House of Lords
Tuesday, 21 May 2013.
2.30 pm
Prayers—read by the Lord Bishop of Newcastle.
UN Arms Trade Treaty
Question
2.37 pm
Asked by Lord Hannay of Chiswick
To ask Her Majesty’s Government what arrangements they are making for the signature, ratification and implementation of the new United Nations Arms Trade Treaty.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the United Kingdom welcomes the adoption of the arms trade treaty on 2 April. We spent seven years working for this treaty. Its adoption is a victory for government, Parliament, civil society and industry. The treaty opens for signature on 3 June. The United Kingdom will sign and ratify it as a matter of urgency. We will also encourage other states to sign and ratify to ensure that the treaty enters into force as soon as possible.
Lord Hannay of Chiswick: My Lords, I trust that it will be in order to ask that congratulations be passed to Alistair Burt and his team at the Foreign and Commonwealth Office for their skill and perseverance in achieving a more robust treaty than might at one time have been anticipated, and to the Foreign Secretaries, from Jack Straw onwards, who gave them their full support. Can the Minister say who is going to sign on behalf of the UK on 3 June? It is surely important that the signature be at a level that indicates the importance that we attach to it. Can she also say what consideration will be given in future, when granting an arms export licence, to the status of the importing country under the arms trade treaty—whether it has signed and ratified and is implementing the treaty? Would not that be a more effective way of encouraging the widest possible acceptance of its terms?
Baroness Warsi: I think the noble Lord asked three questions. Yes, I can absolutely add my support and congratulations to all the Foreign Secretaries, and indeed all Ministers, many from the Opposition, who have worked over seven years to make this happen. Of course, my congratulations go to my right honourable friend Mr Burt, who handled this towards the end, and to Alan Duncan. Negotiations went on long into the evenings to make sure that it happened—and, of course, it has been a huge success.
The treaty will be signed as soon as possible. We are hoping that it can be done by the Foreign Secretary, and we are looking at opportunities for how that will
happen. It is really a matter of getting a balance to make sure that it is as near to 3 June as possible as well as at the highest level.
I missed most of the noble Lord’s third question, but I think it was in relation to getting the broadest support from member states. Of course, this treaty will come into force only once 50 states have signed it and 90 days thereafter have passed. So we will do all we can to encourage that.
Lord Palmer of Childs Hill: My Lords, the United Nations press release says that the treaty makes it,
“harder for human rights abusers, criminals and arms traffickers to obtain weapons”.
How does that fit in with the UK defence industry and the sales of arms, equipment and aircraft to other states?
Baroness Warsi: As the noble Lord is aware, the UK already has one of the most robust and effective export control systems in the world. I regularly see documentation on the countries for which I have responsibility. We have extensive criteria against which we assess any sales. We feel that this arms trade treaty sets an international benchmark, but we do not think that primary legislation will be required to enable us to implement it.
Lord Browne of Ladyton: My Lords, of the 150 countries that adopted this treaty, a significant proportion do not have the capacity to implement it. What plans do our Government have to build that capacity in countries that are key to the implementation of the treaty as it is in our interests that they are able to do so?
Baroness Warsi: I can inform the noble Lord that resource has been set aside to make sure that we work with those countries which do not have the developed, sophisticated arms control systems that we have. The treaty will be effective only when 50 countries join; thereafter, it comes into force. We will, of course, use the network—as the noble Lord is aware, the Foreign and Commonwealth Office has one of the most extensive networks—to make sure that we work with our partners to ensure that countries which need the support get the support.
Lord Harries of Pentregarth: What changes, if any, will be necessary in the UK arms controls guidelines on exported arms?
Baroness Warsi: We think that we may have to implement some secondary legislation. Once the treaty has been signed, it will be laid before both Houses, I think for 21 sitting days. We hope and anticipate that we will be able to ratify before the end of the year. We think that there may be some amendments to secondary legislation, but that will take place before the end of the year.
Lord Dubs: My Lords, I have had discussions with various people who were closely involved with this. It is, after all, a really good news story. However, I have
been advised that the signing ceremony will be particularly important. If the United Kingdom is not present, that could send a signal that our commitment is not as high as it should be. I urge the Government to consider that we should be represented in New York on 3 June at the most senior level possible to show how committed we are to this treaty.
Baroness Warsi: Exactly those kinds of discussions are happening to make sure that we send out that very strong signal. Your Lordships will also be aware that we can make an intent declaration when we sign. We will make sure that that is very robust and clear. Much work has gone into this and we have led on much of it. I absolutely assure the noble Lord and this House that we will continue to show our support.
Lord Elton: My Lords, which countries are currently the most prolific exporters of arms to undesirable recipients who have not signed up to the treaty and are not proposing to ratify it? What plans are there to try to persuade them to sign up to it?
Baroness Warsi: I do not know whether I can tell my noble friend which countries are sending arms to undesirables. However, I can say that there are countries heavily involved in arms exports—for example, the US, Russia, China and India. The US will, of course, sign the treaty. Russia, China and India abstained but they made positive statements and we are hopeful that they will move in the right direction.
Lord Triesman: My Lords, I join in congratulating the Government and former Foreign Secretaries on this achievement. Indeed, I have written to Alistair Burt personally to say how much I admire and respect the work that he did in achieving this outcome. I return to the final point made by the noble Lord, Lord Hannay. There will be those, like us, who have signed the treaty. There will be others who do not sign the treaty. How do the Government envisage ensuring that the people who have signed the treaty do not export arms to those who will not abide by these international standards?
Baroness Warsi: The treaty sets out an international benchmark and even for those countries which do not sign the treaty initially, and are not supportive of it fully at this stage, political pressure will build off the back of this saying this is what the international community sees as the standard—you may not have signed up to it but it is how we expect you to conduct yourselves. That will be an important lever in trying to move those countries in the right direction.
EU: UK Trading Deficit
Question
2.45 pm
To ask Her Majesty’s Government what steps they are taking to reduce, and raise public awareness of, the United Kingdom’s £46 billion annual trading deficit with the European Union, as set out in the Treasury Pink Book.
Lord Popat: My Lords, the UK’s current trade balance with the rest of the EU reflects a range of factors. The recent rise in the deficit reflects the shrinking EU market, not a loss of UK market share. The UK is pursuing a range of policies—supporting measures to stabilise and revitalise the EU as well as encouraging firms to internationalise—which will boost UK trade with the EU.
Lord Vinson: I thank the Minister for his very considered reply. Indeed, we must all try harder to export. Does he agree that our relationship with the EU is changing and that the strength of our trading position would be a key factor in any future negotiations? Should it not be widely known that while 3 million of our jobs are reciprocal with our trade with the EU, the continuing £46 billion a year trade imbalance means that overall 4 million of its jobs rely on us? We are indeed its biggest customer. Is this not likely to lead to sensible bilateral trading arrangements similar to those that we have with the rest of the world, as it needs us rather more than we need it?
Lord Popat: My Lords, our trade with the European Union, and the deficit of £46 billion, is counterbalanced by our surplus on invisible trade. Our membership of the EU is still in the best interests of the UK. It provides tariff-free access to a market that is worth around £11 trillion and has half a billion customers, and its trade with the UK enables 3.6 million employers in this country.
Lord Bilimoria: My Lords, the EU trade deficit is all very well, but do the Government agree that to tackle our overall trade deficit we should be encouraging exports to countries such as India? I despair to this day that when I ask businesses in this country if they export to India, only a handful of hands go up in an audience of 300. Will the Government consider rolling out the GREAT Britain campaign, which is doing an excellent job in promoting Britain abroad, here in the UK to give our businesses confidence to export to countries such as India?
Lord Popat: My Lords, for the long-term economic health of the UK we need to develop further our economic relations with fast-growing, emerging markets, including India, which the noble Lord mentioned. This is why the Prime Minister has been leading trade missions to these countries. We are doing everything possible to support our trade with emerging markets, including India, but we are also supporting a large number of UK companies, through UKTI, to help them to internationalise and to do more trade with those emerging markets.
Lord Tomlinson: My Lords, are we not missing the main point in this Question? Europe largely has the euro, which has devalued by 30% against the pound sterling since it was created. Why, with that level of devaluation, have we not had the competitive advantage in our trade relationships with Europe? Should not the answer to this Question really be a critique of British industry and British commerce for not taking advantage of the competitive devaluation?
Lord Popat: My Lords, part of the reason for the devaluation of the euro is the crisis the euro is going through. This Government are committed to creating a competitive economy that is fit for purpose in the 21st century.
Lord Razzall: My Lords, I am sure the Minister will agree that the argument the noble Lord, Lord Vinson, has made is the one that people from his Benches make who advocate us coming out of the European Union. I am sure he would accept, and perhaps he can confirm, that one of the answers to the noble Lord, Lord Vinson, ought to be to think what would happen to our exports to the European Union were we to come out of it, let alone what would happen to our inward investment.
Lord Popat: My Lords, just under half our exporting is to the European Union. We are working to continue our trade relations with the European Union, and we really need to ensure that we reform it to make it more competitive and accountable. It is crucial that we continue to trade with it and that we increase our trade with it: hence, we have 27 UKTI offices in those countries.
Lord Mitchell: My Lords, these answers hardly fill one with confidence, do they? UK Export Finance was set up specifically to help all businesses to export more, but let us look at the results. Over one year—2011-12—the number of small and medium-sized companies receiving help from UKEF has been the magnificent total of 21. Cannot we do better than that?
Lord Popat: My Lords, this time last year I asked for an ad-hoc cross-party committee, chaired by my noble friend Lord Cope, to be set up. We had a report in the early part of this year, and received a response from business this week on what we can do to help our SMEs to export more, including how the UK Export Finance scheme can work more effectively for those who export in those countries.
Lord Tebbit: My Lords, can my noble friend tell me whether there is any other trading bloc in the world with which we have a similar sized trading deficit, and which on top of that charges us money for the privilege of being part of it?
Lord Popat: My Lords, I expected that question from my noble friend. There is no other country in the world with which we have such a huge trade deficit. We have it with the European Union, but we have a large number of benefits as well. The £7 billion contribution that we pay to it gives us the benefit of free trade and a free market to other parts of the world. However, some of the huge deficit that we are talking about is offset by the invisible trade that we do with it. Most importantly, 20% of the goods that we import from Europe become part of the raw material that we export elsewhere.
Lord Harrison: My Lords, what prospect do we have of securing a successful EU/USA trade deal in the future if we are to absent ourselves from the negotiations with our EU partners? Has the Minister yet made contact with the successor to Pascal Lamy of the World Trade Organisation, Mr Azevedo, to secure the UK’s position in the WTO?
Lord Popat: My Lords, in fact, we are working with the European Union to negotiate a reformed European Union. We have moved on because in a global race we need to ensure that Europe is more competitive with respect to trade.
G8 Meeting
Question
2.52 pm
To ask Her Majesty’s Government what are their priorities for the G8 meeting on 17 June.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the priorities for the G8 are pushing for practical action to achieve fairer taxes, greater transparency and freer trade. Those are actions that are essential in shaping the rules characterising a fair and open global economy, and ensure that both developed and developing countries benefit. G8 leaders will discuss topical foreign policy and global economic issues, as well as terrorism and security in weak and ungoverned spaces, especially the Sahel and north-west Africa.
Baroness Tonge: My Lords, is the Minister aware that at the pre-G8 parliamentarians conference held at Westminster last week, to which more than 100 parliamentarians from all over the world came, it was once again affirmed that voluntary family planning and maternal health are cost-effective ways of promoting economic development by stabilising population growth and enabling women to access education and join the workforce? Will our Government, therefore, press their commitment to family planning and maternal health at the G8 meeting?
Baroness Warsi: I cannot assure my noble friend whether that will be on the agenda, but I will certainly take her views back. She will be aware that a huge amount of work is done by the Foreign Office and the Department for International Development both in projects on the ground and in creating the right climate for these matters to be discussed. Sometimes G8 summits are seen as places where western nations can point the finger at developing countries, but this meeting is also about the G8 countries getting their house in order.
Lord McConnell of Glenscorrodale: My Lords, is it not an absolute disgrace that multinational companies, such as Associated British Foods, can actually pay less tax in countries such as Zambia than small single
market traders based in the same communities, as shown by ActionAid and others? In putting their proposals to the G8, will the Government ensure that the actions of corporate multinationals and the capacity of individual governments to ensure efficient tax systems are tackled?
Baroness Warsi: The noble Lord raises a very important point. It is why transparency in tax will be a key priority at the G8 discussions. It is important that we get political support for ensuring that global tax rules are fit for the 21st century. It cannot be acceptable that companies can create these shadow shell companies offshore, which effectively means that both developed and developing countries do not get the benefits from revenue that should come from their profits.
Lord Hylton: Does the noble Baroness agree that Syria should be high on the G8 agenda, because of both the huge loss of life and the impact on all the neighbouring states? Would this topic not include violence against women in particular, such as mothers who have been forced to leave their homes in Syria?
Baroness Warsi: The noble Lord can be assured that Syria will be on the agenda. He may be aware that I repeated a Statement in this House yesterday. It is clear that this is one of our biggest foreign policy priorities. In terms of violence against women, the noble Lord may be aware of the Preventing Sexual Violence initiative, which the Foreign Secretary has been leading on. The G8 meeting of Foreign Ministers put out a robust and extensive statement on action taken to prevent sexual violence in conflict, and I am sure that this will be reaffirmed at the G8 meeting.
