We were trying to be realists in saying where we could begin this scheme. We were not saying that the threshold would be set at substantial for ever but that if we had a hope in hell of getting these changes made—this issue has been around for 10 to 15 years and has not been resolved and we had achieved a reasonable consensus among all stakeholders and across the political spectrum—one of the key issues was that the recommendations should be affordable. Given the

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deficit funding, we could not see how in the short term you could end up with eligibility criteria that would be more generous than substantial, which is where, in reality, most local authorities had ended up, whatever the rights and wrongs of those kind of considerations. That is where we were. We wanted a consistent architecture between working age and non-working age; we wanted practical proposals that would be implementable in the reasonably short term and we recognised that there was a deficit in the funding that had to be made good before you could get this new set of arrangements off the ground and improve them over time.

The Government deserve a lot of credit for the way they have simply accepted our recommendation that the FACS system was opaque and totally misunderstood or not understood at all by most of the public. They have abandoned a banding system that was a poor servant to comprehensibility about the way the system operated. They have made a pretty good first shot at draft eligibility criteria in their draft regulations, moving away from that discredited banding system under FACS.

In that situation, it is very difficult to foresee circumstances in which we can go from where we are now into a new cap system which is consistent between working age and non-working age and make the leap beyond a national threshold of substantial. You could argue that as we are being brave and making this change, we should become braver. The argument against that approach is that we would raise expectations among a lot of people of working age or non-working age about what they will get when the financial reality at the local level is that they will not get it because there will not be the resources to deliver those services. That would be a cruel deception. The only way to break out of that is to say that we will take one particular group—those of working age—and deal with them differently in the eligibility criteria for meeting needs from the older age group. If we are going to keep consistency between those two age groups, we have to accept that at present it is very difficult to introduce this system with eligibility criteria that are substantially more generous than “substantial” under the present FACS system. I fully accept that that is not likely to be a popular view and that it will mean that some people will not get the services they need and may deserve, but—and this is a big but—if you look at the characteristics of this system, even if people do not get free services, they still get a guarantee of an assessment of their care needs and advice on how to meet those needs. That is a lot better than the circumstances that they are faced with under the current system.

Lord Rix: How is it that the commission found that people with disabilities and elderly people helped to make up the deficit? I would have thought that they were the very last people in this country who should forgo support from the state system.

Lord Warner: I do not think we want to have a debate on our report, but I suggest that the noble Lord reads Chapter 2 which sets out the arguments why we should have consistency between the two age groups and why there was a fairness issue about that. If you

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distinguish between the two age groups, we favoured not being over-elaborate in means-testing working age people. If the noble Lord reads Chapter 2, he will see that we have in many ways discriminated in favour of working-age people in the treatment of them under a means-tested system. We were not being hard-nosed about it; we were saying that there was a general equity issue about treating people of working age and non-working age under the same architecture in this system. I do not want to detain the Committee with the Warner standard lecture on the Dilnot commission, but I recommend to the noble Lord that he refreshes his memory on Chapter 2, which sets out our arguments.

Lord Rix: I would not necessarily put working-age people at the top of the list. I talked about disabled people. I was asking how the commission found that disabled people should be called upon to provide funding to support the pay-off of the deficit.

Lord Warner: I do not think that we said that they should fund the deficit. We said how they should be treated under the architecture of a new system for funding care and support in the future.

Lord Lipsey: My Lords, I rise to make two brief points. First, this argument is not really about eligibility criteria but about money. It would be highly desirable to extend eligibility to people with only moderate needs, but we will find it extremely hard simply to cater for people with substantial needs unless the pot of money is substantially expanded. That is the elephant in the room. In all the discussions here, we are describing a marvellous new system, but we have not yet said how it will be paid for.

Secondly, I think that eligibility criteria are, to a degree, a bit of a phantom. We know that there is variation between authorities across the country: some accept people with moderate needs and some accept them with substantial needs. Quite aside from that, there is overwhelming evidence of enormous variety not between local authorities but within local authorities depending on who is assessing you and their state of mind. I quote in support of this a report from the National Care Standards Commission in 2005-06 and an excellent report by the PSSRU last year which tells you what actually goes on when people are being assessed. You might have a social worker who is terribly sympathetic to the older or disabled people she is assessing, and her boss who is, no doubt, sympathetic but who knows what budget he has to meet each month. In those cases, you simply get a wrestling match.

Thirdly, and to me most worryingly, once the cap comes in, people and their families will have a huge economic interest in demonstrating that they have substantial needs because that is when the meter starts ticking for them getting help. The danger is that those with, in some cases, the biggest needs will not be very good at gaming the system. Somebody with autism may be told by their parents to seem as bad as possible so they can get the meter ticking. They are not going to be very skilled at that, but the mums and dads of articulate middle-class people will have a different set of instructions to go on. There will always be a tendency

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to exaggerate—play up to the full may be a better way of putting it—their needs to get them graded as substantial.

I make these points, not to draw any firm conclusion, not even on the question of whether those with moderate needs should be catered for, but to say that more fundamental thinking has to go into deciding how eligibility criteria should be set and operated. This has not yet been apparent, even in the Government’s improved scheme which is encapsulated in the Bill.

Lord Hunt of Kings Heath: My Lords, my Amendments 88R and 88S take us back to the amendments which I moved last week on eligibility criteria, inspired by the noble Baroness, Lady Campbell. Promoting individuals’ well-being, assessing their needs and those of carers, deciding on eligibility and the priority for needs to be met, developing them with an appropriate care and support plan, enabling the best use of a personal budget and/or direct payments and ensuring continuity of capacity during and after a move, such as a house move, are all processes or stages in which the active engagement of NHS professionals or services could have a positive effect on the outcome for individuals and carers.

In his response, the noble Earl said that he agreed and that the Care Bill already allowed for that kind of co-operation from the NHS through Clauses 1 and 3. He also pointed out that Clause 12(1)(f) sets out regulations where a local authority must consult with someone with expertise before undertaking an assessment. He went on to say:

“Regulations may also set out conditions around co-operation with the NHS, by specifying the circumstances in which the local authority must refer the adult concerned for an assessment of eligibility for NHS continuing healthcare”. —[Official Report, 3/7/13; col. 1272.]

That is helpful but I wonder if we should go further and place an explicit responsibility on the NHS so that we know it plays its part in full.

Amendment 88Q, tabled by the noble Baroness, Lady Grey-Thompson, and my Amendment 88T focus on the eligibility criteria in the draft regulations. We support national eligibility criteria. As the consultation paper says,

“the needs which are determined to be ‘eligible’ vary from one area to another”,

at the moment, with local authorities,

“able to set their own ‘eligibility threshold’ or ‘criteria’…This approach has led to perceived wide distances between areas and inconsistency in the offer made to local people, confusion and legal challenge. Because local authorities are able to vary the threshold over time, it also leads to the fear that people may lose their care and support if ‘eligible needs’ are reclassified locally”.

It is also very helpful to have the draft regulations available for debate and I have been able to discuss them with a number of stakeholders in the last few days. The noble Baroness is absolutely right that there is concern among many stakeholders about the level at which the criteria are set. This is reflected in the amendment in her name and those of the noble Lord, Lord Low, and my noble friend Lord Touhig. However, we must also take account of the points raised by my noble friends Lord Warner and Lord Lipsey because this is, in the end, an issue of funding. I hope that,

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when she winds up, the noble Baroness will address the issue of affordability. This may be a technical point, but this might be a matter of supply, since the Commons might well assert their own position in this regard. The noble Earl, Lord Howe, will, no doubt, advise us on that matter.

The guidance is very important and my noble friend Lord Warner said that it was a good first shot. I agree with him and it is certainly something to work on. However, could it warrant more parliamentary scrutiny than is normally given to regulations? We usually have a debate of about one hour; the conventions allow us to defeat a statutory instrument on very few occasions, and there is no opportunity to amend those regulations. We have benefited enormously from having a Joint Select Committee to advise us on the draft Bill: might it be right to have a similar process in relation to the regulations? I hope the noble Earl might be sympathetic to my Amendment 88T, which asks for a joint parliamentary committee process to look at the regulations before they are laid before Parliament.

5.45 pm

Finally, I would ask the Minister to focus on the points raised by my noble friend Lord Lipsey. If we go towards national eligibility criteria, which we all support, can we be assured that there will then be a consistency between local authorities in their application and within local authorities? My noble friend is right to suggest that, even if you are covered by one local authority, how you are assessed and what support you get can sometimes be like pot-luck.

We will come later to the consequences of the introduction of Dilnot and the cap. I am concerned about the capacity of local authorities to deal with all the responsibilities being placed on them, not just in terms of funding services and support, but the capacity to carry out the assessments required by this legislation. We will talk later about the impact of self-funders. On commencement day, we can have hundreds of thousands of people needing to be assessed in order to make sure the clock starts towards the £72,000 cap. Alongside that, all the other assessments that are covered by this legislation will need to take place. There is a real worry that local authorities do not have the capacity to do this. I am always tempted to talk about the problems of the Child Support Agency, but when you have a commencement date there is a risk that many more people become eligible to be assessed at that point. There is a real risk that local authorities will not be able to meet the demands placed on them. This is why my noble friend Lord Lipsey is right to raise the issue of consistency of approach and capacity in assessment against the national eligibility criteria which will have to be undertaken by individual local authorities.

Earl Howe: My Lords, this has been an excellent and very important debate and I thank all noble Lords who have contributed. I will, if I may, begin by picking up the remarks of the noble Lord, Lord Warner. He put his finger on a number of very important points. The system of locally determined eligibility for care and support has been confusing to people for too long. It has been seen as an unfair system under which different levels of needs are met on the basis of where

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somebody lives. The changes we are bringing forward will mean that people’s entitlements to care and support will be much clearer and fairer and will reduce variation in access between local authorities.

That is our starting point and, once this legislation comes into effect, local authorities will not be able to reduce eligibility below the level set out in regulations. They will be able to meet other needs which do not meet the national eligibility criteria through the power in Clause 19, but they will be required to follow a consistent approach to determining eligible needs. That is a big step forward. We must not view these national criteria in isolation. The Bill does a great deal for people with lower levels of need, including through provisions on prevention, information and advice. One of the key aims in relation to assessment is to ensure that this is effective in identifying needs and support options for all people, in particular to help those who do not have eligible needs and to prevent deterioration.

Clause 13 provides for regulations which will set out the eligibility criteria according to which local authorities must meet an adult’s needs for care and support or a carer’s needs for support. Amendment 88Q seeks to add this detail to the Bill. I understand why the noble Baroness would like to see the eligibility criteria set out in this way. Some noble Lords have questioned the number of important provisions being introduced through secondary legislation. However, in this case I believe that it is necessary. It is important that we get the eligibility criteria right, otherwise there is a danger that we will put in place a system that is more confusing than the one that we are replacing.

There is advantage in having the flexibility of setting the criteria in regulations; once again the noble Lord, Lord Warner, gave a helpful pointer to this in his remarks. We are not proposing to amend the national eligibility criteria on a regular basis. However, we need the ability to amend the regulations if it is shown that the criteria need to change at some point in the future. Of course, we would consult fully before making any such change.

To help inform debate on this area, and as noble Lords have mentioned, on 28 June we published draft regulations for discussion which set out the proposed national eligibility criteria. I emphasise that these are intended to set a national minimum equivalent to the level operated by the vast majority of local authorities in the current system. As part of the spending round announced recently we have committed to provide funding that will maintain the same level of services when authorities move to the new system in April 2015. This is the beginning of engagement with stakeholders before we formally consult on draft regulations next spring.

Amendment 88T is concerned with parliamentary scrutiny of the eligibility regulations. The power to set the eligibility criteria in regulations is one of the most important in the Bill and is central to the new care and support system. For this reason the Bill requires the regulations to be made under the affirmative procedure. That will ensure that Parliament will consider the regulations before they are introduced and that it will also consider any future changes. As a matter of course

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the regulations will also be considered by the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments. Therefore we do not believe that the regulations need further scrutiny by a Joint Committee of both Houses.

Amendments 88R and 88S in the name of the noble Lord, Lord Hunt, refer to matters that the Secretary of State should have regard to when making the regulations. Amendment 88R clarifies that the regulations may describe a person’s care and support needs by reference to the effect of needs arising from a physical or mental condition. The well-being principle at Clause 1(2)(a) includes physical and mental health, and this is reflected in the draft regulations. Regulation 2, which sets out the eligibility criteria, explains that needs are eligible needs if they have a significant impact on a person’s well-being and are as a result of a physical or mental impairment or illness. Amendment 88S proposes that a person should be eligible for care and support if they are in receipt of health services. As we debated earlier, a person can expect to receive an integrated service, but the determination of eligibility for care and support must be based on care needs only, rather than what health services a person is receiving.

A number of noble Lords suggested that the eligibility criteria should be set at moderate. As I have already said, this threshold is about establishing a minimum standard, not about taking away councils’ discretion to go further. Local authorities will remain able to meet lower needs locally if they choose to do so. Once again I was grateful to the noble Lord, Lord Warner, for his realistic assessment, and to the noble Lord, Lord Lipsey, for his comments. The eligibility criteria are intended to be equivalent to the level operated by the vast majority of local authorities in the current system. Independent research suggests that it would cost an additional £1.2 billion to set the threshold at moderate for younger disabled people and those with mental health needs, and a further £1.5 billion for older people. The combined total is £2.7 billion, which is a large amount to find in the current financial climate.

The pooled funding that we are proposing is important to factor in here. The noble Baroness, Lady Grey-Thompson, suggested that setting the criteria at moderate would save money. It is important to understand what the pooled funding is designed to do. Once again, the eligibility criteria should be seen as part of the overall system that we are putting in place. The pooled funding that we have announced will support better integration between local authorities in the NHS to improve outcomes for the local population. Part of this funding will be used to support local authorities and the NHS if they need to intervene earlier to prevent people’s health or care needs worsening. That will include many of the people with low or moderate needs.

