical staff. This is often considered to be best practice within social services where it has been found that the collection of information about finances is more accurately and sensibly undertaken by finance department staff. Other staff will not necessarily know, nor can they be expected to know, the full details of social security benefits and the law and guidance on charging.
That brings me to the question of training, specifically of NHS staff whether from the finance department or nurses on wards. The rules are so complicated—we all wish that they were not—but these staff are no doubt already asked by patients about care costs and perhaps may give erroneous information, quite unintentionally but because they cannot know it all. The problem may get worse if NHS staff are actually responsible for providing that information, which is why training of key staff is essential.
I was given a good example of that by Age Concern. Not very long ago, a patient asked a nurse about what would happen if she went into residential care. The nurse said that she would have to sell her house. Fortunately for this patient, the person in the opposite bed just happened to be a local welfare rights officer. Although very ill and on a drip, she was so incensed by this that she jumped out of bed to explain to the lady, who was distraught, that that advice was wrong because the value of her home would be ignored while her husband lived in it.
At Age Concern, everyone said that a PhD was needed to be poor successfully. Such information is very difficult to understand and take in. There is no reason why every nurse on a ward should have access to it. Such situations can easily arise. Luckily for that patient, everything was okay, but it might not have been.
I turn briefly to some areas that are not being delegated to the NHS by these regulations and which could be another problem. I refer first to liable relatives and to the assessment of the liable relative contribution. This was the subject of much debate in the Health and Social Care Act 2001 when I tabled various amendments. The then Minister, the noble Lord, Lord Hunt, was very sympathetic, but it was not possible to end liable relative payments at that time. With this new regulation in place, it may make it more
complicated and more bureaucratic for a local authority which collects liable relative payments to work out the total amount to be paid by the family if other parts of the social care charging regime are being handled administratively by the NHS. It could be very confusing for both patients and relatives to have, in effect, one bill arriving from the NHS on behalf of the local authority for the resident and another arriving from the local authority for the liable relative contribution. That is not a fanciful situation; it could happen.There are a couple of other areas where the regulations have left not delegated powers, such as recovery—I mean financial recovery, not personal recovery where the nurse and doctor are far better qualified than anyone else—where a person misrepresents or fails to disclose income or capital and the fees owed to social services for taking on receivership. For receivership cases, perhaps I may ask the Minister whether she expects one impact of the regulations to be that the NHS takes on receivership cases as, in effect, all the people involved in caring for that person will be within the NHS. That could happen.
I know that the Department of Health has sought to ensure that those interested in these regulations are consulted and well informed. However, I seek reassurance from the Minister that her department will require local authorities to consult with the wider community of service users and their local representative groups about the impact of these regulations. That is very important if partnership working is to be a reality. It may also be important in helping to ensure that the unintended consequences I referred to earlier do not occur.
Finally, I seek clarification on how "local authority discretion" will work in the light of this regulation. The domiciliary charging system is wholly based on discretion. Even following the implementation of the Fairer Charging Framework, there are many areas where discretion is used on an individual basis, such as when something is accepted as a disability-related cost or whether to disregard some capital that has been earmarked for a large item.
In summary, while the regulations appear uncontroversial, they raise some concerns—some of which I covered in my remarks—on which I hope that I can be reassured. I beg to move the humble Address and I hope that it has the support of noble Lords from all sides of the House.
Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 11th March, be annulled (S.I. 2003/629).—(Baroness Greengross.)
7.45 p.m.
Baroness Barker: My Lords, in supporting the noble Baroness, I declare my interest as an employee of Age Concern England. I thank the noble Baroness for introducing this Prayer today. She has brought to the attention of the House a matter of very fundamental importance and not just in the particular terms that we shall discuss it this evening.
