To put it simply, what is the position of Mrs Jones who lives in Prestatyn and goes into residential care in Prestatyn? At the behest of her daughter who lives in Chester she moves to a residential home over the border to be closer to her grandchildren. Will the cap operational in Wales or in England be applicable? Likewise, what if Mrs Smith experiences exactly the

22 July 2013 : Column 1084

same problem in the converse direction? Who will explain the situation and the implications of the situation to both Mrs Jones and Mrs Smith before they decide to move?

Incidentally, the definition of “ordinarily resident” in Clause 38(1) seems to be inadequate to deal with the situation of someone who may move from supported accommodation in one country to another as the location at which she or he lived prior to coming into supported accommodation might be totally irrelevant—for example, if they lived for a period with their daughter in, say, Dublin, Brussels or the Isle of Man.

There is then a question about the duty of the health research authorities covered by Clause 98 of co-operation between England and Wales. Clearly the duty of co-operation needs to be considered, not only in the context of the health authorities but in the general context of these amendments, but who will enforce that duty? What will be the fundamental long stop to ensure that Mrs Jones and Mrs Smith are not caught in the crossfire between the policies of two Governments?

I do not know whether any of the government amendments in this group have an implication for the question I am raising but I would be grateful if the Minister can address these issues so that between now and Report I can discuss them with colleagues in Cardiff to ensure that when the final legislation goes on to the statute book everyone will know exactly where they stand.

Baroness Wilkins: My Lords, I strongly support the amendments of the noble Baroness, Lady Campbell, and the noble Lord, Lord Low. The noble Baroness has been very keen in pursuing these issues for the past five years and her tenacity has been outstanding. I am sure we all recognise that. She has argued comprehensively and excellently for these amendments. We all know that there is huge stress in moving home and, if you are a person in need of care, that stress is beyond words. As the noble Baroness said, it is a monumental risk. I hope that the Committee will wholeheartedly support these amendments.

Lord Hunt of Kings Heath: My Lords, I, too, congratulate the noble Baroness, Lady Campbell, on her amendments and on her persuasive advocacy in this area. We debated the issue of equivalent services at Second Reading and the noble Earl said in his response that he felt that when people move from one local authority to another their circumstances are, in many cases, likely to change and that after a move it would not always be appropriate for them to have services equivalent to those that they had before. However, the noble Baroness has answered this point—her amendment has moved on—and she is not asking for an equivalence of services but an equivalence of outcome. That is a very important difference that noble Lords ought to mark. It is a persuasive case. Of course it is not possible to say that a new local authority must provide exactly the same services in the same way, but it must be right to strive to ensure that the outcome for the person who has moved is the same. I have a great deal of sympathy with her amendments and support those which are designed to ensure a smooth transition.

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The noble Lord, Lord Low, made an interesting contribution in relation to ordinary residence and the number of disputes that currently arise in relation to it. As he said, Clause 38 and its associated regulations are welcome. However, he is surely right to seek to ensure that the regulations give absolute clarity and I would welcome the Minister’s reassurance on that.

I welcome the intervention of the noble Lord, Lord Wigley. He should not feel inhibited from intervening in Bills which he thinks apply only to England. His experience is welcome and I hope that he will continue to take part in our debates at future stages of the Bill. I have always found cross-border issues complex. No doubt the Minister will now move many amendments to deal with the issue. However, the substantive point is that, as the four countries of the UK seem to be going their separate ways in relation to health and social care, it is important that we ensure that people moving to and from different parts of the UK are able to do so without a gap in services. In that sense, I welcome the noble Lord’s intervention.

My Amendment 92ZZADA is concerned with the circumstances of carers in relation to a move from one authority to another. Essentially, the amendment requires the second local authority to provide a written explanation where the cost to the second authority of meeting the carer’s eligible needs is different from the first. That explanation should be provided to the carer, the adult needing care and any other person to whom the carer asks the authority to provide an explanation. I am seeking to mirror for the carer the requirement contained in Clause 36(10) to explain the difference in the cost of meeting the eligible needs of an adult when they move from one authority to another.

Perhaps I may probe the Minister about what would happen in a scenario where a carer receiving local authority support moves to a new local authority area but the person receiving care does not. Does the Bill cover this situation? Would a review of the support plan of the carer and the care plan of the person being cared for be triggered? Essentially, on the issue of portability, I want to ensure that the circumstances relating to carers are as well understood as they are to the person making the move. If the Minister cannot specifically respond to that point, perhaps she will write to me between now and Report stage.

5.45 pm

Baroness Northover: My Lords, adults with care and support needs may want to move home, just like anyone else, but co-ordination between local authorities can sometimes be variable and, as a result, we often hear that people are worried that they will face gaps in the care that they need. The Bill sets out to change that. Clauses 36 and 37 set out a new process to support people moving between areas in England with a guarantee that their needs will not go unmet during the transition.

I turn, first, to the amendments tabled by the noble Baroness, Lady Campbell, who has a long-standing interest in this issue. As the noble Baroness, Lady Wilkins, and the noble Lord, Lord Hunt, emphasised, the noble Baroness has fought on this issue for years and I thank her for her gratitude to the Government

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for taking action in this area, even if she has some residual concerns. I hope that I can reassure her and, should she wish to move, that she will be able to contemplate a move as feasible in a way that she never felt it was before.

Amendment 92ZZAB seeks to ensure that the adult remains informed during the process. It is important, as the noble Baroness, Lady Campbell, has made clear, that this is the case so that the adult can plan for their move. Clause 36(6) requires the second authority to carry out an assessment as soon as it has established the adult’s intention to move. This requires interaction with the adult from an early stage and thus provides the opportunity to inform them of progress. We intend to clarify this area in statutory guidance and I am sure that the noble Baroness will wish to feed into this.

Amendment 92ZZAC would require the second authority to have due regard to the care and support plan provided by the previous area and Amendments 92ZZAD and 92ZZAE seek to ensure that the focus is on securing equivalent outcomes as in that plan. I fully understand that the noble Baroness is not seeking equivalent services and that this is different from outcomes, a point emphasised also by the noble Lord, Lord Hunt. Of course, when a person moves it is possible that their needs for care and support may change; for example, if they move closer to their family. The noble Baroness is right to focus on outcomes and we recognise that in the Bill. For example, Clause 25(1)(d) would include all the matters identified by the person, including the outcomes they want to achieve. We very much sympathise with these points and indeed have already revised the provisions following consultation on the draft Bill. Clause 36(7) requires the second authority to have regard to the plan or plans provided.

A further change following consultation is the introduction of Clause 25(5), which requires that when preparing to meet an adult’s needs,

“the local authority must take all reasonable steps”,

to agree with the adult how it will do so. Together, these provisions allow adequate scope for the existing plan to be reflected, so far as is agreed and appropriate, in the way in which the second authority meets the person’s needs to achieve the outcomes that the noble Baroness speaks of. I hope that the noble Baroness, Lady Campbell, agrees that the changes we have introduced will ensure that the person will be fully involved in the development of their care and support plan, and as such, can ensure that this continues to meet the outcomes they want to achieve.

Amendment 92ZZADA, in the name of the noble Lord, Lord Hunt, proposes that we replicate Clause 36(10) for carers. I will explain why this is not required. Clause 36(10) has been inserted as a result of our proposals for funding reform, which we discussed earlier in Committee. It requires the second local authority to inform the person receiving care and support if the cost of their eligible needs is different from that provided by the first authority. This relates to the individual’s care account and it is right that the authority informs the person if the amount that counts towards their cap on care costs has changed. However, carers will not have a care account as they are not

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eligible for a cap on costs and there is therefore no need to require the second authority to inform them of any change in the cost of meeting their eligible needs.

Where a service user is moving to a new local authority in England and the carer is also intending to move with them, the continuity of care provisions will apply to the carer in the same way as they do to the service user. I hope that this reassures the noble Lord. Where the service user is not moving but the carer is moving home to another authority, these provisions will not apply. The carer is still providing care in the original authority and it will continue to be responsible for meeting their care needs.

Amendment 92ZZAF, in the name of the noble Baroness, Lady Campbell, would require the first authority to continue to meet any needs until it has satisfied itself that the second authority has met its duty in Clause 37(1). The noble Baroness explained why she felt this was important. The continuity duty in Clause 37(1) applies from the day of arrival in the new area. From that point, it is the new authority’s responsibility to meet the adult’s needs, and the first authority’s previous duties are discharged. There should not be a gap in these arrangements. In particular, the requirement on the second authority to assess the adult before they move is intended to ensure that the necessary preparation has been undertaken so that there is no delay. Therefore, this amendment should not be necessary. Moreover, there is a risk that such a provision could act as a disincentive on the second authority to meet its obligations in a timely manner, although I heard what the noble Baroness said in regard to that. We will develop statutory guidance to support local authorities in exercising these new duties. That guidance offers a further opportunity to clarify expectations and ensure that no gap occurs.

Amendments 92ZZAG and 107, in the name of the noble Lord, Lord Wigley, concern Schedule 1, which makes provision for cross-border residential placements. I thank the noble Lord for giving us the benefit of his knowledge of Wales and note his praiseworthy restraint with regard to English provisions, although I note that the noble Lord, Lord Hunt, did not share my view. Clearly, the noble Lord, Lord Wigley, has resolved the West Lothian question but I appreciate his offer to liaise with Welsh colleagues to ensure the greatest clarity. I will give him some further information that may be of assistance to him.

The Care Bill will make provision for cross-border residential care placements so that people can be placed in care homes in other parts of the United Kingdom. This will mean that if a local authority in England places someone in residential care in Northern Ireland, Scotland or Wales, that person will remain the responsibility of the English local authority. They will not acquire ordinary residence in their new location and will continue to benefit from the protection provided by the cap. For example, if people receiving domiciliary care move from England to Wales, or people in a care home move without being placed by their local authority, they will usually become ordinarily resident in the new area and the appropriate contribution they should make to the costs of their care will be determined by the arrangements in Wales. A person moving to another

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Administration and requiring domiciliary care will be reassessed under the system into which they are moving. The processes being proposed in England and Wales are different and we will work with colleagues in Wales to produce guidance to look at how continuity of care can work across borders.

Schedule 1 will end the untenable situation local authorities currently find themselves in when a person in their area who wishes to receive residential care in Wales, Scotland or Northern Ireland is unable to do so. The noble Lord’s amendments seek to delay commencement of Schedule 1 until a report is laid before Parliament outlining the issues connected with cross-border placements arising with the devolved Administrations. We believe that this would cause an unnecessary delay to enacting provisions that are long overdue.

However, we recognise the concerns about the practical challenges of cross-border working. I hope the noble Lord will be reassured that we are working with the devolved Administrations to create bespoke regulations to meet the diverse legislative and operational requirements of each Administration. The regulations will be subject to consultation and laid before Parliament. I expect the noble Lord to participate in those debates.

Lord Wigley: I do not want to delay proceedings. This is just a way of bringing focus on the issue. Can the Minister give any indication to the Committee as to whether the discussions and deliberations that have already taken place between her department and the National Assembly in Cardiff have gone well and that there is so far a meeting of minds, or are there issues over which there will be some clash? If there is a clash, how will it be resolved?

Baroness Northover: If need be, I will come back to the noble Lord with all the details because it is indeed a very complex area. There are a number of government amendments, as the noble Lord, Lord Hunt, pointed out, and these seek to address some of the issues that have arisen in trying to make sure that everything works as smoothly as possible. It would probably be most appropriate to write in detail to the noble Lord and for him to see and stress-test what is happening. I remind the noble Lord that these regulations will be subject to consultation and laid before Parliament.

I now move on to the government amendments that the noble Lord, Lord Hunt, referred to. Obviously, this is a complex area. Amendment 92ZZAFB is required to clarify the ordinary residence situation of a person who has an independent personal budget. The local authority where the person is ordinarily resident is responsible for preparing the person’s independent personal budget and keeping the care account. This amendment makes clear that if such a person is in residential care and moves to the area of a different local authority, they will be able to become ordinarily resident in that new area.

