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The Government are very sympathetic to the deafblind, who are a group with very specific needs. We will ensure that the guidance we produce makes clear that

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where a person is unable to undertake activities of daily living because of deafblindness, this should be recognised; for example, where they are unable to feed themselves because they cannot identify food. While people who are deafblind have specific needs, the measures in the Bill are about providing free personal care to people with the highest needs. These measures are targeted and costed to include deafblind people within this group. The Bill is not intended to cover the entirety of a person's care needs, only their personal care needs. We have always said that this is a proportionate measure-a step on the way to longer-term reform of the social care system.

To extend the free personal care scheme to provide communication support to the deafblind would be significantly to widen the scope and the costs of our proposals. On Sense's own figures, given in evidence to the Health Select Committee, there are approximately 180,000 deafblind people who might seek to benefit, and Sense anticipates that this figure will rise to more than 300,000 by 2029. To include communication and mobility support would be moving beyond the scope of personal care into the wider domain of care and support. The forthcoming White Paper will set out our plans for wider future long-term reform of the social care system.

Noble Lords have expressed concern about whether the measures are affordable and could be implemented in time by local authorities. To accept the amendment would increase both the costs and complexity of the implementation of such measures. While we do not believe that the Bill is an appropriate place to insert specific provisions for specific conditions, we are sympathetic to the needs of the deafblind. For that reason, we reissued statutory guidance in June last year to all local authorities. We have also, in the revised eligibility framework published last month, reminded local authorities of their obligations to take proper account of sensory impairment in reaching decisions about eligibility for social care. When Ministers and officials met Sense, we agreed that we would ensure that the guidance published to support the implementation of free personal care will remind authorities of their obligations to take the needs of this group seriously and offer the support needed.

On the matter raised by the noble Baroness, Lady Finlay, I believe that the issue of reablement was covered by my noble friend in Committee. We expect local authorities to use reablement in a sensitive way, and not in the difficult areas to which she alluded. I hope that the assurances provided in Committee are sufficient. In the light of what I have said, I hope that the noble Earl will withdraw his amendment.

Earl Howe: My Lords, I thank all noble Lords who have spoken in the debate and in particular the Minister for his reply. I am a little disappointed. I had hoped that the deafblind community might be able to take from this debate a greater degree of hope and comfort. It is reassuring that the Government have re-emphasised in guidance the importance of recognising the gravity of this disability but it does not appear that there is much scope for making particular allowance for it in the scheme that we are debating. That is, to put it mildly, a pity. However, I do not propose to pursue the

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matter. I hope that the Government will give it some additional consideration as their plans materialise. I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

5 pm

Amendment 4

Moved by Baroness Masham of Ilton

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

"( ) After section 16 of the Community Care (Delayed Discharges etc.) Act 2003 insert-

"16A Right of appeal

(1) The Secretary of State shall by regulations establish an appeal mechanism for persons who believe that they are entitled, under section 15, to a qualifying service free of charge for a period of longer than six weeks, but who have been refused such a service by their local authority.

(2) Regulations made under subsection (1) shall be made by statutory instrument and any such instrument may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.""

Baroness Masham of Ilton: My Lords, I have retabled this amendment on the right of appeal, as it is important to make it clear that there is a straightforward and fast-track mechanism. No doubt, in the critical band of people who need help, there will be complex problems. One must not forget that such people are very vulnerable and that their carers, if they have them, may be at their wits' end. There are still unanswered questions: what will be the cut-off point and who will do the assessments? It is well known that many local authorities have differing criteria, so there is sure to be a postcode lottery. When I read the list of activities of daily living, I see that many deal with nursing duties covering such things as eating and drinking when there is difficulty swallowing, managing urinary and bowel functions, management of treatment that consists of a prescription-only medicine and dealing with equipment such as pressure-relieving mattresses. Those activities all need trained people who know what they are doing.

I thank the noble Baroness, Lady Thornton, for making herself and members of the Bill team available to Members of your Lordships' House. I agree with the Minister that we do not wish to add any unnecessary layers to the process. However, I see too many bureaucratic layers in the existing social service appeals procedure. In Committee, the noble Baroness, Lady Barker, explained the cumbersome process. She said:

"One is an appeal against an assessment ofneeds, the second may be an appeal against the basis on which that assessment was made-that is, the criteria-and the third is an appeal against the decision about what funds or, indeed, services to allocate to somebody".-[Official Report, 22/2/10; col. 825.]

