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In the third quarter of 2009-10, 50,000 individuals across England were eligible for NHS continuing healthcare, and the number of eligible people continues to increase. However, it is important to recognise that if an individual needs continuing care where their primary needs are not health needs, this will be provided by the local authority, either alone or in partnership with the NHS where appropriate. It is right that, in those circumstances, they should be able to receive personal care free of charge from the local authority if they qualify for it. It is important that NHS continuing healthcare and free personal care are recognised as different ways of delivering health and social care where the balance between health and care may differ.

It is vital that people do not fall between the health and social care systems. We need to be very clear in guidance that those with continuing needs get the

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appropriate services, whether that is health or social care. While the number of people who receive NHS continuing healthcare at home is small compared to people receiving NHS continuing care in residential care homes, there are some people at home who meet the criteria.

We will ensure that the guidance we produce will address the need for primary care trusts and councils to work together to try to ensure a smooth interface between NHS continuing healthcare and free personal care, and that people's needs are identified appropriately.

Amendment 21 would appear to allow regulations made by the Secretary of State to make specific provision for people who have been deemed eligible for NHS continuing healthcare also to be considered for eligibility for free personal care. The amendment is unnecessary. Where people are deemed eligible for NHS continuing healthcare, the NHS is responsible for providing for all their assessed needs, including personal care if that is part of the overall need. As such, they would not require such free personal care from their local authority because they would already be receiving it for free.

Amendment 23 would exempt a local authority from providing personal care free of charge to a person who is eligible for or receiving continuing care. As I have explained, "continuing care" can refer to either health or social care services. If an individual needs continuing care, they may require services both from National Health Service bodies and from local authorities. Local authorities should be able also to provide free personal care to such people if they qualify for it.

However, if an individual is entitled to services as part of NHS continuing healthcare, the person's package of care to meet their assessed needs would be provided solely by the NHS and not the local authority, including any personal care that was required.

It is important that NHS continuing care and free personal care are recognised as different means of providing health and social care support across the NHS and social care systems. In all cases where it appears to a primary care trust that there may need to be NHS continuing healthcare, the PCT has a duty to take reasonable steps to ensure that an assessment of eligibility for NHS continuing healthcare is carried out.

3.30 pm

It seems to me that the Bill and the explanation that I have given are clear about who pays what. What I believe the noble Earl, Lord Howe, and to some extent the noble Baroness, Lady Barker, were saying is that there may be problems at the interface. We recognise that, and we have already said with respect to the home care that is envisaged as a result of the Bill that we will be issuing very clear guidance. The whole issue of the guidance relative to intermediate care will be covered by my noble friend Lady Thornton as part of the next group.

It remains for us to continue to be content that the national framework qualification for NHS continuing healthcare is developed in a way that is clear, to reduce

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any interface problems. In October 2007, the Department of Health introduced a national framework for assessing individuals' eligibility for NHS continuing healthcare, replacing the 28 local frameworks previously used by the NHS. A revised version of the national framework was issued in July 2009 to further develop best practice.

A key intention of the national framework was to reduce variations in eligibility for NHS continuing healthcare between PCTs. The data collected show that the variation has reduced significantly since the national framework was introduced.

In addition, all strategic health authorities have developed benchmarking processes that give them detailed information on the numbers eligible in each of the primary care trusts in their area. They are using this to help identify the causes of any variations and the actions needed to address them.

It is a fair comment that we must get the guidance right in all three areas. We are committed to doing so, and we have shown action with regard to this particular area of NHS continuing care.

I hope, on the basis of what I have said, that the noble Baroness and the noble Earl will not press their amendments. They both asked a number of detailed questions to which I am afraid I will not be able to give instant answers. I will look at Hansard to see whether there is some useful detail we can add in writing.

Earl Howe: My Lords, this has been a useful short debate and I am grateful to everybody who has taken part, not least to the Minister for his full answer. I found his answer partly reassuring, but we should listen very carefully to the noble Lord, Lord Warner, whose experience in these areas is probably unparalleled among those of us present. He is right. An awful lot of energy and effort are going to be devoted to shoring up a Berlin Wall, and that effort could more productively be devoted, as he rightly said, to looking after people.

