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Lastly, I am concerned that reablement should not be withheld from someone merely on the grounds that the person's carer has refused to take an active part in the process. The fact that someone has an unpaid carer may or may not provide a useful means of support for a local authority in the way that reablement is delivered to the person. But the active involvement of the carer should never be made a precondition of reablement if for any reason the carer does not want to

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be involved. How will local authorities be prevented from acting in a way that unreasonably imposes on unpaid carers?

Lord Best: My Lords, perhaps I may add to the probing that is inherent in all these amendments. If the reablement is to be the subject of free support financially, does it have to take place at home or can it sometimes take place more satisfactorily in residential care on a short-term basis? In administering a retirement village outside York, we found that people leaving hospital often did not go straight home but spent time in the intermediate care phase in a residential setting. Would they then forfeit the opportunity to receive financial help with a reablement package that would be available only if they went straight home? Perhaps the Minister could clarify that.

Baroness Thornton: My Lords, I will be replying to this group of amendments which involves a substantial discussion on reablement, including Amendment 24 from the noble Baroness, Lady Greengross, Amendment 25 from the noble Baroness, Lady Barker, Amendments 26 and 28 from the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, Amendment 30 from the noble Earl, Lord Howe, and Amendment 34 from the noble Baroness, Lady Greengross. The amendments deal with the Bill's provisions on reablement. As has been clear from the discussion, they deal with different aspects so it might be useful to touch on what reablement means to the individual and how it fits into the wider range of services on offer, and to explore the issues raised by the noble Baroness, Lady Barker, about intermediate care. At its heart is the intention to help individuals to maximise their ability to look after themselves.

We have sometimes talked about intermediate care and reablement interchangeably. In essence, both reablement and intermediate care try to do the same thing. They have the same objective of helping to maximise a person's abilities and independence, but come at the problem from different angles. Intermediate care is often linked to people coming out of acute hospital care and returning to live in the community and there is often a health element to that care as well as social care. Reablement is a more preventive approach, identifying people at risk of having to go into hospital or residential care and putting in support to maintain people's independence to help them remain in the community. That might include specialist help to rebuild a person's physical skills and confidence. To answer the question asked by the noble Lord, Lord Best, reablement can be offered in a residential care setting.

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The aim is to maximise that person's independence. It means often looking at how the home environment can support independence. Indeed, at an earlier stage of the Committee, we looked at the range of aids and adaptations that might help people. Grab rails, telecare, adaptations of showers, stair lifts and disabled facilities grants transform the home environment. Regardless of the terminology, what is on offer is simple to understand-and it is widely supported and, indeed, it is already happening. The introduction of this Bill will enable us to provide further funding of

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£130 million to encourage more people to benefit. In answer to the point raised by the noble Baroness, Lady Barker, this is not about substitution; this is about adding to it.

There is powerful evidence that reablement works. A research study by the University of York demonstrated that the benefits of reablement are not just immediate, but are long lasting. This is why we believe that it is such an important part of the Bill. Reablement and intermediate care services of various kinds have been developed in many parts of the country. We want to encourage councils to offer reablement to more people wherever that is appropriate and to make it a standard part of how they support people's needs, rather than assuming that care needs will stay the same or increase. This is not about forcing people to do things, but about working with them and their carers and families to put them in the best possible shape. We recognise that there will be some people for whom reablement is not appropriate, and we believe it is right to let councils have the flexibility to make sensible judgments about the individual circumstances in which it is appropriate to offer it. Our guidance will address that issue.

I want to address the specific points that noble Lords have made about the cost of reablement-it is £130 million. We believe that this will mean that 130,000 people could benefit from reablement as part of the Bill. There is already money in the system to meet some of these needs. What we are doing now through the Personal Care at Home Bill is making more money available to encourage councils to offer more support to more people. Current community care funding provides for aids and equipment. For example, last year we invested £80 million to encourage council investment in telecare and we allocated £168 million for adaptations through disabled facilities grants.

