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Earl Howe: My Lords, I congratulate the noble Baroness, Lady Greengross, on initiating the debate and for drawing our attention to some issues of considerable interest and importance. I confess that I sat down and read these regulations and the Explanatory Note which accompanies them and felt little the wiser at the end. It is fairly impenetrable. Having listened to the noble Baroness today, I feel that I am now a good deal wiser. But it will, I am sure, be of considerable assistance to all of us to hear in the
Minister's own words what she regards as being the sense and purport of the regulations and the reasons why they have been introduced.We are all familiar with the idea of partnerships between the NHS and local government. On the whole I believe that we regard such partnerships as a good thing. The Health Act 1999 ushered in the legal powers to enable such joint working to occur, not least in the form of pooled budgets. The regulations in front of us flow at least in part from that Act. Broadly speaking, where local authorities perform functions which affect people's health, then the Secretary of State has the power to define and influence those functions.
My first question to the Minister is whether collecting information about people, issuing invoices to them and making sure that they pay those invoices constitute a set of activities that can be said to have an effect on those people's health. At first sight, I am not at all convinced that they do. None of those activities is a service delivered to individuals; they are a series of administrative processes. So I question whether the wording of the Act was meant to cover the kind of function that these regulations encompasses.
That is my first, rather technical, observation. My second one is that for a local authority to delegate certain functions to the NHS carries with it two kinds of risk. The first kind of risk is that the barrier between local government and the health service will be bridged too easily. The second kind of risk is the opposite, which is that important issues will not get properly across the bridge but will instead fall between the cracks.
In the first camp lies the noble Baroness's concern about confidentiality. It is all very well to envisage local government passing some of its functions to the NHS for reasons of convenience or expediency, but what kind of say does the patient have about who can have access to the information collected? I do not know how I would feel if I were quizzed by NHS staff about how much money I had or what my house was worth. I might see the need to divulge this kind of information to a local government official in certain circumstances, but would I feel comfortable disclosing it to a nurse or to a hospital manager? I doubt it—which is why I agree with the noble Baroness, Lady Greengross, that there need to be strict, tightly-defined procedures for dealing with this kind of process, where informed patient consent plays a central role.
The second camp contains most of the other points so cogently put by the noble Baronesses, Lady Greengross and Lady Barker. Breaking down the barriers between local government and the NHS should not leave any room for either ambiguity or unprofessionalism. Local government staff who have to perform the sensitive job of explaining the charging rules to service users and exercising discretion where that is required—as it often is—about what charges are appropriate to someone's domicilary care, are experienced and trained in those roles. If NHS staff are to be asked to take over those roles, then they have to know what they are doing. That is not meant to sound disrespectful to NHS staff, but the
fact is that none of us could perform those tasks without being suitably trained, any more than a nurse or a hospital administrator can be expected to do them. It would be most helpful to hear from the Minister how the delegation of tasks by local authorities to the NHS is to be accompanied by the necessary propagation of skills.We also need clarity about where the buck stops. When local government functions are performed by local government there is no ambiguity on that score. When local government functions are delegated to another public body, where does the responsibility lie in both practical and legal terms? The noble Baroness, Lady Barker, made the point very well. If the NHS sends a bill to someone and that person does not pay, whose responsibility is it to take enforcement action? Who is the arbiter of disputes? Everyone involved in a partnership arrangement needs to be absolutely clear about where responsibilities ultimately rest, not just legally but practically.
I share the noble Baroness's view that we can talk positively about partnership arrangements and wish those arrangements well when they happen. But when they do happen, people have got to know what the full implications are; and that means consulting beforehand those directly affected. I hope that such consultation will be automatic in each instance, because these are not necessarily straightforward matters. It is very helpful that the Minister has an opportunity to allay the concerns that the noble Baroness, Lady Greengross, has identified, for I believe that they are concerns that are shared around the whole House.
8 p.m.
Baroness Andrews: My Lords, I am very grateful to the noble Baroness, Lady Greengross, for creating an opportunity for the House to discuss these regulations in terms of the Prayer that she has laid. I am even more grateful that she has not only advised me of some of her concerns, but also that she has said that she will not be praying against the regulations this evening. However, it is a useful opportunity that has been taken by noble Lords to explore some of the issues that are raised in the regulations, and we should be grateful for that. I will try to deal with as many of the questions that have been raised as possible. There is a consensus among noble Lords about some of those issues, and I hope that I can give fairly full answers.