Having said that, I very much welcome what the Minister had to say about the guidance. I think it is quite important that the guidance goes into some detail to remove some of the potential ambiguities in the terms that are to be used in the regulations. Even if the terms that I have seen in the draft regulations are tightened up, I am sure that there will still be scope for argument. The detail really does matter here. This is an area which all of us will follow with a lot of interest, but for now I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

Amendments 22 and 23 not moved.

Amendment 24

Moved by Baroness Greengross

24: Clause 1, page 1, line 22, at end insert-

"( ) require local authorities and primary care trusts to work together to assess a person's needs and deliver a package of personal care which is designed to maximise the person's ability to live independently"

Baroness Greengross: The Bill aims to introduce reablement or intensive support for people who need home care for the first time, which might be following

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a period of ill health or a stay in hospital. We know that the Department of Health will issue separate guidance to cover what a reablement package can include. The consultation suggests that this might be physiotherapy, occupational therapy or the installation of telecare or adaptations to the home. People with dementia are significant users of both health and social care. My amendment would encourage NHS and local authorities to have joint responsibility for delivering a health and social care package that could maximise the ability of a person to live independently after, for example, a stay in hospital. I am speaking briefly, as much has already been said on these issues.

Amendment 34 would ensure that the possibility of reablement is offered to people with dementia, who, as we know, are more likely to stay in hospital for longer than others who go in for the same procedures-the Alzheimer's Society report Counting the Cost, which was produced last year, revealed that people with dementia stay in hospital far longer than those who go in for exactly the same procedure. The longer people with dementia stay in hospital, the worse the effect of the symptoms of dementia and the individual's physical health. Discharge to a care home becomes more likely and anti-psychotic drugs, as we know, are more likely to be used to manage behavioural symptoms. I am concerned that people with dementia may be wrongly excluded from reablement because of the erroneous view that they might not benefit. The amendment would highlight the relevance of reablement whenever possible for people with dementia.

Lord Lipsey: I shall speak briefly to Amendments 26 and 28 standing in my name and the names of the noble Lord, Lord Warner, and the noble Baroness, Lady Murphy. Amendment 28 is simple: it would replace "maximise" with "improve". "Maximise" is the sort of word that should not appear in legislation; it suggests that we should do this whatever the cost, even if it is infinite, which in some cases it could be. "Improve" would be perfectly valid in this context and it would improve the legislation.

Amendment 26, which is the more important of the pair, is very much a probing amendment, as I want to explore the Government's thinking. Everybody is in favour of re-enablement. There is no question but that it is a good thing-the more it can be done successfully, the better. However, the Bill is drafted in such a way that, if an elderly person is not willing to accept a programme for re-enablement, their free personal care can be withdrawn. That kind of thing is quite common in social policy these days, in the same way that if an unemployed person refuses to take a job their allowance can be withdrawn. That is not always wrong, but I am a bit concerned about what this might mean in practice.

Re-enablement may not be an easy process for the person undergoing it. Physiotherapy can be painful to anybody of any age, but for someone in later life it may be difficult to tolerate. I do not like the idea that a local authority can say, "You get on and do your exercises, Mrs Jones, or we'll take away your free personal care". That is not the kind of relationship that should exist as a result of such legislation. What guidance will the Government offer to prevent this

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from being used as a heavy-handed tool to bully old people into doing things that may be on the edge of or beyond what they are capable of, rather than as a tool for encouragement and mutual working together?

Baroness Murphy: I added my name to Amendments 26 and 28. It is important for us to explore this discretionary activity around reablement and how it will be implemented. This is also our opportunity to look at the Government's thinking on reablement. I hope that the noble Lord, Lord Lipsey, will not mind me teasing him for a moment, but I find it interesting that he called it "re-enablement". That is because he cannot find "reablement" in the dictionary either. It does not appear in any dictionary yet; the term has been developed within social services to talk about rehabilitation. I cannot think of a single way in which it is different, but I will come to the cultural aspects of why it is called something different, because that is important.

