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I commend both these amendments to the Committee. I hope that the Minister will accept them today; if not, she may be assured that we will be pursuing them on Report. It will be a much better Bill when we succeed, as I am wholly confident that we will, in inserting both amendments into it at that stage along with other necessary changes.
8.45 pm
Lord Butler of Brockwell: My Lords, I support Amendments 38 and 46, particularly Amendment 46, on the grounds that they would both require some further action in Parliament before the Bill came into effect. Indeed, I do not see how the Government could honourably object to having a procedure of this sort. I have criticised the process by which this policy was abruptly adopted and introduced, but I leave that aside. Nobody could listen to the debates today without being aware of the serious concerns among those in the frontline about the incentives that this Bill would introduce, and nobody could be unaware of the controversy about the costs of the Bill and the uncertainty about that. As the noble Lord, Lord Lipsey, has said, the consultation procedure does not even finish until tomorrow.
There used to be-I hope there still is-an honourable convention that, in the lead-up to a general election, a Government did not take decisions which would commit the next Government to very wide-ranging and possibly
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The Government may win the general election. If they do, it will still be in the Government's interests to have had a pause for reflection, to have taken into account the outcome of the consultations and to have considered the regulations which should be brought forward before they bring this Bill into effect. If they lose the general election and the Opposition become the Government, for the Government to have forced through this legislation in advance of the election is, in my belief, in the highest degree irresponsible. I do not speak from a politically partisan point of view when I say that. In political terms, the Government might regard this as a piece of scorched earth; I think, in national terms-and I do not use these words lightly-to force through this legislation, in advance of a general election, and to impose it on an incoming Government would be an act of national sabotage.
Baroness Murphy: My Lords, follow that, as they say. The noble Lord, Lord Lipsey, has three amendments in this group to which I have added my name, but I support all the amendments in this group. They go largely to delay and alter the style of implementation, giving the Government more time to do what they need to do to get this legislation in shape. It is the most important group of amendments that we have debated today. If it were to be accepted, it would allow all of us to feel a little more confident that what the Government want to achieve would eventually be achieved by a consensus between the parties and in the country about what needs to be done on personal care. This would give us a real breathing space, and an honourable one for this Government to accept. I support the amendments in this group and I hope very much that the Government will listen.
Baroness Barker: I will speak to Amendment 47, which stands in my name and is grouped here. In doing so, I thank the noble Baroness, Lady Thornton, for her efforts to ensure that Members of this House had copies of the draft regulations and the consultation paper on draft regulations. There is something fundamental in those documents which led me to table Amendment 47, which asks for there to be a review not within a year of the Bill being implemented, but within six months. The reason for that is that I think noble Lords have overlooked something fundamental. We have made an assumption about the eligibility for this provision; we have assumed that it will make free personal care widely available to many people.
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I am not sure that that is true. It depends entirely on the answer to one question, which I want to put to the Minister. Pages 14 and 15 of the consultation document about the regulations helpfully set out two things side by side. One is the FACS "critical" criteria band; the other is the list of activities in daily living with which people must have problems to be eligible. It is quite clear from the activities of daily living that someone must have problems with four of them. However, in the FACS "critical" band, the wording is not clear. The criteria for the critical band are as follows; I apologise for reading them out briefly. Somebody's needs are deemed to be critical when:
"Life is, or will be, threatened and/or ... Significant health problems have developed or will develop ... Serious abuse or neglect has occurred or will occur ... There is, or will be, little or no choice and control over vital aspects of the immediate environment ... There is, or will be, an inability to carry out vital personal care or domestic routines ... Vital involvement in work, education or learning cannot or will not be sustained ... Vital social support systems and relationships cannot or will not be sustained and/or ... Vital family and other social roles and responsibilities cannot or will not be undertaken".
How many of those criteria must a person fulfil to be eligible? This is the curse of the bullet point; it is not clear. It mentions these criteria but says "and/or". Is it two? Let us presume that it is two. Is it three? Is it four? That, in conjunction with somebody having to have problems with four ADLs, means that somebody must be very, very ill and restricted in their ability to live to be eligible for this. That makes a huge difference to all the assumptions that underlie the Bill.