6 pm

Amendments 92ZZAGA to 92ZZAGK relate to cross-border placements. Amendment 92ZZAGA is needed to ensure that the prohibition on English local authorities providing NHS care in England in Clause 22

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of the Bill is mirrored when the English local authority places someone in residential accommodation across the border. This amendment makes clear that this prohibition applies in such cases, to avoid any doubt. The amendment also mirrors the regulation-making power in Clause 22(6), to require the English local authority to be involved, as necessary, in processes for assessing a person’s health needs, which would be led by the relevant NHS body.

Amendment 92ZZAGH amends the Social Work (Scotland) Act 1968 so that a local authority in Scotland can recover from a health and social care trust in Northern Ireland any expenditure it incurs in the provision of accommodation or services under Part II of that Act for a person ordinarily resident in the area of the trust, in the same way as is already the case if it incurs expenditure for the same reasons for a person who is ordinarily resident in England or Wales. It also amends the 1968 Act so that if there is any overlap between the dispute resolution mechanism in that Act and the procedure in Schedule 1 to the Bill, the provisions in the Bill will prevail.

Amendments 92ZZAGB to 92ZZAGG and 92ZZAGJ and 92ZZAGK ensure that the provisions of Schedule 1 apply to all residential placements made by Welsh local authorities. Paragraph 2(1) of the Schedule currently applies only to placements to be made by Welsh authorities under Clause 21 of the Social Services and Well-being (Wales) Bill once it is enacted. This amendment, which has been agreed by our counterparts in the Welsh Government, ensures that it also applies to placements to be made under Clause 22 of that Bill. It will prevent the possibility that Welsh authorities could place individuals in accommodation in England under Clause 22, and then cease to have responsibility for the individuals’ care.

The government amendments to Schedule 1—92AB to 92AL, 92AM to 92AX, 92AZA to 92AZE, 105W, 106A, 106B, 106C and 108—deal with cases of provider failure in relation to cross-border placements. Under Clause 47, local authorities in England are required to step in temporarily and meet the needs of people whose provider has failed in their geographic area. This means that the responsibility to ensure continuity of care falls on the local authority most able to meet needs, not necessarily the same local authority who made the arrangements with the failed provider to meet the needs of the adult. In fulfilling this duty, a local authority must co-operate with any local authority that made arrangements with the failed provider. It will be able to recoup costs from that authority.

We are committed to ensuring that people receive these protections throughout the United Kingdom. We have therefore worked with the Administrations in Wales, Northern Ireland and Scotland to ensure four-way reciprocity. I am pleased to bring forward amendments that give effect to the consensus reached. In order to replace Clause 48 and make these changes, noble Lords will note that my noble friend Lord Howe has given notice of his intention to oppose the Motion that Clause 48 stand part of the Bill.

Finally, I turn to Amendment 92ZZAFA of the noble Lord, Lord Low. Clause 38 is intended to have effect only if an adult is receiving care and support in a

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residential setting. The intention behind it is to ensure that if a local authority makes such a placement in accommodation in the area of another authority, the original authority remains responsible for funding the person’s care. We understand the noble Lord’s desire to clarify the types of accommodation relevant to this clause. The intention is to specify in regulations the responsibility for out-of-area placements in settings other than care homes. As he said, local authorities can currently fall into dispute over such placements, and the regulations should resolve this problem. I reassure him that the Government will consult on the regulations referred to in this clause.

The noble Lord was concerned about the effect of such disputes. I point out that the Government have issued extensive guidance and statutory directions to assist local authorities in making decisions about ordinary residence. Unfortunately there will be occasions when two or more authorities do not agree on where a person should be considered ordinarily resident. The statutory directions make clear that all genuine disputes must be referred to the Secretary of State within four months, so that there is no excuse for authorities deliberately to stall the process in order to postpone meeting their financial responsibility.

The noble Lord has flagged some useful elements. He was explicitly addressing regulations in much of what he said. It is extremely useful to hear from him. I can reassure him that we are extending the settings to which ordinary residence is deemed to apply beyond care homes alone. We shall consult on how best to ensure the regulations are comprehensive and flexible enough to deal with future changes in the provision of healthcare and support. I am sure that his comments will be noted. I thank him and other noble Lords for their contributions. As ever, we have had a very well informed debate. I hope that I have reassured noble Lords and that they will feel able not to press their amendments.

Baroness Campbell of Surbiton: My Lords, I thank the Minister for her deliberations and her reflections on my amendments. I am glad that we have cleared up that touchy word, “equivalence”. I think that we are now on the same page.

However, I am worried about whether clarifications on the exchange of information and the updating of the user will give sufficient reassurance that services will be provided from day one. I understand that the Government are still working on and clarifying some of the issues with regard to assessment and involvement, and I think we all now understand what “outcomes” means. However, clarifying in guidance does not yet reassure me, because I have many examples of services users and their local authorities and good social workers being in contact with the second authority. They know what is coming their way. I am still deeply concerned that the Dave Morris example will happen again and again.

I am not convinced by the argument that the second authority is obliged pick up the bill from day one and that, should the first authority continue to pay, this would be a disincentive to the second. The second authority will have to pay this money back. Believe me, it will be far more vociferous than any service user.

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Thus I do not feel that there is an adequate safety net allowing the disabled person and their carer to be confident that the bills will be paid on day one. We still have a little bit more negotiation and clarification to do. I would be far more reassured by the mention of regulation in some of these areas but, for now, I will withdraw my amendment and look to the Minister and his very good, helpful and collaborative officials to go on working with me on this issue.

I am going away in the summer but only for two weeks. I will be back on this issue before and directly afterwards; I am a bit like a dog with a bone on this one. There is more work to do, but, for now, I beg leave to withdraw the amendment.

Amendment 92ZZAB withdrawn.

Amendments 92ZZAC to 92ZZAE not moved.

Clause 36 agreed.

Clause 37 : Case where assessments not complete on day of move

Amendment 92ZZAF not moved.

Clause 37 agreed.

Clause 38 : Where a person's ordinary residence is

Amendment 92ZZAFA not moved.

Amendment 92ZZAFB

Moved by Earl Howe

92ZZAFB: Clause 38, page 33, line 41, at end insert—

“( ) The reference in subsection (1) to this Part does not include a reference to section 28 (independent personal budget).”

Amendment 92ZZAFB agreed.

Amendment 92ZZAG not moved.

Clause 38, as amended, agreed.

Schedule 1 : Cross-border placements

Amendments 92ZZAGA to 92ZZAGK

Moved by Earl Howe

92ZZAGA: Schedule 1, page 91, line 34, at end insert—

“( ) Section 22 (prohibition on provision of health services) is to have effect—

(a) in its application to a case within sub-paragraph (1)—

(i) as if the references in subsections (1) and (6) to the National Health Service Act 2006 included a reference to the National Health Service (Wales) Act 2006, and

(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Local Health Board;

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(b) in its application to a case within sub-paragraph (3)—

(i) as if the references in subsections (1) and (6) to the National Health Service Act included a reference to the National Health Service (Scotland) Act 1978, and

(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health Board or Special Health Board;

(c) in its application to a case within sub-paragraph (4)—

(i) as if the references in subsections (1) and (6) to a service or facility provided under the National Health Service Act 2006 included a reference to health care provided under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009, and

(ii) as if the reference in subsection (6) to a clinical commissioning group or the National Health Service Commissioning Board included a reference to a Health and Social Care trust.”

92ZZAGB: Schedule 1, page 92, line 10, at end insert—

“(1A) Where a local authority in Wales is arranging for the provision of accommodation in England in the exercise of its power under section 22 of the Social Services and Well-being (Wales) Act 2013—

(a) the adult concerned is to be treated for the purposes of that Act—

(i) in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in England, as remaining within that area;

(ii) in a case where the adult was outside but ordinarily resident in the local authority’s area immediately before being provided by the local authority with accommodation in England, as remaining outside but ordinarily resident in that area, and

(b) the adult concerned is not to be treated for the purposes of Part 1 of this Act as ordinarily resident anywhere in England (unless the adult was so ordinarily resident immediately before being provided by the local authority with accommodation in England).”

92ZZAGC: Schedule 1, page 92, line 18, at end insert—

“(2A) Where a local authority in Wales is arranging for the provision of accommodation in Scotland in the exercise of its power under section 22 of the Social Services and Well-being (Wales) Act 2013—

(a) the adult concerned is to be treated for the purposes of that Act—

(i) in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in Scotland, as remaining within that area;

(ii) in a case where the adult was outside but ordinarily resident in the local authority’s area immediately before being provided by the local authority with accommodation in Scotland, as remaining outside but ordinarily resident in that area, and

(b) no duty under Part 2 of the Social Work (Scotland) Act 1968 or sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003 applies in the adult’s case.

(2B) But paragraph (b) of sub-paragraph (2A) does not prevent a duty mentioned in that paragraph from applying in the case of an adult who was ordinarily resident in Scotland immediately before being provided by the local authority with accommodation in Scotland.”

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92ZZAGD: Schedule 1, page 92, line 22, leave out “this Part” and insert “that Act”

92ZZAGE: Schedule 1, page 92, line 27, at end insert—

“(3A) Where a local authority in Wales is arranging for the provision of accommodation in Northern Ireland in the exercise of its power under section 22 of the Social Services and Well-being (Wales) Act 2013—

(a) the adult concerned is to be treated for the purposes of that Act—

(i) in a case where the adult was within the local authority’s area immediately before being provided by the local authority with accommodation in Northern Ireland, as remaining within that area;

(ii) in a case where the adult was outside but ordinarily resident in the local authority’s area immediately before being provided by the local authority with accommodation in Northern Ireland, as remaining outside but ordinarily resident in that area, and

(b) no duty under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Social Care (Reform) Act (Northern Ireland) 2009 to provide or secure the provision of accommodation or other facilities applies in the adult’s case.

(3B) But paragraph (b) of sub-paragraph (3A) does not prevent a duty mentioned in that paragraph from applying in the case of an adult who was ordinarily resident in Northern Ireland immediately before being provided by the local authority with accommodation in Northern Ireland.”

92ZZAGF: Schedule 1, page 92, line 31, after “(2)” insert “or (2A)”

92ZZAGG: Schedule 1, page 92, line 33, leave out “that sub-paragraph” and insert “each of those sub-paragraphs”

92ZZAGH: Schedule 1, page 95, line 21, at end insert—

“6A (1) In section 86 of the Social Work (Scotland) Act 1968 (adjustments between authorities providing accommodation), in subsections (1) and (10), after “a local authority in England or Wales” insert “and to a Health and Social Care trust in Northern Ireland”.

(2) In subsection (2) of that section, after “the ordinary residence of a person shall” insert “, in a case within any of paragraphs 1 to 4 of Schedule 1 to the Care Act 2013 (cross-border placements), be determined in accordance with paragraph 5 of that Schedule; and in any other case, the question shall”.

(3) In section 97 of that Act (extent)—

(a) in subsection (1), for “sections 86 and 87” substitute “section 87”, and

(b) after that subsection insert—

“(1A) Section 86 of this Act shall extend to England and Wales and to Northern Ireland.”.”

92ZZAGJ: Schedule 1, page 96, line 23, leave out “1 to 4” and insert “1, 3, and 4”

92ZZAGK: Schedule 1, page 96, line 24, at end insert—

“( ) In paragraph 2—

(a) the references in sub-paragraphs (1), (2) and (3) to discharging a duty under section 21 of the Social Services and Well-being (Wales) Act 2013 by arranging for the provision of accommodation are to be read as references to providing residential accommodation under Part 3 of the National Assistance Act 1948;

(b) the references in paragraph (a) of each of those sub-paragraphs to the Social Services and Well-being (Wales) Act 2013 are to be read as references to Part 3 of the National Assistance Act 1948;

(c) sub-paragraphs (1A), (2A) and (3A) are to be ignored; and

(d) in sub-paragraph (5), the references to sub-paragraph (2A) and paragraph (b) of sub-paragraph (2A) are to be ignored.”

22 July 2013 : Column 1094

Amendments 92ZZAGA to 92ZZAGK agreed.

Schedule 1, as amended, agreed.