The noble Lord, Lord Low, suggested that universal services do not have the capacity or resources to meet the aspirations that the Government have set out. As we have debated, the Bill sets out new duties on local authorities to provide universal services such as preventive services. These will also be supported by statutory guidance to make clear the expectations that we are placing on local authorities. Moreover, as I have

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mentioned, the pooled funding is relevant here. Among other things, that will enable preventive and integrated services, which also benefit the NHS.

The noble Baroness, Lady Grey-Thompson, said that it was not fair that the cap applies only to eligible needs. We will debate the Government’s proposals for the capped cost system in due course. However, access to the cap needs to be consistent in order for the system to be fair. Using national eligibility criteria will ensure that the cap applies on an equivalent basis in every area. The noble Lord, Lord Lipsey, commented that the eligibility criteria will not solve the huge variation within local authority areas due to variable assessments. First, the eligibility assessments will set a minimum threshold, which is important. Some differentiation in local implementation will remain, but as referred to previously, we will require that local authorities appropriately train assessors to ensure that assessments are carried out properly, and we will publish guidance that will help to reduce variation.

My noble friend Lady Jolly asked whether we can ensure that the regulations become more asset-based and that that work involves experts. I can reassure her that the Bill already allows for the individual’s strengths to be taken into account in the assessment. In relation to the draft eligibility regulations I can assure her that we will engage widely with stakeholders to make sure that they deliver our policy.

Baroness Browning: As far as the eligibility criteria are concerned there is another indicator, which I have not heard mentioned in this debate, and that is the number of people who challenge their local authority through the courts. Currently—from my own experience of case work, particularly with those on the autistic spectrum and with learning disabilities—many local authorities, when challenged legally on this, will settle before it goes to court. It is difficult to quantify what that number is, and I do not know whether what I am asking my noble friend is practical. However, in monitoring whether the eligibility threshold is correct, particularly for those with low to medium needs, would the Government be prepared to use the number of applications for legal challenge and, if possible, of those who settle out of court before it goes to court? That is a very clear indication of where local authorities refuse because the current eligibility criteria have not been properly constructed. When challenged, they usually pay up pretty quickly.

6 pm

Earl Howe: My noble friend raises an important point, and I will take her suggestion away with me. As I mentioned earlier, however, a great deal of what this Bill will deliver is, so to speak, invisible to the naked eye, because it will ensure that those with lower needs will also be catered for in some way or another. I would like to hope that, for that reason, there will be less scope for challenge. I will write to my noble friend if I can supply her with our further thinking on that important topic.

I hope that what I have said will have reassured the Committee on these important matters. This has been a well informed debate. Our continued approach to engagement and consultation on the draft regulations

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will obviously allow us to consider many of these issues further, and on that basis I hope that noble Lords will not press their amendments.

Lord Touhig: Have the Government looked at the Deloitte economic modelling, which shows that support for moderate needs actually gives a greater return on the money invested? If not, will the Minister undertake to look at it before Report stage, so that we can discuss the savings that could be achieved?

Earl Howe: I know that my officials have looked closely at that modelling. I have not yet had an opportunity to look at it but undertake to do so. However, in all such matters a judgment is needed as to how money is best spent. No doubt there are good arguments for the Deloitte point of view, but, as I have already outlined, we think that if one has to spend money of that order, it is better spent in the way that we propose. Nevertheless, this is a debate that we can usefully continue, and I shall be happy to do that between now and Report, and also at Report stage itself.

Baroness Grey-Thompson: My Lords, I thank all noble Lords who have taken part in the debate, and also the Minister for his response. My amendment, which is about who is eligible and who is not, addresses the main crux of the Bill. I shall respond to a few points that noble Lords have raised.

I agree with the noble Lord, Lord Warner, when he says that we need to be realistic. However, my view still is that a small amount of support for working-age disabled people or older people—to keep them active, to keep them in their own homes and to support them in the best way—will actually save us money in the long term. Moreover, expectations have been raised about what older people can expect.

There is still a lot of work to do on the draft regulations to encompass the needs of working-age disabled people and older people, and to ensure that we keep the consistency. As things stand, giving someone the ability to have an assessment of the care that they can expect, but no actual support, does not help them; it just raises their expectations in a slightly misleading way. Again, disabled people and older people are paying the price of the economic downturn. Although this is not the right time for it, I would welcome a really honest debate on what the Bill is about. Is it about saving money, or is it about the well-being of certain groups of people? As ever, disabled people and older people seem to be at the bottom of the priority list.

I welcome the fact that the Minister has said that he will go away and look at Deloitte’s economic modelling. I think that we would probably agree to disagree about where that is at the moment, but it would be beneficial to try to find the best way forward in that context.

The noble Baroness, Lady Jolly, raised two very important points, the first of which was about the seamless transition. That is incredibly important. This is about not just who makes it to the support level, but what we do with people who are just outside that category. It is crucial that we get the advice and the signposting and all the support absolutely right, to

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make sure that people are not falling through the cracks. Her second point was that the regulations are still in draft. The Minister in the other place has offered me the opportunity to continue this discussion on the eligibility criteria, and I very much welcome that, because it is a recognition that the draft regulations can be improved.

It is also important that we have a constructive continued discussion on what the draft regulations mean in reality. There is lots of expertise both inside and outside your Lordships’ Chamber, and we must use those people to get to the best place, and use the time we will have in the summer leading up to the formal consultation. I do not see all this as just a negative discussion. There is much work to be done, but I see that as a huge opportunity to improve the regulations and get them into a much better form for everybody. At this stage, however, I beg leave to withdraw the amendment.

Amendment 88Q withdrawn.

Amendments 88R to 88T not moved.

Amendment 89 had been withdrawn from the Marshalled List.

Clause 13 agreed.

Clause 14 : Power of local authority to charge

Amendment 89A

Moved by Baroness Pitkeathley

89A: Clause 14, page 12, line 35, at end insert—

“( ) Services of an intimate nature can only be provided to the disabled person and not to meet a carer’s need for support and regulations may make provision about what is, or is not, of an intimate nature for the purposes of subsection (3).”

Baroness Pitkeathley: My Lords, I wish to speak to Amendment 89B as well as Amendment 89A, as they are both amendments about the circumstances in which a carer can be charged for services. Carers UK—I declare an interest as its vice-president—has estimated that carers save the UK economy £119 billion per year. That is a statistic that I never tire of giving your Lordships. Local authorities recognise the value and cost-effectiveness of supporting carers. As a result, very few local authorities charge for services provided to carers. The Government’s impact assessment for the Bill sets out current evidence on the cost-effectiveness of supporting carers, and refers to the benefits received from doing so: for example, preventing or delaying hospital or residential care admissions; sustaining the caring role; improving the health and well-being of carers; and, crucially, assisting carers to remain in or return to work.

The Bill includes a power to charge carers for services, and a power to charge for arranging services for carers. Given the benefits of providing support for carers, I shall argue that it would be counterproductive to charge carers and thereby reduce the take-up of support.

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The current legislation under which support is provided is the Carers and Disabled Children Act 2000, which started as a Private Member’s Bill. Under the Act, services provided to a disabled person in order to meet the needs of the carer cannot include services for the disabled person that are “of an intimate nature”. It is for that reason that that same wording is used in Amendment 89A.

Interpretation varies concerning to whom, and by whom, services are provided, but the definition legally prevents carers being charged for a respite care service that includes personal care provided to the person whom the carer cares for. As I have said, very few local authorities now charge for carers services. However, given the difficulties with local authority funding, about which we hear constantly, I am concerned that more local authorities may consider charging carers in the future.

Following a recommendation by the Joint Committee scrutinising the draft Care Bill—on which I, together with several other Members of your Lordships’ House, served—the Government have sought to protect carers from being wrongly charged, by introducing the following wording in Clause 14:

“The power to make a charge under subsection (1) for meeting a carer’s needs for support under section 20 by providing care and support to the adult needing care may not be exercised so as to charge the carer”.

Although the intention of this wording is welcome, it does not provide any definition of what is a service for the carer and what is a service for the adult. So it does not prevent local authorities charging carers for services such as replacement care and other things that help them.

It is important that any potential conflict is resolved so that carers and disabled people have clarity about their personal budgets. Independent personal budgets can be useful in relation to managing options and direct payments. Whose budget is this to come out of? It will also be important when the carer count is introduced that we have clarity, so that the disabled person knows whether the cost of care is starting to accrue to their account.

Decision-making on whether services are designed to give carers a break or result in them having a break from caring is very variable at the moment. Some local carers’ services, for example, have experienced variations in approach from their local authority. I cite a particular example in which a local carers’ organisation that provides a sitting service—that is, replacement care, so that carers can take a break—operates with two neighbouring local authorities. One regards replacement care as a service for the cared-for person, including sitting services. The next-door authority allows carers to purchase a sitting service, as long as it does not include intimate care, with their direct payment. Varying interpretations mean that there is a disparity for carers in the same area. Some can access breaks, while some cannot. This creates difficulties for the service provider and for those who want to support carers.

In the current legislation, the Carers and Disabled Children Act 2000, services provided to the disabled person to meet the needs of the carer cannot include services for the disabled person that are of an intimate nature. My Amendment 89A seeks to reproduce that

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wording in the Bill to probe the distinction made in the Bill between carer services and services for a disabled person and to clarify how the current wording would prevent a carer being charged for respite or replacement care provided to the carer. Without a clearer definition of whose service is whose, negative consequences for the carer will inevitably result. Carers may be prevented from having a break; they may find that they are subject to charges for services that should be allocated to the disabled person; and social workers and others assessors’ time will be taken up in trying to allocate services to people.

I hope that the Minister, who I know to be totally committed to supporting carers, as are the Government, will accept this amendment to clarify the position with regard to charging carers. I beg to move.

Lord Lipsey: My Lords, I rise briefly—I fear that that will be the last time that I will use the word “briefly” tonight—to speak to Amendment 104ZB in my name in this group. This is another bits and pieces group; my amendment does not relate to the excellent speech just made by my noble friend Lady Pitkeathley.

Clause 64 enables a local authority to recover money owed to it in connection with the provision of care and support. A person’s failure to disclose any material fact would make them liable to recovery proceedings. However—and this is the nub—it would do so even if they had done so inadvertently. This seems terribly draconian and might well deter people from taking steps, such as asking for a direct payment, which they might perceive as carrying the risk of legal proceedings. This clause should refer only to misrepresentation, and the deliberate failure to disclose information, rather than incorporating, as it does, accidental failure.

These decisions of where to apply for help are taken at time of acute stress in many families. There may have been an incident, such as a fall or a stroke, which has changed the picture for that family entirely. At that stage, the last thing that people want to worry about is whether they have inadvertently failed to disclose some piece of information and will have legal proceedings taken as a result.

I cite an example given to me by Age UK, which was contacted by a husband whose wife has dementia. She has a private bank account that she will not let her family have access to, and discussions of financial arrangements upset her terribly, so he has not yet gained a power of attorney over her affairs. Despite knowing that his wife has assets, her husband is paying for everything relating to her care with his benefits and pensions. He feels that he could not make an accurate disclosure of her assets that would be necessary to get the benefits to which he is entitled. Imagine how that person would feel when faced with this clause and the danger that an inadvertent failure to disclose fully would lead to the local authority taking him to court.

6.15 pm

Baroness Browning: In the case that the noble Lord has just mentioned, would there be any question of the lady concerned being assessed as not having capacity?

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Lord Lipsey: That could arise, I suppose, but it has not arisen in this case. I am not even sure—it is very difficult with these cases, and I do not know if it is even known—whether the man I am referring to has attempted to find that way around it. This lady gets distressed at the mere mention of financial affairs, so it is not surprising that he is ducking away from that. As the noble Baroness says, there could be capacity issues. In certain circumstances, clearly, there could be a court decision that she no longer has capacity to exercise discretion, but that is a long and difficult route to go down in the situation of this poor old man and his poor wife. That is the sort of situation that I am trying to avoid. I am not trying to open the door so that everybody can get away with claiming everything. I am simply saying that if people have inadvertently misled the local authority, the authority should not go after them in the courts to get its money back. It seems a moderate proposal, and I hope that the Minister will be able to respond positively to it.

Lord Low of Dalston: I shall speak to Amendments 89BA and 92ZZM. I very much welcomed the comments of the Minister at Second Reading, when he stated that the Government,

“intend to use regulations to ensure that services ... currently … provided free, including … minor aids or adaptations, remain provided free of charge”.—[

Official Report

, 21/5/13; col. 826.]

That seems only right, since minor aids and adaptations are qualifying services under the Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003.

The Government do not want to see local authorities charging for services that they are not permitted to charge for today. Clauses 2(3)(b) and 14(6) hint at this, explaining that regulations may prohibit local authorities from charging for particular types of support. However, the Bill should be explicit about what local authorities are prohibited from charging for.

I shall take the amendments in reverse order. Amendment 92ZZM relates specifically to personal budgets and would ensure that anyone needing care and support and requiring equipment or adaptations costing under £1,000 would not be financially assessed as part of a personal budget, which would effectively impose a charge for those items. In considering the amendment, will the Minister clarify how equipment and adaptations will be provided for in personal budgets? Will he ensure that regulations are unambiguously clear on the need for equipment and adaptations to remain free and for there to be no variations at a local level? The College of Occupational Therapists has some concerns about this.

I know that the Minister understands how important these provisions are to ensure effective preventive services that reduce both the demands on care services and the cost to local councils. In many instances, occupational therapists assist those requiring care and support by recommending the provision of equipment, minor adaptations and assistive technology, often resulting in recommendations, disabled facilities grants for safe management of progressive conditions and the moving and handling of people.

