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I hope that the noble Baroness will forgive me if I use her question to respond on the CNA figures. At the end of January, the figure was 76,188 and the prison population was 83,378. I apologise for not having those figures earlier.

Lord Elystan-Morgan: My Lords, perhaps I may respectfully challenge the main thesis of the Minister in relation to the prison population. His case, put as always with great force and articulation, is that persons in prison are there because they have to be there. For 25 years I had the task of sentencing people, and I fully accept that persons who are dangerous must be in prison; there is no other place for them. I fully accept that persons who commit offences so outrageous that the public feel that there is no other place for them are properly in prison. However, that is not the situation. As the noble Lord will remember from what was quoted in the Grand Committee a few hours ago, 55 per cent of all prisoners have sentences of six months or less. They did not commit serious offences; otherwise they would not have been sentenced for such periods.

My other point relates to an order passed by Parliament within the past few weeks which made 25 years the starting point when considering a sentence for murder involving the use of a knife, instead of the 15 years it had been hitherto. Two calculations were made of the effect that that would have on the prison population. One, from the Sentencing Council, estimated that the population would increase by between 500 and 1,500 places. The other calculation, by the noble and learned Baroness the Attorney General, estimated that the increase would be somewhere between 1,000 and 2,000. Does that affect in any way the calculation that the prison population will be no more than 96,000 by 2014?

Lord Bach: I will deal with the noble Lord's two points. We probably disagree about those who should be in prison and those who should not, but the Government accept that there are problems with short sentences. Good alternatives can be found, if the offences are not too serious, in serious community work, rather than sending people to prison. More than one noble Lord has asked how it is that crime figures can go down at the same time as the prison population goes up. Serious and violent offenders receive longer sentences, and so those sentenced some years ago will still be in prison. It is therefore hardly a surprise to see an increasing prison population for serious and violent offences, while also seeing a fall in that particular type of crime.

As for his question on knife murders and the changes in the law, our estimate for an increase in the prison population as a result of increasing the starting point

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for tariffs for those convicted of murder with a knife-which is 25 years-is that will take a very substantial period of time to build up. We believe there will be no impact for 15 years or so; the effect will not be felt until the tariff these prisoners would have been serving has expired. While the figures are no doubt substantial, there is an area in which we will be able to study trends carefully and plan accordingly. Much will happen in the intervening period, and this point and the pressure that the noble Lord talks about will be factored into our future strategy for managing the prison population. So, as I understand it, these figures are taken into account in making our judgment.

Lord Hylton: My Lords, I would like to ask a question, which I hope is a constructive one, for the Government to take away and consider. What would they think of a new norm whereby in each prison, those prisoners with the best conduct report would be released in the event of that prison reaching its full normal capacity? Surely this would help to prevent overcrowding and provide a useful incentive of good behaviour. I have not given notice of this question and I do not expect a fully considered reply, but I hope that the Government will take it away.

Lord Bach: Of course we will take it away. The noble Lord has a great reputation and an interest in this field. The immediate danger is, if we did that, we would be back to early release in a same but different way from what we are just abolishing today. The court's sentence is of some significance in terms of when release is due, given that there are amounts allowed. Of course, if prisoners behave well, they benefit. Whether they should benefit by being let out of prison earlier than the judge intended is a difficult question.

Lord Maclennan of Rogart: My Lords, I recognise that the Minister is correct to say that persistent offenders may have to be incarcerated. What serious consideration are the Government giving to the findings of many who are concerned about imprisonment, that incarceration itself-and particularly long incarceration-contributes to the recidivism that is a characteristic of this country?

Lord Bach: The noble Lord, as always, asks a very pertinent question. The truth is that, in order to protect the public, some prisoners need to be locked up for a very long time. However, it is important that prison regimes have education proposals as well as other treatment, and I was quoting earlier-to use the noble Lord's phrase-in Court No. 1, the fact that huge amounts of money have been spent over the past few years to ensure that the prison regimes have much more education and drug treatment provision than was ever the case. It is just a horrible fact of life that there are people in our society who have committed such bad crimes that they need to be locked up for a long time. There is often hope for them, and I have seen this in prisons myself. I went to Foston Hall Women's Prison in the Midlands the other day, where I met a number of women serving life sentences. Every consideration was being given by excellent prison staff to helping these women get closer to the day when they would be able to come back and live in society.