Clauses 39 and 40 agreed.

Clause 41 : Enquiry by local authority

Amendment 92ZZAH

Moved by Baroness Hollins

92ZZAH: Clause 41, page 35, line 13, after “neglect” insert “in any setting”

Baroness Hollins: My Lords, I declare an interest as the family carer of an adult man who has publicly funded care and support.

My noble friend Lord Rix and I have tabled eight amendments in this group which together aim to strengthen the safeguarding section of the Bill, Clause 41 and accompanying Schedule 2.

I know that Mencap and others welcome the focus that the Bill gives to safeguarding. At Second Reading, my noble friend said that he regretted the lack of a duty on providers or relevant partners to inform the local authority when they suspect that an adult is at risk. The Minister replied:

“The local authority duty is to make inquiries to decide what action should be taken. One such form of action is to assess the adult’s needs … where it appears, ‘that an adult may have needs for care and support’”.—[Official Report, 21/5/13; col. 830.]

However, Mencap and others remain concerned about the lack of a duty on all providers and relevant partners to advise the local authority that there is a need to assess.

We need not look too far into the past to find examples of failings. The serious case review looking at the deaths of Francesca Hardwick and her mother Fiona Pilkington found that safeguarding procedures had failed. Likewise, at Winterbourne View hospital, it took a whistleblower with a hidden camera to expose the abuse and get the authorities and police to take action. We need to get this right and, while the Bill improves on what we have, these amendments would create watertight legislation that provided the level of protection that vulnerable people need.

6.15 pm

On Amendment 92ZD, it is critical that local authorities take the action to protect people from all forms of abuse and the Bill must reflect this. Currently, only financial abuse is defined. The rationale might be that others types of abuse are better understood and will be set out in the guidance, but this means that the clause looks a bit lop-sided. The amendment would add in the different types of abuse as listed in the No Secrets guidance; for example, physical, sexual, psychological, neglect and so on. It also includes an “other” category to allow for the list to be expanded on in the guidance if necessary so that there are no concerns that it will be considered an exhaustive list, which could have unintended consequences.

Amendment 92ZE is necessary because it is important to have it clarified that abuse is not always deliberate; it may be perpetrated as the result of negligence or

22 July 2013 : Column 1095

ignorance. This point is of such importance that it warrants being in the Bill. The wording of this amendment is again taken from the

No Secrets

guidance.

I turn to Amendment 92ZZAH. Clause 41 is not clear about where the abuse and neglect have to happen for the local authority to make inquiries. A small addition here would make it explicit that we are talking not just about social care settings but about all settings. This is important, as there can be a tendency to view hospitals as safe places, but the tragedies of Winterbourne View and Mid-Staffordshire tell us otherwise.

I turn to Amendment 92ZF. The Bill introduces a duty on the local authority to make inquiries when it suspects that an adult is at risk of, or experiencing, abuse or neglect. However, there is no duty on other agencies to report to the local authority when they suspect that an adult is at risk of, or experiencing, abuse or neglect. This is a gap. Currently, guidance provides information to help agencies make a judgment about whether they should refer concerns to the local authority. There are also requirements on providers to notify the CQC of concerns and to have suitable arrangements in place to ensure that people are safe, but this does not go far enough. There must be a duty on all relevant partners of the local authority, including providers of relevant services such as social care, health and housing, to report to the local authority when they think that an adult is at risk of abuse or neglect. The Welsh Bill includes such a duty, and we could do worse than replicating it. Indeed, in the Welsh Bill there is a whole clause devoted to:

“Duty to report adults at risk”.

It may be that inserting a new clause, such as that proposed by an amendment tabled by the noble Baroness, Lady Greengross, would be appropriate. I look forward to the Minister’s views on this matter.

The Bill quite rightly allows safeguarding boards the ability to decide how to meet its objectives. Amendment 92ZC suggests that it is crucial that regulation and guidance set standards for investigations. It would require the Secretary of State to set out in regulation and guidance the thresholds for investigation together with the process. Such a move would bring much needed clarity for agencies as to roles and responsibilities as well as faith in the safeguarding system for families.

Currently, it is not always clear what is and is not a safeguarding concern. For services supporting people with challenging behaviour, we know that there are issues about overuse of restrictive practices. There is wide variation regarding when restrictive practices are identified as safeguarding concerns. The serious case review into Winterbourne View said:

“It is shocking that the practice of restraint on a … daily basis was not identified as constituting abuse by any professional”.

Once reported, it is crucial that there is a proportionate response. The threshold for investigation currently differs greatly between local areas. A safeguarding panel in one area, with a limited understanding of restraint, may not take a concern seriously whereas another local area may take action. There is also a lack of connection between agencies. The serious case review into Winterbourne View found that there had been plenty of warnings that something was seriously

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wrong: 40 safeguarding alerts, 29 incidents where the police were involved and 78 attendances at A&E. However, information did not flow between agencies: action was not taken. Essentially, they all believed that someone else was looking. Roles and responsibilities must be clear and regulation needs to place emphasis on the importance of timescales so that concerns are investigated in a timely manner.

Turning to Amendment 92ZB, it is vital that, where appropriate, an advocate is available to support vulnerable adults who are going through safeguarding inquiries. It may be a traumatic time and it is important that individuals get the support they need to speak up. They may also need help to ensure that the inquiry and follow-up actions properly address their needs.

Amendments 92ZG and 92ZH amend Schedule 2. In addition to improving processes, we must also ensure that lessons are learnt. Schedule 2 sets out the parameters for how safeguarding adults boards should operate. There is much to welcome here, but we should go a little further. First, the annual reports compiled by each board should not only include findings of reviews but what actions have been taken to implement recommendations from the reviews. It is crucial that we learn from failings and that practices change. Secondly, I would like to request that the Secretary of State be added to the list of those who must be sent a copy of the safeguarding adults board’s annual report. Collating these would provide the Government with the national picture and allow the effective monitoring of trends as well as the ability to share good practice.

In conclusion, there is, as I mentioned earlier, much to be welcomed in the Bill’s focus on safeguarding. These amendments are simply designed to complement and strengthen what is already there and I look forward to the Minister’s response. I beg to move.

Baroness Greengross: My Lords, I shall speak to several amendments in this group. I strongly welcome the clauses in the Care Bill that relate to adult safeguarding. It is right that the abuse of vulnerable adults should be placed on a statutory footing, alongside domestic abuse and child abuse. However, these clauses primarily address a minimum safeguarding infrastructure, and in the main seek to meet the requirements of professionals. My proposed amendments focus on the needs of victims.

The prevalence study into elder abuse, funded in part by the Department of Health and published in 2007, indicated that at least 500,000 older people experience abuse at home; abuse that is, sadly, often perpetrated by family members and others whom the victim should be able to trust. Research by the charity Action on Elder Abuse—I declare an interest as one of its founders—indicates that fewer than 10% of the victims come to the attention of adult safeguarding systems. We clearly must do better than that. However, we must also recognise that there are more victims than just the older person. No matter what the circumstances, when someone's mother or father or sister or brother is abused or neglected, it is not unusual for relatives to blame themselves—to feel that somehow they should have known or should have done something. Even when they could not have done so, there are many more victims of elder abuse than just the older person. We know that many victims of

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elder abuse are elderly people who are attacked by their son or daughter, perhaps because of a long history of domestic violence. However, they are very reluctant to call the attention of the police or anyone to those crimes because they see themselves as having failed as parents.

The amendments go to the heart of what is most cruel about elder abuse. Too many older people are locked away in back rooms, imprisoned by those who choose to exploit them, and unable to seek assistance. Theirs is a silent scream that we must hear, and to which we must respond. We cannot allow abusers the right to deny access to their victims. We must ensure that we do everything possible to find and support the 90% of older victims who currently are unsupported, and we must encourage agencies to work together, as the noble Baroness, Lady Hollins, has said, to report their concerns about possible victims. We must also ensure that those who ill treat or neglect vulnerable people are held to account, because victims and their families deserve to know that elder abuse will not be tolerated and that abusers will be held to account.

Amendment 92ZFC deals with the need for a power of access for confidential interview, to occur only when the reasonable suspicion of a social worker or other practitioner is tested by application to a court, which would consider whether or not to authorise such access. As we have heard, such access is available under the Scottish Act and is proposed in the Welsh Bill through application to a justice of the peace.

Amendment 92ZFD relates to safeguarding adults at risk of abuse and neglect and introduces a duty to report adults at risk of abuse. There is currently no duty on agencies to notify a local authority if they believe an adult may be at risk of abuse. A local authority cannot be expected to identify all abuse by itself. It has to rely on the good will of others to make referrals. There is a need to underline the responsibility of all agencies to report if they have a reasonable belief that an adult is at risk.

As we have heard, the Welsh Bill proposes:

“If a relevant partner of a local authority has reasonable cause to suspect that a person is an adult at risk and appears to be within the authority’s area, it must inform the local authority of that fact”.

A relevant partner is proposed to be the police, another local authority, the probation service, a local health board, an NHS trust, Ministers, or anyone else that regulations may specify.

Amendment 92ZFE is proposed because there is currently no specific offence to protect adults with capacity who are the subject of neglect or abuse but who are not covered by the Mental Health Act or the Mental Capacity Act. The view is that, in such circumstances, they can be covered by the inherent jurisdiction of the courts only, which is time-consuming, costly and not widely used in such circumstances. The Law Commission report noted the gap in the law relating to protecting adults at risk who were being ill treated or neglected but who were not subject to the powers of the Mental Health Act or the Mental Capacity Act. Police officers had suggested that prosecutions were being dropped in practice because doctors could not confirm, or had not documented, that a person lacked capacity.

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Additionally, the extent of abuse and neglect uncovered in hospitals and care homes has caused anxiety and outrage throughout the UK. Current systems and law have been insufficient to deter abuse, and too often the few perpetrators who reach the courts have sentences that the public consider far too lenient.

Amendments 92ZFF and 92ZJ are about safeguarding adults at risk of abuse and neglect. I welcome the proposals in the Bill to put safeguarding adults boards on a statutory footing. However, along with the College of Social Work, I believe that the Bill should ensure that social workers are appointed to supervise safeguarding inquiries because they alone have the theoretical, legal and policy knowledge to undertake complex, politically charged and sensitive pieces of safeguarding investigative work that may require co-operation and co-ordination with other professionals and organisations.

6.30 pm

The Bill should also stipulate that the local authority representative on safeguarding adults boards must be a social worker or have a social work qualification. This would ensure practice-based and evidence-led influence on boards by practitioners involved in active work with clients. Safeguarding adults review teams should also include a social worker with substantial experience of safeguarding work. Where there is not someone of sufficient seniority and experience, representation on SABs and review teams should be a role for the principal social workers now being appointed in many local authority adult social services departments.

Amendment 92ZK is about the statutory duty of candour. I very much welcome its introduction in the health service but we feel that it should be extended to local authorities, apply to any contract that a local authority awards to a community-based service and should extend to instances of abuse or neglect. I have a concern that social workers who whistleblow on bad practice within their organisations are not always properly protected. The Public Interest Disclosure Act 1998 sets out the minimal requirements on employers and offers protection to staff making a protected disclosure. However, even these minimal requirements on employers are often poorly enforced, thereby making it hard to expose malpractice and putting people at risk of harm.

I would like the Bill to extend the PIDA requirements on employers by introducing a duty of candour for employers in health and social care, in keeping with the Francis report’s recommendations. The provisions should ensure the existence of a clear presumption of disclosure where the behaviour of employees gives rise to concerns. All staff must have a professional duty to whistleblow if they identify practice that they believe puts people they are supporting at risk of harm. Organisations must have clear whistleblowing procedures in place for when practice that puts people at risk of harm has been identified. These should stipulate that if a social worker or another care worker identifies abuse, mistreatment or neglect in any care setting, or has questions about treatment affecting anyone, whether they are supporting them directly or encounter them in the course of their work, they have a duty to draw this to the attention of managers, commissioners and

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managers of any provider organisation, and follow up to see if their concern has been acted upon. This would amount to a duty of candour.