Lord Triesman: My Lords, the list the Minister started with contains security, but I confess that I was a little disappointed that action against nuclear proliferation was not included. There are at least two nations—and arguably very many more because of those two—where the nuclear arms race could well take hold. That must be a fundamental issue to our security and to security more generally. How will the Government ensure that that is discussed at the G8 meeting?
Baroness Warsi: The noble Lord will agree that a whole series of important issues could be put on the G8 agenda. We feel that what is important is to discuss the political and economic challenges of the day—as they always are. However, it is also important for the G8 to look at ways in which it can get its house in order and agree on those things that would make a real difference to developing countries—such as tax, transparency and trade. This allows developing nations to have much more transparent, open systems, so that countries know when developed nations go into their country, what they are paying for those contracts, what those governments are receiving and what the real benefits will be for the people of those nations.
Lord Teverson: My Lords, I very much welcome the Government’s decision to concentrate on west Africa. It is an area where drug and human trafficking are a great problem. What do the Government intend to do in terms of stabilising democracy in some of these nations, for instance in Mali, Niger and Guinea-Bissau, to stop the problems escalating in future?
Baroness Warsi: The recent tragic events earlier this year in Algeria and Mali showed that different nations have different expertise that they can bring to the table. It is obvious that wherever there are ungoverned spaces, that is where the threat of extremism starts to rise. We have seen that in Mali. The discussions at this G8 will be about how we can harness that expertise from different nations and bring it together to be able to come forward with solutions for these areas which are proving to be extremely challenging.
Baroness Farrington of Ribbleton: Would the Minister care to give an assurance about movement towards the principle of paying a living, fair and minimum wage in those countries which they intend to assist with inward development? Will she tell her colleagues that some of us despair about the way the Government are tackling the results of many major companies—this has been referred to today—which fail to pay a living wage to their employees and the governments cut the benefits? There are companies that do not pay their tax and the benefits of their employees are being cut by the government, but in fact the fault lies with the multinational companies.
Baroness Warsi: I repeat to the noble Baroness the point I made at the outset. If these companies are not paying tax off the back of their profits, it means that developed nations and developing nations cannot provide the public services and support that is needed. It will be a key part of what we are doing at the G8 to say to companies, “You have to be transparent about who owns you, about where you are owned and about the tax you are paying”, because it cannot be right. I do not know whether noble Lords saw the fantastic article in Prospect, but apparently Jersey is now the world’s largest exporter of bananas. We know that that is not true and we need to get behind that.
Sexual Offences: Investigation and Prosecution
Question
3 pm
Asked By Lord Morris of Aberavon
To ask Her Majesty’s Government whether they will invite the inspectorates of the constabulary and the Crown Prosecution Service, together with the social services agencies, to conduct an inquiry into all aspects of the investigation and prosecution of large scale sexual offences.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach): My Lords, sexual abuse in whatever shape or form is abhorrent and we
rightly expect all agencies to learn the lessons from the horrendous cases that we have seen recently. Nationally, a joint inspection programme is being planned by Her Majesty’s Crown Prosecution Service Inspectorate and the constabulary that will look at child sexual abuse and exploitation and this will address how agencies interact to protect children and ensure that offenders are brought to justice.
Lord Morris of Aberavon: My Lords, I welcome very much the Minister's reply. Is it collective amnesia that has blinded us to the underlying circumstances whereby at least 27 police forces are investigating 54 alleged child grooming gangs? Why has investigating and prosecuting in so many different parts of the country taken so much time? Is it a fear of racialism or is it that many of these vulnerable girls come from care homes? I hope that what the Minister has told us will result in speedier co-operation between all the agencies.
Lord Taylor of Holbeach: The noble and learned Lord makes a very powerful case for working together across government. I think that noble Lords will know that bodies are already in place and that we already have a very considerable focus on child protection in this country. However, there has been a failure, and a failure to recognise the reality that many of these young people have experienced. That has been exposed in recent court cases. The Government are determined that the system should work. The system needs to work to protect these very vulnerable children.
Lord Elystan-Morgan: My Lords, does the Minister accept that since it would appear that in only a minority of these cases—a small minority—is there a direct victim complaint, no real progress can be made until the law enforcement agencies are prepared to adopt more robust tactics, including infiltration and surveillance? Otherwise, we will only be dusting over this disgraceful practice.
Lord Taylor of Holbeach: I think that all agencies are now very much on the alert. However, we are in effect looking back and trying to recover a situation that should never have got to this point. The intention of government should be to ensure that this does not happen again. Anyone whose job involves the protection of children should be alert to this fact. That includes local authorities, the police and those who are responsible for care homes, health agencies, schools, the probation service and housing. All these elements must come together. We have a statutory body—the local safeguarding children boards—in every local authority in this country. What are they doing if not seeking to protect the young children who are their responsibility? The Government are very alert to this and I hope that I am reassuring the House that we are determined that the system should protect the very people it was designed for.
Lord Grade of Yarmouth: My Lords, does my noble friend agree that one of the themes that underpins the reporting of the child abuse scandals of the past is that the victims have failed to come forward because they
did not think that they would be believed? There is plenty of evidence that the authorities charged with looking after these children did not believe the accusations when they came forward. What steps can be taken to improve the situation by ensuring that those victims coming forward—who have the courage to come forward—are going to be believed and listened to and that their complaints will be investigated?
Lord Taylor of Holbeach: My Lords, my right honourable friend the Minister for Policing and Criminal Justice, Damian Green, has set up a group designed to ensure that this is the case and that the police forces themselves are aware of the difficulties and the need to lend a positive ear to complaints from young children. My noble friend makes a very good point—that the point of failure in the system is that these allegations have not been listened to or taken seriously by the authorities in the past.
Baroness Smith of Basildon: My Lords, the scale and type of sexual abuse has shocked the nation. Perhaps I may refer back to the Question from my noble and learned friend Lord Morris. Can the Minister confirm the number of serious, larger-scale sex abuse cases involving groups and gangs that have been investigated? My noble and learned friend suggested that there are about 54 such cases. The number is clearly over 30, which could mean that hundreds if not thousands of young people are suffering abuse at this moment. I listened carefully to the Minister’s answer and he was absolutely right about co-ordination. However, is he really confident that the Government have now got to grips with the matter and that the co-ordinated strategy which he spoke of deals with all aspects of these wicked crimes, including the reporting of them and the court proceedings?
Lord Taylor of Holbeach: My Lords, I have in fact got a figure and it is a dramatic one: 2,409 children and young people were confirmed victims of sexual exploitation by either gangs or groups during the 14-month period from August 2010 to October 2011. Those figures speak for themselves and to the scale of what is being dealt with. I assure noble Lords that this Government are focusing their attention on the issue as much as any Government have done.
Cash Ratio Deposits (Value Bands and Ratios) Order 2013
Motion to Approve
3.07 pm
That the draft order laid before the House on 26 March be approved.
Relevant document: 23rd Report from the Joint Committee on Statutory Instruments, Session 2012-13, considered in Grand Committee on 20 May.
NHS: GP Services
Statement
3.08 pm
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I shall now repeat, as a Statement, the Answer given in another place to an Urgent Question earlier today by my right honourable friend the Secretary of State for Health. The Statement is as follows:
“I have been clear that we have not been satisfied with the performance of A&E over the winter period. On 13 May, I announced to Parliament my intention to launch a new plan for vulnerable older people and publish this in the autumn. As I said in that announcement, there is short-term work under way to address the issues in A&E. However, the plan will look at all aspects of the way we look after those older people most in need of support from the NHS and social care system. In many cases, we could be offering better alternatives outside of hospital. The Primary Care Foundation has estimated that 10% to 30% of A&E cases could be treated elsewhere. The plan is being developed jointly by NHS England and my department, and we will be looking to engage with patient and professional groups over the summer so that the plan can be informed by their views”.
My Lords, that concludes the Statement.
3.09 pm
Lord Hunt of Kings Heath: My Lords, first, I refer noble Lords to my health interests as set out in the register. The noble Earl is certainly right about one thing: that the health and social care system is under huge pressure. Hospitals are full to bursting, discharge is becoming ever more difficult, and social care and the voluntary sector are struggling to fulfil the demands being placed upon them. However, from the Statement made by the Secretary of State in the other place, it seems that the Government are seeking to blame everyone but themselves.
For instance, we have heard a lot about the GP contract, but can the noble Earl say why it has taken nine years for that contract to impact on A&E services? These are the very same GPs to whom, only a year ago, the noble Earl was saying we should hand over £80 billion for them to commission services without expertise, experience or inclination. Does he agree that the real causes of the crisis are the government-induced collapse of adult social care, the reduction in nurses, the closure of walk-in centres and ministerial pressure to introduce the NHS 111 service way too soon? Does he accept that all that has happened on the watch of the noble Earl and his ministerial colleagues?
3.11 pm
Earl Howe: My Lords, we know that A&E departments are under pressure, and the noble Lord is absolutely right to emphasise that. Over 1 million more people are visiting A&E departments compared with three years ago. However, we also know that, on the whole, the NHS is performing well. The latest weekly figures for emergency services show that 96.3% of patients
visiting A&E are being seen within four hours and that people are waiting, on average, 55 minutes for treatment. That is a testament to the hard work of many staff throughout the health and care system.
It is not just about the GP contract; it is about making sure that we have a much more joined-up system in which hospitals communicate better with care homes and GP surgeries so that information about a patient’s needs is shared between the professionals who need it. GPs have an important role to play in this, which is why changes were made to the 2013-14 GP contract as a first step. Any future changes to general practice and the contract will of course be made in negotiation with GPs, and it is too early for me to go into detail on what those proposals might be. As regards NHS 111, I do not agree with the noble Lord. I am sure that he will be aware that the pilots we conducted on the NHS 111 service were extremely encouraging and showed a high rate of patient satisfaction.
3.12 pm
Baroness Williams of Crosby: My Lords, I am sure that the noble Lord, Lord Hunt, would not disagree that the GP contract, although it was some time ago now, was a factor in what has gone wrong with A&E. Does the Minister believe that we can move towards a situation where the responsibility for out-of-hours medicine once again becomes part of what GPs accept as their CCG responsibility? Can he also say whether steps might be taken in the short term to ease the situation in A&E, while in the long term we move towards a more satisfactory answer involving the reintegration of GPs into the care of patients going into A&E situations?
Earl Howe: My Lords, I think that the GP contract is but one element of a more complicated picture. It is not the only issue or, indeed, is it the only solution. It is true that access to out-of-hours care in some parts of England is simply not good enough. We are not saying that family doctors should necessarily go back to being on call in the evenings and at weekends. They work hard and have families, and they need a life too, but we must take a serious look at how out-of-hours NHS care is provided. My right honourable friend the Secretary of State will be talking to GP leaders about how we can do that over the coming weeks.
Lord Laming: My Lords, the noble Earl has indicated that there is a need to look again at the availability of community-based services. Hospital-based services are available seven days a week but community ones for much less, and that includes social care services. While not wanting staff to work all hours, is it not possible to move towards a situation where the services will be available at all hours while we protect staff working time?
Earl Howe: The noble Lord, Lord Laming, has summed up the situation extremely well. I am sure he knows that Sir Bruce Keogh, the NHS medical director, is currently looking at how NHS services across the piece can be provided seven days a week in a much fuller way than they are at the moment. Access to GPs
out of hours is part of that wider consideration and NHS England is working with the royal colleges and professional organisations to develop a set of standards that will apply to seven-day services. Some trusts are already thinking about treating patients at weekends for non-urgent operations and procedures. We want to encourage that trend.
Lord Reid of Cardowan: My Lords, can I correct a serious misrepresentation and misconception that is constantly made regarding the GPs’ contract, and which has been made in the past few moments? The GPs’ contract for 2003-04 did not remove the requirement of a doctor to work out of hours. That was removed a decade earlier under the previous Conservative Government; indeed, by 2000 a huge percentage of doctors had already opted out. The GPs’ contract was to try to make sure that GPs were not spending part of their normal day bureaucratically chasing up a replacement doctor to take their place. It removed that bureaucratic imperative but it did not remove the right of a doctor to refuse to work out of hours. That was the case with some 70% to 80% by the end of the previous Conservative Government, before the GPs’ contract. That is a very important distinction.
Earl Howe: My Lords, I certainly did not mean to mislead the House and if I have done so in any way I apologise. The summary given by the noble Lord is broadly right. Under the old general medical services contract, GPs had a 24-hour responsibility for their patients, although most GPs delegated responsibility to GP co-operatives or commercial providers. At the beginning of 2004, as I recall, only a small proportion of GPs actually provided out-of-hours services themselves. However, 24-hour responsibility continued to be unpopular with GPs as they felt it was discriminatory, which is why the contract was renegotiated at that time. It has brought about a growth in GP co-ops, with more use of telephone triage and more patients offered emergency consultation with a primary care centre. But that has resulted in fewer home visits and I think that point in particular is one that is exercising many people.
Lord Mawhinney: My Lords, does my noble friend understand that while he is telling the truth in saying that the contract is only one of a number of aspects that have to be addressed, the problem is that Ministers have said that so frequently from this Dispatch Box and the one in the other Chamber that it is now in danger of being understood as a reason why Ministers will not tackle contract issues? If my noble friend and his colleagues would start by addressing the contract issues, they would be doing us all a great favour. He would thereby be creating a lot more credibility when the other issues, which have to be addressed simultaneously, are turned to.