I will start by explaining what the original legislation was intended to do. I will also start by saying something about the consultation period, because I know that the noble Baroness, Lady Barker, was concerned about the short period of time. We did notify the local authorities and the voluntary organisations and we did actually use e-mail. So it was not quite as slow as she implied. We did not just put it on the website, we did actually invite a positive response. But she is right, the responses were low and we had only approximately 15 responses. They were from a mixture of local authorities and voluntary organisations and so on. We opted for a six-week
consultation period because two of the three amendments were uncontroversial, and I shall explain at the end of my speech why they were so uncontroversial.The third option, the controversial one which we are discussing, Regulation 5, is in fact a voluntary choice, but even so, it was something that we certainly wanted to consult on. We did want responses and we received very well-informed responses from the people who replied. The original legislation was essentially designed to address the issues that were covered by the original regulations. The focus of the original partnership arrangements were set out in the NHS Bodies and Local Authority Partnerships (England) Regulations 2002. As noble Lords know, that was designed to encourage joint working between the NHS and local authorities; and it has been warmly welcomed, because to be against joint working is like being against sin. We cannot be anything other than in favour of it.
These regulations introduce new ways for agencies to work together to provide the best possible service for local people. Using the powers of Section 31 of the Health Act 1999, local authority and health partners can now pool different pots of money. They can make better use of resources. They can try better and more ambitious projects and essentially they can put their staff teams together under the same managers so that social workers, district nurses and care assistants can work from day to day in the same teams. I am pleased to say that since those powers were introduced we have seen a flourishing of over 200 new projects notified to the department, ranging from the very straightforward such as integrated community equipment to multi-million pound joint ventures.
The amendments before us are essentially designed to make some necessary changes and clarification; and I hope that that the noble Baroness will be pleased with the clarification. First, in relation to Regulation 5, which primarily concerns us, I wish to reassure noble Lords that the changes proposed are for a very specific purpose and will only be needed and used by a very small number of care trusts and large-scale NHS-led partnerships which are transferring substantial sections of their administrative arrangements from local authorities to the NHS. The proposed amendment ensures that councils can only delegate charging for the particular care services which the partnership is delivering. They are very specific and they can only do that under the conditions set out in these amendments and the forthcoming guidance, which I want to spend a little time describing.
The noble Earl, Lord Howe, asked whether the collection of administrative tasks that he identified really do affect health. Section 31(a) to the Health Act 1999 defines health-related functions, not only in terms of the effect on health, but whether they are connected with any functions of NHS bodies. So the technical answer is yes. However, I add from a more personal point of view, that the collection of this kind of financial information can be stressful, and can have an impact on health. So in the broader context I would say yes to that, too.
Let me deal with some of the concerns that have been raised. One of them is obviously that, because this involves a transfer to an NHS-led partnership, NHS staff may take over the new tasks and there may be some ensuing confusion. It is a serious issue, but it is an issue which might be raised wherever joint working takes place. As I have said, joint working has been welcomed, and is one of the things which we all agree provides an opportunity to create new approaches to the way in which we provide services. It also creates an opportunity to use new language, to develop new roles for people across services, and will deliver better services. That is what these regulations exemplify.
Regulation 5 simply means that if a local council decides to transfer some of its staff to the NHS to work in integrated teams in relation to care trusts or NHS-led partnerships, it can now also choose to transfer those functions and the staff who work on charging for those services alongside them. There is an element of continuity here, because those staff who have been transferred will carry on with the work that they have always done—but now within the integrated team.
The kinds of tasks that are involved—assessing an individual's ability to pay, collecting charging and monitoring how charging is working—will be the things that are important to the client. It has not been possible until now to do this. It means under the current legislation that council staff are still required to make decisions about people for whom all other services are being handled by the new partnership teams. I will give noble Lords a practical example of the impact of that.
I believe that this brings a better service and I want to reassure the noble Baroness that under the new arrangements the charging administration is likely to involve the very same council staff, such as finance assessment teams who have transferred into the NHS under partnership arrangements. At this stage, it is unlikely that new people will be involved. Therefore, we are not assuming that there will be any change or confusion for clients.
However, these are evolving projects; these are evolving and developing institutions. Over time, they may come to involve new people; either new recruits for the NHS team or existing NHS staff such as care managers. That involves retraining. In fact, they might involve the finance staff. It would be up to the partnership to decide who is best placed to deliver that.