Could the system not be streamlined and made simpler and fast-tracked?

After Committee stage, I received a telephone call from a lady with severe arthritis. She had a problem getting out of her bath and so needed to have a shower installed. When she was assessed, it had been agreed that she needed a shower, but she was told that she would have to wait three years. Are people really being put first or are those just meaningless words?



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In the paper on personal care, it is proposed that to be eligible for free personal care someone must satisfy two key criteria: first, they must be identified by their local authority as falling within the fair access to care services critical band; and, secondly, they must require significant help or significant prompting in order to carry out four or more activities of daily living. What happens to all the other people who need a little help to enable them to stay independent and to live in their own homes? Will the local authorities say, "Sorry, we have no more money"?

After appeals, 50 per cent of assessments have been found to be wrong. The Minister sent a paper about complaints from North Yorkshire. One of the questions was:

"How long will it take the Ombudsman to investigate the complaint once the council has responded to it?".

The answer was:

"Our target is to complete the investigation of half of the complaints made to us within 13 weeks. Eighty per cent of complaints are fully investigated within 26 weeks".

Complex social care complaints tend to be among those that take longer to investigate. How long is longer? The people within the critical band have complex conditions; they cannot wait. They need help when they need it. Would it not be possible to build on the ombudsman's service and have local ombudsmen to set up a fast-track appeals process for those at-risk people? I beg to move.

Baroness O'Loan: I support the amendment tabled by the noble Baroness, Lady Masham. This Bill clearly seeks to achieve a laudable and desirable end and we have heard articulated a small number of the very serious issues that have arisen in our contemplation of it. Those affected by the legislation will by definition include those most seriously ill and disabled in our society, each of whom may present with a wide range of issues requiring an equally wide range of responses. They will inevitably include those with the most serious communication and access difficulties, as referred to by the noble Lord, Lord Low, in the context of those who are both deaf and blind. The critical nature of those conditions will necessitate a speedy response to an application and to any appeal.

Pending the resolution of a dispute-there will inevitably be disputes, as we have seen in the other sectors, on the objectivity and fairness of what has been decided-the people will have to cope without help. We have heard this afternoon that those who are subsequently accepted for free personal care at home will have the money backdated, but that comes too late for those who have no money. The result of not having a speedy and effective disputes resolution mechanism may drive them into residential care.

I suggest that any dispute resolution must be accessible, open and easily understood by those who seek to use it. People must be able to find out what it is and they must be able to take part in the process. The system must be timely and effective and it must be operated by those with sufficient training in the matters related to the dispute. The noble Baroness, Lady Masham, referred to those matters of training and specific issues that will be raised by applicants in this situation. For those reasons, we must contemplate the possibility that a new disputes resolution is necessary.



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Lord Tunnicliffe: My Lords, I thank the noble Baroness, Lady Masham, for bringing up this issue. Some general comments have been made about the proposed scheme, but I shall refer to only one of them, which is the suggestion that there will be a postcode lottery for the scheme. That is not true; it will be a national scheme to national standards and we will be taking a series of measures to ensure that uniform standards apply throughout the country.

The real question brought up by the amendment is whether there should be a separate appeals mechanism. The Government believe that there should not be and that the present local government appeals mechanism, together with the ombudsman, does a good job and meets the objectives of a speedy, effective and well informed assessment.

The amendment would require the Secretary of State to make regulations that establish a specific appeals mechanism for those who believe that they are entitled to indefinite provision of a free qualifying service but have been denied it by their local authority. That would include a denial by the local authority to provide free personal care.

There is already a system for complaints under the existing procedure, providing the possibility of local resolution, supplemented by the possibility of independent investigation. We intend that that system will cover any complaints about eligibility for free personal care. If the person is not satisfied with how their complaint is dealt with under existing local authority complaints procedures, they can take the matter up with the Local Government Ombudsman or with the courts by means of judicial review.