It could be that in six months' time it is quite evident, after the implementation of the Bill, that the criteria have been drawn so narrowly that it is not delivering personal care to anyone, or to anything like the number that had been assumed. In which case, I assume, the Government would quickly want to rectify that. Equally, in six months, if this legislation is enacted, word may go around like wildfire that free personal care is available, at which point thousands and thousands of people who self-fund present themselves for assessment. In either of those two cases, that means that this legislation would be wrong. Therefore, it seems to me that within six months we can begin to tell whether it is appropriate or not. The critical question that I want to ask the noble Baroness is how many of those criteria does one have to fulfil? From that we can work out what the impact is likely to be both in budgetary terms and the likely impact on social services departments, which the noble Lord, Lord Best, set out so eloquently.
The Lord Bishop of Norwich: My Lords, the financing of this Bill is a puzzle to me but then lots of things to do with finance are a puzzle. As I understand it, the Pre-Budget Report suggested that annual savings of £250 million could be achieved from the reduced costs of residential care by 2012-13-and thus I suppose available to local authorities. However, after implementation on 1 October local councils would be expected to find an additional £250 million a year straight away. Are these two sums unrelated, though strangely the same figure? The submission from the LGAs seemed to me persuasive, as did the speech of the noble Lord, Lord Best, tonight.
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It is intriguing for a bishop that the Government's declared commitment to ensure new burdens falling on local authorities should be fully funded is commonly called the "new burdens doctrine". I fear doctrines are much misunderstood. They are thought to be rigid and inflexible by those who do not understand them. Cardinal Newman, soon to be beatified, wrote a lot about the development of doctrine. I will spare you too much theology. The essential truth remains, in his understanding, that the understanding of doctrine develops and a doctrine gradually discloses more of its truth through history. Thus the doctrine is reshaped as its truth unfolds.
I wonder what sort of unfolding of the "new burdens doctrine" we are actually witnessing in relation to this Bill. There seems to be a curious flexibility built in about local government financing of the provisions of this Bill, which is not carried across into the very sharp distinctions that are drawn between care at home and care in residential care homes.
I was much struck by the explanation given by the noble Baroness, Lady Barker, of her amendment. It seems to me what we probably need is both a short-term review, for the very reasons that the noble Baroness, Lady Barker, has explained, as well as much longer-term reviews of what this Bill might lead to. It could well be what the noble Baroness, Lady Barker, has explained will happen. The fear in my part of the world is a rather different one-some of the adult day care centres in Norfolk have been under threat already. They certainly do not care for those in the greatest need, far from it, but as well as specialist services they provide meals, companionship and a life beyond their home for those who would otherwise have very little social engagement at all. Being continuously at home without any social encounter can cause many older people to decline in spirit pretty rapidly and that often leads on to greater physical decline.
Such unintended consequences of this legislation could be very expensive in a host of ways, not simply financially, but in terms of our social fabric. I noted that the briefing from the Equality and Human Rights Commission, while broadly supportive of the Bill, raised this point about negative trade-offs. What I am sure none of us wants to see is the free provision of personal care for some in great need at home leading to others, with lesser needs, feeling imprisoned in their homes.
9 pm
Baroness Masham of Ilton: My Lords, having listened to the debate on these amendments, I think that whatever happens, it is most important that vulnerable people and their carers should not have their hopes raised too high by what seems to be an impossible challenge, especially if there are not enough trained personnel to make it happen. It is not just finance that is important; it is also people's hopes, expectations and spirit.
Lord Sutherland of Houndwood: My Lords, I support many of the amendments in this group: Amendments 17, 38, 44, 46 and, with some modification, Amendment 47. The important thing about all these amendments is that they would require further interrogation by both
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I have a specific point on Amendment 44. When something like this is put into place, it is important that we see the outcome in terms of real costs. However, I would also want to add the word "net". We need to look at the net costs of provisions of this kind. The information that I have is that in Wales, for example, the percentage of the cost of providing personal care raised by means-testing is in the region of 14 or 15 per cent. That means that the expenditure is already committed to virtually 85 per cent of actual costs. We need to see what the net cost is in order to properly assess whether savings elsewhere would go some way-perhaps the whole way-towards covering some of these costs.
I support these amendments because, as I said, there has to be rethinking and constraint, but I would not want to stop the Bill dead in its tracks. Naïve as I am as a Cross-Bencher and in the ways of party politics, I realise that emergency legislation is the flavour of the month before a general election. However, as the noble Lord, Lord Lipsey, indicated, this issue is back on the agenda in a sensible and serious way. The wider community is debating this sensibly regardless of whether we in this House and down the Corridor are doing the same.