She has hit upon a theme which has been ever-present in health policy during all the time that I have been in your Lordships' House. That theme can be expressed in one of two ways. Beneficially, it can be described as breaking down the barriers between health and social care. Conversely, it can be viewed as bringing in charging policies by stealth. That arises from the fact that health and social care are covered by two different sets of legislation and that the process to which we turn time and time again is about finding out where the barriers of those two sets of legislation collide.
I thank the noble Baroness, Lady Greengross, for this because of the nature of the consultation. She said that the nature of the consultation on this matter was somewhat odd: it hit the Department of Health website on 19th December and had a closing date of 31st January. To the best of my knowledge that is the only format in which the consultation was held. During that period I did not pay a great deal of attention to the matter and I am not sure how many others paid attention either. I was somewhat preoccupied with figuring out how the Community Care (Delayed Discharges etc.) Bill would work. What was the level of response? What was the nature of the response to the consultation? I think that the noble Baroness, Lady Greengross, is right. This looks like a simple administrative function but actually there is a huge underlying question as to what exactly are health-related functions.
I shall concentrate on a couple of areas which are unclear and on which it would be very helpful to have clarification from the Minister. One issue is disputes, a matter about which we have talked a great deal in your Lordships' House in relation to the establishment of care trusts. When someone has a dispute on this matter—where a health body is discharging the charging functions of a social services department—first, as the noble Baroness said, there is scope for confusion that the NHS is charging for NHS services. I agree with everything that she said about the need for clarity on that. But if a person has a dispute about the nature of a charge for a social care service, to whom do they complain? Which complaints procedure do they use? My big fear is that the answer will be that they use the NHS complaints procedure. But, frankly, the NHS complaints procedures are not set up for this. They are primarily geared towards clinical matters. They are not about financial matters. Moreover, as I have said on many occasions in your Lordships' House, NHS complaints procedures take for ever. So that is a very big concern.
My second question relates to the issue of legal enforcement. If a person refuses to pay, will the NHS be responsible for the legal enforcement of a social services charge? If so, will the money obtained be social services or health service money? Will the NHS end up taking people to court over a matter with which it has nothing to do, essentially, because it is a social services matter?
Like the noble Baroness, Lady Greengross, I have many doubts about confidentiality. I have no wish to rehearse the many arguments we had during the
passage of the Community Care (Delayed Discharges etc.) Bill but, for a glorious period of about 10 days, when the issue of consent was contained in a piece of legislation, we spent many happy hours talking about the principles of the confidentiality of patient information.The noble Baroness is right. There is a great deal of potential for people to be resistant to passing information to the NHS, particularly to people such as nurses with whom they do not associate financial matters. Unless there is a clear explanation, I question whether the process might compromise the integrity of healthcare.
Let me take your Lordships back to one of my favourite documents, Delivering the NHS Plan. Noble Lords will remember that that document contains a proposal that the NHS should be free to set up joint companies with the independent sector to deliver services—for example, nursing homes. If that is to be the case, will the NHS become the body setting the charges, making individual assessments and providing care? If so, what safeguards will there be for individuals? That is not clear from the information before us.
I do not wish to take your Lordship too far down the road of reconsidering the ombudsman's report—we have discussed it at considerable length—but the noble Baroness, Lady Greengross, is right: there is still a great deal of confusion about what kind of social care is ancillary to health needs and it would be dangerous to put on top of that confused legislation such as this.
I acknowledge the excellent briefing we have received from the Alzheimer's Society, which sets out in great detail the fears that people have. They already start from a point of confusion. They have expectations that services for people who are severely demented will be regarded as healthcare, but they are not; they are regarded as social care. There is a great fear that charging for those services—and the charging being carried out by the NHS—will put people off.
I agree with the noble Baroness, Lady Greengross, and the Government that there is a need to break down the barriers between social services and health and that it should be done in an up-front and transparent manner. That cause is not helped by actions that can be perceived as being at best confused and at worst an attempt to alter policy by stealth. If the Minister can assure the House that front-line staff such as nurses will not be sidelined into doing this kind of work, we will have achieved a great deal today.
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