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Personal Care at Home Bill

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Copy of the Bill
Explanatory Notes

Second Reading (Continued)

4.47 pm

Lord Warner: My Lords, I was a little uncomplimentary about this Bill in the Queen's Speech debate on 26 November. The more I discover about it, the less I like it, as Members of this House will know from the letter that my noble friend Lord Lipsey and I circulated and from my Motion on the Order Paper. I shall be blunt. This is a seriously flawed Bill that has been inadequately discussed and scrutinised, and it takes us down an unaffordable path. It has been put together in a great rush in the search for clear blue water to place between Labour and the Conservatives. In my view, the Bill is not a step towards the wider reform of adult social care that we need and that the Department of Health has been seeking over the past two years or so; it is a political gimmick that the Government are trying to ram through Parliament before an election without proper scrutiny of what it will result in.

Let me be clear at the outset about my position on free personal care at home. I have a track record in this area, having spent six years as a director of social services, helping elderly people to stay in their own homes as long as possible. I am proud of that record. Like many people in this House, I would favour free personal care at home for more people if it were affordable. However, at present it is not. Even when the public finances were in a better state than now, the Government turned their back on tax-funded free personal care: in 1999, with the report of the Royal Commission on Long-Term Care of the Elderly; again in 2006, when Sir Derek Wanless produced his report; and most recently in July 2009, when the Government published their own Green Paper which "ruled out" free care paid by the taxpayer. Page 18 of that Green Paper is the reference.

Cometh the electoral hour, cometh the man. When the public finances face what the Institute of Fiscal Studies has described as "two Parliaments of pain", the Prime Minister decides to tell the world that we can afford more free personal care at home, a few months after he signed a foreword to a Green Paper with seven other Cabinet Ministers acknowledging that we cannot afford to pay for free personal care. He ruled out that option.

I remain in the position I have been in for some time: that it is unaffordable at present. I am really pleased to see that the Liberal Democrats have acknowledged that it is not affordable at this time. The Conservatives remain a little inscrutable on the subject-they seem to have a preference for insurance-but they have not made rash promises that may be very difficult to deliver. I am grateful to the right reverend Prelate for what he said about not promising what you cannot deliver. I think that promising elderly and vulnerable people and their families something which is not affordable or deliverable any time soon is a rather cruel deception, and I certainly do not want any part of it.

I turn now to the affordability and costs of the Bill. The Government say that it will cost £670 million a year, with £250 million being funded by local authorities-to which I will come later. In an admittedly

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incomplete survey of 132 local authorities by the Association of Directors of Adult Social Services, the Government figures are shown to be significantly understated. ADASS states that the annual bill will be at least £1 billion-some 50 per cent more than the Government's estimate. The final cost could be even higher.

The difference is because the Government have seriously underestimated how much care per week many of the people with critical care needs will require. It will not be over just six hours a week at an average cost of about £100 a week, it will be many more hours with costs ranging from £200 to more than £400 a week. The case that my noble friend cited in introducing the Bill sounded to me like it would require a lot more than six hours a week to keep that person in their own home. The Government's cost figures take no account of increased demand year on year, and little account of rising service provider costs. Their impact assessment states that there will be a 1.5 per cent annual increase in service volume from demography, and a 2 per cent annual increase in price for wage increases. In a Written Answer to me, the Government declined to accept that there will be any increase in demand, or that providers could put up their prices by more than 2 per cent a year.

Although this is not directly comparable to the Scottish situation, the Government's stance flies absolutely in the face of the evidence from that social experiment, if I may put it that way. In Scotland, when home care became free, the costs doubled in four years between 2003-04 and 2007-08. The number of people claiming went up by 36 per cent in the same period. In the last of those four years, cost increases by providers were about 15 per cent in a single year. The Government's proposal will create a perverse incentive to have free home care rather than means-tested residential care, so why they regard it as unlikely that there will be increased demand totally eludes me. It is also worth noting that in Scotland, a debate has begun on the affordability of free care.

I turn briefly to the uncomfortable position in which the Bill places local government. In a written reply to me of 27 January, the Government stated that gross current expenditure on adult social services in the past three years went up by 1 per cent, 0 per cent and 3 per cent in real terms. That compared with a nearly 15 per cent real- terms increase in NHS expenditure for the same period. My understanding is that from this less than generous position, local authorities must now find a further 4 per cent efficiency savings and their share of the £670 million. If it turns out that the Government's estimate of £670 million is wrong, it looks to many people in local government-they are understandably concerned about this-that they will have to pick up an even larger tab at a time when many of them will also be losing income from the many people who pay charges now. This is an uncomfortable position for all members of ADASS and the local authorities they work in. Parliament is entitled to press the Government much harder on their costing figures and assumptions. My noble friend the Minister rather brushed this aside, relying heavily on the PSSRU. We should listen more carefully to the guys and gals who will be running this system in local authorities up and down this land.