Baroness Byford: My Lords, I have two amendments in this group. While the previous amendments have looked particularly at the risk of abuse to individuals, my amendments are to do with finance. I looked carefully through the Bill but did not see where they would fit and I therefore proposed that they be considered at this stage.

Amendment 92ZFA asks that an,

“investigation may be instigated following a complaint from a person with power of attorney for an adult having needs for care and support”.

My second amendment, Amendment 92ZFB, is an accountancy measure to ask that,

“care services shall have a duty to follow specific accounting guidelines”.

As we have heard, increasing numbers of elderly people require care and support, an increasing proportion of whom rely on someone who has power of attorney to act on their behalf, particularly in financial matters.

I am aware that a range of service providers, from banks to shops, from online businesses to public authorities, have difficulty when faced with one of these attorneys. A solicitor acting for the person in need of care sets up the power of attorney and holds all the certification. The person with the power is normally given a number of certified copies of the warrant to use in fulfilling the role. However, there seems to be conflict in the minds of many service suppliers between the need to comply with requests from the holder of power of attorney and the need to protect their original customer under the rules of the Data Protection Act. There was an example of a major chain which acknowledged a request to stop a credit/debit card and then, three years later, billed the customer for a three-year subscription. The warrant holder could not resolve the position because the enterprise would neither contact the solicitor direct nor accept a certified copy of the warrant. A number of letters and a great many telephone calls were used to remedy the situation. Then there was the example of the high street bank that lost two certified copies of a single warrant—to say nothing of the media company, the card protection company and a different bank, all of which have refused to deal with someone with power of attorney.

People in care suffering, for example, from dementia, rely heavily on those who act for them. Difficulties of the kind just outlined take a lot of time and effort to resolve. There is a high cost, too, which is particularly important when the warrant holder is neither being paid nor charging expenses. I am especially concerned about the plight of the spouses of those in care. They are often elderly, physically infirm and hard up. They are often unaccustomed to opposing the will of large organisations, nor do they necessarily know their way around officialdom. Warrant holders who are unrelated to the person in care have severe problems also, in that they may be ignored simply because they are no relation. Alternatively, how does someone with power of attorney cope with demands for family top-up fees from a care home where the managers will not accept that there is

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no family? Warrant holders have a statutory responsibility and must be scrupulous in their dealings. Businesses will not understand situations that create unnecessary difficulty.

My Amendment 92ZFB refers to care homes and fees. The Bill already concerns itself with the funding of care homes, and the Care Quality Commission has recently been given explicit responsibility to ensure that such homes have adequate funding to carry out their functions. My concern is with residents’ funding, to which I can find no reference in the Bill. Indeed, if I have missed it, the Minister will no doubt point me to it.

I have received complaints about how care home residents and those with power of attorney on behalf of such residents, are billed, bamboozled and in some cases bullied. Examples that I have been told about include over-invoicing which, when challenged, has resulted not in an apology and a credit note but a computer printout, without headings to any of the columns, and no possibility of agreement on the overdue balance. Requests for credit notes are ignored, and the resident or the person acting on their behalf cannot therefore maintain normal books. Mistakes by the local authority are visited upon residents in the form of extra charges that are not cancelled when the original error is corrected. The Care Quality Commission refuses to get involved, I understand, on the grounds that it has no duty to examine residents’ funding. The local authority had come upon similar problems before, but had no power to intervene. Board members of the newly constituted clinical commissioning group advised that the only thing to do was query the figures, ensure the local authority payments were up to date, and never give in.

It appears that the financial side of the care home business can be totally removed, physically and organisationally, from the home itself. No one has a duty to examine, audit or report on it. I feel that the Bill should carry that responsibility, and have a simple outline of the procedures to be followed to ensure accurate billing for services rendered, so that residents and their carers may be certain of their financial situation. At the moment it is unclear. I hope that the Minister’s response will clarify these situations, because in some cases those holding power of attorney are really at a loss to know how to resolve the situation.

Lord Touhig: My Lords, I speak in support of Amendment 92A, which stands in my name and that of the noble Baroness, Lady Greengross. The amendment concerns corporate responsibility for neglect. In speaking to this amendment, I acknowledge that the Bill introduces England’s first primary legislation to protect adults at risk of abuse and neglect. Similar legislation is in place in Scotland, and is in the process of being enacted in Wales.

The Bill as it stands places a duty on local authorities to investigate abuse or neglect, and introduces statutory requirements around safeguarding adults boards and safeguarding adults reviews. Substantive regulations on assessment and eligibility, published as secondary legislation, should also make provision to consider whether the person is at risk of abuse or neglect, and if this risk is sufficient to provide support.

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I welcome the Government’s decision and the publication of a consultation on how to ensure that the directors of organisations are personally held to account. This may provide some redress, which our amendment seeks to secure. Given that this consultation closes in September, when the Minister responds to the amendment perhaps she could give some indication of when, in the latter stages of the Bill, the Government might decide whether they will enact some of these changes. The Government’s own consultation document acknowledges that there is a loophole in the system, allowing providers responsible for appalling failures in care to escape prosecution. This is what our amendment seeks to address. I am grateful to the noble Earl, Lord Howe, for writing to me about the Government’s consultation.

In south Wales, Operation Jasmine uncovered appalling treatment of older people in residential care. The police investigation into neglect of old people in care homes lasted more than seven years, and cost more than £11 million. Over 100 potential elderly victims were indentified; 75 police officers were involved in the inquiry, and more than 4,000 statements were taken. Yet the nursing home owner, a local GP, suffered brain damage during a violent burglary at his home in September 2012, and in March the court case against him, his company’s chief executive and their company collapsed. I understand that the company is still operating some care homes.

When I served in the other place, I saw for myself some terrible photographs of elderly people who had been neglected, and who had what I can only describe as holes in their bodies where bedsores had been left untreated. A number of people died, and the Commissioner for Older People in Wales, Sarah Rochira, said:

“I don't really know any other way of describing it other than a catalogue of failure”.

Detectives were unable to bring prosecutions for serious offences such as manslaughter and wilful neglect. The then-deputy chief constable of Gwent, Jeff Farrar, said:

“Where you are seeing people who have got pressure sores which are corroded down to the bone; people vomiting faeces they are so constipated; or so dehydrated, it is a significant cause of their death”.

Those responsible for this terrible degree of neglect should be brought to justice. At the moment they cannot be, and that is why we need an amendment of this sort. The Care Quality Commission’s report on Winterbourne View care home and the Equality and Human Rights Commission’s inquiry into home care also uncovered serious, systematic threats to the basic human rights of those receiving care services.

Amendment 92A seeks to strengthen protection by ensuring that registered providers of health and social care have duties, similar to those placed on local authorities, to report suspected abuse and to inform the safeguarding adults boards. Then, crucially, if abuse is found to have an element of corporate responsibility, where the systems or approaches taken by the care provider were a contributory factor in the abuse or neglect, a new offence is created, allowing prosecution of a registered care provider. This does not undermine the individual responsibility of staff

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members or the registered care provider, but would add corporate responsibility where a culture of neglect or abuse has been allowed to flourish.

6.45 pm

The existing body of domestic legislation protects vulnerable adults from neglect or abuse, and contains criminal penalties against individuals. It is also the case that in civil law a corporate body can be held responsible for such events. However, when such abuse or neglect is attributable to the practices and procedures of a company, there are no active criminal sanctions in place in domestic law. If it were possible to amend the Care Bill to mirror the regulations set out within the Corporate Manslaughter and Corporate Homicide Act 2007 within a care situation, it would be possible to hold corporations criminally responsible for their actions. As things stand, if there were another Winterbourne View or Operation Jasmine, there is no criminal sanction to hold a corporate body to account for enabling or fostering abuse in a care setting.

In conclusion, I point out that the Joint Select Committee on the Bill said:

“We recommend that where abuse or neglect of an adult has resulted in the commission of an offence by an employee of a body corporate acting as such, and this is proved to have been committed with the consent of, or to have been attributable to any neglect on the part of, a director, manager or similar officer of the body corporate acting as such, he as well as the body corporate should be guilty of an offence”.

I hope that the Government’s consultation will show that we need to make progress on this issue. I certainly hope that at the end of the day the Government will see some merit in this amendment, and agree to amend the Bill.

Lord Low of Dalston: My Lords, I shall speak to Amendment 92AA, which is at the end of this group. It concerns what is potentially one of the most powerful instruments for protecting people against neglect and abuse: the Human Rights Act. Amendment 92AA would insert a new clause after Clause 46 to make all providers of social care services regulated by the CQC subject to Section 6 of the Human Rights Act 1998. The Act applies to all public authorities and to other bodies when they are performing functions of a public nature. Under Section 6 such bodies are under a duty to act in a way which is compatible with the human rights protected by the Act. This duty does not simply arise as a result of litigation in the courts or dispute resolution, but means that human rights are part and parcel of the development and delivery of public services.

However, as a result of the case of YL v Birmingham City Council in 2007, a loophole opened up which meant that care home services provided by private and third sector organisations under a contract with the local authority were not considered to fall within the definition of public function under the Human Rights Act. This decision, that private and third sector care home providers were not directly bound by the Human Rights Act, meant that thousands of service users had no direct legal remedy to hold their providers to account for abuse, neglect or undignified treatment. Though the public body commissioning services remained

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bound by the Human Rights Act, this was of little practical value to the individual on the receiving end of poor or abusive treatment.

Following a sustained campaign the then-Labour Government, with cross-party support, accepted that the loophole created by the YL decision needed to be closed. Section 145 was included in the Health and Social Care Act 2008 to clarify that residential care services provided or arranged by local authorities are covered by the Human Rights Act. The operative words are “provided or arranged”. If the noble Earl is responding to this debate, he will no doubt remember giving his support to the amendment from the opposition Front Bench.

Age UK and other organisations are concerned, however, that the Bill risks returning the situation in England and Wales to that at the time of the YL decision. Section 145 of the Health and Social Care Act refers specifically to those placed in residential care under Sections 21(1)(a) and 26 of the National Assistance Act 1948. However, it is expected that these sections will now be repealed under Clause 107, meaning that Section 145 will no longer have anything to bite on. This amendment seeks clarification from the Government as to how they propose to deal with this and an assurance that there will be no regression in human rights protection.

However, this is not the only point. The organisations supporting this amendment have long been concerned that Section 145 of the Health and Social Care Act does not cover all care service users or even all residential care service users. Rather, as I have said, it protects only people placed in residential care under the National Assistance Act 1948. Having accepted the argument that primary legislation was required to clarify that Parliament intended the Human Rights Act to extend to residential care services provided by private and third sector organisations under a contract with a local authority, it is anomalous not to treat residential care provided under other legislation and domiciliary care in the same way.

The Government’s view, as stated in a note submitted to the Joint Committee on the draft Care and Support Bill, is that all providers of publicly arranged care and support services,

“including private and voluntary sector providers, should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998 and not to act in a way that is incompatible with a Convention right”.

The Joint Committee acknowledged that this is the Government's position but concluded that,

“as a result of the decision in the

YL

case, statutory provision is required to ensure this”.

This must surely be right. The words,

“should consider themselves to be bound”,

are not enough. It needs to be a matter of law, not just of honour. I have seen a letter in which it is stated that the Government’s position is that care providers are covered, and should not just consider themselves bound. However, the House of Lords said in YL that they were not covered and the Joint Committee was not convinced either. Given such uncertainty, it is surely essential that the matter is put beyond doubt in legislation.

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The Government consider that there are dangers in doing this as it is felt that it would risk creating doubt about the interpretation of the Human Rights Act in other sectors. They stated in their note to the Joint Committee:

“Each time specific provision is made with respect to a particular type of body, we weaken the applicability of”,

the existing provision,

“and raise doubts about all those bodies that have not been specified explicitly in the legislation”.

Against this, it needs to be said that the legal situation following YL is already one of significant legal ambiguity, which is unsatisfactory for both service providers and the users of public services. It forces service users to litigate on a case-by-case basis to seek clarification.