Equipment and adaptations are critically important, as they reduce the need for escalating care, protecting the individual and saving the resources of cash-strapped

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local authorities. Any reference to the provision of equipment and adaptations is notably absent from the legislation. However, these aids are critical for many people, and it is important that the Government are clear about how equipment and adaptations will be treated under the Bill. I hope that the Minister will agree not only that they should remain freely available but that they should not attract a charge by the back door when made the subject of a personal budget.

Amendment 89BA is a probing amendment to seek an assurance from the Minister that the provision in the Community Care (Delayed Discharges etc) Act (Qualifying Services) (England) Regulations 2003, preventing local authorities charging for minor aids and adaptations under £1,000, will be maintained and to ask whether the £1,000 threshold, set 10 years ago, will be kept up to date.

Baroness Barker: My Lords, I support all the amendments in this group. On these Benches one of our great hopes for a national system of criteria is that it will lessen the frequency with which people in different parts of the country are wrongly charged for services that should be free. It has always been the case that older people, and carers in particular, can find themselves being charged by a local authority for things that are in fact free under various different pieces of legislation, notably the Community Care (Delayed Discharges etc) Act.

All of these amendments have things to commend them. I will start in reverse order, with the amendment of the noble Lord, Lord Lipsey. He has hit on something that is a bigger issue than perhaps has been realised yet. When we were debating the pension credit legislation in this House, the noble Baroness, Lady Hollis, talked about the fact that she had taken over the affairs of an elderly relative. She was probably the one person in the whole of Britain who at that time knew exactly what the regulations were. Yet it was only after the person died that she discovered that they had a little account about which she had known absolutely nothing. Why? Because many older people put money aside to cover their funeral. That is the truth. It is something that is very important to them. They probably do not tell people about it. I am sure that they also have other reasons, but that is a very common one. It is not uncommon for relatives to discover such accounts, although they are not vast amounts of money. The noble Lord, Lord Lipsey, is absolutely right that if, in a circumstance like that, somebody was deemed to have transgressed the law, it would be unfair and unjust.

I also add support to Amendment 89BA, an amendment of the noble Lord, Lord Low of Dalston. I was lucky to serve with the noble Lord, Lord Best, last year on an inquiry into the availability of aids and adaptations for older people who need help to remain in their own homes. We discovered extraordinary variations across the country and heartrending stories of elderly ladies having to carry their very elderly husbands up and down flights of stairs on their back, in a way that was simply unsustainable.

I commend to noble Lords the policy that was adopted by the local authority in Hull. It occurred to officials one day that, truth be known, nobody really

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wants a ramp outside their door. So they abandoned their assessment procedure; they stopped sending social workers out to discover whether or not this was necessary. They saved a lot of money that went instead into direct services. That is a commendable approach, and one that probably saved the city of Hull a lot of money in immediate and direct costs. Would that that spirit could go into the implementation of this Bill.

Lord Warner: My Lords, I rise briefly to support the amendment of my noble friend Lady Pitkeathley. As someone who has spent six years in the local authority salt mines, I say that one should never underestimate the capacity of any local authority, when times are hard, to scratch around for things by which they can raise some money—I say this with affection. If there is a scintilla of doubt in this legislation about the ability to charge carers for services, we should remove it immediately. Otherwise I would be willing to bet a reasonable sum of money that when there is a financial crisis in some part of the country at some point in the future, a bright spark in a local authority will light upon the chargeability of carers for particular services. I am not sure whether my noble friend’s wording is the right way of doing this, but her intention is absolutely right. I hope that the Government will take this issue away and make sure that this particular piece of legislation is totally fireproof in terms of the ability of local authorities to charge carers for services.

I also support the amendment of my noble friend, Lord Lipsey. Evidence was given repeatedly to the Dilnot commission about the distressed state that many people were in when they made key decisions about their family’s circumstances. I suspect that he is on to something important that affects quite a lot of people.

Baroness Wheeler: My Lords, these amendments under Clause 14 deal with the difficult area of charging for the care and support that we have established is required through assessment. The historic settlement of charging for social care but not for healthcare is being increasingly challenged and the obviously linked issue of funding for social care is ever present, as we have been reminded in today’s debates.

The common agreement about charges is that they should be fair and that the process for means testing should be as simple and as unintrusive as we can make it. Fairness in the eyes of the public means no postcode lottery, but the excellent work by my colleague Liz Kendall, our shadow Care Minister, has shown just how stark the variations are across local authorities today. This is something that we need this Bill to address. Why should charges for the same service be allowed to vary so much? This is seen as unfair and it is. I will be interested to hear from the Minister about this variability of charges and what actions the Government are taking to address it.

For many older people, claiming for any kind of help is hard. We need a system that is easy to use and we could do far more to integrate the various bureaucracies to minimise form filling and document checking and having to repeat the same information over and over again. We could use income information from the

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Inland Revenue, for example, and we could unify all assessment frameworks and use passporting of entitlement to minimise bureaucracy and administration costs. Much of the detail is for the future in the regulations, but this is our opportunity to remind ourselves of key principles, such as fairness and simplicity, that should shape those regulations. Can the Minister tell us when the draft regulations relating to Clause 14 and charging will be published?

When they are published, the regulations themselves will inevitably be complex and disputes are likely. Dispute through judicial review or the courts is not the way. Will the Minister explain why there appears to be no response to appeal or conflict resolution processes contained in this part of the Bill? Why do many of the decisions made under provisions in Part 1 seem not to have some mechanism of appeal attached to them? The appeals system should be fair, easy to access and independent. Does the Minister acknowledge that this is needed?

On the specific amendments in the group, my noble friend Lady Pitkeathley has provided an excellent explanation of the importance of her two amendments, Amendments 89A and 89B. As usual, it is very hard to find anything additional to say when it comes to carers and carers’ rights after she has spoken. It is right always to underline our support for the provisions in the Bill providing statutory rights for carers, but there are still areas of concern that need to be addressed relating to means testing and local authority care charges, and the widespread fear among carers about charges as local authorities become increasingly strapped for cash.

6.30 pm

Amendment 89A aims to make the distinction between what is a disabled person’s service and what is a carer’s service by using the wording under the Carers and Disabled Children Act 2000, and ensuring that personal services provided for the disabled person in order to meet the needs of the carer cannot include services of an intimate nature. There are very real concerns that without this the Bill would not prevent the carer being charged for a respite care service which includes personal care that is provided to the person they care for.

My noble friend has set out some of what are presumably the “unintended consequences”, to quote the Select Committee on the gaps and risks in the Bill that need to be addressed. It would be particularly confusing when trying, for example, to work out whether a service would be accrued to the care account under the capped system and whether a direct payment can be spent on a replacement care service. We need clarity on what carers and disabled people’s personal budgets and independent personal budgets can be used for.

Amendment 89B again focuses on the position of carers caring for an adult in the community receiving support under NHS continuing care. The amendment that was tabled last week sought to clarify who was responsible in these circumstances for assessing the carer. Today, the concern is to ensure that the NHS meets the cost of support services provided to a carer. The noble Lord, Lord Low, raised important issues about the provision of, and payment for, aids and adaptations in the home. It is a complex issue that

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causes deep frustration among those who are eligible in terms of knowing what is available, the bureaucracy involved, the time taken to assess and make adaptations, the availability locally of basic equipment such as grab rails, and, indeed, the different charging practices of local authorities. This issue also came to light around the bedroom tax, where properties which had been adapted were vacated and the new property then had to be adapted and the old one unadapted for the new tenants. Presumably, that was another unintended consequence. Adaptations of low cost can have a high value for the independence of older people and so again we should make it as easy as we can for them to get that support.

Finally, the amendment of my noble friend Lord Lipsey makes a strong case in relation to Clause 64 —this deals with a local authority’s powers to enforce debts owed to it—for trying to distinguish between people who deliberately supply fraudulent information on their finances and those who make mistakes or misunderstand what is required of them. The financial assessments for care and support are involved and complex and errors can occur with no intention to be dishonest or defraud. I hope that the Minister has taken note of my noble friend’s arguments and will consider how the Bill can be amended.

Earl Howe: My Lords, not for the first time, I find myself in sympathy with the noble Baroness, Lady Pitkeathley, and the concerns she has raised about the Bill’s practical implementation. I am sure it is a shared view across the Committee that people should be supported to remain independent within their own homes for as long as possible. As the Bill recognises, supporting carers and preventing or delaying the need for care and support are both vital to achieving this goal.

On the specific amendments tabled by the noble Baroness, our previous debate shows the value and importance which noble Lords place on carers and the need to support them. I thank the noble Baroness for her recognition of the significant improvement that this Bill will make. I reassure her that the Bill makes it clear that local authorities cannot charge carers for services provided to the person being cared for. Our clear view is that Clause 14(3) puts this matter beyond doubt, and this would include services of an intimate nature provided to the person being cared for.

Local authorities need to retain the flexibility to meet the needs of carers in the most appropriate way. This might include providing services to the adult needing care such as feeding them or taking them to the toilet. Providing these services is necessary to allow carers of people with the greatest needs to take a well earned break from their responsibilities. However, Amendment 89A would create a legal barrier which may hinder the provision of support to carers. For that reason, I do not warm to it.

Amendment 89B would ensure that services provided to carers were provided free of charge by the NHS. Local authorities currently do not usually charge carers, as they recognise the vital work that they do. In some cases, however, local authorities may charge a fee for services provided directly to carers, such as when the local authority arranges a trip for them. We want to continue to give local authorities this flexibility.

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The noble Baroness expressed a worry about the scope for different interpretation about who is the beneficiary of a particular service. In most cases, I suggest that it will be clear what is being provided to the adult needing care and support as opposed to the carer. However, statutory guidance will be provided to help to promote national consistency on that point. I hope that that reassurance will provide the noble Baroness with the wherewithal to withdraw the amendment for the time being although I will, of course, reflect further on what she has said.

On Amendments 89BA and 92ZZM, I reassure the noble Lord, Lord Low, that we intend to maintain the existing entitlements to aids, minor adaptations and intermediate care in regulations. Aids and minor adaptations costing up to £1,000 will continue to be provided free and without the need for a financial assessment. We will shortly be consulting on the implementation of our reforms to care and support funding, which will inform the future regulations. In designing the new regulations, we will consider whether we should update the list of services which must be provided free of charge. However, we must bear in mind that further limitations on the ability of local authorities to charge would reduce the resources available to support people with the greatest needs. The draft regulations will be subject to a further public consultation to ensure the final regulations are based on the best available evidence.

As I indicated earlier, we are introducing a fairer system, including a cap on care costs. It is right that people who can afford to do so should continue to contribute a fair amount towards their care costs, and when they do not, Clause 64 allows local authorities to recover these costs as a debt. I understand the desire to protect people who make mistakes or accidentally fail to disclose relevant information. However, I fear that Amendment 104ZB, which would require local authorities to prove intent, would result in complex and expensive legal cases. Intent is not always easy to prove. Local authorities will not be able to charge people more than their due debt and the costs incurred in recovering that debt, and we think it is right that they should be able to do so even if someone has made a genuine mistake. This is not about instituting recriminations but about correcting mistakes. We should surely allow local authorities to take action in such a case if we believe in protecting public money.

Lord Lipsey: I am a bit bemused. I cannot see where my amendment states that local authorities have to prove intent, nor do I see in the noble Earl’s argument any reason why the person who makes a mistake should have to pay not only the extra money they have received but the cost to the local authority of retrieving that money. That seems to me a punishment too far.

Earl Howe: I had rather assumed, perhaps wrongly, that if, for whatever reason, there has been a discrepancy in the declaration made by a person, it either has to be a genuine error, or something more deliberate, in which case there is intent involved. I am not sure what other explanation there could be. That was why I read into the noble Lord’s amendment what I did.

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I think that the ability of a local authority to recover costs ought to act as a disincentive to people to be careless about what they are doing. They should make sure that what they declare is accurate and should be made aware that if they make a mistake, it might prove a little more costly to them than just rectifying the error. This is not about imposing recriminations on people. It is right for local authorities not to be out of pocket when other people out there could be benefiting from the public money that is available.

Lord Lipsey: The noble Lord has interpreted my amendment one way; I have interpreted it in another way. It may be that the Bill, either as it is or as amended, is not quite right. Can the noble Lord agree that we have further discussions to see if we can find a way forward that satisfies us both?

Earl Howe: I am more than happy to discuss this with the noble Lord and I apologise if I have misunderstood his amendment. I certainly would not wish to do that.

The noble Lord, Lord Low, asked me how equipment and adaptations will be addressed in a personal budget. Those costs that are intended to meet eligible needs will be included in the personal budget, or the independent personal budget, and will count towards the cap. We intend that aids and minor adaptations will be provided free of charge however they are funded, including by way of direct payments.

The noble Baroness, Lady Wheeler, asked me when the regulations under Clause 14 will be published. We intend to publish the draft regulations after the forthcoming consultation on funding reform. This consultation will enable the regulations to be based on the best available evidence. She asked where are the provisions about complaints and redress in relation to charging and, indeed, all of Part 1. Existing complaints provision for adult social care is through regulations. The provisions of the regulations mean that anyone who is dissatisfied with the decision made by the local authority about their assessment or eligibility would be able to complain to the local authority and have that complaint handled by the local authority. The local authority must make its own arrangements for dealing with complaints in accordance with the 2009 regulations.

The Government recognise that the existing framework allows local authorities flexibility in the development of the process for dealing with appeals and challenges. There are options for local authorities to introduce independent elements to the complaints process through a range of formal and informal measures. Each local authority will therefore have a different process and we appreciate that local variation will result in varying user experiences. If a complainant is not satisfied with the response from the local authority, they can refer the case to the independent Local Government Ombudsman.