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These are all matters where we might reasonably have expected to discuss in Committee some of the technical issues in more detail after the Government had completed their consultations on the content of the regulations and guidance and had given some indication of their response. Likewise, some of us have concerns-the noble Baroness, Lady Gardner of Parkes, referred to this-about the administration of the scheme and its added complexity. I do not have time to go into all these issues today, but the volume of assessment problems for local government and front-line staff could be quite considerable in this exercise. As I understand the Government's intention, this is all to be completed, over the summer holidays, by 1 October-and yet the Government want us to be in Committee on 22 February, before they have completed their consultations and responded to the concerns expressed.

Given that none of the new arrangements is in the Bill but are left to regulations and guidance, this seems to me to be-I do not use the term lightly-an abuse of parliamentary procedures for the proper scrutiny of legislation, especially in light of the limited scrutiny in the Commons. Simply passing to us some draft regulations-which the Government say will not be the finished business-to look at, without hearing how the Government are going to respond to the points made to them by many expert people in their consultations, is not sufficient. That is why I have tabled a Motion on the timing of the Bill going into Committee. I shall speak to that Motion at the appropriate time but I hope the Government will think again and give ground in this area. I am grateful for the support for this of the right reverend Prelate the Bishop of Norwich.

The Bill will complicate an already complicated assessment system, which is itself under review following criticism from CSCI in 2008. The Government's impact assessment at paragraph 5.21 admits that the "wealthiest older people" are the main beneficiary group. If we want to do more for carers, as I am sure many noble Lords do, there are better ways of doing so much more cheaply than by spending £670 million a year. The costs of implementing the Government's proposals under the Bill look to be over £1 billion a year-the Government have not disproved that estimate-and will continue to go up faster than the Government's estimates. The Bill is unaffordable given the current state of the public finances. We owe it to a younger, taxpaying, working population not to impose an unaffordable financial burden on them as our population ages. There is an inter-generational social justice issue around this area of activity and I urge the Government to get back to their Green Paper, work with the stakeholders and the other parties and try to secure much more consensus on the funding and service reforms needed for adult social care, rather than wasting more time on this Bill.

5 pm

Lord Lipsey: My Lords, I agree with every word the noble Lord, Lord Warner, has said-not surprisingly, since we have been working non-stop on this for several weeks now-and with his remarks about the right reverend Prelate the Bishop of Norwich, who hit

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the nail on the head. Not every piece of legislation that goes through this House is perfect but some pieces of legislation stand out because, by common consent, they prove disastrous. I am thinking of the Local Government Act 1988, which introduced the poll tax, and of the Dangerous Dogs Act. I could go on, but that would bring me into the term of office of the Government of which I have hitherto been a loyal supporter. However, as someone who has worked in and around these Houses for 38 years, I believe that this Bill will prove to be a contender for the worst of the lot.

Bad legislation has certain characteristics. When first proposed, it sounds great. Behind it usually rests an overtly political purpose. It usually has the dogmatic backing of the Prime Minister of the day. It is usually subject to insufficient consideration in Government and rushed through Parliament. We legislate in haste; we repent at leisure. All these are characteristics of the Bill before us today. There was no policy process. Or rather, there was but it was usurped by the Prime Minister's rabbit-from-a-hat trick at the Labour Party conference, which I was unfortunate enough to witness. There was no government consideration or any ministerial collective consideration worth the word. As the Government were consulting on the Green Paper on the subject-a very good Green paper produced by the Secretary of State, Mr Burnham-the Prime Minister announced as the Government's firm policy one which directly contradicted that Green Paper. Then, after a few days during which Whitehall reeled in unparalleled confusion, this Bill was cobbled together with costings which have disintegrated under scrutiny and regulations which leave all the vital decisions to be taken without parliamentary scrutiny, not even the affirmative resolution procedure in the two Houses of Parliament. After Second Reading, the Bill was rushed through the Commons in a single day of perfunctory debate and now the Government want to rush it through the Lords.

That brings me to the role of your Lordships' House. We are rightly wary of challenging the will of the elected House but we are charged with a duty to ensure that legislation is well scrutinised and as fit for purpose as it can be made. This is particularly the case when a general election is pending and the temptations facing elected politicians are so very great. Our role is not necessarily to say no, but to give space for pause and reflection. If ever there was an area where cross-party consensus was desirable, it is long-term care. There is a parallel here with pensions, which for years were bedevilled by party conflict but have now fortunately been resolved in the wake of the Adair Turner commission. If people are to plan for their future, they need to know where they stand-not for today, not for tomorrow, but for decades to come. If some of the most vulnerable people in society are to be protected, there has to be clarity and consistency-not for today, not for tomorrow, but for decades ahead.