Earl Howe: My Lords, my noble friend makes an extremely important point. He may know that my right honourable friend the Secretary of State is very concerned to look carefully at the current contract to make sure that it does not include too many perverse incentives to tie GPs’ time up too much. If we can
work towards a contract with the agreement of the profession that enables GPs to take a more holistic look at their patients’ health and adopt a more preventative approach, which I think everybody agrees is desirable, that is thoroughly to be wished for. However, this is work in progress.
Care Bill [HL]
Second Reading
3.19 pm
That the Bill be read a second time.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, it is a privilege to open this debate. Care and support are things that everyone will experience at some point in their lives, whether they need it themselves, know a family member or a friend who does, or provide care themselves. Yet today’s care and support system often fails to live up to the expectations of those who rely on it. While many have good experiences, the system can often be confusing, disempowering and not flexible enough to fit around individuals’ lives.
The Bill represents the most significant reform of care and support legislation in more than 60 years. The foundations of social law are based on principles that are no longer relevant in today’s society. This long-awaited Bill implements the recommendations of the Law Commission’s excellent three-year review, begun under the previous Administration, to pull together over a dozen different Acts into a single, modern framework.
The Care Bill also takes forward our commitments to reform social care. Through the Bill, we are clarifying entitlements to care and support to give people a better understanding of what is available, help them to plan for the future and ensure that they know where to go for help when they need it. The Bill will make a reality our vision for a system that promotes people’s well-being and focuses on the person, not the service. It makes preventing and reducing needs a priority, and empowers people to take control over their care and support. It introduces national eligibility criteria, bringing greater consistency and transparency of access to care across the country.
The Bill includes historic reforms to strengthen the rights for carers to access support, putting them on the same legal footing as those they care for. It emphasises the importance of integration and co-operation between care and support and other services, providing the flexibility for local authorities and care professionals to innovate and achieve better outcomes for people.
A new adult safeguarding framework will ensure that arrangements are in place to protect people from abuse and neglect. There are new guarantees for people receiving care whereby if they move from one area to another they will not go without the care they need. For the first time, the Bill clearly sets out that local authorities are responsible for the care and support of people in prison.
I am pleased that public consultation and pre-legislative scrutiny have demonstrated widespread support for the principles and approach to law reform in adult care and support. Indeed, I am very grateful to those present who have already provided helpful and detailed scrutiny in draft through a Joint Committee of both Houses. The Government have accepted the majority of the recommendations of the Joint Committee on the draft Care and Support Bill. The Bill now reflects the importance of financial advice as part of the care and support information service; there is a stronger focus on prevention in assessments and care planning; and we have extended the powers to assess children for transition before the age of 18.
We have accepted the recommendations of the Commission on the Funding of Care and Support, chaired by Andrew Dilnot. The current care and support system offers little financial protection for the cost of care, which for one in 10 people will be in excess of £100,000. Critically, the Bill will reform care and support funding by creating a cap on care costs, giving people peace of mind by protecting them from catastrophic costs. By introducing universal deferred payments, it will also ensure that people do not have to sell their home in their lifetime to pay for residential care. Following the failure of Southern Cross, the Bill clarifies local authorities’ duties to protect people’s interest in the event of the failure of a provider, and creates a new regime for financial oversight of larger care providers.
In the debate on the gracious Speech, a number of noble Lords expressed concern about levels of funding for care and support. This is of course a very important matter. As a nation we are living longer, which I am sure all noble Lords welcome. Managing the fiscal consequences of this will be a key challenge in the coming years.
We must recognise that for the foreseeable future government spending will be constrained. However, we are also aware that in many areas local authorities are finding new and innovative ways of spending their available funding to secure better outcomes. The Bill will help to ensure that the care and support system works as effectively as possible to make best use of the resources available. To draw an analogy, the legislation changes not the amount of fuel available but rather the efficiency of the engine. I look forward to hearing noble Lords’ views about how the framework set out in the Bill can do this even more successfully.
The report of the Mid Staffordshire NHS Foundation Trust public inquiry, led by Robert Francis QC, identified inexcusable failures in care that must never happen again. Between 2005 and 2009 many patients received appalling care, and the wider health system failed to identify and act on the warning signs. The Government’s initial response set out our commitment to ensuring that patients are,
“the first and foremost consideration of the system and everyone who works in it”.
It set out a five-point plan to ensure safe, compassionate care.
Most of the steps we need to take are about increasing cohesion and bringing about a change in culture across health and care. This is not about fundamental changes
to the structure of our healthcare system. However, there are a number of limited but significant changes we need to make which require primary legislation. These are changes primarily to the way health and social care information is used to assess performance, and to the way poor performance is tackled.
Through the Care Bill we will introduce a ratings system for hospitals and care homes to give a single version of performance so that organisations and the services they provide can be compared like for like in a way that is meaningful to patients and the wider public. For while there is considerable information available on organisations providing health and care in England, there is currently no consolidated summary of how well they are doing. Aggregated ratings will help people choose the right services, and encourage organisations purchasing or providing services to improve them.
We will create powers so that the new Chief Inspector of Hospitals can instigate a single failure regime. A key finding of the Francis report was that the focus at Mid Staffordshire was on financial and organisational issues rather than the protection of patients and ensuring quality of care. A new failure regime, in which quality of care is as important as financial performance, will ensure that where quality of care is below an acceptable standard, firm action is taken to resolve it properly and promptly.
Robert Francis made a number of recommendations to promote openness in the health system. We will improve transparency and accountability by making it a criminal offence for providers of NHS secondary care to supply or publish false or misleading information about their own performance and outcomes. This will ensure that regulators, commissioners and the public have an accurate picture of the organisation’s performance, and enable the Care Quality Commission to detect quickly any signs of poor quality or safety and trigger the appropriate interventions.
The Care Bill also closes a loophole in the regulatory powers of the CQC. At the moment, if the CQC finds that a care home that is part of a large provider is not complying with registration requirements, the provider could close down the care home voluntarily in order to evade enforcement action by the CQC. In order to guarantee transparency of the regulatory system, the Bill will address this gap in the law to ensure that large providers operating a non-compliant service cannot avoid a record of poor care in this way.
These measures make limited but important adjustments to facilitate our response to the Francis inquiry. Together with changes we are making that do not require primary legislation, they will help bring about a revolution in the care that patients experience, rooting out unacceptable care, tackling failure promptly and effectively, and ensuring that the inspectorate and ratings framework inspires all hospitals to drive for continuous improvement.
Health Education England provides national leadership for the education and training of healthcare professionals. It supports a network of local education and training boards to enable local healthcare providers and professionals to take responsibility for planning and commissioning education and training in their area.
The Health Research Authority was formed to protect and promote the interests of patients and the public in health research, and to streamline the regulation of research. The Care Bill establishes both HEE and the HRA as statutory bodies independent of the Department of Health, giving them the impartiality and stability they need to carry out their vital roles free from political interference.
I am grateful to noble Lords from all parties for their support for this Bill in the debates on the gracious Speech. I look forward to debates about the detail of the measures it introduces, and I am sure that improvements can be made. Fundamentally, the Bill delivers much needed and long overdue reforms that can and should be widely supported. The Care Bill demonstrates the Government’s commitment to ensuring a compassionate, integrated and sustainable system of health and care, built around the needs of individuals and the outcomes they want to see, for now and the years to come. I commend it to the House. I beg to move.
3.31 pm
Baroness Wheeler: I thank the Minister for his very thorough and comprehensive introduction to the Bill. When the Care Bill was discussed last week in our debates on the Queen’s Speech, there were six overarching themes in the contributions from noble Lords.
First, there was a general welcome for the reform and consolidation of social care law, which we on these Benches initiated and strongly support in so far as it achieves a fairer, simpler and more sustainable system—three factors against which we will be closely testing the Bill through scrutiny and amendment.
Secondly, there was deep concern that this would be at best a partial solution unless a new legal framework is introduced in the context of addressing current and future social care funding needs. Given the scale of this Government’s cuts to local authority budgets, the Bill’s measures put forward in this context risk raising expectations that cannot possibly be met.
Thirdly, the Government’s proposals in the Bill on social care funding do not meet the Dilnot commission’s fairness criteria. Many in care homes will die before the cap at this level is reached; houses will still need to be sold; the cap will not in fact limit the costs that elderly people actually pay for their residential care; and the Bill will not mean that pensioners get their care for free if they have income or assets worth up to £123,000. The squeezed middle—those pensioners on average incomes who have worked hard, proudly invested in a home and tried to save for their older age—risk missing out.
Fourthly, the Bill offers only a partial response to the recommendations of the Francis report to address failures in hospital and care support. What happened at Stafford Hospital was terrible and lessons must be learnt. Last week Jeremy Hunt referred to Part 2 of the Bill as,
“a vital element of our response to the Francis report”.—[
Official Report
, Commons, 13/5/13; col. 350.]
But in reality the Government have been disappointingly limited in their response to those vital issues identified by Francis. Where is the Government’s response to his
concerns over safe staffing levels and the risks to safety and care? Where are Francis’s full proposals on the statutory duty of candour? Where is the regulation of healthcare assistants?
Fifthly, there were concerns that once again, like the Health and Social Care Act, this Bill will not in practice lead to better integration of health and social care. How will the Bill translate this into practice? How will the work of the Government’s consultation on integrated care, launched last week, inform our consideration of the Bill? Will it report in time for any legislative steps to be adopted? How will the institutions of the Health and Social Care Act—the health and well-being boards and Healthwatch England—link in with the care requirements placed local authorities? How will the marketisation and fragmentation of that Act align with any integrating intention in this Bill?
Sixthly, there was deep concern and dismay across the House that the Government have backtracked on vital commitments on public health, particularly on standardised packaging for cigarettes. The care crisis facing this country is not simply one of an ageing population but also one of co-morbidities and many more people living with long-term health needs. Public health plays an essential part in our response to those demographic changes, and is hugely relevant to issues dealt with under Clause 2 and to maintaining well-being.
So, the good news: the Bill is welcomed by Labour as an important first step towards providing a consolidated legislative framework for our social care system based on the excellent report of the Law Commission inquiry set up by Labour in 2009 to streamline and unify social care law. It implements 66 of the commission’s 76 recommendations, refocusing care and support on more patient-centred services better suited to people’s lives and needs, improving access to information and advice, strengthening the legal rights of carers, standardising eligibility criteria and establishing well-being as the guiding principle.
We strongly support that. It takes our work on patient choice and control forward. It builds on the progress that Labour made on key areas such as prevention, personalisation of services and carer recognition and support in our landmark National Carers Strategy. It also addresses much of the unfinished business in our pre-election White Paper on a national care service.
Like other noble Lords, I commend the pre-legislative scrutiny work of the Joint Committee. The Bill enjoys support among patient and carer organisations, staff, and service users and providers, but with the proviso that key improvements are needed to address what the committee itself identified as gaps and risks of unintended consequences. For completeness, we also welcome the proposals on Health Education England and the Health Research Authority, albeit with some significant issues to explore as we progress the Bill.
Now for the not-so-good news. On its own, the Bill will not go anywhere near far enough to tackle the crisis that is engulfing health and social care today. In addition to the crisis in A&E, now acknowledged by the Secretary of State, we have hospitals full to bursting, the discharging of patients becoming ever more difficult, handovers to social care services slower and subject to
more disputes and a social care sector struggling to fulfil the demands placed on it. On the front line, thousands of nursing posts have been lost and many services are under pressure. In social care, the recent report of the Association of Directors of Adult Social Services lays bare the scale and severity of the financial squeeze on councils, who, by the end of this spending round, will have been stripped of £2.7 billion from their adult social care services, equivalent to 20% of their care budgets, as demand for services increases.
New rights to services and support risk being meaningless as council budgets are cut to the bone and people are faced with spiralling charges. Will the noble Earl tell the House whether the resources for local authorities to deal with the additional responsibilities placed on them by the Bill, including carrying out the extra assessments of the estimated 450,000 self-funders, will be made available, and whether it will be new money? Is it accounted for in the impact assessment? Is he confident that councils will have the trained staff to complete those assessments on time?
We welcome the delayed consideration of Part 1 until completion of the spending review, but can the Minister reassure the House today that his department has shared with the Treasury the representations of the Care and Support Alliance, which has stressed that,
“without appropriate funding for the social care system … the aspirations of the Bill will not be reached”?
Can he also give a commitment to the House that the regulations associated with Part 1 will be available in draft by the time of our consideration? Without them, our scrutiny of vital issues such as eligibility criteria will be severely hampered.
On Dilnot, it is disappointing that the Government have watered down the commission’s proposals, proposals which Labour believes represent an important step forward in beginning to address social care funding. When he announced the Government’s response to Dilnot, the Secretary of State made great play and emphasis that the plans were “radical” and would,
“transform the funding of care and support in England—bringing a new degree of certainty, fairness and peace of mind to the costs of old age”.—[
Official Report
, Commons, 11/2/13; col. 592.]