I fear that if the Bill is stopped in its tracks, it will not come back in significant form after an election-whether as a similar Bill or as any other legislation. My fear is that the discussion of these immensely important issues will once again be sent into the long grass because "they are too hard to deal with" or "the problems are too large and the costs would be too great". For various reasons, the latter view is naïve. The costs of pensions in the public sector are too great, but we are not debating those in the same detail. We ought to be looking at this issue and bringing it back. It will not be brought back in any realistic way unless something is put on to the statute book that in the end, to be honest, requires revision. These provisions allow the possibility of such revision.
Baroness Gardner of Parkes: My Lords, the noble Baroness, Lady Masham, raised an important point regarding the personnel available to deal with these issues. They are not available. From both direct personal experience and anecdotal comments from people who have told me of their histories, I have found that in many cases local authorities cannot assess anyone within three months. If that is the case, how will they carry out all these new assessments? Getting people trained for these jobs will be a major issue, not just in terms of expense but in terms of getting them all to a point where they can operate efficiently. I said on Second Reading that the whole Bill is pure electioneering. That is tragic because this is a worthwhile cause which we should all be looking at.
The points made by the noble Lord, Lord Sutherland, are very interesting, and I appreciate his comments. However, I support the amendments. The whole thing has to be thought out much more thoroughly and local authorities must be sure that they can produce not only the money but the trained staff necessary to carry out the assessments and deliver the care.
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Baroness Thornton: My Lords, I am replying to this group of amendments: Amendment 17, in the name of the noble Lord, Lord Best; Amendment 20, in the names of the noble Earl, Lord Howe, and the noble Baroness, Lady Morris; Amendment 38, in the names of the noble Lords, Lord Warner and Lord Lipsey, the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy; Amendment 44, in the names of the noble Lord, Lord Best, and the noble Earl, Lord Howe; Amendment 45, in the names of the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy; Amendment 46, in the names of the noble Lords, Lord Warner and Lord Lipsey, the noble Baroness, Lady Murphy, and the noble Earl, Lord Howe; and Amendment 47, in the name of the noble Baroness, Lady Barker.
This group seeks to address a number of issues concerning the Bill-the commencement date, the way in which it will be reviewed, and the cost of the Bill. It is right that legitimate concerns are raised about the way the provisions are introduced, the costs and how it will be reviewed. We do not agree that delay is needed or warranted. We have made it clear that we want to introduce the regulations so that they will take effect from 1 October this year and people can benefit from the earliest possible date. I think that it is disappointing that so many councils that have responded to the consultation have so far focused almost solely on the financial aspects of the scheme-I will return to our view of their figures in a moment-and so little on the practicalities of implementation that we identified in our consultation document.
These proposals are not brand new or a great surprise to these councils; what we are intending to do was signalled well in advance. Indeed, we are working with them and with other stakeholders on an almost constant, daily basis. We are committed to working very closely with them and supporting them through the process of introducing this. We know that this is a challenge for them, but we think that it is achievable if they start in a timely fashion.
The Bill has a simple purpose: to bring relief to those disabled adults and older people who have the highest personal care needs. Despite the furore surrounding the Bill, we do not believe that our costs are underestimated. We think that they are a fair cost: £670 million, with £420 million funded from the Department of Health and £250 from local government efficiencies. The estimates of the costs of free personal care at home are derived from analyses by the Personal Social Services Research Unit at the London School of Economics, using its micro-simulation package for older people, with additional analysis by Department of Health analysts. We are confident about the accuracy of these estimates.
Lord Lipsey: May I please interrupt the Minister? It might save the Committee a lot of time if she would agree to publish a full account of those calculations by the PSSRU and the department, so we can all take a view on them.
Baroness Thornton: I will certainly look into ensuring that those calculations are published as far as they can be. I thought that they already had been.