The proposed amendment would bring the necessary legal clarity by deeming that all those providing social care services regulated by the CQC are exercising a public function for the purposes of Section 6 of the Human Rights Act. Without the direct, positive obligation to protect an individual’s human rights conferred by Section 6, human rights abuses of care service users are a frequent occurrence in private and voluntary sector provision. That is something which other noble Lords have highlighted and which is also highlighted by a succession of inquiries and reports such as the EHRC’s inquiry into home care, which uncovered serious and systemic threats to the basic human rights of those receiving care services.

This amendment also seeks to include those who are eligible for care but who, due to means testing, have to arrange and/or pay for their own care—the so-called self-funders—and who therefore currently lack the full protection of the Human Rights Act. To date it has been the case, at least for those who were found to be eligible for care in their own home, that the obligation for the local authority to arrange care regardless of the person’s resources provided them with a degree of protection under the Human Rights Act. The local authority’s duties to arrange care are subject to that Act, even though the provider might not be.

However, the changes to the system for arranging care to be introduced by the Bill weaken the protection. The Bill introduces a single system for arranging care, whether it takes place in a residential setting or the recipient’s own home. Under these proposals, where people are deemed eligible for care but are found after means testing to be responsible for paying part or all of the cost of that care, they will be able to request that the local authority arranges their care but may have to pay it to do so. This new system is likely to reduce the coverage of the Human Rights Act because people who are entitled to local authority care in their own home but have to pay for it will no longer be automatically protected by the Act unless they request that the local authority arranges their care. Many will not make such a request, either because they will not be able to afford to pay for having the local authority arrange their care on top of the cost of the care itself, or because they will simply not be able to cope with the bureaucratic hassle.

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The Joint Committee on the draft Care and Support Bill recommended:

“The draft Bill should be amended to ensure that private and third sector providers of care services regulated by public authorities are deemed to be performing public functions within the meaning of section 6(3)(b) of the Human Rights Act 1998”.

The amendment that I bring to the Committee today follows this approach and, if accepted, would provide equal protection to all users of regulated social care, regardless of where that care is provided and who pays for it. The Government believe, as the notes to the draft Bill make clear, that protection under the Human Rights Act extends to care arranged by a local authority even if it is self-funded. The Joint Committee does not accept that this does not require explicit statutory provision. However, regardless of this view, the committee made the point that this does not address the situation of self-funders who arrange their own care and support. It said:

“The Government will need to consider whether it is right that, of all adults in need of care, only this group should lack the protection of the Human Rights Act, solely because there is no public sector involvement in arranging or paying for their care”.

There are those who argue, as their Lordships did in YL, that the right approach for protecting human rights is not an extension of the Human Rights Act. An alternative, often suggested, is that regulation can be better used to target specific issues. The CQC is under a duty to have due regard to the need to protect the human rights of those using care services in performing its functions, which include inspecting all care homes and registered home care providers. It is argued that this gives self-funders human rights protection, but without a credible prospect of litigation against the care provider itself, there is reduced pressure on it to respect and safeguard the human rights of service users.

I fully accept that bringing all regulated social care services within the scope of Section 6 of the Human Rights Act will not alone solve the problems of undignified care and human rights abuses in care settings. Improved regulation, additional safeguarding legislation and better training must also play their part. However, the evidence continues to mount that without direct application of the Human Rights Act and the proactive approach to promoting and protecting rights that it demands, abuse, neglect and undignified treatment are commonplace occurrences. The status quo is not acceptable. The proposed amendment offers a simple, effective and lasting solution to this long-standing problem. The Human Rights Act can provide an essential safety net for social care recipients who find themselves in highly vulnerable situations. The Government must not deny them this protection.

7 pm

Lord Hodgson of Astley Abbotts: This is my first intervention on this Bill. It is not an area of government policy in which I have historically taken a lot of interest so I am some way outside my comfort zone. However, when I saw that my noble friend Lady Byford had put down two amendments about financial records and appropriate billing, both areas I have taken an interest in, I felt I should support her and put my name to them.

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I fear that if I could glance over at the speaking note prepared for the Front Bench on Amendment 92ZFA, I would see the words, “Resist on the grounds that this is unnecessary and the clause already provides for it”. That may be so, but if you read the Explanatory Note to Clause 41 carefully, at paragraph 230, I am not sure that it actually places a duty on the local authority to follow up complaints where they are made by external parties, such as one holding a power of attorney, as my noble friend mentioned in her opening remarks. If would be helpful if my noble friend on the Front Bench could give some reassurance on this point and also for the record confirm, as I am sure must be the case, that people holding powers of attorney are “representatives” as defined in this clause.

The new clause inserted into the Bill by Amendment 92ZFB is a much more significant development. If the Minister’s officials were to call for and examine a range of the invoices sent to individual residents or patients by different companies for the provision of care services, she would see a considerable variation in the quality and, above all, the clarity of how the charges are laid out and calculated. To be fair to the companies, it is not easy to do because it becomes quite complex, quite quickly. For example, local authority rebate periods do not always coincide neatly with the charging periods of the individual care homes. Then there are the charges for extras over and above normal care. In the vast majority of cases these are entirely legitimate but, if you look at the records and the way they are laid out, all too often they are not clearly itemised and often a one-line entry, “Additional Charges” on an invoice received perhaps a month later makes it very hard to verify the accuracy or otherwise of the charge.

We need to keep at the forefront of our mind the fact that these invoices are addressed to elderly people who perhaps are more easily confused or may be browbeaten. In particular, if they have no relatives or representatives to help them, they may be over-ready to accept the invoices at face value and pay them. I particularly support my noble friend’s amendment because it seems to address three important objectives. First, it encourages the emergence of best practice among care homes and the way they lay out their charges. Secondly, it helps individuals and their families understand what is being charged and whether it is accurate. Thirdly, and possibly most cynically, it reduces any temptation to pad invoices with additional items. I do not suppose for a moment that the precise wording of this amendment meets the standards required by parliamentary draftsmen. However, I hope when my noble friend comes to wind up she will consider it an idea worth following up.

Lord Pannick: My Lords, I add my support to Amendment 92AA to which the noble Lord, Lord Low of Dalston, spoke so powerfully a few minutes ago. I declare an interest—or, more accurately, a regret—in that I represented YL in the Appellate Committee of your Lordships’ House and failed to persuade a majority of that committee that those who operate care homes under a contract with a local authority are performing a public function for the purposes of the Human Rights Act and therefore are obliged to comply with

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human rights principles. The complexity of the legal issues was such that the much lamented Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale of Richmond, both dissented from the views of the three judges in the majority.

As the noble Lord, Lord Low, has mentioned, Section 145 of the Health and Social Care Act 2008 addressed the issue by bringing some care home providers directly within the scope of the Human Rights Act, providing direct legal protection for residents of such homes. However, important gaps in the law remain. Duties under the Human Rights Act are not owed by the person who provides residential care to persons who pay for it themselves—that is, when the local authority is not paying—and the provider of care services, when that provider is not a local authority, has no duties under the Human Rights Act when providing care in a person’s own home.

I share the concerns of the noble Lord, Lord Low, that, in the light of the changes to be introduced by this Bill, it is important that the law should clearly address liability under the Human Rights Act. I agree with the noble Lord, Lord Low, who made a very powerful case, that the vulnerability of the person receiving care, and the risk of abuse, mean that the law should now impose duties on the provider under the Human Rights Act in all these circumstances to encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases. It is really no answer for the Government to say, as they have previously indicated, that it is undesirable in principle to specify the scope of the Human Rights Act in relation to public functions. The YL judgment already does that in a deeply unsatisfactory and narrow manner.

I accept, of course, that improved regulation and proper training will play an important part in protecting the interests of those receiving care. However, I ask the Minister to accept that the principles and the remedies under the Human Rights Act will add a significant and necessary further dimension to the obligations of those providing care and to the rights of those receiving it. I hope we will receive a positive response from the Minister this evening to the amendment from the noble Lord, Lord Low, and the noble Baroness, Lady Greengross.

Lord Warner: My Lords, I follow the noble Lord, Lord Pannick, with some trepidation but I do so as a member of the Joint Select Committee that recommended a change to the Bill along the lines asked for so eloquently by the noble Lord, Lord Low. I remind the Minister of an individual case which demonstrates the lacunae in the current legislation. It was the case of a lady over 90, who wholly self-funded in a private nursing home. This lady expressed her views—I suspect rather trenchantly—about assisted dying. She did not ask them to do anything about assisted dying but merely offered her views—though probably, as I say, quite trenchantly—but the home owner and members of staff took great exception to those views. She was pretty much immediately given four weeks’ notice to quit. We are talking about an elderly person who was very vulnerable. Her son took counsel’s opinion, which

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seemed to be remarkably similar to the views expressed by the noble Lord, Lord Pannick. We are faced with a situation where you can fall down on two grounds: on the grounds that you are in a privately provided home, and on the grounds that you are a self-funder. Whatever the arguments, and we have been over this ground several times in this House, the reality is that vague requirements on the CQC to observe the requirements of the Human Rights Act do not safeguard elderly people in the kind of case that I have posited.

We have to look at this again, which is why, when the Joint Committee looked at this issue, we took advice from our adviser, who is legally qualified. If I may remind the noble Lord, the noble and learned Lord, Lord Mackay, was a member of the committee, which went along with that recommendation. The Government have to move away from the rather brushing-off response that they gave to the Joint Committee’s recommendation and think again, particularly in light of the powerful case made by the noble Lord, Lord Low, and strongly supported by the noble Lord, Lord Pannick.

Baroness Howarth of Breckland: My Lords, I had not intended to speak today. I support the amendment, but in a rather different context. I welcome the work that the Government have done on the safeguarding clauses. Those of us who work in this area find that extremely helpful. However, the tone of today’s discussion has been very negative about providers, so I am probably outside my comfort zone, even more than the noble Lord, as a provider. I declare my interest as the president of Livability; I chair both its providing committee and its safeguarding board.

Throughout the sector there are large numbers of organisations that run their own safeguarding boards within the organisation, where they review every single incident that occurs within it. Quite properly, they already refer to the local authority those cases where they think it should be informed, and indeed to the CQC. In the not-too-distant past I had conversations with the Charity Commission about its role in these areas as well as those of the providers and the regulators.

It would be a pity if we did not recognise the huge amount of work that was going on already on safeguarding, and that we can learn a great deal from it. I would be pleased to support the amendment that says the Secretary of State should collect any report, because we could then look at trends. There is not a single provider that would object to being controlled by the Human Rights Act; I think that we all see ourselves as already being controlled by that Act, because we work under contract to the local authorities and see that as a clear extension of it. If it were direct, we would not operate any differently from how we do already.

I apologise for taking the time of the Committee today because I have not intervened very often, but it needs to be on record that there are thousands of elderly people and disabled people being significantly cared for by very good providers in conjunction and partnership with their local authority.

One of the issues that I would really like to have supported is the amendment from the noble Baroness, Lady Greengross, saying that you have to change the

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culture. What will make the difference—this has made a difference in the organisation where I work, where we extended our services—is a culture of no blame. The sense that I have had here today is rather one of blame, but having no blame brings people forward and makes them report incidents that you can then look at. In my role, I am really concerned when no one comes forward and reports an incident.

I welcome what the Government are doing, but I hope that whatever else comes is not so draconian that it actually prevents people coming forward and making it clear that they want to report incidents in their organisation.

7.15 pm

Lord Patel of Bradford: My Lords, I had not intended to speak on these amendments, but they present something of a dichotomy in one of the areas in the Bill, particularly Amendment 92ZFC from the noble Baroness, Lady Greengross, on the powers of access. Last year I was invited by the manager of the local Bradford safeguarding social work team, a Mr Robert Strachan, who had already thought about this issue and had had extensive consultation with some of his colleagues, social work professionals and strategic managers in Bradford. He told me that opinions varied. At that time, no one had had a problem pulling together a protection plan for a vulnerable adult within the existing legislation, although people felt, when they were pushed to the limit, that such a power could be quite useful. I was gently persuaded by that.