Amendment 24 in the name of the noble Baroness, Lady Greengross, seeks to enable the making of regulations to require local authorities and PCTs to work together to assess needs and deliver reablement. It is indeed important, of course, that local authorities and partners in health work together effectively to support people. I agree with the motives of the noble Baroness, Lady Greengross, in proposing this amendment. It is vital that local authorities and their partners work together effectively. For the person who has a wide range of health and social care needs, it really does not matter whether what they are receiving is a social care bath or a health bath. Indeed, that interface, as mentioned by my noble friend Lord Warner, is at the crux of much of the care that we want people to benefit from. We recognise that they have to work together effectively, and if they do not it creates anxiety and is very frustrating.

In Putting People First, we have set out the cross-government strategy to transform adult social care. We recognise how important integrated working is across these sectors, and, in fact, we gave £520 million to councils to help them with that. We will be developing guidance which recommends that local authorities work with colleagues in NHS primary care trusts where it is appropriate. An acceptance of the noble Baroness's amendment, however, could force local authorities to consult a primary care trust where, in some cases, there may not be a need to do so.

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I turn to Amendment 25 tabled by the noble Baroness, Lady Barker. In its present form the Bill makes explicit reference to,

We are calling this process reablement. The Bill allows regulations to be made that will give local authorities the discretion to use a period of reablement as one of the criteria for determining eligibility for free personal care. This does not mean that local authorities should force everyone to undergo such a period of reablement. That is not our intention as in some cases reablement will be neither appropriate nor beneficial to the individual. However, many people can potentially benefit from reablement and we believe that local authorities should be encouraged to make greater use of these services where they are already available and established, and develop them further where provision is currently lacking.

New subsection (4C) explicitly sets out the power that will enable the Secretary of State to make regulations to achieve this, which will be accompanied by detailed guidance on how local authorities should decide whether or not reablement would be appropriate for the individual.

The noble Baroness asked about a person's means, what happens when their money runs out, and when they will become eligible for free personal care. Continuing care is never means-tested. The Bill is designed to support those people who might well have already used substantial personal means to support their care needs, so it will help to provide some relief for them. My noble friend Lord Lipsey, the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, all asked about a person who is not willing to accept reablement, and whether that person could have their free personal care withdrawn. That would be a very heavy-handed tool. It is proposed that free personal care could be refused only where the person had-I think that the noble Earl said this-unreasonably refused that reablement. That will be set out in regulations and is an issue that would have to be treated with great sensitivity. In choosing to refuse an offer that is reasonable, they could not be eligible for free care under the scheme and would have to make a contribution to the cost of their own care. However, it is a very sensitive issue. In an earlier debate, we covered the issue of carers and unpaid carers not being part of the assessment that would take place for free personal care.

Amendment 26 in the-

Baroness Masham of Ilton: Will the Minister clear up one point before she goes on to the next point? I am not talking about those who refuse reablement; I am talking about those who are not suitable for reablement. For instance, if they are too frail or too ill, will they then be able to get help, and who will decide that?

Baroness Thornton: Yes, they will as part of the assessment process. I was asked specifically about somebody who might refuse reablement. However, I think that I said earlier that it would not be appropriate to offer some people reablement. That will also be covered in guidance. It is very important that the offer which is made to people is dealt with sensitively.

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Baroness Barker: One of the difficulties with this legislation is that it covers two distinct groups of people: disabled people who may be young and may have a condition with which they will live for a considerable time-the whole purpose of this measure is to enable them to have the means to pursue fulfilling lives-and older people who become ill for one reason or another. I noted the noble Baroness's distinction about intermediate care being provided to people who have been in hospital. How many people is it envisaged will meet the FACS criteria who will not have been in hospital? We are talking about people who will be very ill and very disabled even though they may not have had acute care. For very many older people who may or may not be eligible for care under this measure, simply maintaining their ability to live independently at a level of operation which is perhaps lower than it was before they were ill-for example, if they have had a stroke-will be a good result. It is not about improving their ability to live independently because, for some of them, it probably cannot be improved; it can only be maintained at a lower level. Is it the intention of this Bill, clumsily worded though it is, to reflect that-that some people will not improve as a result of reablement, but will simply continue to be able to cope and perhaps at a reduced level? That is an important point to make and make clear for people who may be doing assessments in the future.