I am sure I share a part of the blame for this, but progress towards such a consensus has been slow, dating back to the division in the royal commission, chaired by the noble Lord, Lord Sutherland, on which I and my noble friend Lord Joffe sat. Milestones along the way included the Wanless report in 2006 and,

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notably-I have said how much I support it-the Green Paper published by the Government. Hope was there; a route map to a consensus solution was there; but the Prime Minister chose at his party conference to tear it up.

Everybody who knows anything about long-term care knows that it needs more money. The 2 per cent real increase in budgets being provided by the Government is not enough to cope with the ageing of the population, let alone to provide the better services that older people deserve-that goes just as much, if not more, for disabled people. If the Bill provided a decent sum of money-perhaps not £670 million-to improve care services, no one would cheer more loudly than me and its other critics. However, we are not getting more care; we are getting free care. As the Government's own impact assessment for the Bill shows, that will benefit the wealthiest among older people and not the less wealthy.

I shall say a word in supplement to what my noble friend Lord Warner said about Scotland, which has adopted an experiment in free personal care, including free personal care at home. I am aware that whenever I refer to this the noble Lord, Lord Sutherland of Houndwood, whom I greatly respect, rebukes me for getting it wrong, so, rather than quote myself, I shall quote two independent researchers, Margaret and Jim Cuthbert, members of the Public Interest Research Network at the University of Strathclyde, writing in Public Finance magazine. They confirm the figure given by my noble friend Lord Warner, showing that the cost in Scotland has doubled. They note a further fact about Scotland: that it is the cost of care at home that has gone through the roof, not the cost of care in residential homes. Taking account of the danger that, because of the Bill, people will choose to come out of residential homes and stay in their own homes, they expect that the cost in England will rise from £580 million in the first full year to £1.73 billion five years later. The cost will have trebled and it may treble again. There is no easy way to stop that cost exploding, this at a time of the most difficult fiscal retrenchment.

The researchers refer to the unintended consequences in Scotland; namely, that those who get a little help with lighting the fire or getting groceries have had their services squeezed to pay for free care. Expenditure of this kind has fallen 24 per cent in the past two years despite the rising elderly population. I could go on. It is a fiasco for Scotland, which the Prime Minister's Government now want to repeat for England.

Can we please call a truce on saying that the Bill will be paid for through efficiency savings? Local government and central government have eye-watering efficiency savings to make already. If Ministers think that, every time they dream up a new policy which they think could win some support, they can wave a magic wand called "efficiency savings" and the money will come flowing into the Exchequer, and the money tree will blossom in the Department of Health, they are talking complete rubbish. This Bill, if we allow it to go through in its present form, will mean increases in taxation or cuts in services or both, and that at a time when we are already going to get increases in taxes or cuts in services or both to deal with the

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nation's fiscal crisis. I ask the Government, if they have a shred of honesty left about them any more, to come clean about the cuts that will follow from this Bill and not pretend that, somehow or other, the money that Gordon Brown wants will drop from this tree in the Department of Health.

Some noble Lords may say, "Yes, it is costly, but there is a price for fairness; these people need fair treatment", and, of course, I agree with that. I shall therefore outline for noble Lords the fairness encapsulated in the Bill. Councils will have to spend far more on care, so they will have to intensify what they are already doing: cutting back, as they have in Scotland, on the little bit of care that people need to stay fit and healthy in their own homes in favour of concentrating resources on those with the greatest care needs. Is that fair?

Let us look at the people the Government are helping. There comes a time when people with the greatest care needs such as those with advanced dementia and so on reach a point where care at home is no longer an option, certainly not an affordable one when 24-hour care is required, and they need to go into a care home. On that day-and for many it is the saddest day of their lives-they will find that not only do they have to leave their home, they have to dig into their pockets to pay the full cost of the care they are moving into. Is that fair? What of families who find themselves torn between the desire to do the right thing by mum and the fact that if they do-by letting her go into a care home when she needs to-their inheritance is going to be blown away? Is that fair? What of local councils that want to respect the rights of people to remain in their homes wherever possible, but know that if they can get them to go into a care home, their care will be paid for by themselves as individuals and not by the council? Is that fair? What of the hard-pressed taxpayer who will have to pay for all this? Is that fair, when the money will go largely to benefit better-off old people in the last years of their lives? There may be arguments for this Bill, although I find it difficult to discern them, but fairness does not seem to me to be among them.