I agree with the noble Baroness that it is important that decisions on free personal care at home are as fair and transparent as possible, including the right to challenge local authority decisions by people who have reason to believe that they should be eligible for such care, based on the criteria set out in regulations. That should be followed by the possibility of complaint to an independent body, should that be necessary.

The Local Government Ombudsman states in its fact sheet on adult social care:

"Experience suggests that many councils are quite successful at resolving complaints through their own complaints procedures".

That is reiterated by North Yorkshire County Council, which says in its guide to its local complaints procedure that more than 95 per cent of the complaints that it receives are resolved informally at the first stage of the complaints process.

We are aiming to develop a simple, national decision tool to support decisions about eligibility for free personal care. The tool will be widely available to people who think that they may qualify, so that they can decide whether it would be worth while making an approach to the council in the first place. In that way, we hope that the number of speculative approaches that councils receive will be reduced. Similarly, the Social Care Institute for Excellence has been commissioned to produce training material for front-line staff in councils. A simple guide for the public is also being produced as part of that work. We believe that that will help to ensure that people both are better informed about the process and better understand the reasons why decisions have been taken.



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We anticipate, therefore, that this much more transparent process, which involves individuals, should ensure that people have less need to resort to disputing the outcome of assessments. We have shared materials from local councils and the Local Government Ombudsman, which explain the current procedure, with the noble Baroness in a meeting with her, and last week sent an explanatory letter to her and other Peers. We hope that those steps have been helpful in providing some clarity and reassurance regarding the existing system.

The noble Baroness suggested in Committee that the Care Standards Tribunal could be expanded to include appeals about eligibility for free personal care. I thank her for that suggestion, but we do not think that it would be suitable. The existing complaints procedure for social care is fit for purpose in handling disputes relating to personal care at home. In any event, the jurisdiction of the tribunal has now been absorbed by the Health, Education and Social Care Chamber of the First-tier Tribunal.

We would not want further to confuse either the complainant or the council handling the complaint by introducing yet another mechanism. Multiple approaches can be the recipe for delay and further confusion and it would be unclear which process would take precedence. We will look to review the situation as part of our overall review of the policy's costs and implementation within 12 to 18 months of its introduction, but at present we do not think that there are grounds for introducing a new appeals mechanism.

I thank the noble Baroness, Lady Masham, for meeting us to discuss her concerns and I hope that the letter that was circulated last week, along with examples about use of existing complaints procedures, provided reassurance that there is already adequate provision in this area. Accordingly, I invite her to withdraw her amendment.

5.15 pm

Baroness Masham of Ilton: My Lords, I thank the Minister for his reply. North Yorkshire and other local authorities have their appeal systems, but they are far too slow. When you are dealing with critical care, you need fast-track solutions. What worries me is that the professional bodies have their own support but service users often have to struggle for everything. Many years ago, when I was on a community health council, I found that it was the council members who did not turn up for meetings. I just hope that they will change their tune now that they are going to deal with seriously ill people.

I saw a glimmer of hope when the Minister said that, in 12 to 18 months, the situation would be reviewed. I think that I will be saying, "I told you so". I hope that the system will work, but now that there will be a delay on the Bill perhaps councils will have time to get organised. I thank the Minister again and I thank my noble friend for her support-she knows about ombudsmen far better than anyone else does. I beg leave to withdraw the amendment.

Amendment 4 withdrawn.



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Clause 2 : Extent and short title

Amendment 5

Moved by Lord Lipsey

5: Clause 2, page 2, line 31, at end insert-

"(3) This Act shall come into force on such day as the Secretary of State may, by order made by statutory instrument, appoint.

(4) A statutory instrument containing an order made under subsection (3) may not be made unless a draft of the instrument has been laid before, and approved by, a resolution of each House of Parliament."

Lord Lipsey: My Lords, I shall speak to the amendment in my name and those of the noble Earl, Lord Howe, and the noble Baronesses, Lady Barker and Lady Murphy. In doing so, I remind the House that I am the honorary president of SOLLA, the Society of Later Life Advisers.