However, when talking to Mind, the mental health charity, which has recently done an extensive consultation with its network, I found that it believes that this power is disproportionate and unnecessary. Its members have been clear that they would consider it intrusive and contrary to the European Convention on Human Rights, and that this would undermine the trust between social workers and service users. Mind has sought the views of its network of people with experience of mental health problems, and was clearly told that there is a mistaken but prevalent belief that people with mental health problems do not have the capacity to make decisions about their own safety. Because of that, many have had negative experiences of intervention, compulsion and detention, all of which reduce choice and control and can undermine trust in statutory authorities. Mind argues that introducing powers of access for social workers is likely to further undermine trust in statutory authorities and lead to extremely difficult working relationships between social workers and service providers. I am of course sympathetic to these views. However, I am also extremely sympathetic to the views expressed in the arguments from the noble Baroness, Lady Greengross, so I am a little torn.

The only way in which I can look at this is by case example. Let us assume that an elderly lady is being cared for by her son, who has some behavioural problems, like the case that we recently had in Bradford where the grandson actually killed his grandmother. Neighbours report their concerns to social services, who dutifully go around and visit. However, they never get further than clacking the front door; the son tells them that everything is fine and he is looking after his mother. Further reports of shouting and banging reach the

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authorities via the neighbours, but still they are refused permission to enter and see the older lady. What do you do? The police have no powers of entry but clearly there are some major concerns. How, therefore, to proceed and establish even that the lady is dead or alive? Powers of entry, in such extreme circumstances, would allow professionals to access the house and see the person, as in cases involving domestic violence or children. I would therefore be broadly inclined to support the powers, which would add something that is not currently in place.

However, the trick would be in the execution of those powers. For example, it would not be sufficient merely to gain entry. What would you do next—convey the lady to a place of safety or take the son away? If you did not, you would be exposing the victim to further and sustained abuse. This would need thinking through carefully. The question of how the powers would be controlled and executed would be difficult but not insurmountable. I look forward to the Minister’s arguments to persuade me either way on this one.

Baroness Barker: My Lords, I support the amendments of the noble Baroness, Lady Greengross. They go straight to a gap that exists for older people who have capacity but are physically dependent upon people who may be abusing them. With all respect to the noble Lord, Lord Patel—whose arguments I listened to very carefully because they were very thoughtful, and I would not want to disregard what Mind has found in its consultation with its members—I point out to him that members of Mind are likely to have protection under either the Mental Health Act or the Mental Capacity Act. The people to whom the amendment tabled by the noble Baroness, Lady Greengross, is addressed do not have that protection. For me, that swings the argument.

Elder abuse has a rather odd standing in the general consciousness. It does not have the same profile as the abuse of children. It goes up and down the public agenda depending upon whether there has been some scandal or an awful case in the papers. People’s reactions to it vary enormously. When people are polled on their views about this, the phrasing of the questions in any consultation can have a profound impact. Were we faced with a question that said: “Would you like social workers to have the power to intrude into your house?”, most of us would say no, but if we were asked, “Do you think that somebody ought to be able to look out for people who are extremely vulnerable and may not be able to get out and tell anybody?”, we would say yes. That goes straight to the consultation that the Government have already held, and the reason for some of its findings. Professionals who have had experience of dealing with people and operating under the law have said that they think there needs to be a greater degree of protection, albeit with brakes and conditions, such as the necessity of getting the agreement of a JP—not just social workers barging in because they feel like it.

Taken together, the amendments tabled by the noble Baroness, Lady Greengross, get the right balance. They are not about empowering bossy professionals to wade in regardless of what people want but they are quite important, not least because of something the

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noble Baroness, Lady Greengross, said, which was of tremendous importance: the largest percentage of people who abuse vulnerable elderly adults are family members. The consequence of that is that very often people who are being abused are highly reluctant to do anything about it because they fear that there will be repercussions against their family members. That is why it is necessary to have a bit more legal force behind some of this than we would otherwise think we should, and I think that, on balance, the noble Baroness’s amendments are right and proportionate.

Finally, there is a very good case for the Government to accept the amendments or something like them within this legislation. They should do it now when we are not making decisions in the shadow of a scandal and when we can talk about best practice in neutral terms.

Baroness Hollins: My Lords, I shall speak briefly in support of my noble friend’s Amendment 92ZFC because it applies to people with learning disabilities—particularly people with mild or moderate learning disabilities who may not meet the eligibility criteria for care and support in a situation where someone has befriended a person with a learning disability, moved in with them and concerns have been raised by neighbours that the person may be being abused. This is not about family carers; it is a mate crime. It is the sort of crime of which Steven Hoskin was a victim. He was subsequently murdered. Somebody moves in, and the local authority is unable to speak to the adult with a learning disability to check whether they are okay because the other person always answers the door and will not let anybody in. This power of access would change that, and I support my noble friend.

Baroness Wheeler: My Lords, when the Committee considered the Clause 2 duty on preventing needs for care and support, the noble Lord, Lord Rix—who I am sorry cannot be in his place today—put forward a strong case for ensuring that safeguarding is explicit in the Bill alongside the other duties of prevention relating to adults and carers. We gave strong support to that. The focus on safeguarding vulnerable adults should not just be on protection once abuse or neglect has taken place. Local authorities, and agencies on their behalf, should also be obliged and guided proactively to prevent abuse occurring in the first place.

We welcome placing safeguarding on a statutory footing in the Bill and the establishment of statutory safeguarding adults boards. This builds on legislation, regulations and advice on principles and frameworks for safeguarding adults and children that Labour established up to 2009 and which the Government are taking forward in the Bill. We were, however, always cautious about bringing adult and children’s safeguarding together under one structure as some councils have done. Adult and children’s safeguarding issues are not the same, and I would be grateful if the Minister will comment on the Government’s approach to this in future.

The amendments tabled by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, include important issues which we support to ensure that

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safeguarding is properly identified, reported and investigated in all health and social care settings, not just social care, which is particularly important in the light of the appalling neglect and abuse that happened to people with learning difficulties at Winterbourne View. In this vein, the intention behind Amendment 92ZF to place a duty on providers or other relevant partners of the local authority to report when they suspect an adult is at risk of experiencing abuse or neglect is also important, as local authorities will not be able to identify all situations where people are at risk.

We also support the need to ensure that an adult has access to support and advocacy during a safeguarding investigation; the need to specify in the Bill areas of abuse, as set out in the No Secrets guidance, in addition to the reference to financial abuse; and the need for abuse to be recognised as abuse whether it is perpetrated as the result of deliberate intent, negligence or ignorance. These are all strong areas of concern expressed by noble Lords today and by key stakeholders. I also underline the vital need, when so much care is now contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister inform the Committee how the Government intend to ensure this happens?

Amendment 92ZFC, tabled by the noble Baroness, Lady Greengross, puts forward a comprehensive case for the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. As the Government’s recent consultation response on this issue shows, there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions and patients and user organisations on this sensitive and complex issue, although we have to remember that the consultation response was relatively low in terms of local authority and NHS trust participation and that many of the responses appeared not to have fully understood the proposed limitation of the power to situations where the third party is denying access, not the individual.

It is clear that there is a significant gap in the current legislation for dealing with third-party denial of access to some of the most vulnerable adults—women subject to abuse by violent partners or a person with a learning disability being bullied by a friend who has moved into their home—which the Bill needs to take the opportunity to address. The noble Baroness’s amendment is strongly supported by, among others, the Equality and Human Rights Commission, the College of Social Work, Mencap and Age UK, and sets out a tight framework and the limitations and restrictions that would apply. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone is in danger of abuse. The Equality and Human Rights Commission argues, as have noble Lords, that alongside the proposed duty of local authorities to make inquiries set out in Amendment 92ZFD, the power of access will enable more intervention in response to allegations or suspicions of abuse or neglect and get the balance right, as the noble Baroness, Lady Barker, said. The critical point

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of the power of access is to enable the local authority to access the person and speak to them alone to assess the situation. It is not about entering someone’s house for no good reason. It is a last-resort power and is by no means presented as a solution in itself.

On balance, we support the case for inclusion in the Bill of the power of access by a social worker and the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment tabled by the noble Baroness, Lady Greengross. However, we of course recognise the strong concerns of Mind on this issue and of the Royal College of General Practitioners, which would prefer the use of other options, such as working with the sector to coproduce best-practice guidelines. Will the Minister explain to the Committee how the Government propose to address that denial of access by a third party to a potentially vulnerable adult without dealing with this issue in the Bill?

The issues raised by the noble Lord, Lord Low, in his Amendment 92AA on the need to clarify the application of the Human Rights Act to regulated care services are familiar to the House, as we thoroughly debated and aired similar grounds during the passage of the Health and Social Care Act. There are now concerns that amendments to that Act and the National Assistance Act in the Care Bill have set the clock back on the application of the HRA to private and voluntary sector residential care home providers. The noble Lord, Lord Low, has set out these concerns clearly, this time powerfully supported by the noble Lord, Lord Pannick. I hope that the Minister will respond positively to the pleas from noble Lords to think again on this matter.

7.30 pm

I will make three comments on Clauses 41 to 49 and the amendments included in this group. We strongly welcome the provisions in the Bill to address provider failure and the need to prevent the appalling events at Southern Cross happening again. However, we agree with the concern of the Lords Delegated Powers Committee that the Bill does not define what is meant by “business failure” or “market failure”. I look forward to the Minister’s explanation of why the Government have chosen instead, in their later Amendment 105V, to go down the route of regulations to deal with these two pretty fundamental issues to the operation of the provider failure provisions.

Amendment 92A in the name of the noble Baroness, Lady Greengross, and my noble friend Lord Touhig establishes a corporate duty for neglect for registered care providers. It would both place a duty on the provider to act where it suspects that an adult in its care is at risk of abuse and hold the organisation and its senior management responsible for neglect or abuse occurring in the care service they provide. Like my noble friend Lord Touhig, we welcome the Government’s recent consultation on the introduction of a compulsory fit and proper person test for directors in charge of care homes and hospitals that would address the loopholes in the current system whereby providers responsible for appalling failures in care can escape prosecution.

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Finally, Amendment 92ZK in the name of the noble Baroness, Lady Greengross, would introduce a new clause on the duty of candour on local authorities to foster a culture that enables staff to report reasonable suspicions of abuse and neglect of adults under the authority’s care. As we have repeatedly argued, a statutory duty of candour, in line with the recommendations of the Francis report, should be included as a key principle in the Bill. We on these Benches fully support ensuring its explicit reference to the vital issue of adult safeguarding.

Baroness Northover: My Lords, I am very grateful to noble Lords for tabling amendments on such important issues. I am sure that noble Lords will agree that if we are to claim to be a civilised society, it is critical that we safeguard those people who are most vulnerable to abuse and neglect. In particular, the Bill places local authorities under a duty to make inquiries or cause inquiries to be made in suspected cases of abuse or neglect of adults with care and support needs who are unable to protect themselves because of those needs.

This is a very important moment—the first time any Government have placed adult safeguarding in primary legislation. I thank the noble Baroness, Lady Greengross, the noble Lord, Lord Touhig, and the noble Baroness, Lady Wheeler, for recognising this. It is in line with the recommendations of the Law Commission’s report on adult social care. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. It also requires local authorities to establish safeguarding adult boards, which will include key representatives of the NHS and police and any other persons considered appropriate.

Such boards will have three statutory duties. A board must publish strategic plans each financial year, following local consultation, which set out how it is to help and protect adults with care and support needs in its area who may be at risk of abuse or neglect. At the end of each financial year it must publish an annual report that sets out what it and its individual members have done to achieve and implement this objective. It must arrange for any safeguarding adult reviews of serious cases of abuse or neglect where there is a concern about how persons relevant to safeguarding worked together to protect the adult in question, so as to identify and apply any lessons learnt to future cases and prevent such incidents arising again.

Noble Lords have tabled a number of amendments that rightly press the Government on the robustness of the clauses. We believe that the points they make are covered by our proposals and I will try to outline why. I take this opportunity to say that although these clauses are the result of significant experience and consultation, we accept that we need to be flexible and adapt to experience of implementation. Our approach of covering much of the detail in statutory guidance allows this flexibility.