This is exactly what intermediate care was set up to do. Again, therefore, I am afraid that there is extraordinary confusion. It is a bit like the difference between a social care bath and an NHS bath. It is not just the bubble bath that goes in from social services; the question is who delivers it and what the philosophy is. That is also the issue with enablement-I am sorry, I mean "reablement", which is the word that will go into the dictionary eventually.

I know that the wording of Amendment 26 is probably the reverse of what is desirable, so I will save the Minister the effort of responding to the wording. I am as keen as anybody that there should be the opportunity for people to have a professional assessment to see whether there is room for improvement and to provide interventions in the physical and social environment that will allow people to function as well as they possibly can. I am worried, however, about how this discretionary intervention will be exercised in practice, particularly in relation to the concerns that were expressed by the noble Earl, Lord Howe, and the noble Baroness, Lady Barker, on the previous set of amendments. The opportunities for confusion, for swapping around and for the exercise of discretion as to who pays for what and who does what are really quite frightening. As the noble Baroness, Lady Greengross, said, the problem arises in particular in relation to those with dementia, perhaps when they come out of hospital and are assessed for the first time, when there will be opportunities for toing and froing between authorities about who is going to do what.

The reablement approach is interesting, because it was developed with the sense of a restorative and capacity-building approach to improving the lives of disabled older people. It is as much a philosophical and cultural approach as a specific technique-not doing things for people, but assisting and doing alongside. However, one has to admit that there are at the moment no long-term studies that have demonstrated its efficacy over the longer term for people with a level of disability who will be the recipients of the free personal care. We are talking about a seriously disabled group of people. All successful studies have used very high levels of intervention. The Government's short-term studies are encouraging for people of all ages and show that one can achieve a small but significant reduction in

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the use of personal care services. However, it is important to note that the studies in the care services delivery efficiency programme focused not only on those practical aspects of daily living that are the subject of this Bill but on much broader criteria of success. The interventions were often for longer than six weeks and for far more hours than is being proposed here. In fact, the cost of those successful schemes was more than what has been allocated for the reablement process.

I suppose that a purist would point out that it is rather bizarre to implement reablement intervention as a prerequisite for receiving assistance, when the long-term studies currently in progress have not reported yet. We know that schemes are nearly always successful in their pilot phases, but long-term sustainability and cost-effectiveness may be difficult to predict. Given how often I have personally pushed for things to be rolled out when there is some indication of support, I have some sympathy with the Government in wanting to do this. However, we should realise that reablement has so far been shown to be effective on, for example, mentally alert people who, after a short stay in hospital with a fractured femur, are coming out and need to get their confidence back. In that scenario, it can be quite successful. However, the Government's short-term studies, which are fine as far as they go, show that reablement is less effective for those with severe disabilities over a longer period. It can be effective, but there is a group of people for whom an intensive, much longer period of care will be required. I have great doubts about the amount that will be required to get the improvements needed within the proposed level of reablement input. That is the purpose of this probing amendment.

As for Amendment 28, one should bear in mind that, for example, following a stroke or a head injury, maximum performance will not be achieved for perhaps more than two years, which would be a long time after the reablement process had finished. Therefore, I wonder whether the word "maximise" is quite right. I suggest that "significantly improve" would be a more appropriate phrase, particularly for people with mental health problems.

3.45 pm

Baroness Barker: I shall speak to my amendment in this group. I want to probe some of the areas mentioned by the noble Lord, Lord Lipsey, again in the context of intermediate care provisions, about which I have previously spoken. Just as intermediate care provisions have an interplay with NHS continuing care, so they do with personal care at home.

I have a tremendous amount of sympathy with the points made by the noble Lord, Lord Lipsey. I am a fan of reablement. I was a big fan of it when it was called rehabilitation and I was just as big a fan when it was called good hospital discharge. It works tremendously well for a number of people. An older person who has had a stroke and has lost their confidence would value having someone to help them through the processes of returning home and learning to cope again. Sometimes it is a rather crude tool, while the strictures around it and the question of who pays for it have sometimes militated against the policy being as effective as it could be.