He matched that with a promise that that would guard against someone’s property being sold and their savings wiped out. However, a £72,000 cap—£140,000 for a couple— will not be enough to stop many people with modest properties, especially in the north of England, selling their homes to pay for care. Under the deferred payment scheme, councils loan people money to cover their care costs, which now has to be paid back with interest, most likely by selling the family home after the elderly person has died. Nor will the Bill cap the costs that elderly people actually pay for social care unless differing local authority care charges are addressed, which could make a difference to care now. The cap introduced by this Bill will be based on the standard rate that local councils pay for residential care, which on average is £480 a week; but 125,000 self-funders face weekly bills that on average are £50 to £140 more
than this average council rate and in some areas far higher. This extra amount will still have to be paid and not count towards the cap.
The Bill will not mean that pensioners get care for free if they have income or assets worth up to £123,000. People will still get free care only if they have income or assets under the lower means-tested limit that is not being increased and will still be £17,500 in 2017. Those with incomes or assets between this figure and £123,000 will get a sliding scale of support from councils as they do now. Can the Minister confirm that this is the case?
On these Benches we remain to be convinced that the Government can provide answers on these fundamental aspects. Can the Minister not recognise that the Government are overselling what the impact of the Bill’s current provisions will be, particularly bearing in mind that nobody will be benefiting at all until 2020 at the earliest?
Finally, I turn to the some of the other questions that noble Lords will no doubt raise during the Bill’s passage, and I look forward to the Minister’s response to them. Will the change in the legal language around the continuing care and social care boundary of the NHS, shifted by the Bill, result in the possibility of more people having to be means tested for residential care? What are the Minister’s estimates of the number of people who will fall out of the system and become ineligible for support under these proposals? Have the Government assessed the overall impact on disabled users of social care also hit by cuts in their benefit entitlement and support? What consultation have the Government had with the insurance industry and pension providers about the likelihood of markets developing to help self-funders bridge the gap up to the £72,000 cap?
We welcome the introduction of well-being as the guiding principle but should this duty not also be placed on the Secretary of State? On integration and prevention, why does housing still get only limited consideration and mention throughout the Bill? On young carers, when will the Government make their position clear in addressing via this Bill the gap in the law? His colleagues have resisted attempts to amend the Children and Families Bill to this effect. Why have the Government reintroduced the issue of after-care services for people with mental health problems leaving hospital after a period of detention? We thought that this issue was settled under the last health Bill, but it seems not.
Lurking in the background as we speak today is the reality of a social care system on the edge of collapse. Social care is being left to decline. Labour supports the principle of capping care costs, but we stress that a bigger and bolder response is needed by Government to meet the challenges of our ageing population. Whole-person care is our vision for a 21st-century health and care system that brings together physical and mental health, and social care, into a single service to meet all of a person’s care needs. Our independent commission has already started its work on looking at how health and social care services budgets can be brought together. “Integrated services” means not just a series of area or service specific initiatives, but a way of working for a whole service.
We have a major task ahead of us to improve this Bill and we on these Benches will work hard to meet this challenge, and ensure that older and disabled people, and their carers and families, get the best possible deal.
3.43 pm
Baroness Jolly: My Lords, I thank my noble friend Lord Howe for explaining the parts of the Bill so clearly in his introduction to this debate. I also thank the government Care Ministers—the previous one, my right honourable friend Paul Burstow; and the current one, Norman Lamb—for championing the Care Bill and the work of the Dilnot commission.
As the Minister has already explained, this Bill brings all previous legislation together for the first time, and is based on the well-being principle but also on the funding cap to protect those from catastrophic costs, the higher means test, the inclusion of rights for carers assessments, the portability of care and the mechanism to protect the care market.
The decision to manage this Bill differently from the Health and Social Care Bill was wise. Not only was there extensive consultation on the White Paper, but the Bill was based on the Law Commission report that itself had consulted widely. It is worth mentioning that we on the scrutiny committee looked at Part 1 so that the new Part 2 and the sections added to Part 1 should get close scrutiny in Committee.
The committee had members who are hugely experienced in the world of care, and was chaired by the previous Care Minister, my right honourable friend Paul Burstow. We took evidence from a wide range of stakeholders, and without exception they were full of admiration for the work of the Bill. However, as noble Lords would expect, they had areas in their own field that necessitated extra work. When we looked at what the report should say, we had a strong evidence base and deliberated long and hard about any deletions, omissions or just plain amendments to the draft Bill. Those recommendations, which were included in the report that was published, were to make a good draft Bill better. I therefore really welcome the Bill, but there are some areas where more work needs to be done. There are some unintended consequences, and some minority groups need assurance that the Bill will meet their needs.
This is not the time for detail, but areas that have received full coverage and early attention are young carers, adults caring for children, and the transition in service provision. The Law Commission felt that this Bill is the vehicle to place legislation for the assessment and meeting of their needs, but in winding up on the third day of debate on the humble Address the Minister was very clear that there is no place in this Bill for young people: that it is an adult Bill. Will he explain how the Government intend to meet this real need? If he does not have the information at the moment, will he please write to me and place a copy of the letter in the Library?
A third of the adult population who receive care are of working age. Many are in work or mobile, and many aspire to work. I would be grateful if, before we get to the parts of Part 1 about funding, the Minister
will meet me to look at areas where the sector is anxious that their needs will not be met, resulting in failure to cope, leaving employment and subsequent isolation and depression. This was articulated most clearly in the report released last week by the All-Party Parliamentary Local Government Group and the All-Party Parliamentary Disability Group, entitled
Promoting Independence, Preventing Crisis
.
There are other sizeable but hidden populations who feel that the provisions of the Bill do not meet their needs. Before Easter, there were two all-party group commissions: one on dementia and autism and the other on BAME communities in old age. As I have said before, details are for Committee, and I am sure that my noble friend Lady Browning, whose expertise in autism is far greater than that of many noble Lords, will follow this up.
One of the scrutiny committee recommendations was about free care at end of life. Marie Curie Cancer Care has done a financial assessment of this policy, and the cost works out at £32.2 million a year. This will support the families of some 40,000 people who have care needs and are on the register, and will be just over £800 per individual. I note that the Government think that this has merit and that it can be implemented without a change to legislation. Will the Minister confirm that discussions are in hand on this and give some indication of a timescale, or has the proposal found the long grass already?
The intention of this Bill is to rationalise a confusing morass of Bills and measures to give clarity to local authorities, providers and, most importantly, those in need of care and their carers. In Part 1, the main thrust is the individual, not the system. It is based around the well-being principle in Clause 1 and the cap on funding to give assurance about catastrophic care costs. Both the cared-for and the carer will be entitled to an assessment and a care plan, whether they are a self-funder or not, and there will be a requirement to provide information about care options.
Part 2 was added to redress some of the problems that arose from the Mid Staffordshire Hospital scandal, to ensure that information is available in a readable and usable way to detect failure earlier, and to clarify actions in the event of failure. I am sure there is room for debate on this in Committee, too, but on balance we welcome the clause in Part 2 and hope that the further information referred to in yesterday’s deposited Statement on the joint Monitor/CQC approach to their new role and the development of ratings will be in time for the Committee debates on this part. Can the Minister assure the House that that will be the case?
Additionally, Part 3, on Health Education England and its Health Research Authority, is now hugely improved on the formulation in the Health and Social Care Bill, and is welcomed by the sector.
Of course, the economic situation in which we find ourselves is not the easiest, and I welcome the proposed delay—or perhaps I should say the pause—in Committee so that we can address the issues in Part 1 in the light of the spending review. I am sure none of your Lordships needs telling that the higher the level for eligibility for social care, the more will fall on the NHS. Let us hope that the Chancellor understands that point, too.
This will need modelling carefully, and I hope we will see some of that detail. Of course, it is worth knowing that were the CCGs and their health and well-being boards to work together as hoped integrating services, prevention would be increased, gaming would be reduced, and care would be delivered in an appropriate way by the appropriate body.
However, the Bill gives a sustainable and coherent framework for care in the future, some level of security about the cap for those with high care costs, and a method of dealing with hospital failure, including an early warning system. It comes with a warm welcome from these Benches.
3.50 pm
Baroness Campbell of Surbiton: My Lords, in welcoming this Bill I first declare an interest as someone who benefits from a whole range of care services, without which I would not be in your Lordships’ House. I hope that my professional knowledge, combined with my personal experience, will give added value to the debate over the coming weeks.
This Bill is the culmination of five years’ complex and challenging work to modernise the legal framework for adult social care. Much work has been done by the Law Commission, but the Government have also understood that they needed expertise that can come only from those who use care and support services. They conducted a lengthy and broad consultation. I have been impressed by the Department of Health’s efforts to get this right. Much credit for this must go to the fine leadership of its former director-general, David Behan. He recently left to take the helm of the CQC, which is very lucky. The Bill also benefits from the experience of Members of this House. A number of your Lordships served on the Joint Committee that considered the draft Bill and recommended improvements to it. The Government have listened, and the Bill is better for it.
Equally, the Bill is the culmination of more than 25 years’ work by the Independent Living Movement of disabled people. I consider myself very privileged to have played an active part in this social movement to radically change the way that care and support are designed and delivered. Since the mid-1980s we have fought to ensure that disabled people of all ages have the same opportunities that everyone else takes for granted. This has involved challenging entrenched professional attitudes, political assumptions and public misconceptions about what disabled people can and cannot do. The struggle continues today. Many people believe, as I do, that disabled people have lost ground recently. As someone once observed, “The price of liberty is eternal vigilance”.
However, this Bill shows how far we have come since the passing of the Community Care (Direct Payments) Act 1996—in my view, the most emancipatory care and support legislation in my lifetime. That Act was passed because a group of disabled people was able to persuade the Government of the day that they could be trusted to take control of the cash needed to pay for their personal care support. That was my first memorable experience of the House of Lords.
Twenty years ago, I sat in awe behind the Bar, as the noble Lord, Lord McColl, introduced his disabled persons Bill.
Three years later, in another place, the then Parliamentary Under-Secretary of State at the Department of Health, John Bowis, took over the Bill. His powerful speech at Second Reading would be just as relevant in today’s debate. He said:
“I have heard from people who have a disability, but also hold down a job or voluntary work and whose working lives are obstructed by the rigidity of a council service rota; or people who do not like to complain, but would really like a different range”,
“or people who have responsible jobs, but are treated by the care workers as if they were rather tiresome and untidy children. They have no real independence, no real choice and no real dignity”.—[
Official Report
, Commons, 6/3/96; col. 372.]
What became the Community Care (Direct Payments) Act 1996 was a bold step on the then Government’s part to empower disabled service users. Local authorities were required to deliver services differently. They could not just decide what was best for us anymore. That Act transformed many people’s lives, including my own.
As your Lordships will be aware, there has been much progress since that landmark statute. Further legislation has widened access to direct payments. Personalisation policies have developed other ways for people to have more say and control over their support and care. Personal budgets offer another way for people to decide how funds should be used to support them. Even the NHS has caught on, by introducing personal health budgets for people with long-term conditions, so they, too, can have more say over their healthcare. A process that started among working-age disabled people has broadened out to benefit other groups: people with learning disabilities, older people and people with mental health problems. They are all using direct payments and personal budgets—and so, too, are parents of disabled children, giving them both more control and allowing enough flexibility for many to pursue their dreams. Policy guidance has encouraged local authorities to work with people and their families as equal partners. By working together, many are coming up with solutions that best fit their individual circumstances, using public services to complement their own resources, personal assets and community links.
All these positive trends, many of them with roots in the user and carer movements, come together in Part 1 of the Bill. It represents a sea change in the values and attitudes embodied in the legislative framework for adult social care. It treats people requiring support as citizens first and foremost, with rights and entitlements stemming not only from this Bill but from the Human Rights Act, the Equality Act, and international agreements, such as the UN Convention on the Rights of Persons with Disabilities.
However, your Lordships would not expect me to tell them that this Bill is perfect. It sets out many of the right goals, but we will need to question the Government very closely on some of the means by which they intend to achieve them. For instance, we are promised first sight of the regulations on assessment and eligibility towards the end of June. This will coincide with announcements about the public spending
review, so we can assume that resources will impact heavily on the qualifying criteria for public support. Much also depends on how local authorities choose to implement their responsibilities and powers under this legislation. There is a great danger that this Bill could be ignored as being fine words but without teeth.
There are already wide variations in the sensitivity and understanding shown by local authority staff in assessing and responding to people’s needs. I recently had a review visit to assess my suitability for a personal budget. Like fellow service users, I am naturally very wary of reassessments as they generally involve budget cutting. I did not know what to think when I received a copy of the reassessment report last week. It says that I have,
“severe difficulties in either self-expression or understanding”.
If any of your Lordships have difficulty understanding what I am saying today, please come to my office for clarification. On a more serious note, the reassessment of my ability to communicate could mean the difference between a social care direct payment and NHS-funded care. That might be fine if support would not change for the worse as a consequence. It is no secret that some local authorities cannot wait to offload clients onto NHS continuing care. I am hopeful that health budgets will eventually mirror social care direct payments. However, this is not yet the case.
Last year, the JCHR investigated independent living. The resulting report was dedicated to a 22 year-old disabled man. This young man had been in part-time employment and living independently, supported by social care direct payments. However, after being admitted to hospital with a chest infection, it was decided that he would be safer with a tracheostomy. Tracheostomy care is not rocket science. It does not take long to train a sensible person. However, the local authority decided that this man was now “the problem” of the NHS. As a result, his direct payment was withdrawn. It took health commissioners six months to decide how he would be cared for, leaving him in a hospital critical care unit for three months longer than was necessary. This severely disabled independent man lost his job, his loyal PAs and his dignity. The cost to the taxpayer was £36,000 in hospital fees, double what it would have cost had he been allowed to keep control of his cash and care, with an enhanced payment from the NHS to pay for the extra PA hours needed during the night.