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Personal Care at Home Bill

Committee (Continued)

6.56 pm

Amendment 9

Moved by Earl Howe

9: Clause 1, page 1, line 11, leave out "personal"

Earl Howe: I shall speak also to Amendments 12, 31, 35 and 43. We come to an issue which I personally find extremely troubling and difficult. That is the impact which this Bill and its regulations will have on those people who, by any criteria, have care needs that are of the most acute kind, but who nevertheless will be deemed ineligible for free personal care under the proposed assessment criteria. I refer specifically to people who are deafblind.

Deafblindness much surely be one of the most isolating and burdensome of disabilities, but it is important to understand that the kind of care which deafblind people typically need is quite different from the care usually given to a frail, elderly person. Deafblind people are often able to wash and dress and feed themselves, but without support in communication and mobility, many of them are effectively condemned to a life of solitary imprisonment in their own homes. It can be impossible for them to have access to food or basic information, and they are prevented from interacting with other people. Taking exercise, going out to the shops, visiting the doctor, dealing with household bills-all those things which we take for granted-are out of reach without physical help. Indeed, deafblind people are at extreme risk of having to go into residential care if their care needs are not addressed-exactly the imperative which has motivated the Government to bring forward this Bill.

Yet this Bill will be of no use to those suffering from deafblindness, despite the fact that under the current FACS guidance, deafblind people are frequently assessed as having a critical need under the category that relates to involvement in family and wider community life. The Bill in its current form will undermine FACS guidance because it prioritises the provision of personal care over other types of care, such as communications support-the one form of help above all others that gives deafblind people a lifeline to the wider world. As such, the Bill appears discriminatory.

Sense, the voluntary sector organisation which champions the interests of deafblind people, has submitted a paper to the Joint Committee on Human Rights in which it argues that the Bill violates the Human Rights Act. In particular, it says that a failure to provide adequate social care for deafblind people can result in a breach of Articles 3, 5 and 8 as well as Article 1, Protocol 1. I am not in a position to offer a legal opinion on the case that Sense has advanced. However, it needs to be taken most seriously.

The Government justify the Bill's discrimination on the grounds that there are limited resources available. In saying that, they argue that their policy is directed to reach those who have the highest needs. The counter argument to that is that the policy is neither

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reasonable nor proportionate because deafblind people with the highest care needs will not receive care under this policy.

Amendments 9, 12, 31 and 43 are designed to address these issues by broadening the definition of the kind of care that will be covered by the Government's policy. Amendment 35 takes a different approach deliberately distinct from that of Amendment 9 and the others. It is a much narrower amendment which would ensure that those deafblind people who have the greatest need and who are at most risk of needing residential care if their needs are not met may qualify for free care and support. I hope the Government will look at this. There is no doubting the recognition that Ministers have given to the unmet needs of deafblind people. Only in June last year they reissued the guidance document, Social Care for Deafblind Children and Adults. This guidance is aimed above all at social services staff. The case studies that Sense has provided to me, and I believe to a number of your Lordships, are of the most heartrending character. The noble Lord, Lord Low, has asked me to say how sorry he is not to be able to be present to support these amendments and to give the Committee a more graphic picture than I could ever give of the gravity of the disability that deafblind people have to endure. I am in no doubt that the needs of deafblind people should be factored into any revision of social care policy. Therefore, I beg to move.

Baroness Thornton: Again, I have a very long note about all the different issues that I thought the noble Earl might raise to do with Scotland and all sorts of other things which I will not inflict on the Committee at this point. I will deal with the very important deafblind issue that he raised and make one or two comments about the generality of the other amendments in the group.

I absolutely accept the point that the noble Earl made about the gravity of the situation of deafblind people and the problems that they face. It is very important that their needs should be recognised. There is no doubt about that at all. The services concerned are clearly of high importance to people who are deafblind or have multiple sensory impairments. As the noble Earl said, specific guidance, updated and published in June 2009, advises local authorities that they must ensure that services provided to deafblind people are appropriate and that deafblind people are able to access specifically trained one-to-one support workers if they are assessed as requiring them. For that reason we published statutory guidance on that issue. I have an assurance that the guidance that we will produce will cross-reference with that guidance. However, between now and Report I will have discussions with Sense and its supporters to ensure that we are doing that in the right way because this is very important. I reassure Sense that we are taking these issues very seriously and that they are taken into consideration, if not in the Bill at least in the guidance that we will produce. I undertake to do that because, apart from anything else, I want to reassure myself that this is okay.