I hope that those remarks will be helpful and that the noble Baroness, Lady Pitkeathley, will for now be able to withdraw her amendments.

Lord Warner: Can the Minister clarify his response to my noble friend’s amendment that there would be statutory guidance? I know that I have been away for a

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few weeks, but before I left, the Government had turned their back on a statutory code of guidance, as I understood it. Has there been a change of heart in my absence?

6.45 pm

Earl Howe: My advice is that the guidance that we will issue on this topic will be binding on local authorities. It will not be the type of guidance which merely points to best practice, which local authorities are free to ignore. The last thing I wish to do is to mislead the noble Lord and if I have done so, I apologise in advance and I will clarify that point to him and to the entire Committee.

Baroness Pitkeathley: My Lords, I thank all noble Lords who have spoken in what my noble friend Lord Lipsey called this “bits and pieces” group, although charging and access was the theme that linked the amendments. I am naturally disappointed that the Minister cannot accept my amendments, but reassured by his restating his intention so far as carers and charges are concerned, and by the statement that he has now given twice about the guidance being binding on local authorities with regard to charging. I am also grateful for his offer to reflect on my concerns, because I am not entirely certain that we have totally removed what my noble friend Lord Warner called “the scintilla of doubt” which might allow local authorities at some point in the future to charge carers. For the time being, I beg leave to withdraw the amendment.

Amendment 89A withdrawn.

Amendment 89B not moved.

Amendment 89BA not moved.

Clause 14 agreed.

Clause 15 : Cap on care costs

Amendment 89C

Moved by Lord Lipsey

89C: Clause 15, page 13, line 30, leave out from “is” to end of line 33 and insert “the number of years for which people are expected to contribute to their care costs”

Lord Lipsey: Now for something completely different. These amendments hardly deserve the epithet “probing”—more a light examination by the doctor’s fingers. What they do is, in essence, simple. They substitute for the monetary cap proposed by the Government a cap based on the number of years a person has been receiving care at a substantial level.

The origins of my amendment were in a proposal floated in the minority report to the 1999 royal commission on the funding of long-term care. As I was the author, I remember this quite well. It did not even gain the support of a majority of the minorities, as the noble Lord, Lord Joffe, declined to sign up to it. Nevertheless, it has had a life after death and I think it can claim paternity —the noble Lord, Lord Warner, knows better than I—for the cap proposal in the Dilnot report, because it shares precisely the same objective as the

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cap: to limit the costs of care to those unlucky enough to require it for a long time as it costs a lot of money. That is the aim of the proposal.

When I first saw the Dilnot proposal, I thought that it was clearly superior to the one in the minority report—everyone would spend the same before the state kicked in. But as time has gone on I have become much less sure of this as two defects of the Dilnot version have become more apparent. The first is that it is extremely complex for local authorities to administer. There have been figures of between £300 million and £500 million floating about for the cost of administration, before money is handed out to people. That is because, to implement the Dilnot report, it is necessary to track each individual from the time the meter starts ticking to see exactly what they are spending on care or, rather worse, to see exactly what a local authority thinks it should be providing in spending on care for each individual—a sort of abstract concept that has to be turned into a concrete figure.

As will be apparent from other amendments I have tabled, I am not even confident that local authorities will have their systems sufficiently sorted to manage it by the proposed start date of April 2016. There is a non-negligible risk that this will prove to be universal benefit mark 2, a scheme that will in practice prove impossible to operate. I hope I am wrong but the fact is that, putting the best face on it, it will cost a lot of money to implement without any of that money going to better care, and not a penny of it going to the people who should be helped. In the Government’s ghastly jargon, it will be money spent on bureaucracy, not front-line services. That is my first query about the Dilnot way of doing things.

My second point is equally worrying. The Dilnot system is terribly difficult for anyone normal to understand. When do you start to get it? How much is assessed as being the cost of the care that you may get from the council? How much have I spent? How much of that counts towards the cap? People may say, “My care costs differ because my condition goes up and down”. All those factors are crucial if people are to know what they spend out of their own pockets. I am sure that better-off people who are in full possession of their faculties will work it out, but we know that 40% of people over 80 have some degree of dementia and are therefore not in full possession. Certainly, those with computer-literate families and sons or daughters who happen to be independent financial advisers will crack it all right. Their claims for substantial care needs will be there on day one in a large pile on the local authority’s desk. They will know every penny that has been spent, but are we confident that everyone else will? Just explaining the system and the process of communication, to which we shall come later, will be jolly difficult. It should be remembered that more than half the people think that the state at the moment pays their entire care costs without deductions. There is a long way to go from there to understanding Dilnot.

By comparison, a time-based system is simplicity itself. You have an assessment, and if it shows that you need substantial care or its equivalent under the new system, the clock starts ticking. Five years later, you no longer have to pay the cost of your care. That is

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very simple. Five years is what you have to find. In my variant, the council would then pick up the whole cost, not some notional cost, as under the Dilnot cap, and you would simply have to find your hotel costs where applicable. That is simplicity itself and, incidentally, it makes it much easier for you to insure privately. Private insurance companies are going to struggle to know how much their liability will be under the Dilnot system. Under a time-based system, they will know that they have a liability. If you live more than five years the state will pick up the bill and the only bit that they will have to cover is the first five years.

How does that compare in generosity with Dilnot? It will probably be about the same. The Dilnot cap would be reached by someone in residential care rather more quickly than the five years but, on the other hand, as you are going to be paid only in part if you reach the cap, you may not be any better off. I suspect that for those receiving care in their own homes my proposal will prove to be more generous than Dilnot’s £72,000 cap. In most cases, people will take more than five years to reach the £72,000 and it may therefore be slightly more generous to people who live at home, which is no dreadful thing.

Sunny optimist though I am, I do not expect the Minister to go snap on my scheme today. I am not even sure that I do. He and his colleagues had enough trouble getting the Government to sign up to Dilnot, and they will not want to execute any unnecessary U-turns now. However, I suggest that he puts this proposal in his bottom drawer because it may become apparent in six, 12 or 18 months’ time that Dilnot, as encapsulated in the Bill, is simply impossible to administer on any realistic timetable. When that day dawns— I hope it does not—my scheme may come in handy. I beg to move.

Lord Warner: My Lords, my noble friend will not be surprised if I gently defend the Dilnot commission’s recommendations on a cap. His final suggestion of putting his proposal in the bottom drawer was actually rather good. I remind the House that as a young civil servant I was once the recipient of a Health Minister’s regular manuscript notes asking me about progress on various matters. They ended up in my bottom drawer because he had usually forgotten about them. Putting this recommendation in the bottom drawer may be the best thing to do.

I think that my noble friend has forgotten the task that the Dilnot commission was set. It was not the case that we just brought a cap out of the ether and projected it on to an unsuspecting world. We were trying to fulfil the task that we were given, which was to make recommendations on how,

“to achieve an affordable and sustainable funding system … for care and support for all adults in England, both in the home and in other settings”.

In particular, we were asked to examine,

“how best to meet the costs of care and support as a partnership between individuals and the state … how people could choose to protect their assets, especially their homes, against the costs”,


“how both now and in the future public funding for the care and support system can be best used to meet care and support needs”.

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I suggest that to fulfil those requirements it is probably better to concentrate on money and try to achieve a credible system than to concentrate on time. One of our main purposes was to project the idea that if we could get citizens to be more engaged with the realities of a means-tested adult social care system, they would plan for the future in a better way than at present. Money is the currency in which they would be thinking, to all intents and purposes. That is why we came up with the idea of a cap.

My noble friend is right to ask how well prepared local government is to introduce this system. There are some genuine concerns about that, which we will debate later. However, he is a little pessimistic about our ability to develop, perhaps over a longer period than the Government might like, a taxi-meter system that works for the Dilnot proposals. They are essentially a taxi-meter system. You need to clock up the costs that are being spent over time until you reach the cap. There is a thing called IT; it is not always well used in the public sector but it is possible to take the pain out of all this. We as a commission did not envisage a new pencil-and-paper system that 152 local authorities would reinvent in individual and separate ways. It is a complex system but it is actually not that difficult to manage, once you get into the swing of it.

I say very gently to the Minister and to my noble friend that we sweated blood for about a year to try to get a very large number of people to agree on a way forward. This is not the time to go back to square one and think of another way of doing it.

7 pm

Lord Campbell-Savours: My Lords, I totally dissent from the case that my noble friend Lord Warner makes. I have opposed Dilnot since the first day that it was made public as a report. My view is very simple. It will simply transfer money from those without to those with, and it has been introduced to appease—I repeat: to appease—the demands of those who insist on passing on inherited wealth from one generation to another, a most ignoble way of proceeding.

I think that my noble friend’s amendment is utterly brilliant—it deals with exactly the concerns that I have, and I hope that it does not end up in the department’s bottom drawer. I hope that when the Government begin to realise that the whole complicated process they are imposing on local authorities will inevitably lead to mistakes and errors and congestion and arguments between carers and people being cared for and their relatives and local authorities, they will sit down, have a rethink, and turn back Dilnot.

The Dilnot report is unjust as far as I am concerned in that it simply transfers wealth from one generation to another. I totally oppose it, and I think that my noble friend’s amendment should be enshrined in the legislation. My noble friend Lord Warner set out the remit as if members of the commission were somehow imprisoned in it so that they could not even consider this proposal. As I understand it, my noble friend’s amendments and the idea behind them were not considered by Dilnot. Sad to say, that is the case. I hope that in the near future this proposal will be resurrected—I hope by my own Labour Party.

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Lord Hunt of Kings Heath: My Lords, I hesitate to come between my noble friends Lord Warner, Lord Lipsey and Lord Campbell-Savours, and indeed knowing what is good for me I am not intending to do so. I say to my noble friend Lord Campbell-Savours that I understand the point that he is making and I agree that Dilnot is not the answer to many of the really pressing problems that we are talking about.

I want to tempt the noble Earl to say a little bit more on two areas which have been referred to by noble Lords. The first is the complexity for local authorities of what they have to administer. The noble Earl has not really responded in detail on this matter so far. Indeed, it is noticeable that local authorities have not responded. We have received a huge amount of evidence, but not very much from local authorities and the local authority associations. This worries me. I understand why local authorities would be keen to play a prime part in the administration of this new system, but these are genuine concerns about whether there is capacity to make changes of this complexity happen. Nothing would be worse than the new system coming into being and collapsing almost on day one. At the moment, that is my view on what is going to happen. I do not know what the Government intend in terms of testing out the robustness of the system for when it is due to come in. I hope that at some point during our debate the noble Earl will be able to tell us.

Secondly, the next group of amendments deals with the public understanding the complexity of the system being considered, but it seems to me that this issue relates to the point about insurance raised by my noble friend Lord Lipsey. My understanding is that one benefit of full implementation of Dilnot—although I am not sure that the Government have gone down that path—would be that, if the public knew that their liabilities would be capped, there would be likely to be a ready insurance market. A number of us have looked with interest at the comments of the Association of British Insurers and other parts of the insurance industry. I have to say there does not at the moment seem to be much optimism about whether there is going to be a market and whether packages are going to be developed. This may come up in later amendments, but at some point I hope that the noble Earl will give a little more information about the Government’s view of the potential of the insurance market to develop products which the public can understand and will be willing to invest in.

Earl Howe: My Lords, as the noble Lord, Lord Lipsey, explained very clearly, these amendments would mean that the capped system counted time rather than costs. I agree that there are advantages to this approach. The Dilnot commission, in considering this option, said that using years instead of costs would be easier to administer and simpler to understand, and I appreciate those arguments. However, the commission also made the case that to adopt this approach would disadvantage those with more intensive care needs, who over a given period of time could spend significantly more on care than those with less intensive needs, so that what we might gain in simplicity we should lose in fairness. I am sure that we all want to see a fair care and support system giving the most support to those in the greatest need. Using time instead of costs would undermine that goal.

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We are committed to using notional spend—in other words, the equivalent of what the local authority would pay to meet an adult’s eligible care needs. As with using time, it is in fact relatively simple to administer because it fits in with the current system of needs assessment. It also ensures that people with more intensive needs are not disadvantaged. That is why the Government agree with the Dilnot Commission, which said,

“the only suitable way of deciding when a person has reached the cap is to meter notional spend.”

The noble Lord, Lord Lipsey, pointed to the understandable fear that Dilnot will mean spending money on administration rather than on meeting people’s needs. I accept that times are challenging for councils, but we are committed to funding these reforms. Critically, we are also committed to co-producing the implementation of the reforms to minimise the bureaucracy that accompanies them and maximise the benefits that they bring. The noble Lord suggested that local authorities might not be ready to implement Dilnot in 2016, and the noble Lord, Lord Hunt, also asked about this, and whether we were intending to test the robustness of the system. We shall be coming to the issue of readiness in the next group, but I agree with the noble Lord, Lord Warner, that there is sufficient time to develop what he referred to as a taxi-meter system.

The noble Lord, Lord Campbell-Savours, took us to a point that he has made in this Chamber before about Dilnot, and his view that it is fundamentally unfair. I simply say to him that the vast majority of state support, under the Dilnot system, will be provided to the roughly 40% of older people with the lowest income and the lowest wealth. The cap, and the extended means test, provide the most reassurance to that particular group. Our view is that we need a system that protects people with the greatest lifetime care needs. It is not about protecting people with the greatest wealth.

To clarify the question that the noble Lord, Lord Warner, raised in the previous group of amendments about the guidance under Clause 71, this will indeed be statutory guidance, and it will look and feel like a code of practice. Importantly, it will have the same legal status. However, we do not think that guidance should be subject to parliamentary scrutiny every time it is updated, as with a code of practice Statutory guidance under this Bill will have the same status as the current guidance issued under Section 7 of the Local Authority Social Services Act 1970. I hope that this is helpful.