Let me stress the evolving nature of the role. We believe that it will allow time for adjustment, particularly for proper training. I want to pick up and reinforce everything all noble Lords said about the importance of appropriate training. We see it as extremely important, but the case which the noble Baroness cited was a good example of bad practice. I am sure it is not the kind of practice to which we would want to expose any patient in any situation.
In a new framework, with new languages and opportunities, it is important to recognise that staff have a changing and expanding role. They will be trained in different ways for different purposes. We are bringing together health and social care for the first
time. We have lessons to learn, but training sits at the heart of that, particularly in response to the complexity of information, as the noble Earl, Lord Howe, pointed out.I can assure noble Lords that there will not be a sudden shift from care responsibilities to financial responsibilities; nor will there be a sudden shift to new staff. That is where confusion could occur. As regards the training that is provided, I put it to your Lordships that few people could be better suited to providing advice on benefits or charges than those people who will have the day-to-day contact with clients, wherever they are. A person involved in arranging someone's care, properly trained, will be in a good position to put the whole picture together and give the right information.
Therefore, rather than undermining or changing the relationship between the NHS and clients, we see this as a way of supporting and growing close and confident relationships for the future.
I turn to the issue of confidentiality. As the noble Baroness said, we have addressed this many times in this House in recent months. When Age Concern, for example, responded to consultation, obviously it wanted to ensure that there would be clear arrangements about which staff should be able to collect financial information. We share that concern. But, in the first instance, all organisations operating in partnership are required to adhere to strict protocols on information sharing and confidentiality and that includes the Data Protection Act and the Caldecote principles. We will reiterate that in the guidance that we will prepare.
In the second instance, I would argue that in practice the fewer people who are involved in managing the process of information and the support that is given, the more likely it is that confidentiality will be protected. I completely take the point made by the noble Earl, Lord Howe, that if one knows the person involved, it is more likely that one will obtain more personal, sensitive and effective support. Therefore, all information about the person's care and financial arrangements under the new arrangements may be kept within one organisation and team instead of continually trafficking between the NHS and the local authority.
Under these regulations, care managers, who know the service users well, will be able to undertake those sensitive financial assessments while they are arranging their care package. It means fewer people being involved and fewer visits being made. But, again, it is imperative that those working in the field and the service users are clear about the changes involved and what they must do to communicate their impact.
That is why we have put the requirement for information to be provided into regulations rather than into guidance. Regulations 6 and 7 cover that point. It means that partnerships must explain to service users which services they are being offered, which elements of a care package are the responsibility of the NHS, which are the responsibility of the local authority and what the charges are for. Those regulations will be backed up by
guidance. I want to emphasise that we will be consulting with all interested parties on that guidance. The regulations and the guidance will therefore deal with the other major concerns which were raised in conversation and which were referred to by noble Lords today.However, the amendments have the potential to cause confusion for service users; that somehow NHS services free at the point of use and local authorities will be conflated and that NHS services might incur a charge.
Let me be absolutely clear about this: the legislation in no way alters or compromises the overriding principle that NHS services are free at the point of use. There are no loopholes that will enable charging to creep into NHS services. The amendment is focused on the local authority functions that have already been delegated. The only services that can be charged for are the social care services that carry charges at the moment such as home care or residential charges. The partnership could not decide to move outside the framework already set by the council. Those changes do not represent in any sense a take-over of local government powers by the NHS.
Two other points have been raised. Locally accountable councils remain firmly responsible in law for charging policy, determining which services incur a charge, what they should be and the eligibility criteria for a service. Nothing changes that overriding principle or shifts that responsibility. I hope that answers the point raised by the noble Earl, Lord Howe. I can also reassure noble Lords that these amendments do not enable the delegation of the legal enforcement of payment. I hope I can reassure the noble Baroness, Lady Barker, on that point. That must remain with the council.
I now deal with a specific point which goes to the heart of some of the issues. When Age Concern responded to consultation it raised the prospect of a service user receiving a bill for care on NHS headed paper. It expressed fears that it had the potential to cause confusion and upset. We do not want that. Our response is that the key to avoiding service user confusion is a very clear information policy which sets out which services are being offered, which organisation is legally responsible for which services and which charges apply to the local authority services within the package. We agree that branding issues are very important. That is what people see and make a judgment on that basis. We will specifically mention this in guidance as something which partners should consider carefully.