The amendment would insert into the Bill a commencement date and make sure that that date is carried first by an affirmative resolution of both Houses of Parliament. It mirrors an amendment moved in another place with the support of both the Conservative Party and the Liberal Democrats. Also, if I may put it this way, it represents a belt to go with the braces of the noble Lord, Lord Best, in ensuring that before the Bill is put into effect we have bottomed out the many open issues we are left with after all the hours this House has spent debating it. As was pointed out in another place, there is nothing to stop the Government introducing that commencement order tomorrow if they so wish. However, I accept that in practice there will not be a commencement order until after a general election-indeed, that is part of its purpose. This means a short delay, no more and no less.

I want to emphasise one point. There has been a suggestion that the amendments tabled by some of us are designed to wreck the Bill. This is a terrible calumny. Delaying is not stopping. I am not a supporter of the Bill and the policy behind it, but if I were I would want delay too: I would want my Bill put in the best possible order before I shoved it into effect. Nothing will be served for the Government if this results in administrative chaos or such a burden to finances that it has to be withdrawn again. These amendments are not unhelpful to the Government, even though that is not necessarily the only reason we move them. They are not wrecking amendments. The only thing they wreck is the attempt to force the Bill through as if it were an emergency measure, short-cutting parliamentary procedures, ignoring the criticism of its provisions which has dominated public discussion and without thinking through the fine detail as it needs to be thought through.

If ever proof of what I am saying were needed, it came in the report from the Commons Health Select Committee, published last Friday. Not all of your Lordships will have had the opportunity to study that report, but I hope you can take it from me and others who have that it is an Exocet into the heart of this policy. Its conclusions refer to, "policy-making on the hoof", "piecemeal reform", "perverse incentives", "unintended consequences" and underfunding which,



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That is not a contribution to the Conservatives' election manifesto; it is based on evidence from a committee of the House of Commons, with a majority of Labour members, on the eve of a general election. This is the verdict of the Government's loyal supporters-Labour, as I am, to the roots-so let us not think that this is some ideological cross-party issue; it is what the Select Committee said. Your Lordships have a duty to ensure that the Government properly consider and respond to that report and its criticisms before the Bill is rushed into law.

The second thing to be resolved is the administrative difficulties. I will not repeat all that the noble Lord, Lord Best, said.

Thirdly, there is the controversy over costs, although I will not go into the detail of this either, as the noble Lord, Lord Warner, will do so when he moves his amendment. I will, however, quote SOLLA, which I mentioned earlier, because I do not think that a single outside authority or anyone else, other than the Government, believes that these assessments of costs are realistic. They were shoved out in a few hours after the Prime Minister's speech, and they have been defended as though they were genuine and serious assessments of costs. SOLLA said that the costing is "at best only approximate", and it cites the view of most experts-and SOLLA's members are experts-that they are severely underestimated. We cannot let this Bill go through when we do not have the faintest clue how the expenditure that it mandates will be funded.

I have great sympathy for the Minister. She is a gallant and much loved Minister in this House, and she is working with hopelessly overburdened officials to an impossible timetable that has been dictated to them by No. 10. No. 10 can dictate to Ministers and to their officials, but it cannot dictate to this House, and it is our duty to make and accept the case for a steadier timetable. My argument for a steadier timetable would apply even if there was no election and even if it was true-and it is far from true-that the Government's policy attracted the support of all the parties in this Parliament in a spirit of consensus. Of course, an election is imminent and the Conservatives and the Lib Dems have set out quite different approaches to this problem from the Government's approach. I am not going to adjudicate between them, save only to say that there has been some very unfortunate political toing and froing on this. I look forward, after the election, to returning to the spirit of consensus that should inform our debates on these issues and to getting a consensus solution that will last not for the month to the general election, or for the year that follows it, but for years and decades to come to give our older people the certainty that they require.

The Government have proceeded throughout as though this was emergency legislation. The policy itself was announced in the Prime Minister's conference speech in the midst of a government consultation that had explicitly ruled out the policy that it encapsulates. It was examined in detail in the Commons in a single day, and had its Committee stage in your Lordships' House before the Government had completed their consultation on the regulations. The Government have not yet produced their White Paper-this is the most

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serious lacuna of all-setting out their policy for a comprehensive reform of long-term care, towards which they repeatedly claim the Bill is an interim step. It would be a grave mistake to pass this legislation without seeing the full plan for the architecture.


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