In a later group of amendments we will come to what local authorities think about the new system and indeed the whole area of financial services. However, I was reassured that the Local Government Association said that it fully supports and welcomes the inclusion of a cap on what an individual will pay. The Association of British Insurers has welcomed the announcement that we have made as a positive step forward in tackling the challenges of an ageing society. Arising out of that is a sector-led review that is working constructively with government to understand how the market will develop and create the right environments for products to succeed. That review will be completed over the summer.

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I hope that with those comments the noble Lord, Lord Lipsey, will for now be content to withdraw his amendment. I hope that he found my comments, if not ones that he can agree with immediately, at least ones that he will put into the context of the Bill in, I hope, a manner that he will understand.

Lord Lipsey: My Lords, I thank the Minister for his reply, which was a miracle of putting very well the point that has come out of the debate. I thank all those who have participated. We have here a trade-off between simplicity and fairness—it is as simple as that. The Government—unusually, my party might think—have opted for fairness, and my party might not be surprised that in this case I have opted for simplicity. However, the matter will rest. Of course, if this system goes absolutely swimmingly, I shall forget that I asked the Minister to put it in his bottom drawer, but if it all goes wrong I shall tell the world that “I told you so”. With that, I beg leave to withdraw the amendment.

Amendment 89C withdrawn.

Amendment 89D not moved.

Amendment 89E

Moved by Lord Sharkey

89E: Clause 15, page 13, line 46, at end insert—

“( ) The Secretary of State has a duty to ensure that there is, through national public awareness campaigns, a high level of public awareness and understanding of the terms and implications of the cap on the cost of care.”

Lord Sharkey: My Lords, my Amendment 89E covers the same ground as, and is very similar to, Amendment 90 in this group standing in the name of the noble Baroness, Lady Greengross. I entirely agree with the spirit of the noble Baroness’s amendment except that I do not think that it goes quite far enough.

The question of public awareness of the terms of the cap on care costs is obviously critically important. However, as I said at Second Reading, the Dilnot report views communication to be central to the success of the entire scheme. Dilnot makes two recommendations in this area. The first is:

“To encourage people to plan ahead for their later life we recommend that the Government invests in an awareness campaign”.

The second is:

“The Government should develop a major new information and advice strategy to help when care needs arise”.

In his reply at Second Reading, the Minister said:

“Legislation is not required for that but the Government agree on the need to raise public awareness. The Government will adopt a strategic approach to maximising the public’s understanding of the new care and support system, and that is a crucial part of our plans to implement Dilnot”.—[Official Report, 21/5/13; col. 827.]

I was very glad to hear that the Government plan to maximise public understanding of the new system. Maximisation is a strong word and this is a very strong and very welcome commitment. I agree that legislation is not necessary in order to implement an awareness

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campaign. However, while legislation may not be necessary, I think that in this case it is highly desirable and probably even essential.

I believe that it is highly desirable for four reasons. First, it is a binding and unambiguous commitment; secondly, it allows for a national campaign, so that there should be no unsatisfactory variations in achievement by local authority area; thirdly, only central government is really likely to spend the amount of money needed to truly maximise public understanding; and, fourthly, it is the only efficient way of holding someone to account for failure to achieve maximisation. As I mentioned, where I slightly part company with the noble Baroness, Lady Greengross, is over whether her amendment goes far enough.

I have had a great deal of experience of devising and running very large-scale information and advice campaigns, some of the largest being for government departments, and I know that successfully providing information and advice is never enough. It is critical that this information is understood but it is also critical that there is awareness and understanding of the implications of that information and advice. Awareness of facts is not in itself worth very much if we do not understand what those facts mean or what their implications are for you. That is why my amendment is slightly stronger than Amendment 90. It imposes a duty on the Secretary of State not only to run a national awareness campaign but to ensure that there is a high level of public awareness and understanding of the terms and implications of the cap on the cost of care.

7.15 pm

My Amendment 104ZD in this group takes this a little further. The Government agree with Dilnot’s view that communication is fundamental to the success of the whole enterprise. If communication fails, so will the new system. That is why, I assume, the Government have made the very strong promise to maximise awareness. However, if it is so important to maximise awareness, surely we need some clear indication of the progress being made in maximising this awareness and some indicators to show that, when awareness is in fact maximised, that is where it stays. As it stands, Clause 66 proposes a five-yearly review by the Secretary of State of the funding provisions, and Clause 80 provides for reviews and performance assessments related to care standards. However, there is no provision in the Bill for a review of progress towards the Government’s goal of maximising awareness of the Dilnot terms and their implications.

My Amendment 104ZD would insert a requirement for the Secretary of State to report annually to Parliament on progress in achieving this maximisation nationally and by local authority area, starting 12 months after Section 15 comes into force. This is not an onerous requirement; it is the kind of thing that commercial organisations do entirely as a matter of routine. However, even if it were onerous, it would still be the right thing to do. It is vital that we know how we are doing in maximising awareness and understanding, and the amendment enables us to do that. I hope that the Minister will be able to give sympathetic consideration to this amendment and to Amendment 89E. I beg to move.

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Baroness Greengross: My Lords, I support the noble Lord, Lord Sharkey. A similar amendment in my name is not as strong as his amendment. I think that his would do the job that needs to be done remarkably well and I hope that it will be agreed by the Minister.

Lord Lipsey: My Lords, I will speak to the amendments in this group standing in my name but, before I do so, I should like to offer the strongest possible support for the noble Lord, Lord Sharkey, and particularly for the words that he said at the beginning about the information task that we face here. This is not just a question of advising individuals when they go to their councils, although that is important and we have had a debate on that. It is a question of making the whole of our society aware of what is going on against a background of very great ignorance and misinformation. It is crucial that something is done on a real scale to turn that around and that the best communication skills are used in doing so. We have to move from the language that we use in this Chamber as aficionados or geeks studying the detail of the Bill to the general public out there, and that is a hell of a task.

As I said, I will speak to my Amendments 90D, 92ZZB, 92ZZC and 104ZC. Amendments 90D and 92ZZC relate to a topic that we touched on in the debate on the previous amendment—namely, the costs and administrative difficulties for local authorities of introducing the cap in the scheme. The Local Government Association has expanded on the numerics in the briefings for this debate, as has London Councils. I think that the local authorities have a slight tendency to underplay what is going on for fear that the Government will take the whole thing away from them, and they want to be shown as “can do” rather than “can’t do”. When you get into the detail, and look below the politicians in local government at the fine detail of those who have to implement it, you find that it is quite difficult.

The Government have in principle accepted the burdens doctrine, namely that if they make local government do something they will pay for it. They have provided around £335 million to pay for that. None of this extra money is coming now, by the way. The contributions will not start until 2016. Bad though the administrative mess may be, if local government does nothing to prepare for this scheme until 2016 it will certainly fail. Already it is doubtful whether the burdens scheme is really being met. Many of the costings put forward are fingers in the air stuff. The detail has yet to be grappled with. Details crucial to costing the implementation of the scheme, such as the eligibility requirements, are only emerging bit by bit. We do not even know what the government money is supposed to cover. Does it fund in full the cost of additional self-assessments, when the self-funders and people who will potentially benefit from Dilnot queue up for assessments? I really do not think that we know the detail of duties around advice and information, on which we spoke earlier, or on the funding for setting up new deferred payment schemes.

My change is designed to write into the Bill what is in effect the burdens doctrine. Whatever the cost, the Government must pick it up. It is not as if local authorities have got large chunks of money in their

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pocket at the moment to reach in and pay for all this stuff. They do not. They cannot afford basic care services at the moment, so this is a huge task. There is a huge task, too, in training the local authority workforce to do assessment and implementation on this scale, and indeed in creating the workforce.

These facts lead me to believe—and I am very glad that my noble friend Lord Warner, with whom I agree on nearly everything, agrees—that it was a terrible mistake to bring forward the start of the scheme from 2017 to 2016. We know why it happened, do we not? The Government found that they had a few spare quid in their pocket, and wanted to be able to tell the electorate that Dilnot was nigh, and so without proper consideration of any kind they brought the date forward. It was a U-turn, and my amendment U-turns on the U-turn to get back to the right place where they were to begin with, namely that the scheme will come in in 2017. This would give it a good chance to work.

I turn now to my other amendments in this group. I hope that we might finally get an actual concession from the Minister, instead of words of great sincerity and great sympathy and not much change. My other amendments in this group refer to the setting up of a ministerial advisory group on the cap and the means test. They insist that this group should be consulted in the planned five-year review of how all of this is working. This is not a criticism of the Department of Health. I have been impressed by how effective officials have been in grasping this scheme, particularly as for most of the time that Dilnot was under consideration they probably thought that it was never going to happen. They are a first-class team, but I do not think that they possess a monopoly on wisdom, and indeed they do not think so, either. The Minister just referred to the working parties with the financial services sectors that have been set up to give advice. I applaud that.

I think that there are complexities in all of this that even the most literate advisers have barely grasped. I will come to some of them, for example when we come to the detail of the proposals on the means test. It would be helpful if Ministers had to hand a helpful advisory group comprising academic experts, local authority representatives, representatives of the financial sector and someone from Dilnot. Maybe the noble Lord, Lord Warner, would like to volunteer. A group of that kind would not second-guess Ministers on every detail, but would offer its general advice on how things are progressing and how they may be set right if there are departures from the course on the way forward.

Lord Warner: My Lords, I support the comments made by my noble friend Lord Lipsey. There is a case for setting up some sensible monitoring arrangements. This is not just to check up on the Government, but to make sure that this system is working in the way that everybody wants it to. It is a big change, and we are starting from a position which means we have to grasp the nettle, as the noble Lord, Lord Sharkey, said. I strongly support his amendments.

I want to refresh the House’s memory of what we said in the Dilnot commission report. I will briefly detain noble Lords with a quote:

“There is very poor understanding of how the adult social care system currently works and how much it can potentially cost. Many people live under the false impression that social care will

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be free if they need it. If people are confused over how the system works and the costs that they potentially face, they will not prepare appropriately for the future”.

That setting was why two of our 10 recommendations were that the Government should develop a major new information and advice strategy to help when care needs arise. To encourage people to plan ahead for their later life, we recommended that the Government should invest in an awareness campaign. We deliberately put those responsibilities on the Government. We did not put them on local authorities. We did this because we thought that unless the Government of the day—and this would apply to a Labour Government as much as a coalition Government—took a grip on this awareness campaign and planned the information and advice strategy, we would end up with a badly informed public and a mishmash of different local authority systems up and down the country.

We are not going to make this system work well or deliver the changes in the Bill and in the Dilnot commission report, unless there is investment. In our report we put the price tag of this as being a massive public awareness campaign. The public do not start from a position of being well informed about how they prepare for the future care and support needs that they will have in later life. The only way to start to change that is for the Government to grasp the nettle. I strongly support the proposals of the noble Lord, Lord Sharkey, to put this in the Bill. We should put a clear responsibility on the Secretary of State to run with the ball on this issue and, in effect, to monitor progress, not on a five-year basis but on a regular, annual basis. If we do not do something like this, we will live to regret it. We will see failure of implementation and failure to take the public with us on this major set of changes.

Lord Campbell-Savours: My Lords, my noble friend refers to the exhortations in the report to require the Government to carry out an awareness exercise. However, the reality is that there has been a huge spin on the whole Dilnot proposal. Many people, even those in care, believe that as of the starting date, 2016, everyone who has already spent something like £70,000 will suddenly receive free care. Of course, that is not true. It only affects people who enter the care system after a particular date. That is all part of the spin which has now led to a gross misrepresentation of what Dilnot proposes. Dilnot, while I oppose it, is offering a lot less than the spin suggests.

I want to talk about the reference in the amendment to the,

“implications of the cap on the cost of care”.

The implications of the cap on the cost of care are that there will be far greater transparency in the system, which was what the Minister told us in the debate that took place last week, when we debated the question of transparency. I argue that that transparency will lead to a lot of conflict between self-funders and people who are in receipt of support from their local authorities.

There is a group of people who will be over the means-test threshold but will pay the full cost under the cap. They will suddenly be confronted with information in this new regime of transparency which will give them far more information about what other people

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are paying in the home, what the local authority is prepared to pay and what the local authority believes to be a reasonable fee for care. That could lead to conflict within individual care homes and I wonder to what extent Ministers have taken it into account.

An amendment such as this is absolutely necessary because, before people are confronted with this decision when it comes later in this decade, it will at least give them some indication of where the truth lies and will perhaps bring an end to the misrepresentation that is taking place.

7.30 pm

Lord Hunt of Kings Heath: My Lords, my Amendment 90ZA requires the Secretary of State to report to Parliament,

“in advance of this section coming into force with the Government’s assessment of the likely impact of the cap on care costs; and … annually once the section is in effect, with the Government’s assessment of the impact of the cap, in particular its distributional impact across the income spectrum”.

I echo some of the points already made. The operation of the cap ought to be, and continue to be, subject to ministerial oversight. The opportunity to report to Parliament and for us to have an annual debate should not be missed. This links into the amendment of my noble friend Lord Lipsey, Amendment 92ZZB, because it would enable a ministerial advisory group to feed into an annual report on how the scheme is being implemented and whether changes need to be made.

It is important to bear in mind the concern of my noble friend Lord Campbell-Savours that simply operating Dilnot will favour the better off at the expense of the worse off. We must keep an eye on how it impacts on the distributional spectrum in this regard. That is why I have the second part of my amendment.