Is it any wonder that disabled people fear the future? They do not just fear the consequences of inadequate funding, they dread past ways of working creeping back in the name of austerity. Those of us who use care services must be given more control to enable us to survive these difficult financial times. Services need to adapt to enable the recipients to create their own budgeted support and to seek work, wherever that may be. This nicely leads me to return to an issue I have been raising in your Lordships’ House for the past four years. Noble Lords will know that I have a particular concern about portability of care and support. I will push for the Government’s proposals on portability in this Bill to match the outcomes set out in my Private Member’s Bill.
The Minister for Social Care in another place has indicated his desire to work closely with those of us campaigning for total portability of care and support.
I have consulted on the subject for more than five years with disabled people and their organisations, carers, lawyers and professionals in social care. My Private Member’s Bill is the culmination of that work. My Social Care Portability Bill has been recognised by the Department of Health. The greater part of it has been subsumed into the Care Bill before us today. However, there is one crucial difference. My Bill ensures that disabled people can move to another area, confident that they will receive the support they need to enable them to continue to play an active role in society. The manner in which the council meets those needs may be different because of the different configuration of local community and care services but it should not reduce choice and control, and the ability to achieve the outcomes they need. I believe that the Care Bill has the same intention but I would welcome confirmation that this is indeed the case. There are questions about bureaucracy and enforceability but the detail can be fleshed out in Committee.
There is one other matter I want to flag up today. Those who receive their care not from a public authority but from a private body lack the full protection of the Human Rights Act. The Joint Committee recommended an amendment to the Bill to put this right but the Government have not addressed it. It is a loophole that must be closed. I will be interested to hear the Minister reflect upon that issue.
I have great expectations of this Bill’s capacity to change the way that care and support are delivered in the future. We have waited for this a very long time. We must not let the opportunity slip through our hands. We are all interdependent. We all need to feel safe and valued. We all need our dignity respected. We must take heed of those “experts by experience”, of which I am proud to be one. We have much to offer the debate on how we create care and support services which maximise the well-being of those who need them. I am sorry if I have taken longer than many other noble Lords may for the rest of this debate but I feel so strongly about this issue. We have much work to do and I am happy to do my part.
4.06 pm
Lord Mackay of Clashfern: My Lords, it is a great privilege to follow the noble Baroness, Lady Campbell of Surbiton, who speaks on these matters with a particular authority and profound experience. I should mention my interests: I am a vice-president of the Carers Trust, a member of Barnardo’s and I have honorary fellowships from three of the medical royal colleges.
I am extremely grateful to the noble Earl, Lord Howe, for his explanation of the Bill. I also congratulate the department and the Ministers there as quite a number of changes have been made to the draft Bill and yet they have managed to get it in so early in this Session. One of the difficulties that that may entail is that the funding arrangements may not be fully known at the beginning of our consideration of the Bill in Committee.
I was privileged to be a member of the Select Committee engaged in pre-legislative scrutiny of the Bill and I want to acknowledge the great expertise of
my fellow committee members and the excellent chairmanship of Paul Burstow, who was the Minister before he found himself chairing this committee.
In the many submissions that the committee received there is one that goes very deep into this situation. It is from the King’s Fund, suggesting that the time may have come for a reappraisal of the arrangements between social care and healthcare. As I went through the Bill, I appreciated from time to time that the division between these two areas affects integration. There was a great desire for integration and I share that. One of my lawyer friends connected with the committee said that as a lawyer he had some difficulty with integration. One can see why that is. The King’s Fund has raised a huge question about whether some change should be made. No doubt the noble Lord, Lord Sutherland of Houndwood, will have something to say about the matter later, with his expertise in this area.
The Bill sets out in Part 1 a very welcome and wonderfully wide principle of well-being as its object for individuals. I am thankful for the alterations, and indeed the widening of that principle which was made on the recommendations of the Joint Committee. However, I echo what has already been said—that without adequate funding the anticipation of what the Bill will achieve will be considerably higher than the realisation, which can only be damaging for those who promote the anticipation in the first place.
The Joint Committee advised that the duty to have regard to this well-being principle should be incumbent on the Secretary of State when he is making regulations under the Bill. I must say that that seemed to me, and I am sure to the rest of the committee, to be eminent common sense. Sadly, however, in preparing the Bill, the Government did not feel that that should happen. In the explanation given in answer to our recommendation 22, the Government say:
“We do not agree that the Bill should require the Secretary of State, when making regulations or issuing guidance, to have regard to the general duties of local authorities under clause 1”.
As regulations are intended to give effect to the obligations of the local authorities under Clause 1, one would think that in making regulations it would be common sense to have regard to the principles on which the local authorities should work. Here is the Government’s answer:
“Local authorities are responsible and accountable for social care. We believe that creating new duties for the Secretary of State would distort these clear lines of accountability”.
I have some difficulty in understanding that. The object was not to create new duties for the Secretary of State but to assist him in performing the duties that he has to make regulations. It seems to me that to attempt to make regulations in relation to this matter for local authorities, which are bound by the general principle, it would only be sensible that the person making the regulations should have regard to the general principle.
I welcome the Bill very much: it has great opportunities, subject to what I have just said about the funding. I shall comment on only one or two particular points because there are many speakers and there will be many matters that people want to raise and I do not want to create unnecessary repetition.
Clause 22, as it is now, defines the difference between healthcare and social care. The Joint Committee commented on that but the department has enlarged the clause; it is bigger than it was before, but I am not sure that it is much clearer. In particular, it provides that if a registered nurse is to be employed, the consent of some commissioning board—usually the national one, I think—is required. I would have thought that something could be done about that without requiring continual reference to the commissioner.
I will not say much about the Dilnot clauses because generally they came later than our committee could have seen, but I agree with the point that the eligibility and cost arrangements nationally must be important for the Dilnot cap to work. It ought to be the same fit whether in London or Cumbria. That would require a degree of uniformity across both cost and eligibility that might be quite difficult to attain.
The noble Baroness, Lady Campbell, has already mentioned the human rights point. The Joint Committee suggested that this should be put in, and I adhere to this matter being looked at in Committee in due course. The point I particularly wish to stress is the situation of young carers. The Joint Committee recommended that this should be dealt with in the Bill. The answer is that it is inappropriate that children should receive adult care. However, that was not the point the Joint Committee sought to make. Its point was that the Joint Committee considered that there can be a relationship between the care provided for the adult and the child providing that care.
One of the important factors is that the child’s obligations of care, which are often undertaken cheerfully and voluntarily, do not cause damage to the child. The imposition and undertaking of undue burdens of care for adults, which may be given out of love, affection and loyalty to the adult, may be damaging to the child. I—and I think the Joint Committee as a whole—believe that this is an important factor to be put into this Bill. The regulations and legislation about care of children are contained in five different statutory provisions, starting with the Children Act 1989. There have been others since and I gather that there are about six different provisions of guidance on these matters. The children are surely entitled to some degree of simplification, just as the adults are, by this Bill.
Another point I shall touch on is the question of guidance. The Joint Committee recommended that guidance should be by way of a code, which should be available and endorsed by Parliament. However, the Government have said: “This is not really necessary. It is not quick enough; things change so quickly that we need to change them all the time, therefore it is not appropriate in this situation to have a code”. We expect a lot of social workers and often they are the people who take the burden of complaint when something goes wrong. It cannot be right to have a lot of different pieces of paper for social workers to know what the guidance is—and when the guidance changes the pieces of paper just increase. They do not always seem to destroy the previous pieces of paper, so the difficulties for people trying to carry out this work are increased by that system.
I remain of the view—which we can discuss in Committee—that guidance should not be ad hoc pieces of paper, but a code, which can last for a reasonable time. After all, the statutory provisions have lasted some time. There are many other matters that one could raise, but I do not want to find myself shortening the time available for others.
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Baroness Pitkeathley: My Lords, like the noble and learned Lord who has just spoken, I—and several noble Lords speaking today—was a member of the Joint Scrutiny Committee. Like the noble and learned Lord, I join the thanks to the officials, the chairman and my fellow members. I very much welcome the changes that the Government have made to the draft Bill as a result of the committee’s report.
Your Lordships will many times have heard me and others—whom I have a habit of referring to as the usual suspects—detail how inadequate social care systems are for meeting the needs of the increasing numbers who need them. “The system is not fit for purpose”, “out of date”, “confusing” and “a lottery”—all those are familiar phrases to your Lordships’ House. So it is a great pleasure to welcome a Bill which attempts to address some, though by no means all, of the problems. Importantly, it addresses the issue of the law relating to social care. It encapsulates proposals made by the Law Commission report in May 2011. The Law Commission pointed out that the law relating to adult social care stretched back to the Beveridge reforms of the 1940s and included a plethora of other Acts, including the National Assistance Act 1948, parts of which are still in force. The law relating to people with disabilities and carers, as we have heard, is similarly contained in a variety of parts of Acts and Private Members’ legislation.
The Law Commission originally proposed that there should be a tightly defined process for determining the scope of adult social care. But when it consulted very widely, it decided instead to define the purpose of adult social care as promoting or contributing to the well-being of the individual. That recommendation was accepted by the Government and is central to the new policy. The whole of the new policy structure is shaped by the well-being provision, although I share with the noble and learned Lord, Lord Mackay, anxiety about the accountability of the Secretary of State for Health in this regard.
The enactment of the Care Bill will not just consolidate and streamline into a single statute 60 years of piecemeal law-making, it will place on a statutory footing for the first time both the principle and practice of self-directed personal care based on individual assessment. Particularly pleasing is that the well-being principle is also to be applied to the individual’s carers. It is around carers that I want to base the majority of my remarks this afternoon.
In the draft provisions it was not clear whether the important duty on local authorities to put the promotion of well-being at the heart of their delivery of care and support also applied to carers. The new reference to “individuals” rather than to “an adult”, which appeared
to refer to an adult receiving care, now rectifies this and removes any doubt that carers are qualified. This is an important and welcome distinction.
The Bill also adds a new landmark duty that local authorities should have a duty to ensure that they plan for sufficient care and support services when enabling carers and disabled people to be supported, especially with regard to them being able to undertake paid employment.
A Private Member’s Bill was introduced by another member of the Joint Committee, Barbara Keeley MP, which would have put in place this sufficiency of support duty. Although the Bill did not progress, its vision has now been accepted by the Government who have responded in the Care Bill by placing a new requirement on local authorities to ensure that there are sufficient care and support services to meet current and future needs. This would have a particular focus on supporting carers to undertake paid work and caring where this is possible, although when we come to the issue of carers’ resources to provide that sufficiency, we will no doubt have many debates.
The new provisions in the Bill set out a framework for the development of more modern services that can help family members. As well as being hugely important in preventing financial hardship for families, this can also be seen as of great benefit to the wider economy. It has been estimated that carers giving up work costs the economy up to £5 billion a year.
Another very important change that has been made for carers is with regard to finance. The draft Bill did not make it clear that, as in the case of the person with care needs, a carer’s need for support should be assessed before their financial circumstances are considered. I am pleased to see that the Bill has been amended to put an assessment of support needs before financial assessment. Again, that is very important.
The draft legislation could have meant that carers could be wrongly charged for services provided to the person they care for. The Government have said that this was not their intention and they have made it clear that carers must not be charged. However, what is a carers’ service and what is a service for an older and disabled person are not yet clearly set out in the Bill. We will need to make further changes that will define what they are and prevent confusion and disputes down the line.
Two other areas about carers will need careful scrutiny as the Bill goes through and I hope that the Minister will comment on these. The first is the issue of young carers, as has already been mentioned. The Joint Committee that scrutinised the legislation called for amendments to ensure that young carers get equal rights to assessments and support in law, both in this Bill and the Children and Families Bill currently before Parliament. The Government have made some limited changes that mean that where a young person receiving care is in transition between children's and adult services, the circumstances where they or a young carer would be covered by provisions in the Bill would ease this transition.
However, the changes do not alter the fact that young carers will have lesser rights to assessment and support than adults caring for adults. The same thing
will apply to parent carers, because we have to ensure that parent carers—those who look after disabled children—do not also end up with lesser rights, because the changes made for carers, and we hope for young carers, are very positive. Parent carers now have an imbalance of rights because they are not included, and we shall need to give this careful attention as the Bill proceeds.
Others have commented on the Dilnot proposals and I will not do so, except to say that, for many of us, the level of the proposed cap is disappointing. The effects of bringing many who are currently self-funders into the assessment system have not yet been sufficiently recognised.
In conclusion, there is no doubt that the Care Bill has the potential to make major improvements to how social care is delivered. However, we shall have to focus very carefully on several issues, apart from those I have mentioned already, if it is to achieve that potential. I will just list them now. The first is national eligibility criteria and where they are to be set: there is a great deal of anxiety about that. The second is the role of advocacy in helping people negotiate a system which, by the Government’s own admission, is complex and difficult to understand. The Joint Committee thought that advocacy ought to be part of the element of information and advice, but the Government have not accepted that. There is also, of course, the old issue of integration of health and social care, which we all know is so vital; the Government have recently made renewed commitments to such integration. Also under this heading, we need to look at the role of prevention, which is similarly such a vital part of integrated services. There is also the vexed issue of funding, on which I look forward to spending many happy hours. In order to make the vision encapsulated in this Bill a reality, the Government and the nation simply have to make resources available. Not to do so is a false economy and will store up many more problems for the future.