I turn to the first of the amendments that we are considering. Amendment 92ZZAH in the names of the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, seeks reassurance that adult safeguarding applies regardless of location. I am happy to confirm that this is the case. Clause 41 will require a local authority to make inquiries or cause them to be made

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where abuse and neglect are suspected in respect of an adult with care and support needs, regardless of the particular setting where the abuse or neglect is suspected to have occurred.

Amendments 92ZB and 92ZD are also tabled by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins. The first aims to ensure that the voice of the individual is heard in any safeguarding inquiry and that the individual is properly supported. We agree that these factors are of utmost importance, which is why those principles are enshrined in the Bill, beginning with Clause 1, on promoting individual well-being. If a person does not have capacity to take part in a safeguarding inquiry concerning them, the local authority should involve any person appointed to act on their behalf, or, where there is no such person, the local authority must itself act in the person’s best interests. We believe that statutory guidance is the best place to cover this in more detail, with practical examples to illustrate the point. As regards the second amendment, on defining abuse, we have taken the approach of relying on the natural meaning of “abuse” to keep the scope of the duty to make inquiries as wide and flexible as possible. The joint pre-legislative scrutiny committee itself stated:

“Abuse is an ordinary English word, capable of being understood without being defined. It might not however normally be thought of as including financial abuse, and it is right that”,

the clause,

“should put this beyond doubt. But to attempt an exhaustive definition always has the danger of omitting something which, as subsequent events make clear, should have been included”.

However, turning to Amendment 92ZA, I agree with the noble Baroness, Lady Barker, who tabled that amendment and who seeks assurance that a person should not be considered as suffering abuse or neglect if they have refused medical treatment. We agree with that, and there is no intention of doing so. That is an important principle of law and ethics.

In Amendment 92ZC, the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins, are concerned with ensuring a more consistent, timely and transparent process for adult safeguarding. This is one of our central aims, which we will address this in statutory guidance. We want to pre-empt the risks arising from the overly bureaucratic safeguarding process that Professor Munro discovered in her review of children’s safeguarding. It is vital to focus on the outcomes that people want and how best to achieve them rather than overprescribing and focusing on processes.

I have a note that says that I wanted to add something at this point, but I cannot find the notes in question so I will turn to Amendment 92ZE, in the name of the noble Baroness, Lady Hollins. We agree that it is extremely important to ensure that inquiries are made into cases of suspected abuse or neglect regardless of the motivation behind the action, and that is what the Bill as drafted achieves. This important point links to Amendment 92ZFA, in the name of my noble friend Lady Byford. Her first amendment is about who can report abuse; in this case it focuses on financial abuse. The local authority must make inquiries in respect of safeguarding concerns, no matter how they come to its attention—whether it is from someone

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with power of attorney or anyone else. For the first time, local authorities will have such an express duty in statute.

My noble friend Lady Byford spoke about the problems that those with power of attorney may encounter. This is a very familiar concern. We know that the provisions of the Mental Capacity Act are implemented variably. This House currently has a committee undertaking post-legislative scrutiny of the Act. It will have views about the implementation of the Act, and the Office of the Public Guardian, which is in charge of registering and supervising powers of attorney, is establishing improvements in the training and oversight of those with power of attorney and of their deputies. The Court of Protection also has a critical role in protecting the affairs of those who lack capacity. I am sure that this matter will get further post-legislative scrutiny.

My noble friend Lord Hodgson supported my noble friend Lady Byford on the way in which people are charged for care. We agree that services vary and that the charges that are applied reflect the varying cost of providing care. It is important that people know what they will pay before agreeing to purchase a service, and what the charges do and do not cover. Clause 4 requires local authorities to make available information and advice relating to care and support services. Clause 5 requires local authorities to shape a diverse, high-quality and sustainable market that meets people’s needs.

The second amendment in the name of my noble friend Lady Byford, Amendment 92ZFB, raises the critical issue of protecting people from having to overpay for the care and support services they need. My noble friend is absolutely right that people should know in advance, and in writing, what will be included in the fees they pay, and what, if any, elements will be covered by others, including the council or NHS. That is why it is in the registration requirements of the Care Quality Commission. We can also include this, if necessary, in the guidance we produce.

I turn to other amendments tabled by the noble Baroness, Lady Hollins, and the noble Lord, Lord Rix. Amendments 92ZG and 92ZH are about ensuring that organisations take action and report it when they are found to be wanting in their adult safeguarding arrangements. We recognise this gap and have placed adult safeguarding reviews on a statutory footing for the first time. Paragraph 4 of Schedule 2 sets out detailed requirements for the annual reports of boards. In particular, the report must include the findings of all reviews and must set out what the board has done to achieve its objective. This would include implementation of those findings. The Bill places a duty on safeguarding adult boards to publish their annual reports. The report will be publicly available, and this will ensure transparency in the way that they work. I am sure that not drawing conclusions from those reports would face a challenge, given the train of events that I laid out. I hope that these points will reassure the noble Baroness.

Amendment 92A is very timely, given the appalling failures of care that we heard about recently. We absolutely agree with the noble Lord, Lord Touhig, and the noble Baroness, Lady Greengross, that providers

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that allow abuse and neglect to go unchecked should face serious consequences, including potential prosecution. This has not been the case to date. We agree that this is a problem. The Government believe that the best way to take this forward is through the introduction of fundamental standards in a revised set of requirements for registration with the Care Quality Commission. It was appalling to hear what the noble Lord, Lord Touhig, said. The Care Quality Commission has started consulting on those fundamental standards. The noble Lord asked about the timescale. We expect to consult on draft regulations in the autumn. The standards will ensure that the CQC will be able to take action against providers for unacceptable standards of care, including abuse and neglect.

Of course, we understand the concerns expressed by the noble Baroness, Lady Greengross, and the noble Lord, Lord Low, in Amendment 92AA, about protecting and promoting the human rights of those requiring care and support services, many of whom are very vulnerable to abuse and exploitation. We discussed this in detail recently in your Lordships’ House, on 13 March 2012, during the passage of the Health and Social Care Act 2012. The matter was debated extensively and voted on, and the Government won the vote with a substantial majority. We are not aware of anything having changed in the past nine months that would cause us to change our position.

7.45 pm

As the noble Lord, Lord Low, will remember, there was much discussion of the YL case, which, as he said, was brought under the National Assistance Act. The Government of the day believed that the outcome of the case was wrong, and the decision was reversed. I therefore conclude that the noble Lord, Lord Pannick, was right. They then consulted on the Human Rights Act and concluded, according to my noble and learned Lord Mackay, that nothing needed to be done—he was quoting from the noble Baroness, Lady Thornton. I will provide the statement from the noble Baroness which my noble and learned friend quoted. She said:

“Therefore, it remains the Government’s view that, in general, the provision of publicly arranged health and social care should be considered a function of a public nature. The Government will therefore continue to treat those exercising such functions as being subject to the Human Rights Act”.—[Official Report, 22/5/08; col. GC 632.]

My noble and learned friend Lord Mackay went into further detail. I also note that my noble friend Lord Lester of Herne Hill said in the debate:

“However, I do not think that there is a loophole”.—[Official Report, 13/3/12; col. 231.]

He was referring to the loophole that the noble Lord, Lord Low, thinks that there might be. Therefore, there is some dispute about that.

The Government’s position has been that all providers—

Lord Warner: Perhaps I could suggest that the Minister should have another conversation with the noble and learned Lord, Lord Mackay. After the quotation to which she referred, the noble and learned Lord signed and agreed the Joint Committee’s report that

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made the recommendation. The Minister might like to have a discussion with him about whether he has changed his position.

Baroness Northover: That is a very interesting point. This is a very serious area. We want to make sure that the Human Rights Act applies in the way that we think it does, and in the way that the noble Lord’s Government brought in and thought that it did apply. I have a feeling that this is an issue that we will revisit. I remember the discussions last year on this between the noble Lord, Lord Low, my noble and learned friend Lord Mackay and others. I would not be at all surprised if there were further discussions.

The important point here is to protect people, to make sure that the law protects them and to do nothing that undermines the effect of the Human Rights Act in other areas. The Government’s position has been that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves to be bound by the duty imposed by Section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with the convention rights. The CQC, as the regulator, is subject to the HRA, which may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. As noble Lords will know, the Ministry of Justice is concerned that every time you add a provision, you may inadvertently have an effect on the umbrella application of the Act.

The noble Lord, Lord Low, asked about the repeal of the National Assistance Act. I assure the noble Lord that there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation. He will also be able to set in context that change, in the light of the discussions we had earlier.

I point out that there are strong regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements which are compatible with the provisions of the European convention. This applies to all providers of regulated care to people who use care and support services, whether publicly or privately funded.

As to Amendment 92ZFE, we agree with the noble Baroness, Lady Greengross, that people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution where an offence has been committed. This should also be read in the light of the discussion on the Human Rights Act. The Bill does not seek to duplicate existing law. Civil law currently provides redress for cases of neglect, and criminal law prohibits assault, which would include much of what is sought in this amendment. We therefore believe that there are already adequate provisions in place to deal with such cases.

My noble friend Lady Barker spoke of the potential creation of a new offence of abuse and neglect of somebody who has capacity. There is legislation that protects those with capacity, and there are powers that local authorities and the police can use. These include the Anti-social Behaviour Act 2003 and the Crime and Disorder Act 1998, and the police also have wide

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powers to enter premises for specific purposes with or without a warrant. The inherent jurisdiction of the High Court ensures that there is no gap.

Where an adult lacks capacity, there is an existing offence of ill treatment or neglect by a person who has care of the adult or is authorised to act for the adult under the provisions of the Mental Capacity Act. In our view, this is a case where an offence is justified because of the evidence that such people are highly vulnerable to abuse, neglect and exploitation.

I turn to Amendment 92ZK, in the name of the noble Baroness, Lady Greengross. We all want local authorities to foster an open and honest culture in which employees feel able to express genuine concerns without fear of repercussions. However, we do not feel that this amendment is necessary. As I think we would all agree, the law on its own cannot change organisational culture. We need to work with and through local authorities to consider what barriers exist to the type of open and honest environment that we want to see. This is something that we have debated a great deal and there has been much emphasis on leadership. However, legislation can have an effective role in setting parameters and reinforcing expectations, which in turn impact on culture. In this regard, the Government have already confirmed their intention to introduce an explicit duty of candour on providers of health and care and support. This will be introduced as a CQC registration requirement and will mean that providers will have to ensure that staff and clinicians are open with patients and service users where there are failings in care.

I turn to the need to be able to gain access to a person suspected of experiencing abuse or neglect where that access is denied by a third party. The Government carried out a full consultation on a potential power of entry, very similar to the access order proposed by the noble Baroness, Lady Greengross, in Amendment 92ZFC. We received no compelling evidence to warrant such a power and, indeed, there was and remains considerable opposition to it from members of the public and some third-sector organisations. We have heard some of the concerns expressed by the noble Lord, Lord Patel, and the contrary view expressed by my noble friend Lady Barker and the noble Baroness, Lady Wheeler. We recognise that this is a sensitive and complex area of work, but we believe that understanding what positive work by skilled professionals can achieve and promoting that is a more desirable, effective and sustainable route to take. As with all the new duties and powers in the Bill, we will pay close attention to implementation and address any issues that arise.

Perhaps I may mention to the noble Baroness, Lady Wheeler, that, although the consultation has ended, we have continued to get written correspondence from both members of the public and third-sector organisations petitioning the Government not to introduce a power of entry. They are particularly concerned that such a power would be used as a quick fix that would neither resolve the problem nor improve good professional practice where the intention is to try to build trusting relationships. From what noble Lords have said, it is very clear that trying

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to get the balance right and focusing on the protection of the individual can be very challenging in such circumstances.

We understand the concerns that lie behind Amendment 92ZF, tabled by the noble Baroness, Lady Hollins. It is of course imperative that anyone—but especially those in the NHS and local authorities—who suspects abuse or neglect knows what action to take. Organisations should make their procedures clear and boards should widely publicise information on this issue.