Baroness Thornton: That is a very important point. The noble Lady has raised two points. On the first, I can think of three people I know who are not in hospital, but who are definitely disabled. Whether they would qualify under this scheme, I do not know. It is very unlikely that they would be in hospital unless something acute happened, though there is no question that they are disabled. The point about reablement is that, if the reablement process-we will talk about "improvement" and "maximise" in a moment-actually enables that person to maintain the level of independence that they already have, it seems to me that that has also succeeded and would count. On the question about the number of FACS-critical people who have been in hospital, we have not collected that information in this form. However, the noble Baroness makes a valid point indeed.

Amendment 26, in the names of the noble Lords, Lords Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, would seek to change new subsection (4C). It would mean that any regulations which the Secretary of State makes under subsection (4A) that give local authorities functions relating to eligibility for free provision of personal care must specifically allow them to use reablement as an eligibility criterion. I understand that this is a probing amendment, and I hope that I have answered some of the points, but we have been clear from the start that the Bill must enable a two-pronged approach: providing free personal care to those with the highest needs who are living at home, accompanied by a period of intensive support or reablement for all those who would benefit from such a package.

We do not think that it is necessary to dictate the content of the regulations in the Bill. The working draft of the regulations, which has already been made available to noble Lords, makes plain that advice around reablement will be included within guidance.

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Stakeholders at several consultation events over the past few months have supported this approach. They welcome increased support for reablement, and we will use their comments regarding its implementation to further shape the content of regulations enabled by the Bill and the guidance on those regulations.

Amendment 28, in the names of the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy, is a very "House of Lords" amendment about whether one should substitute "maximise" with "improve". New subsection (4C) of the Bill refers to,

The noble Lords and the noble Baroness have suggested that we should replace "maximise" with the word "improve". We do not feel that this best defines reablement. Improvement could mean only a small change in what may already be very poor circumstances. In fact, our aspirations for reablement are that it should do better than this. We want to help individuals to become as well as possible, not only to improve their status, but to maximise their ability to live independently. Therefore, we think that "maximise" is a better fit than "improve" for what we understand reablement to mean.

I think that I agree with the aim of Amendment 30, tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Morris. Although reablement will have many benefits for the majority of people, we recognise that in some cases it would have limited or no benefit and would not be appropriate, for example, for people who are very frail or who are receiving end-of-life care. We will place in statutory guidance advice around when reablement may or may not be appropriate, along with advice on how a suitable package should be developed with input from and consultation with the individual, their carers and any relevant health and social care professionals.

Amendment 34, tabled by the noble Baroness, Lady Greengross, would permit regulations to enable a local authority and primary care trust to offer a package of reablement and intermediate care to a person after they had stayed in hospital for more than one week.

All local authorities can already deliver packages of reablement, helping people to maximise their ability to live at home independently. These packages are most effective when they include a range of interventions to meet a person's range of needs. A package of reablement or intermediate care can, and should, involve a variety of health and social care professionals, along with other interventions, minor aids or adaptations.

We will be outlining in statutory guidance how we expect local authorities to develop a personalised package of reablement for individuals, and we will make it clear that the person receiving the package, along with their carers, GP and other professionals, should be involved as necessary. We think that this is more suitable for guidance than regulations but we accept the point made in the noble Baroness's amendment.

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We recognise the concerns that the noble Baroness, Lady Greengross, expressed concerning dementia. We believe that people with dementia can and should be able to benefit from reablement services. We need to

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ensure that the guidance that goes along with the Bill takes on board the issues raised in the dementia strategy and makes it clear that people with dementia should have access to the appropriate equipment.

The noble Baroness, Lady Murphy, commented on long-term studies. We think that the reablement component increases the amount available to all those presenting for social care, and that it will reduce levels of dependence and may well delay or prevent people needing intensive support. The intention is to focus not just on this group; we believe that reablement has a role to play for a range of groups, including those with dementia or a head injury. As I mentioned earlier, York University has already carried out some studies on this, and we will be assessing the situation in 12 to 18 months' time.