Like other noble Lords, I agree with Amendment 89E in the name of the noble Lord, Lord Sharkey, and Amendment 90 in the name of the noble Baroness, Lady Greengross. I have learnt over the past few months how complex this issue is, and if noble Lords do not understand the full complexity of the scheme—and I gladly hold my hand up that I have yet to believe that I have full mastery of how it will operate—how can members of the public be expected to understand its full consequences?

In our debate on Clause 2, we discussed the responsibilities of local authorities in providing advice and we debated the need for independent financial advice to be made available. The consequences for a person making the wrong decision on funding could be catastrophic. It is therefore important that advice is readily available, and I agree with those noble Lords who think that it ought to be a national responsibility. Whether I would give it to the current Secretary of State, I am not quite so sure.

I remember how the Government spun this Bill in the Queen’s Speech and the Prime Minister giving the impression that no one would for ever more have to sell their home and that the £72,000 cap was the limit. However, as we have gone through the Bill has become quite clear that neither is the case. I agree with my noble friend Lord Campbell-Savours that the Government have not thought through the implications of what the noble Earl said last week about the issue of transparency.

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The point is that most people have to spend more than £72,000 because self-funders do not pay local authority rates. In his sophisticated response last week, the noble Earl suggested that local authorities took advantage of procurement at scale, which is why they were able to get a rate lower than self-funders. That was a remarkable argument. Most people see this as a case where local authorities underpay and that if homes only existed under local authority rates many of them would not be viable. It is therefore not surprising that many homes are on a cliff edge of viability on the one hand and at risk of being put out of business because of CQC inspections on the other. There is no doubt that it is generally thought that self-funders subsidise the people in those homes who are paid for by the local authority.

However, most people do not know that. Only an inside circle is aware of the issue. However, come the new implementation, everyone will know—as the noble Earl said last week, it will be transparent—and people will not put up with it. That is why, first, it is essential that more thought is given to implementation. I am not sure whether my noble friend Lord Lipsey is right to want to delay it by a year, but I am sure that he is right to say to the Government that they need to look carefully at the practicalities of implementation.

Secondly, it is important that self-funders are in future fully aware of the consequences of any decisions they take. At the moment, I and many other noble Lords are not convinced that the public are aware. That is why it is so important that a duty is laid on Ministers to fund, and continue to fund, a national campaign of information and that we come back to our debates on Clause 2 in relation to independent advice being made available.

Thirdly, I hope that the noble Earl will readily accept the amendment of my noble friend Lord Lipsey about the need for a ministerial advisory committee, which could then enable the Secretary of State to report to Parliament annually in relation to the implementation of the Dilnot proposals.

The noble Earl will be aware that, in general—my noble friend Lord Campbell-Savours aside—the Care Bill enjoys support. However, there is a risk of our disagreeing on implementation. If he can reassure us on the readiness of local authorities, on the willingness to provide independent advice and on the willingness to establish some kind of independent mechanism to report on a regular basis, it would provide a great deal of comfort.

Earl Howe: My Lords, the clauses on the capped-costs system represent a significant step forward, ending decades of uncertainty, with the introduction of a clear system that fairly shares costs. For the first time, people will be protected from spiralling costs and will no longer have to fear that their home will be sold while they are in a care home. In response to Amendment 90ZA, I can confirm that we published an impact assessment of the reforms which includes the distributional impact by income.

The current system exposes those with little savings or modest housing wealth to the greatest risk of losing everything to pay for their care and support. We will enable people to keep more of their capital and still

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receive a contribution from the local authority towards their residential care costs. Under new regulations, those with capital assets of less than £118,000 will see the local authority pay a proportion of their residential care costs rather than only those with assets of under £23,250.

As I mentioned earlier, the vast majority of state support will be provided to the 40% of older people with the lowest income and wealth. The cap and extension to means-tested support provides the most reassurance to this group. This is about protecting people with the greatest lifetime care needs and not people with the greatest wealth. The reforms must be sustainable and affordable for the long term, which is why we have accepted the Dilnot commission’s recommendation that the level of the cap should be adjusted annually in line with inflation. It is an approach used in taxes, pensions and benefits, ensuring they remain equally fair year after year.

I turn to amendments 92ZZB, 92ZZC and 104ZC. The noble Lord, Lord Lipsey, shares our aim in drawing up the Care Bill of ensuring the system can respond to changing circumstances. However, that dynamism must be balanced with some certainty about the basis for changes. That is why Clause 16 requires annual adjustments to be made to the cap and to an adult’s accrued costs, so that they keep pace with inflation. Clause 66 provides some certainty that changes are likely to occur only as a result of the annual adjustment or five-yearly review. In reviewing the level of the cap and the means-test threshold, the Government will want to involve a range of experts in assessing how external factors such as demographic change and healthy life expectancy are affecting affordability and the benefits of the capped costs system. A standing independent committee is therefore unnecessary and could suggest that the system is subject to constant change—which may, perversely, result in fewer people planning and preparing on the basis of these reforms.

Amendments 90A, 90B and 90C would require the annual adjustment to be made in line with average care costs. The first point to make is that there is no nationally recognised measure for care costs inflation. Linking the annual adjustment to a care costs inflation measure that has no national benchmark would not give people, or the financial services industry, certainty or confidence in the system. It would of course be possible to develop such a measure, but we feel it is unnecessary, as a robust proxy already exists. Average earnings is one element of the measures used to determine the state pension and therefore represent changes in people’s ability to pay. Earnings is a national statistic certified as compliant with the code of practice for official statistics. In addition, care costs and average earnings are related since labour is a substantial proportion of the cost of care. The latest Laing & Buisson market survey states that,

“in the longer term, fees are inevitably driven by costs … the major cost item is payroll”.

Turning to Amendments 89E, 90 and 104ZD, which is where my noble friend Lord Sharkey began this debate, I fully agree that it is critical that people are made aware of the reforms and what they will mean. The Dilnot commission rightly recommended that there should be an exercise in raising awareness alongside

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implementation of the reforms. Many people do not realise that they may have to pay for their care and support, which acts as a significant barrier to effective planning and prevention. The Committee will be aware from the debate on Clause 4 that we know that easier access to good quality, trusted information and advice is a critical enabler. The Bill places a duty on local authorities to provide information and advice, including on the capped cost system.

I assure the noble Lord, Lord Campbell-Savours, that we have absolutely no intention to or interest in allowing spin to replace clear and balanced information for the public. In improving awareness and advice, national and local must work together. It will be in the interests of local authorities, the public, government and the financial services industry to make sure that people are aware of the reforms and have access to the right information and advice at the right time so that they can plan and prepare to meet their care and support needs. We will seek views in the forthcoming consultation on the design and technical implementation of the funding reforms, which will include addressing the best way to raise awareness of these reforms nationally and locally.

My noble friend Lord Sharkey made the good point that awareness and understanding of the Dilnot reforms has to be evaluated and measured over time. As with any other policy, we will seek to evaluate the effectiveness of this particular policy, but we believe that to require an annual report in the Bill would incur a potentially high and unnecessary cost. There are other ways of delivering the same aim.

7.45 pm

With respect to Amendments 90D and 92ZZC, I recognise that alighting on a solution to the long-standing issue of funding reform should not mean that we sacrifice effective implementation for speed of delivery. There must be a suitable balance, but that does not mean that we cannot deliver in April 2016. We are working closely with the key representatives of the care sector to shape the consultation over the summer on the detail of implementation to make sure we get it right and realise the benefits we all want to see. There is a shared understanding that we need to work together to address the implementation challenges. However, the capped cost system builds on what already exists—assessments and personal budgets are two elements that will form the building blocks of capped cost implementation. It is worth adding that government guidance requires all new burdens on local authorities to be fully funded. Alongside the funding that we have announced for the reforms at implementation, we are providing additional funding for transition to ensure that councils are ready to take on their new responsibilities from April 2016.

The noble Lord, Lord Campbell-Savours, asked what impact Dilnot will have on the market. Our reforms will mean that people will be able to see the cost to the local authority of meeting their eligible needs. They will be able to compare that with what they might pay on the open market and will then have the option to request the local authority to arrange their care for an administrative fee. We know that

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many people will not want to have the local authority arrange their care but it is important that we fully explore the potential impact.

Lord Campbell-Savours: If someone is below the £70,000 figure and funding their own care, why would they bring in the local authority? What business is it of the local authority?

Earl Howe: My Lords, potentially, everyone in need of care and support may benefit from these reforms. We want to make it as widely known and as apparent as possible that planning is an important matter, whatever a person’s means. If I have misunderstood the noble Lord’s question, I will review that answer and write to him, but that is the main point.

I come back to the point I made earlier: this is just the beginning and it is why we will shortly be consulting on all these implementation issues. With those comments, I hope that my noble friend will feel able to withdraw his amendment and that other noble Lords will not press theirs.

Lord Sharkey: My Lords, I thank all noble Lords who have spoken in favour of a comprehensive, national and centrally funded information and advice campaign under the direct control of the Secretary of State. I am sorry that my noble friend the Minister did not seem entirely convinced by that. I was very puzzled by one thing that the Minister said about the cost of an annual report on how well we were making progress in generating awareness of the terms and implications of Dilnot. I cannot see that the cost could be anything but essentially trivial. I may be wrong about that, but I should be very grateful if the Minister would clarify, perhaps in writing later, why he thinks that the cost would be substantial at all.

I continue to feel that the whole issue of providing information and understanding is much too important to be left to local authorities and for the Secretary of State not to have direct responsibility for it. The task facing any information campaign in this area is enormous. The last survey that I saw showed, for example, that only 17% of UK adults understand what a percentage is—even that may be an overstatement—and Dilnot’s implications are much more complicated than that. We need the best communication with the most money and we need obvious accountability. That means central government and the Secretary of State having responsibility.

Given the opinions expressed around the Chamber today, we may well want to return to this issue on Report. I beg leave to withdraw the amendment.

Amendment 89E withdrawn.

Amendments 90 and 90ZA not moved.

Clause 15 agreed.

Clause 16 : Cap on care costs: annual adjustment

Amendments 90A to 90D not moved.

Clause 16 agreed.

House resumed. Committee to begin again not before 8.50 pm.

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Democratic Republic of the Congo

Question for Short Debate

7.50 pm

Asked by Lord McConnell of Glenscorrodale

To ask Her Majesty’s Government what is their assessment of recent developments designed to halt the conflict in the eastern Democratic Republic of the Congo.

Lord McConnell of Glenscorrodale: My Lords, I am grateful for the opportunity this evening to lead this short debate and to pose some questions to the Government about the situation in the eastern DRC. I am also particularly grateful, on such a sunny summer’s evening, to the Minister and other noble Lords for volunteering to speak on this topic. I should record my role as the chair of the All-Party Parliamentary Group on the Great Lakes Region of Africa, partly because it was in that role that I recently had the opportunity to visit both the Democratic Republic of Congo and Rwanda as part of a parliamentary delegation from the United Kingdom.

When requesting this debate, I thought that it would be timely, partly as a result of that delegation visit, which took place at the end of May, and partly because I spent last week in Burundi at the regional conference on women, peace, security and development in the Great Lakes region at the invitation of the new UN special envoy, Mary Robinson. However, this debate has become even more timely with the events of the last 48, or perhaps 72, hours. There has been renewed fighting in the eastern DRC, not just in one area but across much of the region and involving, it appears, many different groups. Publicity this week will no doubt focus on the clashes between the M23 and the FARDC—the Congolese army—which now appear to be battling outside Goma, yet again, for control of parts of that area. Fighting appears to have begun at the weekend, involving a group called the ADF, which is at least alleged to be made up mainly of Ugandan-based rebels and which appears to have some links with Islamist extremists from elsewhere in the continent.

There has been a growing trend over recent weeks, which again appears to have been shown over the weekend, for the FDLR—a former Rwandan rebel group—and other smaller groups to use the fact that the main focus appears to be on the M23 around Goma to execute all kinds of attacks on local villages. There have been kidnaps and in some cases rapes and deaths. Yet again today we see an outbreak of accusation and counter-accusation from the Democratic Republic of Congo and Rwandan Governments, which will no doubt heighten tensions in the area and in the region as a whole. I have received a series of e-mails over recent days documenting the horrors that this means on the ground for local people who are living in small communities. To be honest, they are too painful to read out tonight.

The Great Lakes region has, as a whole, seen incredible conflict over the past 20 to 25 years. The eastern DRC is not the only area affected. There is the Central African Republic and the long-standing campaign for

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independence in South Sudan, with conflict continuing even after that independence has been achieved. There is the terrible civil war in Burundi and the horrific genocides in Rwanda, the 20th anniversary of which is next year. In and around the DRC itself, there is what has been described as Africa’s world war, in which over 5 million people have died in the past 15 years or so. The whole region is affected by each of these conflicts in turn, but tonight I want to concentrate on the situation in the eastern DRC.

This area, and indeed the whole country and the region, is populated by wonderful people. It has incredible resources and a beautiful landscape, but the poverty, violence and hopelessness at its core have been debilitating, as anybody who has visited or studied the region over recent years knows, while other parts of the continent have grown and prospered. Lives have been ruined and opportunities are being wasted on an incredible scale. That is why we, as the United Kingdom, need to continue to be interested in what is happening there.

Last year, a group called the M23 broke off, as we know, from the official Congolese army and eventually overtook the capital of the area, Goma. There are allegations against that group, the Congolese army and others for the way in which the conflict in 2012 was conducted. The UN failed to protect Goma. More than £8 billion has been spent on the UN peacekeeping force over the past 14 years, yet it has continually failed to contain and deal with these conflicts at the local level.