I hope our debates will enable us to look at a broader vision too, such as that encapsulated in the Ready for Ageing? report from the committee chaired by my noble friend Lord Filkin. If anyone imagines that the Bill before us today provides a long-term solution to all the problems in social care, they are very much mistaken. I hope the Minister will be able to acknowledge this. Recently I gave a lecture at King’s College entitled, “Social Care: Our Biggest Problem or Greatest Opportunity?”. My conclusion was that it was both. My noble friend Lord Filkin’s report is the clearest call yet that we have had for a new vision for social care—a different settlement for the older people we will all become. This is not just a matter for health and social care, but for whole communities, the whole of government and all political parties. This Bill is a welcome first step towards that new vision—or new settlement—but we must never lose sight of the fact that it is only a first step.
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Baroness Tyler of Enfield: My Lords, I start by saying how very strongly I welcome this Bill, which I also see as a landmark piece of legislation, addressing
one of the key social policy issues of our time. After decades of putting this issue in the “too difficult to deal with” box, and with earlier reports gathering dust on shelves, this Government, in very difficult economic times, are finally establishing the architecture which will allow for the capping of catastrophic social care costs—something that has created fear for many families up and down the country. Many people deserve credit for getting the Bill to this stage—including, of course, my noble friend the Minister—but I, too, particularly want to pay tribute to the outstanding work and tenacity of my honourable friends Paul Burstow and Norman Lamb in getting both the policy and the legislation to this stage.
I see this legislation—and the surrounding guidance and regulations—as having the ability and potential to transform the lives of many of our fellow citizens for the better. All my other remarks will be made within this context and reflect my wish to strengthen the Bill still further. Also, I will focus in particular on issues affecting carers, who contribute so much to their loved ones, families and to society, but who too often go unnoticed and unvalued. However, I do not claim to do so with anything like the same degree of expertise as that of the noble Baroness, Lady Pitkeathley.
There is much to welcome in the Bill and the recent changes which have been made as a result of the excellent pre-legislative scrutiny undertaken by the Joint Committee mean that it offers an ambitious and positive vision for the future of social care. It is also an important consolidation of the existing social care law. It introduces for the first time new rights for carers, giving them the same rights to assessment and care services from local authorities as those they care for, which is something that I welcome. However, as so many others have said both in this House and outside, much of this will hang on the amount of funding that is available for social care, a matter that I suspect we will return to time and again.
I would like to highlight the following key provisions. I turn first to the new well-being principle, which is something that I strongly support, in particular the fact that carers are now covered by this important duty. Secondly, the new requirement on local authorities to ensure that there are sufficient care and support services to meet current and future needs is absolutely critical. Thirdly, we have the introduction of a national eligibility threshold for care services, alongside a new assessment process and eligibility criteria. This will make the way people are treated when they apply for care more equitable and easy to understand, including when they move away to different parts of the country. Fourthly, at the heart of the Bill are paving clauses to allow for the introduction of regulations setting out the level of the cap on social care costs and changes to the care means test. This is of course the architecture, and there will be plenty of debate to come on the appropriate level of that cap. While I very much welcome the increased level of the care means test, which has already been announced, I hope that as the economy improves and more resources become available, it will be possible to reduce the level of the cap to something more akin to that suggested by Andrew Dilnot. Finally, there is to be a duty on local authorities to provide information and advice, again with the
explicit inclusion of carers. This is important as currently far too many carers feel that they have missed out on financial support as a result of not getting the right information and advice early enough.
During the passage of the Bill I will want to focus on four particular areas, and I shall say something briefly about them now. I turn first to well-being. As I say, I am a strong supporter of the well-being principle underpinning everything that happens in social care, but like the Joint Committee and other noble Lords who have already spoken, I would like to see it extended to the Secretary of State so that the whole pack of cards is fully aligned. We hear much, quite rightly, about the importance of horizontal integration between health, social care, housing and other services. In my view, what I would call vertical integration within the care system is equally important, and I will be pressing for this to be incorporated in the Bill.
The second area is that of dignity. In recent times, we have seen and heard of shocking failures in the care of older people across both the health and the social care sectors. Moving forward, we need to see a major cultural shift to ensure that dignity is embedded in everything that happens, along with a positive attitude to ageing and working with older people, a point that the recent report on ageing from the Lords Select Committee on Public Service and Demographic Change, of which I had the privilege and pleasure to be a member, made loud and clear. Public confidence in the current social care sector’s ability to treat people with dignity is very low. A recent survey showed that only 26% of the public are confident that older people receiving social care are treated with dignity. We have a great opportunity here. The Care Bill could, for the first time, embed dignity in legislation as a core element of the well-being principle, thus placing it alongside other crucial aspects of well-being such as physical and mental health, and family and personal relationships.
I also want to add my voice to a pressing issue that unfortunately has gone largely unnoticed in recent legislation and to which others have already referred. Both the Care Bill and the Children and Families Bill represent commendable and critical efforts to improve the lives and enhance the rights of many people, but sadly, a particularly vulnerable group appears to have slipped through the gap between these two Bills. It remains mired in complex legislation and disadvantaged by limited rights. This group is young carers.
The 2011 census identified 178,000 young carers in England and Wales alone and a further survey taken by the BBC in 2010 estimated the number to be more like 700,000, with as many as 8% of secondary-school children providing moderate to extensive care. As a group, young carers are infamously hard to identify and evidence suggests that in many cases the carer tries to keep this part of their life secret. But although they may often be invisible, young carers and their rights are in serious need of attention. Evidence suggests that young carers are often rightfully proud of their roles and the invaluable contributions they make to their families and the lives of those close to them, but that does not mean that they do not encounter serious difficulties and disadvantages—a point made so eloquently by my noble and learned friend Lord Mackay of
Clashfern. So while young carers work to look after the needs of another person, the system must work to protect them and their rights and well-being.
A very welcome aspect of the new adult carers’ right is that it strips away the requirement for adult carers to have to establish that they are providing both regular and substantial care, placing a duty on adult services departments to provide services to meet the assessed needs of adult carers. Young carers, on the other hand, have been left with what has been described as,
“a mishmash of relic semi-serviceable carers’ Acts”.
In certain cases young carers will be required to establish that they are providing regular and substantial care with higher thresholds than for adult carers. In other cases young carers will have to demonstrate that they are in a household that is receiving services, and even then will have only a discretionary entitlement to support. When scrutinising the legislation, the Joint Committee called for amendments to ensure that young carers get equal rights to assessments and support in law, both in this Bill and the Children and Families Bill currently before Parliament. In response the Government have made some limited changes aimed at easing the transition between adult and children services, both for young people receiving care and for young carers, and they are welcome. But these changes do not change the fact that young carers will have lesser rights to assessment and support than adult carers caring for adults. Nor does it go far enough in placing a responsibility on adult social care services to prevent inappropriate caring by children—something which I would like to see clearly included in the Bill.
To summarise, both the Care Bill and the Children and Families Bill present an important opportunity to simplify and clarify the law for young carers, to provide a clear interface between the two pieces of legislation and to ensure that young carers are not left with unequal rights compared with adult carers. It is imperative that the Government urgently address this rights imbalance in an even-handed way. I ask the Minister to give assurances that the Government will look at the issues I have highlighted in a fully joined-up way to ensure that all carers receive the same legal rights to assessment and support.
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Lord Rix: My Lords, the introduction of the Care Bill is to be welcomed. It provides the opportunity to fundamentally improve the lives of disabled people and the legal framework for the social care and support system. Social care is vital for people with a learning disability. Good social care and support empowers them to live independently and within the community. It means that they can be valued members of our society and not marginalised and hidden out of sight in institutions such as Winterbourne View.
The system, however, is in crisis. Social care for working-age adults is under funded by at least £1.2 billion and thousands are being excluded from services as local authorities tighten eligibility criteria. It is a situation that the learning disability charity of which I am president is only too well aware. Mencap research has shown that the vast majority of councils have tightened
criteria from “moderate” to “substantial”, which is now by far the most common level. Put simply, people with a learning disability are being left without any care and support for basic needs, such as help with getting out of bed in the morning, making a home-cooked meal, communicating with friends and family and even getting out of the house.
The report, The Other Care Crisis, produced by Mencap, the National Autistic Society, Scope, Leonard Cheshire Disability and Sense, and supported by economic modelling by Deloitte, highlighted that alongside the moral imperative for action, investing in support for people with moderate needs will ultimately lead to savings for the taxpayer. Well, Clause 13 gives the Government the ability to set a national eligibility threshold in regulations; however, setting the threshold at “substantial” rather then “moderate” will result in more than 100,000 people being denied the support that they need. To prevent us going backwards, the Bill must be underpinned by an appropriate funding settlement in June’s comprehensive spending review.
I wish now to move on to safeguarding. Time after time, we have seen how agencies have not taken safeguarding seriously, with horrific consequences for people with a learning disability. There have been the deaths of Francesca Hardwick and her mother Fiona Pilkington, the murder of Steven Hoskin and, more recently, the abuse scandal at Winterbourne View Hospital, where it took a whistleblower and “Panorama” to expose the abuse meted out by staff.
The Bill does much to clarify and strengthen the law, and address the widespread concern that current procedures for safeguarding adults at risk of abuse or neglect are inadequate. Putting adult safeguarding boards on a statutory footing will better equip them to prevent abuse and respond to it when it occurs. Nevertheless, it must be made absolutely clear when safeguarding investigations are to be carried out, their threshold and the process. However, the Bill also introduces a welcome duty on local authorities to make inquiries when it suspects that an adult is at risk of, or experiencing abuse or neglect, but there is no duty on providers or other relevant partners to inform the local authority when they suspect that an adult is at risk. This appears to be an oversight that I hope will be addressed by the Minister.
I should like also to touch on the cross-over between the Care Bill and the Children and Families Bill, currently on Report in the other place. We all know the difficulties that disabled young people and their families face in transition to adulthood and how often young people fall through the gaps as they move from children’s to adult services. These two pieces of legislation offer a unique opportunity to make this better.
The Children and Families Bill will introduce education, health and care plans, potentially up to the age of 25—something to be widely welcomed. At the same time, the Care Bill introduces care and support plans for disabled adults over 18. Young people aged between 18 and 25 could therefore have two different plans. It seems to make sense that when a young person is eligible for both, they be brought together to create a consistent approach. I hope that the Minister and officials will work with interested parties, including
Mencap and the Every Disabled Child Matters campaign to ensure that these plans are complementary and do not result in separate processes and plans.
Clause 55 of this Bill gives local authorities the power to assess children and young carers under the adult statutory framework in advance of their 18th birthday. This will be known as a child’s needs assessment. If a local authority does not comply with a request to undertake an assessment, it must give a written explanation for the decision. The clause is welcome and will allow young people better to plan their future because they know their entitlements. However, local authorities will have to assess children and young carers in advance of their 18th birthday only if they judge it will be of “significant benefit” and,
“it appears to the authority that the child is likely to have such needs”.
There are also repeated clauses about the potential contribution of “other matters” such as support from friends and family when determining necessary provision. This might well allow local authorities to use this wording as a way to pass on their responsibility to carers and family members or, frankly, to wriggle out of their responsibilities altogether.
Clause 63 creates welcome new protections to ongoing children’s services where a child’s needs assessment has been requested. However, this puts the onus on the parent or the child to request the assessment. If a parent or child is not told of their right to request such an assessment, and do not request one, they receive no protection under this clause. I therefore hope the Minister will consider extending this protection to all children and young people, not just those who have requested an assessment.
Part 3 of the Bill focuses on health, specifically on the establishment of Health Education England, which will be responsible for the planning and delivery of education and training for the NHS and health workforce. It is absolutely critical that the NHS meets the needs of people with a learning disability. This is simply not the case at the moment. The three-year confidential inquiry into the premature deaths of people with a learning disability published its final report in March of this year. The inquiry looked at the deaths of 233 adults and 14 children with a learning disability in the south-west. It found that 37% of deaths would have been potentially avoidable if good quality healthcare had been provided. As if to underline this, today there was a report by the NHS Ombudsman, Dame Julia Mellor, on how mistakes by an out-of-hours GP service and Basildon University Hospital in Essex contributed to the death of a young woman with both physical and learning disabilities.
Unfortunately, this is no surprise to many families, who feel that blunders, poorly trained staff and indifference are to blame for the deaths of their loved ones. We await the Government’s response to the confidential inquiry’s findings, and its recommendations on how to prevent the needless deaths of people with a learning disability. Clearly, the training of healthcare professionals is vital. I trust that appropriate and acceptable amendments will be made during the passage of the Bill through your Lordships’ House.
To conclude, I reiterate that the Care Bill is a very welcome piece of legislation. However, I cannot stress enough that if we are to meet the aspirations of disabled people we will need to ensure that the eligibility threshold is set at “moderate”, not “substantial”. “Substantial” should be used for the funding of social care for disabled people, but knowing this Government’s attitude toward adequate funding for this vital service, I can only say, “Don’t hold your breath”.