Amendments 9, 12, 31 and 43 seek to allow regulations on local authority functions and reablement to relate

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to overall care packages to individuals free of charge, and not, as the Bill intends, provision of the personal care element only without charge. I understand the intention of this is to ensure that the financial burdens for those in the highest needs are reduced as far as possible, but this falls outside the scope of this Bill and outside the cost envelope which has been allocated.

It is fair to say that it is our intention to reform the care and support system so that it is fairer for all in the longer term, and we will be setting out in detail in the White Paper how we intend to do this. However, full care provision through taxation and free of charge at the point of need is something that we know is not sustainable now, or for the longer term, and was ruled out in the Green Paper. That is why we cannot accept Amendments 9, 12, 31 and 43, and ask that they are withdrawn.

Earl Howe: My Lords, I am grateful to the Minister. The reason for tabling amendments omitting the word "personal" was not to widen the scope for delivering free services to those living at home; it was rather to highlight the importance of defining "personal" in a way that did not exclude deafblind people. While I note what she said in relation to the guidance, I am a little doubtful that it will of itself be sufficient because the definition of "personal care" in the draft regulations that the Government have promulgated does not to my mind include the kinds of tasks and activities with which deafblind people typically require help.

Baroness Thornton: As I think I have said to other noble Lords, I regard this Committee stage as feeding into the consideration that will be given to the issue. As the Committee knows, the closing date for consultation on the regulations is tomorrow. We will need to look at this discussion and the doubts that the noble Earl has expressed about the regulations.

Earl Howe: My Lords, I very much welcome that assurance. I know that Sense will be very pleased that it will have the opportunity to make its case to the Minister. In the light of her assurances, it is appropriate for me to beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10 not moved.

Amendment 11

Moved by Lord Lipsey

11: Clause 1, page 1, line 16, leave out "requiring" and insert "permitting"

Lord Lipsey: My Lords, one thing that has come out very clearly from the debate is the extreme doubt about the cost to local authorities of what is proposed in the Bill. Wide-ranging figures have been suggested but I will not go into that now. Local authorities have asked that if the estimated cost is exceeded the Government should agree to pick up the whole of the bill. It cannot be asking much of the Minister kindly to give them that assurance this evening since it is in accordance with the new burdens doctrine. That led me on to another thought which relates back to a

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debate we had earlier this afternoon-should we be imposing this scheme on all local authorities at once in one go?

We have learnt a lot from the Scottish experiment. Some people think that it has worked well, some do not, but we have learnt a lot from it. Would it not be best to try this scheme in a few local authorities as part of a holistic package addressing the long-term care issue? Should we not try it in a few local authorities, see how the cost works out, and give them incentives from the Government to try it out? We would then be running a kind of pilot experiment, rather than imposing in one great movement a whole package which we would have great trouble untangling should the fears that I and other noble Lords have expressed here and elsewhere prove to be justified. Why are the Government determined on a national scheme?

Baroness Gardner of Parkes: I support the idea of a pilot scheme, but if it is introduced, it is important that it covers widely differing areas. I am told that, for example, in Buckinghamshire, the majority of people meet their own costs and yet, perhaps, in Dagenham, they do not. It is very important that any pilot scheme should cover a wide range of areas, to give an assessment of the different situations that occur.

Baroness Thornton: Amendments 11 and 15 in the names of my noble friends Lord Warner and Lord Lipsey and the noble Baroness, Lady Murphy, focus on the discretion of local authorities in providing personal care at home. Before I come to the specific amendments, some of which are, of course, against the spirit of the Bill's principles, I say to noble Lords that we recognise that, when determining people's care needs, local authorities are best placed to judge what is appropriate in their own situations, depending on their clients and on the availability of services. However, we want to move towards greater consistency of care provision and, as noble Lords know, we will soon have a White Paper.

We believe-I know that my noble friend Lord Lipsey disagrees with this-that this is a stepping stone towards greater consistency of care provision. The Bill requires all local authorities to offer free personal care at home to those with the highest needs in order to end the postcode lottery which this House has discussed on and off for many years. It will allow councils to have elements of continuing discretion so that they can provide the most appropriate services, which will be dependent on them knowing what works well in their community.