The Bill is about the free provision of personal care by local authorities and not the NHS. In any event, there will be some circumstances in which it will be more appropriate for the service to be offered solely by either the NHS or social care. We do not want to create fresh barriers, which some of these amendments would bring about, to the most effective delivery of services to individuals. The forthcoming White Paper will reaffirm our commitment to the health and social care systems working together much more effectively as part of a future reform of the care service. Therefore, I ask the noble Baroness to withdraw the amendment.

Baroness Barker: Will the noble Baroness write to me with answers to the questions that I asked about intermediate care? I asked a number of such questions of the noble Lord, Lord Tunnicliffe, and I quite understand why he did not answer them. However, in particular, I should like to have updated figures for the number of people in receipt of intermediate care and for the number of PCTs and local authorities that have a named lead officer. That would be extraordinarily helpful to Members of the Committee.

Baroness Thornton: I apologise to the noble Baroness. I had marked up answers to a lot of her questions and I believe I have now found some of them. The latest figures show that 28,116 intermediate care places benefited 132,720 people between April and June 2008. Compared with 1999-2000, the number of intermediate care beds has doubled, and the number of intermediate care places in non-residential settings has trebled. Three times as many people are benefiting from intermediate care. The NHS Plan aimed for an extra 6,700 places for intermediate care by March 2005-5,000 residential and 1,700 non-residential-and today the NHS has delivered an extra 22,948 places.

In her previous question, the noble Baroness raised the issue of the guidance. The original guidance has been strengthened to include flexibility over the period of an intermediate care episode-which I think is the point that she raised. That will ensure that people with dementia have access to intermediate care, with that care being commissioned across health and social care, and that reablement services are part of the commissioned service, widening access to intermediate care to include all adult age groups, not just older people.

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Baroness Barker: I thank the noble Baroness for that full answer.

Baroness Greengross: I thank the Minister very much for her obvious commitment to the amendments I put forward. I am sorry that she cannot accept them, but I appreciate what she said and I shall think again about them. In the mean time, I beg leave to withdraw the amendment.

Amendment 24 withdrawn.

Amendments 25 to 35 not moved.

Amendment 36

Moved by Earl Howe

36: Clause 1, page 2, line 12, at end insert-

"( ) The Secretary of State shall report annually to Parliament on the compatibility of regulations made under this section with the European Convention on Human Rights."

Earl Howe: My Lords, we come now to one of the most important legal issues presented by the Bill, and that is its compatibility with the European Convention on Human Rights. One of the most striking features of the Explanatory Notes is the length and complexity of the Government's defence of the legality of the Bill in relation to the convention. Of course it is very helpful to see that defence set out in clear terms, but I cannot remember another Bill where it has been necessary to do this to quite the same extent. The obvious conclusion from this is that, even though the Government's human rights justification may be correct in its bald terms, we are, nevertheless, on quite tricky legal ground. We have already considered the issue of discrimination against deafblind people arising from the Bill and its regulations, so I shall not dwell upon those arguments a second time.

The other type of discrimination to which the Bill potentially gives rise relates to residents of care homes. It would be perfectly possible for those people to argue that their personal care needs are every bit as critical as those of someone who happens to be living at home and that this discrimination against them amounts to a breach of Article 14 of the convention, taken with Article 1 of Protocol 1, which covers the right to peaceful enjoyment of possessions. Indeed, the department accepts that it is a prima facie breach of Article 14 to discriminate between one person and another on the basis of where each of them lives. Nevertheless, the Government maintain that the different treatment of people living at home is not discriminatory because the policy underlying the different treatment pursues,

As this is a framework Bill, an enabling Bill, it would be hard to argue that the Bill itself was incompatible with the convention. The issue, rather, is whether the policy to which the future regulations will give substance does indeed pursue a legitimate aim in a proportionate way. As regards the aim of the Bill, and the aim of the regulations, it would be difficult to show that these were in any way illegitimate. So I shall not spend time

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arguing that case. However, on the issue of proportionality, there is quite a lot that we can say. The Explanatory Notes say:

"The key aim of the policy behind the Bill is to enable, support and encourage more people to avoid or delay entering residential accommodation ... It is considered that the proposals are proportionate as they are aimed at those people in highest need-the group of people who are most at risk of having to enter residential accommodation".

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