In 2013, however, there have been what might be seen in the context of the region as quite dramatic developments. On 24 February, a peace, security and development framework for the whole region was signed by all 11 heads of state in the Great Lakes region and by four supporting multilateral institutions: the International Conference on the Great Lakes Region, the African Union, the United Nations and the Southern African Development Community. Subsequent to that, on 28 March the UN Security Council passed Resolution 2098, which updated the mandate of MONUSCO in the region but also called for and started to put in place a regional intervention brigade, which for the first time in UN history will have the specific job of dealing with combatants at local level to try to secure peace for local people. It also bravely appointed the first ever woman special envoy in this area for the United Nations, Mrs Mary Robinson, the former President of Ireland. She has begun her work and, as I said, I was with her in Burundi last week.

During our APPG visit focused on this area, we met President Kabila and senior Ministers from both Rwanda and the DRC. We met human rights campaigners, parliamentarians and senior officials in the UN. We also met a significant number of former combatants from the M23. This visit has indicated a number of things to me. First, the anger and suspicion in the area continue on all sides and are deep-rooted, but there is, perhaps for the first time, some hope that this regional framework can make a difference. There are at least public, formal commitments from everybody involved to work with the new framework. The President of Burundi reinforced that when I met him last week in Bujumbura.

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Progress has been slow in implementing the details of the new framework, perhaps especially in relation to the peace talks presided over by President Museveni in Kampala. However, the UN has put in place the regional intervention brigade and Mary Robinson is in place and being very active. Her appointment has been welcomed by almost everybody in the region as someone whom they can trust. She has said that it is time to do things differently, by trying to implement a bottom-up approach to peace as well as a top-down approach, and in particular by trying to involve women in a way that is so needed, as was of course highlighted by UN Security Council Resolution 1325.

The DRC Government have at long last started to pursue, in a more determined fashion, security sector reform and genuine dialogue between different groups. Oversight mechanisms are starting to be put in place and improvements in governance are at least promised. However, this peace, security and development framework has not just national recommendations and commitments but regional and international ones, and it is to them I want to turn in my questions.

This is a very complex series of conflicts involving identity, land, fear, greed and power. These different emotions and elements of history cross borders in this region perhaps more than anywhere else in the world. We need to see implementation and determination on national, regional and international commitments. Inside the DRC there needs to be real reform and genuine improvements in governance, including decentralisation. We need a balanced, negotiated political approach that ensures that everybody has a stake in the future. We need a regional context that will help to bring peer pressure and, I hope, economic progress to the area. Women must be much more involved than they have ever been before in these discussions and efforts across the whole region.

I want to ask the Minister some questions quickly within the time allocated. First, as this is a unique opportunity, perhaps a once-in-a-generation one, to see some progress, how strong is the Government’s support for this regional peace process and what actions have we taken to secure its success? Secondly, what actions have we taken to support the new UN special envoy, Mrs Robinson, and what discussions have taken place with her? Thirdly, do the Government have an update on the peace talks in Kampala, which appeared until recently to have stalled and whose stalling may have triggered some of the violence at the weekend? Fourthly, do the Government have an update on the events of the past few days and a response and reaction to them?

Critically, do the Government agree that there is a need for a regional approach not just by the 11 states of the Great Lakes region and the African Union as a whole, but also by the British Government, other major European and North American donors and the European Union? Can we do more to integrate our diplomatic and development efforts across the region, taking a regional approach to our development decisions and our diplomacy? Can we use the European Union more? Can we integrate our various initiatives, including the Foreign Secretary’s admirable Preventing Sexual Violence in Conflict initiative, and can we review the

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decisions on aid to Rwanda and Burundi to secure their greater enthusiasm for this approach? The killing, rapes, fear and incredible violence against women and children in particular have gone on in this area for far too long. Along with others, we have been too inconsistent in our attention to this matter in the past. I hope that we can use this opportunity to say that we will be consistent and determined to see this through to an end that might actually bring some hope to the people of a land that has suffered for too long.

8.02 pm

Baroness Chalker of Wallasey: I thank the noble Lord, Lord McConnell of Glenscorrodale, for asking for this debate. It could not be more timely. Anything that we can do to halt the conflict in the eastern region of the DRC and its wider ramifications—as I will mention—needs to be done. I thank him, too, for the visit that he has made, because not many people have gone across this territory—with some fear, I have to be honest—in many years. The eastern Congo area is not a specific concern of my company, Africa Matters Ltd, at this time but I declare an ongoing interest in the whole of sub-Saharan Africa, as stated in the register of interests, and I am an unpaid or volunteer chairman of that company.

My first journey to the Congo was in 1986—a very long while ago. I made other trips in the late 1980s. My first time in eastern Congo was in 1994 after the flood of refugees out of Rwanda following the genocide. One thing undeclared at the beginning of that was the number of ordinary people suffering from death and disease, not just in the camps but over a far wider region. Kinshasa, Kigali and until recently Kampala have not really focused on what this is doing to ordinary people who could otherwise be productive in agriculture or small business and making a change in those areas of Africa.

I want to say a word or two about the developing refugee problem. I hope that the Minister will be able to give us some of the detail of what I know Britain is already doing through DfID and non-governmental organisations in the area. There are literally hundreds fleeing every hour into neighbouring countries, mainly women, children and the elderly. Mary Robinson’s comment, to which the noble Lord referred, that it is time to do things differently caused me to wish to speak in this debate.

Two days ago, in addition to more than 210,000 registered refugees and asylum seekers in neighbouring counties, 63% of whom came from the DRC, a further 66,000 refugees had fled into the western part of Uganda. Today, Congolese government forces have attacked the M23 rebels near Goma and this is, as the noble Lord said, the third day of heavy fighting, causing hundreds more still to flee their homes. It is right that the UN should now be deploying the 3,000-strong intervention force of South African, Tanzanian and Malawian troops, patrolling and not yet in combat role. The new mandate may help, although it could hinder, because it will allow UN forces to attack if rebels continue to attack local populations. We hope that we will see some progress under the new mandate.

However, progress in stopping fighting is not going to be sufficient to sort out the immense problems in the region. I am quite certain that the UN would now

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block any attack on Goma, but that comes long after a period of waiting to see what would happen. If there is one thing that I ask my noble friend on the Front Bench, it is that we stop waiting to see what happens and, with others in the Security Council, ensure that Mary Robinson and others in the field have all the support that they need to make a difference.

Reuters recently reported that three Congolese government helicopters were in the area and were attacking the rebels in the town of Kibati, about four kilometres north of Goma. Congolese government forces are pushing rebels back to wherever those rebels come from, but there have been further attacks and so the churn of new refugees increases hour by hour. I know that, on Monday, rebels and the Congolese government troops traded mortar fire again in the north. This is happening not in a mining area, as some would have us believe, but in inhabited areas.

That is what I wish to underline in this debate. Over the past 20 years, millions have died from violence, disease, wounds and hunger. Whoever is arming the rebels is prolonging the unrest. What do the British Government know about the sources of the weaponry and the other means by which the rebel forces are prolonging the campaigns against ordinary people? One of the past failures in the area has been to communicate with people on the ground the reality of what they are doing. There is a need for a tougher line to explain to the rebels and to others who may be drawn into the conflict exactly where this is leading. I for one have deep fears about what is happening.

The other line that I hope my noble friend will pursue is the question of how people are recruited into the M23 or any other rebel groups. There must be some knowledge in the UN of exactly how people are recruited. It is not happening by accident. They may be recruited from border areas of neighbouring countries without the permission or blessing of those Governments. I am well aware that the Government of Rwanda have declared that they do not assist the M23, but if Rwandan people—and I do not just mean Tutsis who may happen to be in eastern Congo but are citizens of Rwanda—are turning up among the rebel forces, it must be for the Governments on both sides of the border to take action about those who are crossing simply to perpetuate the violence and warfare.

This is causing a real refugee crisis for the neighbours. The only way in which we can be of maximum help is by taking the sort of action that we took years ago, with clear direction, in Sierra Leone under General Sir David Richards. We need to give a lead to the UN troops about how they deal with this continuing insurrection because, unless we and others who have the ability to make the change do so, Mary Robinson’s task will be impossible.

8.11 pm

Lord Chidgey: My Lords, I, too, congratulate the noble Lord, Lord McConnell of Glenscorrodale, on securing this very timely debate, and I thank the noble Baroness, Lady Chalker of Wallasey, for her very informative contribution.

The distance from the Atlantic coast of the DRC west of Kinshasa to Goma on the eastern border with Rwanda is not far short of 2,000 kilometres as the

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crow flies. If it were possible to make the journey by road, the distance would be at least half as much again. As in many African countries, the road network is at best patchy, mainly graded and rolled laterite. At worst, it is just muddy tracks. In fact, the maps show that the river network in the Congo is far denser than that of the roads.

Much of the economic activity in the DRC, apart from mining, is confined to the urban area around Kinshasa. Communications with the rest of this vast country are at the mercy of an unreliable internal air service. The difficulties of administering a country with such sparse infrastructure are bad enough. Factor in a non-existent local government and a central government described as weak and corrupt and the task becomes immensely challenging.

Local elections have never occurred in the DRC. They have been regularly postponed since 2006. Civil society, NGOs and international donors all agree that the organisation of these elections would form a critical education and empowerment process. Beyond elections themselves, the reform of the National Electoral Commission—CENI—has been under scrutiny since before the 2011 general elections. Prior to the election, I and a small team of parliamentarians met CENI in Kinshasa. Its main objective seemed to be to present an election-funding and facilitating wish list beyond reason. We were not impressed. It may be that the mission that visited in May, which the noble Lord, Lord McConnell, described, has better news, and I look forward to seeing its report in due course.

Civil society sees revision of CENI as just one step in a wider process of reform of electoral institutions. A review of the electoral roll, the redefinition of constituencies and improving and supporting civic education are all on the urgent agenda. According to the constitution, the president should not be able to run for a third term but, having amended the constitution in 2011 to reduce the presidential election to just one round, many anticipate Kabila being tempted into further amendments to give himself a third term.

International commentators are slowly coming to the conclusion that there is little to show for all the peacekeeping missions, special envoys, inter-agency processes and diplomatic initiatives in the failed state that is the DRC. Since Mobutu’s removal from power in 1997, probably more than 5 million people have died in the DRC through civil war, massacre and criminal activities. The DRC is second only to Somalia in the failed states index. It is last in the UN Human Development Index, last in GDP per capita, behind even Somalia and South Sudan, and very close to bottom of the Transparency International’s corruption perceptions index.

Since 2000, the DRC has received $27 billion in development assistance and is probably the world’s largest recipient of international assistance after Afghanistan, yet there is still no effective governmental structure serving the needs of the two-thirds of the population—60 million people—who live outside Kinshasa’s area of influence. To DfID’s credit, it has launched a humanitarian development aid programme from 2011-15 which, if the security situation allows, will begin to make a difference to the people of the DRC.

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In November 2012, the M23 rebel group, which is thought to be backed by Rwanda, seemingly walked past MONUSCO troops and occupied Goma, North Kivu’s provincial capital. A few days later, their point made, the rebels melted back into the forest. This March, fighters of the Mai-Mai Bakata Katanga entered the DRC’s second largest city, Lubumbashi, clashed with government forces and then surrendered, harking back to events in the 1960s when Katanga province broke away from the Congolese state. The latest report from a UN group of experts given the role of gathering and analysing relevant information on flows of arms and networks operating in violation of the embargo on the DRC has to date found no evidence of support for the M23 rebels from Uganda. However, it has evidence of limited and continuous support to the M23 from within Rwanda. When my noble friend the Minister responds, will she say what impact the continuous outbreaks of violence are having on DfID’s programme for 2011-15?

The UN Panel of Experts report goes into great detail about the changes in leadership of the M23 and the rivalry between indicted war criminal General Bosco Ntaganda and his deputy Sultani Makenga. Their struggles led to a split in the M23 and, ultimately, to military confrontations and the surrender of Bosco Ntaganda. Supplied with arms in exchange for gold and ivory gained from poaching activities in many parts of the DRC, the M23 are now thought to have some 1,500 soldiers spread over an area of 700 square kilometres. Yet the authorities have been slow to recognise the dangers in the current situation, given Katanga’s pivotal prominence in the region’s economy. Meanwhile, Joseph Kony now has a window in which to regroup his repugnant LRA in the Central Africa Republic that could soon spread again to the DRC. This could well reverse the gains made in quelling the rebellion in the region which, with the help of US advisers based in Uganda, cut attacks by half. There is a real concern that, with this mission currently on hold, attacks will build again. Can my noble friend the Minister shed some light on when this US-supported mission is likely to recommence?

As part of the strategic review of MONUSCO included in the peace, security and co-operation framework for the region, the UN Security Council’s resolution 2098 provides, as noble Lords have mentioned, for a brigade of over 3,000 troops drawn from Tanzania, South Africa and Malawi. At last, MONUSCO has been given a more offensive mandate, providing for targeted and robust offensives with a view to neutralising and disarming armed groups, while taking into account the necessity to protect civilians and reduce risks.

The MONUSCO senior staff I met in Goma would have been mightily pleased at the strengthening of their mandate. However, the emphasis on civilian protection will be hard to achieve. I met a group of five women in a church hall in Goma who had come to tell us how they had suffered multiple rapes at the hands of soldiers: whether they were rebels or army was not clear. They carefully and earnestly explained the details of their suffering. One had had a toddler snatched from her arms and butchered in front of her

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before they raped her. Another had been caught on her way to school and repeatedly raped. At that time, she was just nine years old.

Ban Ki-Moon has made it clear that the UN brigade is only one element of a much larger process. The peace deal has to deliver a peace dividend: health, education, jobs and opportunity. Can my noble friend tell the House where the allocation of additional resources needed to support the implementation of the peace, security and co-operation framework is to be made? What is the Government’s assessment of the military and logistics capability and capacity of the 3,000-strong UN brigade to take on and eliminate the 20 to 40 guerrilla groups consistently wreaking havoc across North Kivu and South Kivu alone? What does my noble friend believe has been learnt from the UN operations in 2009 that were intended to enable the government to regain control of the region? Finally, what plans are in place to prevent a repeat of armed groups being chased away to be immediately replaced by new ones, resulting in more displacement of civilians, armed groups fragmenting and spreading across Kivu and more retaliatory attacks on the civilian population?