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Some people come out of hospital and just want to go home. That is the most important thing to them. They do not want to go for weeks to a place where they do not know anyone to have an intensive period of what they consider to be treatment. They do not want that and they do not feel in charge of it. Some people want to stay with relatives for a while until they get themselves back together. If they choose to do that, sometimes they are deemed to be ineligible for intermediate care and they might be ineligible for personal care at home. However, some of them really need the services. What happens to people who need the services but who refuse to go through the particular pathway set out in this Bill?

I concede that much good has been done with the £900 million of intermediate care services, but some of the times and ways in which that policy has been implemented have not been particularly effective. An older person with a broken arm or leg probably could do with a period of reablement or rehabilitation when their cast is removed, which may be more than six weeks after they come out of hospital. However, they are not allowed to have that because it does not fall within the timeframe. When the Minister talks about intermediate care, as I know she will, will she say whether this Bill is an admission that for quite a number of older people that arbitrary six-week time limit has been ineffective?

Also, does the Minister share my concern that there has already been a considerable amount of rebadging-that is a new term, I think, but it has an awful lot of currency in the NHS these days-of intermediate care? I am thinking of things such as rapid response services, which now seem to be the flavour of the day. I do not have a problem with people choosing to call their services new things; I do not even have a problem with the services being given new and better purposes. However, I have a significant problem when money flows behind them in covert ways. That is what I am trying to get to the heart of: where does the money behind this system go? How is that tied to the assessment criteria and the eligibility criteria?

Finally, health and social care professionals are increasingly having to deal with a particular group of people whose need for services has not changed but for whom the money has run out. These people have funded their care for so long that they have run out of capital and resources. They have very significant needs, so how and when will they move into eligibility either for NHS continuing care or for free personal care? Their needs are very high; it is just that their resources have run out. The noble Lord, Lord Warner, is right: soon we will be back to a time when the assessment of clinical and social care needs will be governed largely by money. In our debate we need to do our best to prevent that.

Earl Howe: My Lords, Amendment 30 in my name is designed to highlight what I hope are some fairly uncontentious issues around reablement. I come at this from a rather different angle from the noble Baroness, Lady Barker, although I very much identified with all that she said.

Reablement, as we have heard, is to be a precondition for receiving free personal care at home, but the way that reablement is offered and delivered to people will

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be very much a matter for local authorities to determine. Local authorities that are strapped for cash will be tempted to use reablement as a way of putting off the day when they have to decide one way or the other on a person's eligibility for free personal care. Therefore, in the first instance I am worried that the process of reablement could be delayed, whether deliberately or not, as a means of postponing the burden of costs arising from having to give free care. How will authorities be monitored and held to account for the way in which they deliver reablement? What will prevent them from using reablement as a tool for withholding free personal care from those who would otherwise be eligible for it?

My second worry is very similar. There appears to be no limit to the number of times a local authority would be able to insist that someone went through a reablement process. The Minister in another place said:

"There are currently no proposals to restrict packages of re-ablement. It will be for councils to determine who might benefit from the intervention and whether it is appropriate to repeat this at a later date".-[Official Report, Commons, 8/12/09; col. 292W.]

In other words, people could be put through it at frequent intervals-not for their own benefit so much as for the local authority's benefit, in the hope that the obligation to deliver free personal care might be avoided following a further assessment of the person's ability to cope with the activities of daily living. Again, what is to stop this unreasonable use of reablement from happening?

For some people, a process of reablement will do little or no good, and may even end up doing harm; those nearing the end of their lives are one example. In some of these cases it will be possible to predict that reablement will be burdensome and at best unlikely to be of more than temporary benefit. While I can readily accept that a refusal to undergo reablement will, in many cases, debar a person from an entitlement to free care-and rightly so-there will be other cases where a refusal is perfectly reasonable in the prevailing circumstances. The noble Baroness illustrated one or two of those examples. How will the system be able to distinguish between those two types of case and what safeguards will there be for service users in that context?

The Equality and Human Rights Commission has developed that point further. It argues that some people may not want or may not be able to accept or understand that they need social care and support services because of impairment of their faculties, pride, their wish to remain independent or simply because they are in denial that they have become disabled and are in need of care services. In those circumstances, it cannot be right for free personal care to be refused on the grounds that someone had rejected a council's package of reablement.

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