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Baroness Bakewell: My Lords, there is no doubt that this is indeed a momentous Bill. It will affect the lives of many who are already old, and the many millions whom medical progress and judicious lifestyles will bring to a multiplicity of years. It attempts to deal with what is not simply an immediate domestic crisis, although of course it is that. It is about a change in human society on a Darwinian scale: for the first time in history the human race will be living substantially longer than ever before. In Japan, there are already 50,000 people who are more than 100 years of age.
We have to realise the scale of the change that is under way. When Beveridge wrote his 1940s report he confronted five challenges: the evils of squalor, ignorance, want, idleness and disease. Today there are just as great evils stalking the old in this country: they are fear, ignorance, need, loneliness and neglect. In dealing with the problems that this creates, society has a mountain to climb. This Bill, which is much needed, deals merely—and deals well—with the immediate foothills. In doing so, it endorses two important priorities, which I welcome. Part 1 defines the central concern of the legislation as being the well-being of the individual. Later, the Bill shifts the emphasis of legislation towards,
“preventing … the development of needs”
in the first place. This is an honourable objective but there are many obstacles that the Bill does not resolve. In examining and improving this Bill, we must bear in mind the scale of the problems as they already exist and the expectations that such problems will vastly increase in future.
Considered as a “foothills” measure, the Bill may be judged a very good one. It now includes many of the recommendations made by the Joint Committee on the draft Bill, and I pay tribute to the committee’s efforts. But there are many issues that we still have to address more thoroughly so, on behalf of older people, I will address the five evils I enumerated.
The first is fear: old people are haunted by what will happen as they age. They fear having to give up their home to move into strange places among strange people. The Bill goes some way in the implementation of the Dilnot report recommendations to assure them on this account. However, Dilnot had suggested a cap of between £25,000 and £60,000; the Government have set the cap at £72,000. This will clearly be of greater benefit to the wealthiest. It is not yet clear what types of insurance packages might be offered to the less well-off to cover their costs. It is obvious that with average earnings currently at £26,500, many people will not be buying such insurance at all. At the same time, the funding cap could create a new form of regional inequality due to the wide variation in average house prices in different areas of the country. In
addition, with the increase to £123,000 as the upper threshold for receiving means-tested support, the King’s Fund estimates that the result will be an additional 100,000 older people in need of public funding. The fear will persist.
The second is ignorance: many old people long ago took to heart the phrase “from the cradle to the grave” and are still in shock when you explain to them that the NHS comes free but that social care—however it is defined—must be paid for. Confusion about the difference between medical and social exists in the system and the Bill makes a gallant attempt for care provision to integrate the two. However, the difference remains: one is a free service and the other must be paid for, either by the state responding to precise criteria or by the individual. Given that no one would have conceived things this way when the NHS was created, the dilemmas persist about how to inform those who implement the system as well as its beneficiaries about exactly how it works.
An example of how such issues come to a head can be seen when an individual is discharged from NHS care—a hospital—into social care. Caroline Charles, the director of external affairs at Age UK, tells us that 6% of hospital beds are occupied by people readmitted to hospital within a week of discharge because their care arrangements have not been worked out satisfactorily. The Bill tasks local authorities with integrating care and health provision—a hugely costly and convoluted undertaking.
I will round up my final three concerns into one. Need, loneliness and neglect all afflict far too many of our old people. The Bill’s answer to these issues is to define need. The noble Lord, Lord Rix, referred to this concern as it affects the disabled. Levels of need were introduced and defined in 2003 as critical, substantial, moderate and low. Different local authorities applied different criteria, but the Nuffield Trust cites a recent survey that found that 82% of councils now provide care only to those with substantial or critical needs, an increase from 62% in 2005-06. The trend towards setting higher needs thresholds is driven remorselessly by funding pressures on local authority budgets. The Bill moves the responsibility for eligibility to a central, nationally consistent measure—an important and welcome step forward. However, whether it will succeed in setting the criteria back to moderate, as so many of us wish, depends very much on a substantial increase in spending.
So we come remorselessly to the issue of money. With appropriate judgment, the Bill loads local authorities with many of the tasks of meeting the needs of older people, but without strong commitment to central government spending, many of those changes will be unworkable. According to Age UK, since the Government came to power, £710 million in real terms has been cut from social care spending, mostly as a result of cutting local authority budgets at the very time when needs are rising. ADASS reports that more than a third of local authorities anticipate having to reduce services and a fifth expect to have to increase charges. All of this is moving in the wrong direction and towards further disasters and tragedies. The implementation of the legislation calls for a commitment in the coming spending review to a major increase in spending on social care.
Finally, as we contemplate the mountain peak of need from the foothills of reform, let me reaffirm my suggestion: I believe that it is time for England to have its own commissioner for the old. That would be a unique role that would give such a commissioner access to planning across different government departments. The life of the old is influenced by housing, transport, justice, and now, with the encouragement of David Willetts, education; each department should have a strategy for the old linked across departments. Of course, a commissioner for older people would be a new cost. In Wales and Northern Ireland, where such appointments already exist, each commissioner has a budget and an office, but it is already proving money well spent in keeping people informed on the available options, and keeping all departments immediately aware of needs and impending crises. In the long term, that will represent major and consistent savings. Such an appointment would help both the needy and their providers to find their way around this confused and confusing system. The 10 million people now over 65, the 3 million over 85, deserve no less.
4.57 pm
Lord Willis of Knaresborough: My Lords, what a privilege it is to follow the noble Baroness, Lady Bakewell. If there is to be a commissioner for the old in England, I second her nomination at this point.
I also congratulate the Government on bringing together these timely reforms to our social care system. When the noble Baroness, Lady Bakewell, was talking about the problems for local government, I was reminded that it is 20 years since I was elected to North Yorkshire County Council for the first time and put in charge of looking after the budget for adult social services. It was an impossible task 20 years ago. It is an impossible task today. Her remarks are very timely in concentrating our efforts on getting that right.
Parts 1 and 2 begin to address key questions of affordability and access addressed by the Dilnot commission and the issues of quality and safeguarding highlighted by the Francis report. Although modernising the legal framework, as proposed by the Law Commission, and clarifying the rights of individuals and their carers, is an important step, no one should suggest that the Bill will rectify decades of neglect in our social care system. Here, I agree very strongly with my noble and learned friend Lord Mackay that not until we have completely aligned our health and social care systems can many of the issues recognised by Dilnot be fully addressed. Nor would anybody suggest that the proposed new funding arrangements will be a panacea, but they provide at least a more equitable solution than exists at present and afford the nation a breathing space until a more radical solution can be found. I say “more radical” because the reality is that at the current rate of increased demand our health and social care system is not sustainable.
About 30% of the UK population currently suffers from a chronic disease, many with co-morbidities, and the rates of increase are frightening, as are the costs. Seven and a half million of us are being treated for hypertension—many I suspect in this Chamber at the moment—which is up 11% since 2006-07; 2.5 million
are treated for diabetes, which is up 25%; 1.8 million have chronic kidney disease, which is up 45% since 2007; 800,000 have long-term cancers, which is up 79% since 2007; and 270,000 have long-term dementia, which is a rise of 25% over that six-year period.
Unless we seek better ways of preventing the onset of chronic conditions and managing them more effectively in the community, or even better finding cures, many of the worthy reforms in this Bill will merely provide respite care. This is why I am so supportive of Part 3, the setting up of Health Education England and the Health Research Authority as arm’s-length bodies. The way we will transform the health and care landscapes radically is by improving the education and training of the workforce, and by giving it the tools to transform patient care by using our outstanding research base.
Health Education England has already made a hugely positive start under the excellent leadership of Sir Keith Pearson, but the need to move swiftly to NDPB status to make sure that we align workforce planning with education and training is essential. What is missing from the legislation is a duty to future proof workforce supply into the NHS and social care system. There should not be a three-year plan for LETBs but a 10-year rolling target so that we avoid the feast and famine often associated with kneejerk reactions from government Ministers as problems of nurse, doctor and consultant shortages appear.
We cannot allow a return to local, short-term self-interest that is the real danger for the LETBs; nor must we exclude the private and voluntary sectors, the key role that they must play in workforce planning, and—crucially—the contribution that they must make to training and education. When he replies I hope the Minister will say how the private and voluntary sectors will be brought in. Incidentally, I am delighted that in Clause 82 there is now a duty for Health Education England to promote research. I congratulate the draft Bill committee for getting that into the Bill, but why does this duty not extend to the LETBs? Improvements will come about only if all the workforce recognises the value of research and puts it at the heart of its daily routines. LETBs are crucial to this agenda. Perhaps the Minister can explain why they have been excluded from that duty.
There are many other issues that need to be raised over Health Education England, but one requires an urgent response. The damning criticism in the Francis report about the role of healthcare workers is largely ignored in this legislation, as are crucial elements concerning nurse education. Francis was clear about the need to train, regulate and register HCAs. These recommendations were also strongly made by the recent commission that I chaired, but in the Bill there is no regulation and no registration, and only a minimalist training programme that is not mandatory.
Can I suggest to the Minister that at the earliest possible date Skills for Health is quietly retired, that new standards are set by the NMC and that Health Education England is mandated to ensure high-quality training with appropriate certification for all healthcare support workers? I understand the challenges of adopting a fully fledged registration scheme, but ensuring that any healthcare support worker who cares directly for
patients is trained to a mandatory standard, and that training is certificated and registered for inspection with employers, is surely achievable. Making employers legally responsible for registering the competency of their staff and regularly updating that competency safeguards patients, staff and the reputation of the provider.
Finally, I am delighted with the progress made on the HRA so far. The HRA has demonstrated that it is more than an enhanced national ethics service, which I feared it might become, and I congratulate the Minister and his colleagues on ensuring that it was given that freedom. The crucial next step of creating an NDPB with scope to make the NHS and our social care system the most research-intensive in the world is hugely exciting. However, there remains timidity about the legislation in this Bill. In 2011, the Academy of Medical Sciences highlighted the need for better and more streamlined regulation, and we are not there yet. Clause 93 gives the HRA the duty to promote the co-ordination and standardisation of practice in the UK with regard to health and social care research, but will this extend to the removal of unnecessary levels of regulation?
At a recent Science and Technology Select Committee hearing, part of its inquiry into regenerative medicine, one regulator said to the members, who included the noble Lord, Lord Winston, that because the science was complicated, so must the regulation be. That is what bedevils the regulatory framework for research. The power of different regulators to gold-plate their regulation continues to worry me. Does the HFEA really have a role in embryonic stem cell research, or could its regulatory functions be subsumed by the HRA or indeed be merged with the Human Tissue Authority? Will the HRA have the powers to abolish, or at least to recommend to Parliament the abolition of, unnecessary regulators, or will those regulators, with their independence, still have the upper hand?
As we move to more stratified medicines, regenerative medicine and greater emphasis on genomics and bioinformatics, the key will be to move fast with often small groups or lone patients. The current system of regulation is too burdensome and cumbersome for us to be able to act. The system is simply not fit for purpose. Surely we should be seeking to strengthen the powers of the HRA so that it can decide appropriate regulatory pathways, rather than the existing regulators.
A similar issue arises with National Health Service research and development permissions. The HRA has done brilliantly in streamlining local ethics approvals, but there are still difficulties with individual trusts over site approvals. Not only does each site have to give approval, but if there are variations to a clinical trial, the whole process has to be repeated. This is nonsense if we are aiming for more trials involving more patients at more sites. Simply publishing good guidance, as expected in Clause 98, is insufficient. I hope the Minister will go further and say how the HRA will ensure that trusts have regard to its guidance. Of course, the success of research and the HRA will depend significantly on public buy-in, an issue which the Joint Committee took very seriously. Transparency is key, and the open publication of data should be a
statutory requirement for the HRA. The Association of Medical Research Charities, which I chair, has just published
Our Vision for Research in the NHS
, which includes, from all members of the charity, a call to publish research results and make them accessible.
This is an excellent Bill. It has huge potential. It is not a panacea. It is a great start, but it needs a little bit of courage, and I urge the Minister to have that courage.
5.08 pm
Lord Low of Dalston: My Lords, I am delighted to follow the noble Lord, Lord Willis. I must confess I felt my score on the hypertension scale rise as we went through the day and the debate got nearer, but we are ready in time. I thank the Minister for the very clear way in which he introduced the Bill, and I must apologise for missing the opening seconds of his speech.
There are six reasons why this Bill should be welcomed—and it is not often that one can say that about a government Bill. First, it consolidates and modernises the legal framework for adult social care. Secondly, it creates a framework for limiting people’s exposure to crippling costs for their care. Thirdly, it establishes the principle that the well-being of the individual should be the animating purpose of social care. Fourthly, it establishes rights for carers. Fifthly, it establishes the principle of portability of care. Sixthly—a slightly more parochial concern, in which I declare my interest as a vice-president of the RNIB and a visually impaired person—it renews the statutory basis for local authority-maintained registers of visually impaired adults. We still have some work to do to ensure that the system is maintained for visually impaired children. The Government are to be commended on all these things.
The Bill, therefore, makes important progress in getting the framework right. However, there is still major work to do to ensure that it is adequately funded and implemented in the right way. Without this, all this good work will come to nothing. Adult social care is now consuming more and more of local government’s budgets, and is set to consume virtually all of them in a couple of decades’ time. However, four in 10 disabled people who receive social care and support say that it does not meet even their basic needs for things like eating, washing, dressing and getting out of the house. At present, the shortfall in funding is conservatively estimated as being in excess of £1.2 billion a year. Over the past three years £2.68 billion, or 20%, has had to be cut out of adult social care budgets. If greater integration of health and social care budgets is to mean anything at all, it must mean a transfer of resources from the NHS budget to fund adult social care properly.