8.20 pm

Lord Collins of Highbury: My Lords, I, too, thank my noble friend, Lord McConnell for tabling this debate. His recent first-hand experience in the DRC brings a terrific insight to the debate and highlights some of the issues to which all noble Lords have referred.

After a three-year period of relative stability and closer security co-operation between the DRC and Rwanda, the political and security situation in eastern DRC has once again worsened during the past year. As my noble friend described, it commenced with an armed rebellion by a breakaway militia from the DRC army—the M23 group—which, as we have heard, has close links with Rwanda and which seized the regional capital of Goma.

As my noble friend and the noble Lord, Lord Chidgey, have highlighted, this happened despite the presence of the largest UN peacekeeping force anywhere in the world, consisting of 17,000 troops. When tested, on this occasion and others, the force has unfortunately failed to maintain security and to protect the civilian population. As the noble Lord, Lord Chidgey, has just said, the humanitarian impact of conflict is huge and women, in particular, have suffered atrocious sexual violence which continues to occur with impunity. As the noble Baroness, Lady Chalker, has said, the Guardian reported today that some 66,000 Congolese refugees were pouring across the border to Uganda after a surprise attack by the Islamist ADF.

As my noble friend Lord McConnell highlighted, fresh fighting erupted near Goma on Monday when, according to the residents, more than 100 armed men, disguised in women’s clothing, entered the country from Rwanda. Like my noble friend, I ask the Minister what the Government’s immediate response is to these recent events.

As we have heard, eastern DRC requires radical security-sector reform, a political settlement and a focus, as my noble friend highlighted, on long-term development assistance. As the noble Baroness,

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Lady Chalker, said, there is no doubt that Rwanda should immediately cease its interference in the east of the DRC. However, the DRC cannot continue to blame Rwanda for all its problems. It needs to tackle its serious governance issues. I, too, recognise the terrific role that DfID has played in the DRC in the most challenging of circumstances. The UK is one of the largest donors to the DRC and should be taking a leading role in the east, including setting up a DfID office in Goma; that was discussed in 2009 but never delivered.

We need to start to address the key structural causes of poverty and underdevelopment across the world. I welcome many of the initiatives that the Prime Minister has announced. However, those issues are nowhere more pertinent than in the DRC. As my noble friend Lord McConnell said, it is crucial that the international community supports the implementation of the peace, security and co-operation framework initiative, which attempts to bring stability and prosperity to the eastern DRC. Only a coherent strategy that combines security, a regional political process and a development focused on the long term has the possibility of achieving sustainable change.

First, radical, not superficial, reform of the security sector is necessary. The police and army need to be professionalised and properly paid. As we have heard, the UN’s MONUSCO force is unable to act sufficiently effectively at the most critical of times. Secondly, there needs to be a genuine political process between the DRC, Rwanda and their neighbours to negotiate a political settlement for the long term and to ensure that it is implemented by all parties; and, as the noble Baroness, Lady Chalker, said, to ensure that all parties are held accountable. The new framework and the role of Mary Robinson are undoubtedly crucial to this.

Thirdly, a shared strategy from the Government and donors is necessary for the country to move from humanitarian and emergency assistance, vital though that is, to sustainable economic and social development. This will have to include new governance arrangements and transparency to ensure that the benefits of the rich natural resources of that country are no longer lost to corruption. For this to happen, first and foremost, as the noble Lord, Lord Chidgey, so ably highlighted, there needs to be a functioning DRC Government and state. Many of the political party representatives desire to rebuild the country, promote peace and rebuild their national economy. However, over many years the Government have failed to deliver any significant progress on these objectives.

The DRC is suffering a crisis of legitimacy and leadership. The most urgent task is to organise local and provincial elections, which the noble Lord referred to, which have been delayed since 2006. With the next presidential election due in 2016, the international community must make it very clear that any attempt by President Kabila to change the constitution to extend his mandate will be unacceptable and will lead to a strong response.

I also have questions for the Minister, but perhaps rather than simply repeating those which have already been asked, I will ask: given the concerns over the last presidential election, what are the Government doing in conjunction with the European Union, the African

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Union and the US to help ensure that the Kinshasa Government are more representative? What are the Government doing to secure a more legitimate mandate for the Government of the DRC from the people of that country? I hope that the Minister will be able to respond to the immediate concerns that noble Lords have raised, but also to focus on what my noble friend Lord McConnell described at the beginning of this debate—the longer-term sustainable development of a country that is rich in resources and in wonderful people.

8.28 pm

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, I thank the noble Lord, Lord McConnell, for introducing this timely debate. As noble Lords who took part in this debate this evening will be well aware, the eastern Democratic Republic of the Congo has been subject to cycles of conflict for many years, and more than 5 million people have lost their lives as a result. Its people have suffered too much and for too long. Many have fled their homes, villages have been attacked, there have been summary executions, and there are high levels of sexual violence, including mass rape.

The noble Lord, Lord McConnell, and my noble friend Lady Chalker referred to the ongoing tension, but also to the recent increase in fighting. The actions of the ADF-NALU militia have driven tens of thousands of refugees into Uganda, and the ongoing fighting between the M23 and the DRC army are, of course, concerning. This is an appalling record—more concerning in recent times—and it cannot be allowed to continue. We have urged all sides to show restraint and all militia groups to lay down their arms. We have heard reports of connections with extremist Islamic groups, but at this stage those claims cannot be evidenced and substantiated.

The UK has, of course, been a long-term partner of the DRC. The Department for International Development provides much-needed funding—£790 million between 2011 and 2016—to those in greatest need. UK taxpayer-funded assistance in the DRC over this five-year period alone will include: providing almost 2 million people with clean water; protecting 13.5 million people from malaria—the leading cause of death for children under five in the country—through the simple provision of insecticide-treated bed nets; providing assistance to almost 400,000 women in childbirth; and creating nearly 45,000 new jobs. Through its contribution to the UN, the UK helps to support the work of UN peacekeepers on the front line of the conflict, trying to prevent armed groups wreaking havoc among long-suffering local populations.

In response to my noble friend Lord Chidgey, I can say that I am not aware whether the recent fighting has had any impact on DfID’s programmes, but I can ask DfID to write to him with further information.

A different approach is needed if the cycle of violence in the DRC is to be broken for good. We have now reached a critical moment when there is a window of opportunity to help bring lasting stability and prosperity to this conflict-torn region. Noble Lords, including the noble Lord, Lord Collins, have spoken of immediate responses, but we need to focus on long-term sustainability.

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Four events now give us a window of opportunity. First, the signing of the UN-brokered peace, security and co-operation framework—the PSCF—in February marked a moment where 11 regional countries, including the DRC and Rwanda, came together to sign up to commitments which, if implemented, will lead to peaceful co-operation and economic integration across the whole region. This agreement was also signed by four organisations: the UN, the African Union, the Southern African Development Community and the International Conference on the Great Lakes Region.

For the DRC the framework means commitment to deepening security sector reform, consolidating state authority, working towards decentralisation, building economic development, and further structural reform of public institutions—the long-term developments needed for stability. The DRC’s neighbours have committed to respect their neighbours’ sovereignty and territorial integrity. They have also committed to neither tolerate nor assist armed groups, to strengthen regional co-operation, and to refrain from harbouring or protecting anyone accused of war crimes or crimes against humanity. The PSCF is a great example of the region coming together, with the support of the international community, to agree to the principle of peace and a way forward to make it happen.

Secondly, there was the appointment in March of Mary Robinson as the UN special envoy to the region. The Government strongly welcome this appointment, and we have offered our support to her and her office as she implements her mandate to oversee the implementation of the PSCF, which she has referred to as “the framework of hope”. We support her approach of working with regional Governments to bring stability to the region, but also with communities to encourage peace-building at all levels. The noble Lord, Lord McConnell, referred to that as both top-down and bottom-up.

I welcome, in particular, the noble Lord’s recent visit to Burundi, where he supported Mary Robinson at a women leaders consultative meeting, which looked at the role women across the region could play in implementing the PSCF. The noble Lord also asked about contacts. Foreign Office Ministers have been in contact with Mary Robinson, both in person and by phone, and I understand that the Minister for Africa saw her in London about three weeks ago. He underlined to her the UK’s support for her role, and offered to consider any requests for practical assistance that she may need.

Thirdly, there is the new mandate for MONUSCO peacekeepers. While protection of civilians remains the core principle of the peacekeeping operation, this mandate also, for the first time in the UN’s history, includes an intervention brigade—the FIB—with a specific task of preventing the expansion of, and neutralising, armed groups in eastern DRC. We have welcomed the deployment of the FIB, which we feel will act in support of the PSCF. We hope that it will help to bring a period of stability to eastern DRC to allow reform and peace-building to take root. The mandate also allows for the use of unmanned aerial systems—another first for a UN peacekeeping mandate. Given the size of eastern DRC and its hostile terrain,

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we think that this will provide a useful tool to help peacekeepers monitor the situation on the ground more effectively.

Lastly, talks in Kampala between the DRC Government and M23 continue. While this process has been somewhat irregular, and the talks alone cannot achieve a sustainable peace in eastern DRC, they have a part to play in the wider peace process. The confluence of these events, with the military track in support of political and development efforts, provides an opportunity to achieve lasting stability in eastern DRC, for the cycle of violence to finally be broken, and for the terrible human rights abuses that have afflicted the people of that region to end.

Of course, we recognise that the causes and drivers of conflict in eastern DRC are many and various, and often deeply entrenched, so we do not claim that resolving conflict there will be easy or quick. It will require the sustained effort of the signatories to the PSCF, which contains some hefty commitments. It is important that all signatories fulfil these commitments—for the DRC to carry out significant reform of its security sector, for example, and for the other signatories, including Rwanda, to respect the sovereignty of their neighbours and refrain from supporting armed groups. It is equally important that all signatories work together for the potential peace dividend, for greater regional economic integration and development.

We welcome the progress that has been made so far—for example, the steps taken in DRC towards its PSCF commitments, including starting to establish a national dialogue mechanism and providing an initial plan for security sector reform. But much more remains to be done. Ensuring the success of the PSCF will also require the sustained attention and collaborative efforts of the international community.

The UK will take a joint diplomatic and development approach to supporting the framework, in support of Special Envoy Robinson as she works to encourage the full implementation of the PSCF. This means that we will use our diplomatic assets to urge signatories to meet their commitments, ensuring that the Department for International Development’s work to support conflict resolution and peace-building in the region is effective and sustainable. A number of noble Lords asked about the EU. We are already working through the UN, the EU, the African Union and other organisations, with Governments in the region and other major donors to DRC and Rwanda.

My noble friend Lord Chidgey spoke of the appalling sexual violence. He will be aware of the Preventing Sexual Violence initiative launched by my right honourable friend the Foreign Secretary last year. This was the focus of his visit to DRC and Rwanda in March this year. The UK now has a specialist team of experts to deploy to conflict areas to support UN and civil society efforts to help build national capacity to investigate allegations of sexual violence, helping to replace the culture of impunity with one of deterrence. In the DRC, the UK is supporting the NGO Physicians for Human Rights with the deployment of an expert in eastern DRC. The expert is working with local health, legal, and law enforcement professionals in north and south Kivu provinces to ensure they are better equipped

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to conduct crime scene investigations. He will assist local professionals in the documentation, collection and preservation of forensic evidence to ensure that perpetrators of sexual violence crimes are brought to justice.

The noble Lord, Lord McConnell, asked about donor co-ordination. This is something that Mary Robinson has emphasised the need for in DRC, and we strongly agree with her. We are working closely with partners in Kinshasa to ensure that we remain co-ordinated with other donors. While effective donor co-ordination remains challenging in DRC, it is improving, and we are committed to investing the time and resources to accelerate progress in the coming months.

The noble Lord spoke about the visit by the All-Party Parliamentary Group on the Great Lakes Region of Africa to eastern DRC. I pay tribute to the work of the APPG and am aware of the very successful visit that it paid to Rwanda and the DRC. The knowledge that it brings back to this and the other place helps inform much FCO thinking, as well as our officials on the ground.

We have no details on dates for the Kampala talks at this stage, but we are concerned about their irregular nature. We think that they should continue in good faith and that neither side should try to force an agreement through force of arms.

My noble friend Lady Chalker asked about the source of rebel arms and funding. Of course, I share her concerns about the source of the arms in eastern DRC, and we are working with the UN and the Government of DRC to challenge the activities of rebel groups of different allegiances, which are using conflict minerals to secure the irregular supply of arms. I absolutely agree that the one thing that the eastern DRC does not need is more weapons.

My noble friend also asked whether we have any knowledge of recruitment into M23. We are aware of reports of recruitment into M23 from Rwanda and of forced recruitment from areas that it controls. We have urged the DRC’s neighbours to ensure that such activity ceases.

In conclusion, there is no doubt that the Democratic Republic of Congo faces enormous challenges. The Government of the DRC, regional Governments and the international community must work relentlessly to respond to these challenges if we are to bring lasting stability to the region. The DRC is of course a huge country—the often-quoted comparison in terms of size is that of the whole of western Europe—and in the east there are areas of seemingly impenetrable forest with very limited roads, communications and infrastructure. We know that there are deeply entrenched problems to overcome, but the framework for peace is in place and, with the commitment of the Governments of the region and the support of the international community, real progress can be made; progress that will be felt by communities and people across the DRC, so that the many who have waited far too long for the opportunity to live their lives in peace will finally see that happen.

8.41 pm

Sitting suspended.

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