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The ADASS survey, to which less than half of the councils responded, proposed an annual cost of £1 billion rather than £670 million. Your Lordships will not be surprised to learn that we have gone through the figures with the ADASS, and it has conceded not only that it had overestimated the effects of lost income but that it had misread the impact assessment on the likely numbers of younger adults who might be eligible for free care. Our detailed consideration of its survey therefore gives us no reason to believe that the estimates that we originally published were not correct. However, we will be focusing on this and remain committed to our review in 12 to 18 months, after the policy is introduced, rather than providing powers to review it in the Bill.
I say to my noble friend Lord Lipsey that the PSSRU modelling has already been published. I will ensure that he receives a copy of it. I thought that I had read it somewhere.
Amendment 17 seeks to delay the introduction of free personal care at home to those with the highest need by delaying the date when the necessary regulations may be enacted. We have been clear from the outset that we intended to introduce the provisions from 1 October. We have already made available a working draft of the regulations which will inform how this scheme is proposed to be delivered, and we intend to publish detailed guidance alongside the national assessment tool for determining eligibility for free personal care in the early summer. We know that this is a challenge for local government but, as I say, it has had plenty of notice of these proposals. It also has a highly trained workforce and the tools which will enable it to implement this if it has the will to do so. We do not believe that there is any need to delay the implementation of the regulations enabled by the Bill in this way, and as such ask the Committee not to support Amendment 17.
I turn to Amendment 20, in the name of the noble Earl, Lord Howe, and the noble Baroness, Lady Morris. The policy is to provide free personal care and it is right that councils play their part in delivering it. As such, it would be inappropriate to accept this amendment, which would enable the Secretary of State to put a cap on the amount of free personal care which councils can be required to deliver. I am concerned that setting such a limit, giving local authorities the protection of an arbitrary cap on expenditure, might reduce the incentive for them to manage the costs of the policy as effectively as possible. Indeed, the Audit Commission's report Under Pressure, released last week, said:
"There are huge financial pressures on councils in the years ahead, but redesigning services and exploiting technology can make them better, more efficient and more personal".
The report found that the longer people can stay at home, the happier they are and the less they cost the taxpayer. Innovative, personalised services mean that older people stay independent longer and save public money in the long run. Members of the Committee have conflated two issues as regards savings. Indeed, savings are to be gained in the long run by keeping people out of homes and independent; there is no question about that. However, those savings will not fund this scheme in the next two years; 4 per cent of local authority spend-which is what local authorities
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We cannot accept Amendment 38. The current position under Section 15 of the Community Care (Delayed Discharges etc.) Act 2003 is that regulations made by the Secretary of State are subject to the negative resolution procedure. Despite the impassioned plea from my noble friend on this issue, we listened to what the Delegated Powers and Regulatory Reform Committee had to say about the matter. On 22 January this year, the committee reported:
"There is nothing in the Bill to which we wish to draw the attention of the House".
We have made available a working draft of the regulations. If at all possible, we intend to publish the Government's response to the consultation when the Bill reaches its next stage; in other words, at the earliest opportunity. Noble Lords will know that I will keep them informed and make that available as soon as I am able to do so.
Amendment 44 would require the Secretary of State to commission an independent review of the costs of delivering personal care each year, the estimated costs of delivery in the next five years, the savings made from decreased use of residential care each year and the estimated savings in the next five years. It would require an annual report to Parliament of this information. In the impact assessment for the Bill we have committed to reviewing the implementation of free personal care within the first 12 to 18 months of the policy coming into force. After this review it will be possible to reconsider the predicted costs of delivering free personal care and the conditions for eligibility if necessary. If our costings for the first year prove to be accurate, it would seem to be an unnecessary burden on local authorities to have to produce data to enable the Secretary of State to report to Parliament annually on this matter. Such a report would require a much greater volume of data collection by local authorities than we had envisaged.
Amendment 45 seeks to delay the commencement of the provisions within the Bill until a review of their affordability has been carried out and reported to Parliament. Such a report would achieve nothing because the Bill's provisions themselves simply concern the enabling powers for regulations on free personal care, not the substantive provisions on free personal care themselves, which would include the circumstances in which free personal care is to be provided. It seems to me that the review at 12 to 18 months would deal with that issue also.
Amendment 46 is another attempt to delay the coming into force of the Bill and the provision of free personal care to those who need it. The Delegated Powers and Regulatory Reform Committee has examined the memorandum which we sent it and which reflects our views on the appropriate level of parliamentary scrutiny for any secondary legislation that is to be made under Section 15 of the 2003 Act.
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