I referred earlier to the fact that I have spent 38 years in and around the Houses of Parliament. For two of those years I had the great privilege of working as a lowly adviser to James Callaghan, whom many noble Lords will remember in this House, at No. 10. Many of your Lordships will also remember the winter of discontent, even if many outside this place have forgotten it, and the Government's appalling poll ratings with an election coming near. The Government were facing a vote of no-confidence in the Commons. We advisers cobbled together a scheme whereby we could win that vote with the support of the Ulster Unionists-at a price. It was £80 million to provide a gas pipeline under the Irish Sea. Rather pleased with ourselves, we put it to Jim. His response-he put it bluntly so I will paraphrase-was that he was not going to do something contrary to the national interest in order to try to get his party out of a hole. I know what would have happened to any aide who had dared to suggest to Jim Callaghan that he should adopt the policy encapsulated in the Bill before the House today as his election loss leader.

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5.12 pm

Baroness Masham of Ilton: My Lords, I thank the Minister for explaining the Bill. Having recently heard the Secretary of State for Health, Andy Burnham, speak to Cross-Bench Peers about this Bill, I have no doubt of his genuine wish to see this legislation help those most in need of care. He told us that the care his own mother had received was far from ideal.

My husband was ill for many years as the result of strokes, Parkinson's disease, diabetes and, eventually, a cancerous tumour. I can assure your Lordships that care at home is very expensive and has to be well organised, reliable and tailor-made for the individual. My husband's wish, like that of many people, was to live at home. At the end of his life, we had a traumatic time when the out-of-hours doctors over the weekend let us down. Also, we could not set up a drip to give him antibiotics as he had a problem with swallowing. He died in the A&E department of a local hospital which could not retrieve his medical records as it was a Sunday. By that time, pneumonia had taken hold. Community care for people with long-term conditions has a long way to go to make it better and safe across the country, as it is now.

With our personal experiences, it is not surprising that Andy Burnham and I feel that the present system should be made much better, but I have several queries relating to the Bill before us today. First, what will reablement consist of and how will it be given to a person in their own home? If a person is suffering from Parkinson's disease, for example, they may need physiotherapy, speech therapy and occupational therapy. They will also need their drugs monitored. If their home is in a rural location, it will be very expensive in terms of the time of those professionals travelling from place to place. There can be long waiting lists for speech therapists, for example; how will the social services obtain the necessary staff? Reliable assessments can be difficult when people are elderly, frail and disabled. They can have good days and bad days.

I have had personal experience with the North Yorkshire wheelchair service. Equipment can be vital for disabled people, yet communication in that area is appalling. When I tried to make contact last week, the only people in the office were a secretary and a volunteer. Pressure sores, which can be very serious, are estimated to cost the country several billion pounds a year, yet the wheelchair service, which supplies wheelchair cushions for prevention of pressure, is known as a Cinderella service. If the Government could make it efficient and quick, with staff who knew what each individual patient needed, much aggro and waste could be saved. This is one reason why I have my doubts whether the aspirations of the Bill will be distributed fairly across the country. All existing services should be made better first, or it will still be a postcode lottery.

Secondly, the Bill seems to be concerned only with very severely affected people. Does the Minister not realise that sometimes a little help can make the difference of enabling people to stay in their own home? There needs to be far more flexibility. What will happen if only the severely affected people are helped? This will be unfair and impractical.

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Thirdly, who will do the assessments? Will there be a right of appeal? All Bills of this nature should have a clear definition so that it is transparent who will benefit from free personal care, otherwise there will be much dissatisfaction and an even greater postcode lottery. Parkinson's is a long-term condition, and many people would benefit from preventive measures such as therapy services, aids and equipment, long before they develop critical levels of need. They would like to see this type of support extended to all who need it. They are also concerned that the process described in the consultation document on regulations and guidance is overbureaucratic, requiring people to undergo a period of intensive support before their assessment, followed by an assessment of their needs and then a separate assessment of their personal care needs. A three-stage process would be prone to waiting lists and confusion. It is essential that the process is as streamlined as possible. How long is the estimated time of the whole process before a decision is made for each individual once they have been assessed?

The Parkinson's Disease Society recently published the results of its largest ever survey of its members and found that one in four needed personal care services, but one in five was not receiving it. Also, their needs included home helps, house adaptations, equipment and medical expertise. It is evident that social care is drastically underfunded, and more help in the home is welcome, but the concern is about where the new money is coming from. I have heard that it may be coming from research-but which research?

We desperately need more medical research in many fields-to mention just one, high-risk neuroblastoma, an aggressive cancer in young children. It is a devastating condition for the whole family as it is rare and difficult to diagnose. Much more research is vital at this very moment. One does not want to see the Personal Care at Home Bill taking much-needed research money. Somehow the money must be found without robbing Peter to pay Paul.

There is no doubt that more specialist nurses and therapists will be needed if assessments are to be correct. As many of these conditions are neurologically based, the UK desperately needs more neurologists. I was told recently that the UK ranks alongside Albania in the percentage of neurologists to patients. We need more support for the centres of excellence dealing with these patients, who are often difficult to diagnose and need their drugs monitoring by experts. They also need personal care at home.

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