We think that it is right that the Bill proposes that functions imposed on local authorities relating to eligibility for free provision should include the exercise of that discretion, so that they can effectively manage the provision of free personal care in their area. There will be a need for some cases to be considered in light of other healthcare services being provided to an individual and we have already discussed that.

There is sometimes confusion about continuing care and what it means. It is care provided over an extended period of time to a person aged 18 or over to meet physical or mental health needs that have arisen as a result of disability, accident or illness. If an individual has primary healthcare needs, NHS continuing

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care should meet this and the individual's package of care would be provided by the NHS and not by the local authority. It is important to recognise that if an individual needs continuing care to meet needs which do not include a significant health component, this will be provided by the local authority-it is right that they should be able to receive their personal care free of charge, if they qualify for it. It is important that NHS continuing care and free personal care are recognised as different ways of delivering health and social care where the balance between health and care may differ.

7.15 pm

I think that the noble Lord, Lord Lipsey, is trying to seduce us by his proposals of pilot schemes, but I am afraid that he is not going to divert us from our intention in this matter. We oppose Amendment 11, which is a wrecking amendment. It refers to regulations under Section 15 of the Community Care (Delayed Discharges etc.) Act 2003 as having the power to be able to "permit", as opposed to "require", free provision of personal care. However, Section 15 enables the Secretary of State to make regulations requiring-as opposed to permitting-qualifying services to be provided free of charge. This amendment does not change the fundamental nature of the power under Section 15 and therefore the reference to regulations permitting free provision of personal care does not correctly reflect the nature of that power. Therefore, the amendment is not necessary. Local authorities have the power to charge for non-residential community care services but are not obliged to do so. They are therefore already able to provide free personal care if they wish and do not need additional powers to be able to do so.

Amendment 15 seeks to limit the functions relating to eligibility for free provision of personal care which can be imposed on local authorities in regulations. However, in doing so, it would prevent a very important sub-delegation of powers by removing reference to those functions included in the exercise of discretion. We believe that local authorities are best placed to judge what is appropriate in their own situations, dependent on their specific clients' needs and circumstances and the availability of services. It is therefore right that functions imposed on local authorities relating to eligibility for free provision should include the exercise of discretion, so that they can effectively manage the provision of free personal social care in their area.

I ask the noble Lord to withdraw his amendment.

Baroness Murphy: I apologise profoundly that I was not here at the beginning of this debate-I was whipping through the previous group. Amendment 15 deals with the exercise of a discretion. Can the Minister tell me whether that refers to the reablement clause? I am not sure, from reading the Bill. My understanding is that the local authority might have a discretion when or not to insist on the reablement. If it does, I am not sure how that might relate, for example, to a stroke patient returning home with profound disabilities, who would probably not reach his maximum potential for several years, but whose carers might feel it was inappropriate to subject to reablement at that point. Can the Minister reassure us about how the discretion could be exercised in relation to reablement?

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Baroness Thornton: My understanding on the discretion with regard to reablement is that, indeed, the local authority has the power to use its discretion. We addressed this issue, I think, when I was asked about people receiving palliative care and whether subjecting them to reablement would be appropriate. At that time, as I recall, I said that it would depend. You would not necessarily say that someone who is receiving palliative care should not have reablement, but it may not be appropriate. The local authority would have the discretion to decide whether that was the right course of action. I will write to the noble Baroness in detail if I need to, but my understanding is that this discretion covers reablement.

Baroness Masham of Ilton: Would it cover people with cancer and motor neuron, where reablement might make them worse rather than better?

Baroness Thornton: That is the point-you have to look at each person's issues and problems. With cancer, reablement might be appropriate, because someone might be in remission for a long time, so reablement might be exactly the right thing to offer. On the other hand, it might not be, because the illness is terminal and what is needed is palliative support as an end-of-life strategy.

Baroness Masham of Ilton: That is another example of flexibility.

Baroness Thornton: That is exactly the point, yes.

Lord Lipsey: My Lords, of course I regret my failure to seduce the Minister: I shall bear it with as much equanimity as I can muster. Therefore, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendments 12 to 16 not moved.

House resumed. Committee to begin again not before 8.19 pm.

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