The guidance will reflect and reiterate many of the issues that we have talked about today. It will emphasise the importance of appropriate training for all staff involved in charging administration. Councils will be required to ensure that any NHS-based team taking on charging administration and a delegated authority includes people with appropriate financial expertise. It will emphasise that partnerships must explain clearly to service users exactly what service is being received, where the responsibility falls and so
forth, and what charges, if any, they may expect to receive for the social care element of their package, as already set out in Regulations 6 and 7.The guidance will also require councils to ensure that they can monitor the effectiveness of charging policy across the whole of the local authority. I reiterate that we shall be consulting with interested parties on all these matters and what the guidance will contain. We shall be listening carefully to what people tell us.
I now take up a few of the specific questions raised by the noble Baroness. Liable relatives will not be included because that function is not delegable. I reassure the noble Baroness about that. The question of receivership will not be delegable. That is outside the scope of the provisions. Where there is an element of discretion about individual cases, it can be applied under the amendment, but only within the parameters set by the councils themselves. How to handle some of the issues that involve elements of discretion will be a matter for negotiation between the council and the NHS.
The noble Baroness, Lady Barker, asked me whether the regulations applied to supporting people on home care. The short answer is no. It is rather a technical judgment so I shall write to the noble Baroness to give her the background to the issue.
Perhaps I may say very briefly why we have introduced these regulations and what has inspired them. I shall be frank with the House. They are necessary because they correct a legislative error that has led to some inconsistency. It is already legally possible for councils to delegate charging functions to the NHS where these relate to home care services and non-residential services. That was an unintended consequence of the Care Standards Act 2000, which redesignated charging for home care services as a social service function and therefore made it delegable under Section 31. Our changes close that loophole and ensure that charging for home care services is treated now in the same way as any other service delegated under the principal Act. So home care and residential services will be brought into line now. But there is the positive change that I have been arguing tonight. It means that if you delegate the service, you can delegate the charging that relates to it. Local authorities who responded to our public consultation on the amendment supported that change. One care trust, Northumberland, was very proactive in initiating the change. Northumberland argued that it needed the amendment as it would give it increased flexibility with regard to how it arranged its services with NHS partners and in considering how they could best be provided. That case study says much that is rather hard to explain in a more abstract way. Northumberland explained that without the amendment it would face some serious practical difficulties.
Early last year there were some changes to social security benefits which meant that a group of older care home residents suddenly needed to submit claims for the first time. One of the council's care managers had previously worked as a financial assessment officer. Therefore, she both knew the residents and understood the financial issues. She was able to deal with the financial forms as part of her care management review of resident care plans. But if a similar issue had arisen
once the care management team had transferred to the NHS, under the current legislation the only option would have been to send an administrative officer from the council as members of the care team would have been barred from being sent. However sympathetic that person might have been, he or she would not have known the residents and would have been less able to calm anxieties or to address other questions.The regulations seek to make the most of joint working and to provide better services. Essentially they seek to organise services around the client. They are benign measures. I believe that they are the best of measures. They offer choice. It is a voluntary scheme. The regulations do not prescribe the way things should be done. They offer absolutely no compromise to the principle of the NHS being free to users. They introduce no new charges. They strengthen integration. The changes have been driven by practitioners.
If the amended regulations had been opposed—I am pleased that the noble Baroness has stated that she will not oppose them—it would not have meant the end of partnership working but it would have prevented Northumberland and other partners like them from operating in the future as they would want.
I refer to two other aspects of the regulations. I remind noble Lords that if they oppose the regulations they will prevent the Isles of Scilly from operating partnership arrangements. I am sure that we would not want to do that. We would also hold up the consultation on care trusts which is hardly controversial consultation.
I must confess that we have discovered a typing error in the regulations. Our solicitor's advice is that it does not in any way affect the way in which the regulations will operate in law. However, we have noted the error and we shall correct it at the earliest opportunity. In Regulation 5(2)(k) reference is made to Section 23(2) of the National Assistance Act 1948. That reference should be to Section 23(3).
I hope that having heard the explanation of what the regulations are intended to achieve, they are acceptable to your Lordships. I hope that your Lordships consider that they are a positive step to increasing local flexibility in joint working. I am grateful to noble Lords who have spoken.
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