This has important implications for the sections of the Bill that deal with prevention—Clause 2; and eligibility—Clause 13. Getting these right will be key to delivering the Bill’s potential, and I will say a word about each of them. Prevention has the potential to be a win-win. It clearly matters to individuals, who see their care needs escalating without the kind of support that Clause 2 requires local authorities to put in place. However, it matters not just to individuals, but to
cash-strapped councils as well. In the debate on the Queen’s Speech, the noble Baroness, Lady Hollis, spoke most interestingly of there being three stages of retirement:
“a decade or so of healthy life … a decade of some limiting disability, such as a lack of mobility, the inability to reach or difficulty in hearing, but with care needs sufficiently modest that … they can normally be met at home; and between two and five years of frail dependency, including dementia, during which substantial personal care is needed”.—[
Official Report
, 14/5/13; col. 292.]
The noble Baroness suggested that the second stage, of limiting disability, would most repay investment, because funding and supporting people at that stage is not all that expensive. All the evidence points to prevention being cost-effective.
An analysis by Deloitte of a range of British Red Cross services suggested that the charity achieves savings of £1.50 for every £1 invested. Its 2012 report, Taking Stock: Assessing the Value of Preventative Support, estimated savings ranging from between £700 and £10,430 per person, depending on the individual circumstances. This places a premium on the preventive aspect of care. Providing relatively low-cost, timely support—for example, when someone is discharged from hospital or loses their sight or hearing—makes obvious sense.
The Bill represents significant progress on the prevention agenda. The Care and Support Alliance, the coalition of more than 70 organisations working with people with care needs, particularly welcomes the references to preventing needs in the assessments and eligibility sections of the Bill, in Clauses 9 and 13. Yet the Bill says nothing about the importance of providing this kind of intermediate care—what is increasingly referred to as reablement, which we used to know as rehabilitation. Reablement perhaps focuses more on getting people over the immediate short-term crisis. The Bill says nothing about these things. This is especially regrettable when you consider that a structured programme of rehabilitation and the provision of minor aids and adaptations can be just the services that the blind and partially sighted, and many other adults who become disabled, need most if they are to remain independent. Clause 2 on prevention will therefore need strengthening if we are to move towards a care and support system with prevention at its heart. At the moment, the accountability for fulfilling the preventing needs duties is weak so, when we come to Committee, I shall look for amendments to strengthen the lines of accountability through health and well-being boards.
The Bill has changed to signal the Government’s intention to set out specifications for different types of preventive services and to whom or for how long they might be available. What are the Government’s intentions with regard to regulations here? Will those adults who need a short burst of intermediate care, or perhaps even longer bursts of specialist rehabilitation, get the help that they need? Can the Minister confirm that intermediate care and other qualifying services such as community equipment will remain free of charge, as today?
One of the most important areas for reform of social care concerns the question of eligibility. The Bill will fail to improve the social care system for disabled
and elderly people if eligibility is set too high. We are all familiar with the impact that slashing social care budgets has had; many local authorities have been raising the threshold at which people become eligible for support. In 2005, 50% of local authorities set their eligibility criteria at moderate needs; by 2012, 84% were setting their eligibility criteria at the higher, substantial needs level. As a result, just 14% of those with moderate needs are receiving care, and at least 800,000 people with care needs are not receiving any support at all. The introduction of a national eligibility threshold under the Bill is thus most welcome, but it will do little good unless the threshold can be set at the equivalent of moderate under the fair access to care services system, and the Secretary of State is required to have regard to the duty of local authorities to promote individual well-being in setting the threshold.
There is no denying that this will be a daunting challenge, but there can only be dividends to be reaped from putting in the necessary support before things reach crisis level. In its Cutting the Cake Fairly report from 2008, the Commission for Social Care Inspection reported that needs assessments were unduly standardised. We need to get away from generic needs assessments and, instead, match disabled adults undergoing assessment with the specialist assessors who are best qualified to determine their care and support needs.
Clause 12 paves the way for specialist needs assessments. However, if I am not mistaken, Clause 12(1)(f) is actually weaker than the corresponding clause in the draft Care and Support Bill. This clearly needs to be put right. If blind, partially sighted and other disabled people who need one were to receive a specialist needs assessment undertaken by a person with expertise in the relevant field, there would be a stronger chance of their care needs being identified as the often substantial needs they really are.
5.19 pm
Lord Patel of Bradford: My Lords, the Minister has clearly outlined the many positive qualities in the Bill. Although I welcome many aspects of it, a number of issues cause me concern, particularly with respect to the care of some of the most vulnerable people in society—those with mental health problems.
I wish to explore four specific aspects of the Bill and seek assurances from the Minister about how the Government intend to address these: first, the lack of adequate safeguards for effective advocacy—for example, in ensuring take-up of personal budgets and protecting those detained under the Mental Health Act; secondly, what I see as unnecessary changes to the definition of mental health aftercare services; thirdly, how adult safeguarding boards will be able to exercise their functions effectively; and, finally, the lack of clarity about continuity of care for people in prison and on leaving prison.
I start with the new national eligibility criteria and personal budgets. Overall, I support the Bill’s focus on this and believe that giving everyone who is eligible access to a personal budget will greatly improve their lives. However, accessing these budgets is a far from simple process. For example, there are already significant variations in the take-up of personal budgets between councils and regions, and between different community
groups. The official figures from the NHS information centre show that while 29% of adult care users or carers receiving community services had a personal budget in 2010-11, the rates ranged from 4% in Somerset to 71% in Manchester. The figures suggest that progress on moving people onto personal budgets is slowest in the south-west, where the average take-up is around 18%, and fastest in the north-west, at around 35%.
Moreover, the uptake of personal budgets among people with dementia still lags way behind most other client groups. The Alzheimer’s Society in a report in 2011 found that three in five people with dementia assessed as eligible for a care package were not even offered a personal budget, while 15% declined an offer of one. The report clearly highlighted the importance and need for advocacy or brokerage services and stated that,
“support planning and brokerage services are crucial to enable people to access the system”.
I fear that without a statutory entitlement to effective advocacy and support, some of the most vulnerable users and carers, such as those with mental health problems, learning disabilities and dementia, will not be able to access the system nor have their needs met through the kinds of informal support services that personal budgets are so good at enabling.
I am concerned that it was not considered necessary specifically to reference advocacy within the duty to provide information and advice. In meeting this duty, local authorities will be expected to provide information and advice that is accessible and proportionate to all. Of course, I recognise that an individual’s requirements for information and advice could range from a leaflet or a face-to-face conversation to long-term independent advocacy but, as the Law Society stated, “information … is no substitute” for a proper system of advice and advocacy for service users to navigate what will be a “complex system”.
Further, in a really important point, the Law Society notes that Clause 2(3) states that local authorities may be permitted to “make a charge for” this service and that this will be set out in regulations. I would like to know how vulnerable people who lack resources and in many cases live in poverty will find the means to pay for this. For those who are vulnerable and disadvantaged, charging could in fact become a new barrier to accessing an already difficult system.
What about those with mental health problems? The Bill rightly highlights the Government’s aspirations of achieving integrated and joined-up care, including parity of esteem between physical and mental health. This parity of esteem must include those detained under the Mental Health Act, where there is an even stronger case for the provision of effective and independent advocacy. I feel very strongly that unless all patients subject to compulsory powers under the Mental Health Act can access a truly independent mental health advocate, they will continue to be at risk of missing out on the most basic elements of care and support intended by the Bill. This is even more important for those groups already experiencing significant inequalities, such as those suffering from mental health problems who are from black and minority ethnic communities. It is crucial that we tackle these existing inequalities
in the mental health system. I believe that providing effective and independent advocacy would be an essential step in doing this.
In fact, I am very concerned about the relative lack of focus on mental health in the Bill. Frankly, mental health is the biggest unaddressed health challenge of our age and is costing our society and the economy millions of pounds every day, not to mention the cost of the suffering among individuals and families. Why, given the critical nature of mental health problems, have the Government once again chosen to change the statutory provision of free aftercare services for people who have been treated under the Mental Health Act? I speak, of course, about Section 117 services, which noble Lords will recall this House debated to a large extent during the passage of the Health and Social Care Bill. Yet here we are again, faced with what I believe to be an unnecessary and possibly harmful change to these vital services. I will be seeking to make amendments in Committee unless the Minister can explain how these changes help or improve provisions which may not be perfect, but which ensure a degree of protection for those very vulnerable groups of people.
In particular, I am at a loss as to why the Government are attempting to change the eligibility criteria for Section 117 services. For example, Clause 68(5) introduces a new definition of aftercare services such that these services must be,
“meeting a need arising from or related to the mental disorder of the person concerned”.
This is surely unnecessary, but more importantly—and this gives me real cause for concern—given the history of local authorities in trying to avoid their responsibility for aftercare services of this kind, this new definition would enable local authorities to refuse aftercare on the basis that the need is no longer related to the mental disorder. Far from clarifying the position, this new definition adds to the complexity and risk, creating a situation where more people are denied access to these essential services.
I understand that the Government’s aim was to translate the Law Commission’s recommendation on Section 117 of the Mental Health Act into the draft Bill, but I note that the Law Society has asked for specific assurances that there is no intention by government to erode the current free-standing duty to provide free aftercare under Section 117 to,
“some of the most vulnerable”,
individuals in society. I suggest that the proposed new definition of aftercare services is too restrictive and could generate complex legal disputes over whether a service should be provided under Section 117. I will need a great deal of persuading that the proposed changes bring any benefit and do not in fact create the likelihood of greater harms.
Care of the vulnerable must be at the forefront of our efforts. Therefore I welcome the statutory framework for adult safeguarding, which includes the establishment of Safeguarding Adults Boards in local areas. The Bill states that these boards will be required to produce safeguarding plans and updates on progress, and that where a board “knows or suspects” that “serious abuse or neglect” has contributed to the death or serious harm of an individual, it will be required to carry out a safeguarding adult review.
However, I have a number of concerns and questions around how these boards will be able to exercise these functions effectively. For example, not only must local authorities and the NHS work together, but neighbouring local authorities must establish communication systems to ensure that all knowledge on abuse issues is shared not just in a local area but across areas, if another Winterbourne View is to be avoided. We also need avenues of communication for carers and families to register concerns, and for these to be looked at quickly. In fact, carers and families should not only have input on the boards but, I suggest, be supported to act as representatives on them.
Moreover, effective safeguarding work cannot be disassociated from other aspects of care and support provision. For example, with more and more people with higher needs potentially being employers with personal budgets, they will be vulnerable to abuse in their own homes. How will this be safeguarded against? There can be no doubt that for these boards to be effective, local authorities will require additional funding. Where is this to come from? I will not add to the many comments about lack of funding already made by other speakers; I simply pose the question again.
Finally, as I understand it, the whole point of this Bill is to move away from responding to crises and emergencies which can result in costly and unnecessary hospital or residential care. The aim is rather to develop person-centred and preventive approaches that meet real needs in a timely and appropriate fashion. One group who especially need this are those with social care needs who are entering or leaving prison. For this group, care is often not of the same standard as it would be in the community. In fact, a 2007 report by the University of Birmingham for the Care Services Improvement Partnership, Adult Social Care in Prisons: AStrategic Framework, identified major shortcomings in the provision of social care in prisons.
Clause 69 could be a very important step in addressing these shortcomings, particularly considering that around 70% of prisoners will have mental health and substance misuse problems. Providing this care can have a significant impact on reoffending and greatly enhance people’s ability to rebuild their lives on release. However, for such benefits to be realised, it is essential that there is continuity of care between prisons and the community. We need to ensure that prisoners have access to care that is equivalent to what is available in the community. People receiving care before entering prison should continue to receive such support, and any care provided while a person is in prison should be continued through the gate. Local authorities, prisons and probation services must work together to ensure that effective links are in place. I would like some reassurance from the Minister that this will indeed be an outcome from the Bill and one that he recognises is important.
Many aspects of this Bill are welcome and are long overdue. However, there are significant omissions and there is a real risk that in the current economic climate and with the background of funding cuts, nothing will really change. I am concerned about those who are most vulnerable and whether we have truly learnt the lessons from Winterbourne View and Mid Staffs. If we continue to react to problems rather than resolving
them at an earlier and more effective point, we will place the most vulnerable in our society at risk. I hope that the Minister will reflect on my concerns and respond appropriately.
5.31 pm
Baroness Emerton: My Lords, I thank the Minister for the introduction to the Care Bill. This legislation provides the missing links in the Health and Social Care Act 2012 and sets out clearly the responsibilities and the part to be played by local authorities in providing the missing links towards achieving a fully integrated service which aims to provide holistic care, from maintaining pathways in well-being, disease prevention, sickness, care and support through to end-of-life care.
The Bill also shows how the costs of the services will be met, ensuring that advice and understanding will be available for all. The Bill’s success depends on breaking down the organisational and professional boundaries that have prevented progress previously. It will succeed only if its three parts are fully discussed in Committee and then implemented in line with the comments made at Second Reading. The Committee will address Part 3, followed by Part 2 and then Part 1. I firmly believe that Part 1 will not succeed unless Parts 2 and 3 are fully understood and addressed.