Amendments 92ZFF and 92ZJ, tabled by the noble Baroness, Lady Greengross, emphasise the need for the involvement of social work-qualified staff in boards and reviews. We understand what the noble Baroness is saying. In Schedule 2, we make it clear that both the chairs and members of boards must have,

“the required skills and experience”.

We will elaborate on that in guidance and ensure that the importance of social work is recognised and supported. Guidance will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.

This has been a very important and wide-ranging group of amendments concerning a new step that we are taking to try to ensure that vulnerable adults are offered the best protection. We welcome noble Lords’ probing of the Government. We are all trying to secure the same outcome, and we need to be challenged on how best to achieve that. I hope that noble Lords will have taken on board our reasoning behind doing things as we are and that they will be reassured that we are indeed delivering through this Bill what they are seeking. I hope that they have been reassured that their concerns have been carefully considered and addressed and, on that basis, I hope that the noble Baroness will withdraw her amendment.

Baroness Hollins: My Lords, I thank the noble Baroness for her characteristically thoughtful comments in response to these amendments. I am reassured by many of the points that she has made, although one issue that I felt she did not fully address is the need to clarify thresholds for reporting abuse. I am also disappointed with her response to the amendment proposing a power of access, which I strongly support for its relevance to people with learning disabilities. Going by the feelings that have been expressed in the Committee, I think that a number of people would welcome an opportunity to discuss some of these matters a little further and perhaps to bring them back on Report. However, I beg leave to withdraw the amendment.

Amendment 92ZZAH withdrawn.

Amendments 92ZA to 92ZFA not moved.

Clause 41 agreed.

Amendments 92ZFB to 92ZFE not moved.

Clause 42 agreed.

Schedule 2 : Safeguarding Adults Boards

Amendments 92ZFF to 92ZH not moved.

Schedule 2 agreed.

22 July 2013 : Column 1121

Clause 43 : Safeguarding adults reviews

Amendment 92ZJ not moved.

Clause 43 agreed.

Amendment 92ZK not moved.

Clauses 44 to 46 agreed.

Amendments 92A and 92AA not moved.

8 pm

Clause 47 : Temporary duty on local authority

Amendments 92AB to 92AL

Moved by Earl Howe

92AB: Clause 47, page 38, line 21, leave out subsection (4)

92AC: Clause 47, page 38, line 34, at end insert—

“( ) Subsection (6) does not apply if section (Section 47: cross-border cases) (cross-border cases) applies (see subsection (3) of that section).”

92AD: Clause 47, page 38, line 38, leave out from “by” to “co-operate” in line 39 and insert “another local authority”

92AE: Clause 47, page 38, line 40, at end insert—

“(aa) must, in meeting needs under that subsection which were being met under arrangements all of part of the cost of which was paid for by another local authority by means of direct payments, co-operate with that authority (in so far as it is not already required to do so by section 6);”

92AF: Clause 47, page 38, line 41, leave out from “from” to “meeting” in line 42 and insert “the other local authority mentioned in paragraph (a) or (aa) (as the case may be) the cost it incurs in”

92AG: Clause 47, page 38, line 43, leave out “paragraph (a)” and insert “the paragraph in question”

92AH: Clause 47, page 39, line 4, leave out subsection (10)

92AJ: After Clause 47, insert the following new Clause—

“Section 47: cross-border cases

“(1) This section applies where, in a case within section 47, immediately before the registered care provider became unable to carry on the regulated activity, some or all of the adult’s needs for care and support or the carer’s needs for support were being met by the carrying on of that activity by the provider under arrangements made—

(a) by a local authority in Wales discharging its duty under section 21 or 26, or exercising its power under section 22 or 29, of the Social Services and Well-being (Wales) Act 2013,

(b) by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003, or

(c) by a Health and Social Care trust under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 or section 2 of the Carers and Direct Payments Act (Northern Ireland) 2002.

(2) This section also applies where, in a case within section 47—

(a) immediately before the registered care provider became unable to carry on the regulated activity, some or all of the adult’s needs for care and support or the carer’s needs for support were being met by the carrying on of that activity by the provider, and

22 July 2013 : Column 1122

(b) all or part of the cost of the accommodation or other services provided by the provider to meet those needs was paid for by means of direct payments made—

(i) under section 34 or 36 of the Social Services and Well-being (Wales) Act 2013,

(ii) as a result of the choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or

(iii) by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.

(3) The local authority which is required to meet needs under section 47(2)—

(a) must, in meeting needs under section 47(2) which were being met by the authority which made the arrangements referred to in subsection (1), co-operate with that authority;

(b) must, in meeting needs under section 47(2) which were being met by the provision of accommodation or other services all or part of the cost of which was paid for by an authority by means of direct payments as referred to in subsection (2), co-operate with that authority;

(c) may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question;

(d) may recover from the adult or carer the cost it incurs in meeting those of the adult’s or carer’s needs other than those referred to in paragraph (a) or (b) (as the case may be).

“(4) Any dispute between a local authority and a local authority in Wales, a local authority in Scotland or a Health and Social Care trust about the application of section 47 or of this section is to be resolved in accordance with paragraph 5 of Schedule 1.

“(5) “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 8 of Schedule 1.

(6) The references in paragraphs (a) to (d) of subsection (3) to an authority are references to a local authority in Wales, a local authority in Scotland or a Health and Social Care trust (as the case may be).”

92AK: After Clause 47, insert the following new Clause—

“Temporary duty on local authority in Wales

(1) This section applies where a person registered under Part 2 of the Care Standards Act 2000 in respect of an establishment or agency—

(a) becomes unable to carry on or manage the establishment or agency because of business failure, and

(b) immediately before becoming unable to do so, was providing an adult with accommodation or other services in Wales under arrangements made—

(i) by a local authority meeting an adult’s needs for care and support or a carer’s needs for support under Part 1 of this Act,

(ii) by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003, or

(iii) by a Health and Social Care trust under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 or section 2 of the Carers and Direct Payments Act (Northern Ireland) 2002.

(2) This section also applies where a person registered under Part 2 of the Care Standards Act 2000 in respect of an establishment or agency—

(a) becomes unable to carry on or manage the establishment or agency because of business failure, and

(b) immediately before becoming unable to do so, was providing an adult with accommodation or other services in Wales all or part of the cost of which was paid for by means of direct payments made—

(i) under this Part of this Act,

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(ii) as a result of the choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or

(iii) by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.

(3) The local authority in Wales in whose area the accommodation is situated or the services were provided must for so long as it considers necessary meet those of the adult’s needs for care and support or the carer’s needs for support which were being met by the registered person by the provision of the accommodation or other services.

(4) A local authority in Wales which is required to meet needs under subsection (3)—

(a) must, in meeting needs under that subsection which were being met by the authority which made the arrangements referred to in subsection (1)(b), co-operate with that authority;

(b) must, in meeting needs under subsection (3) which were being met by the provision of accommodation or other services all or part of the cost of which was paid for by an authority by means of direct payments as referred to in subsection (2)(b), co-operate with that authority;

(c) may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question.

(5) Any dispute about the application of this section is to be resolved in accordance with paragraph 5 of Schedule 1.

(6) “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 8 of Schedule 1.

(7) The references in paragraphs (a) to (d) of subsection (4) to an authority are references to a local authority, a local authority in Scotland or a Health and Social Care trust (as the case may be).”

92AL: After Clause 47, insert the following new Clause—

“Temporary duty on Health and Social Care trust in Northern Ireland

“(1) This section applies where a person registered under Part 3 of the Health and Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 in respect of an establishment or agency—

(a) becomes unable to carry on or manage the establishment or agency because of business failure, and

(b) immediately before becoming unable to do so, was providing an adult with accommodation or other services in Northern Ireland under arrangements made—

(i) by a local authority meeting an adult’s needs for care and support or a carer’s needs for support under Part 1 of this Act,

(ii) by a local authority in Wales discharging its duty under section 21 or 26, or exercising its power under section 22 or 29, of the Social Services and Well-being (Wales) Act 2013, or

(iii) by a local authority in Scotland discharging its duty under section 12 or 13A of the Social Work (Scotland) Act 1968 or section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

(2) This section also applies where a person registered under Part 3 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 in respect of an establishment or agency—

(a) becomes unable to carry on or manage the establishment or agency because of business failure, and

(b) immediately before becoming unable to do so, the person was providing an adult with accommodation or other services in Northern Ireland, all or part of the cost of which was paid for by means of direct payments made—

(i) under this Part of this Act,

22 July 2013 : Column 1124

(ii) under section 34 or 36 of the Social Services and Well-being (Wales) Act 2013, or

(iii) as a result of the choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013.

(3) The Health and Social Care trust in whose area the accommodation is situated or the services were provided must for so long as it considers necessary meet those of the adult’s needs for care and support or the carer’s needs for support which were being met by the registered person by the provision of the accommodation or other services.

(4) A Health and Social Care trust which is required to meet needs under subsection (3)—

(a) must, in meeting needs under that subsection which were being met by the authority which made the arrangements referred to in subsection (1)(b), co-operate with that authority;

(b) must, in meeting needs under subsection (3) which were being met by the provision of accommodation or other services all of part of the cost of which was paid for by an authority by means of direct payments as referred to in subsection (2)(b), co-operate with that authority;

(c) may recover from the authority referred to in paragraph (a) or (b) (as the case may be) the cost it incurs in meeting those of the adult’s or carer’s needs referred to in the paragraph in question.

(5) Any dispute about the application of this section is to be resolved in accordance with paragraph 5 of Schedule 1.

(6) “Local authority in Wales” and “local authority in Scotland” each have the meaning given in paragraph 8 of Schedule 1.

(7) The references in paragraphs (a) to (d) of subsection (4) to an authority are references to a local authority, a local authority in Wales or a local authority in Scotland (as the case may be).”

Amendments 92AB to 92AL agreed.

Clause 48 disagreed.

Clause 49 : Sections 47 and 48: supplementary

Amendments 92AM to 92AX

Moved by Earl Howe

92AM: Clause 49, page 40, line 2, leave out “or 48(3)” and insert “, (Temporary duty on local authority in Wales)(3) or (Temporary duty on Health and Social Care trust in Northern Ireland)(3)”

92AN: Clause 49, page 40, line 4, leave out “or 48(3)”

92AP: Clause 49, page 40, line 5, at end insert—

“( ) Section 20 of the Social Services and Well-being (Wales) Act 2013 (how to meet needs) applies to meeting needs under section (Temporary duty on local authority in Wales)(3) as it applies to meeting needs under section 21 of that Act.”

92AQ: Clause 49, page 40, line 7, leave out “or 48(3)” and insert “, (Temporary duty on local authority in Wales)(3) or (Temporary duty on Health and Social Care trust in Northern Ireland)(3)”

92AR: Clause 49, page 40, line 13, after “47(2)” insert “, (Temporary duty on local authority in Wales)(3) or (Temporary duty on Health and Social Care trust in Northern Ireland)(3)”

92AS: Clause 49, page 40, line 21, leave out “sections 47(2) and 48(3)” and insert “section 47(2)”

92AT: Clause 49, page 40, line 21, at end insert—

“(6A) Sections 30 to 33 of the Social Services and Well-being (Wales) Act 2013 (exceptions to, and restrictions on, duty to meet needs) apply to meeting needs under section (Temporary duty on local authority in Wales)(3) as they apply to meeting needs under section 21 of that Act.”

92AU: Clause 49, page 40, line 30, leave out “or 48(3)”

22 July 2013 : Column 1125

92AV: Clause 49, page 40, line 34, leave out “and 48” and insert “, (Temporary duty on local authority in Wales) and (Temporary duty on Health and Social Care trust in Northern Ireland)”

92AW: Clause 49, page 40, line 37, at end insert—

“( ) Pending the commencement of Part 4 of the Social Services and Well-being (Wales) Act 2013—

(a) a reference in section (Section 47: cross-border cases) or (Temporary duty on Health and Social Care trust in Northern Ireland) to making arrangements to meet needs under section 21 or 22 of that Act is to be read as a reference to making arrangements or providing services under—

(i) Part 3 of the National Assistance Act 1948,

(ii) section 45 of the Health Services and Public Health Act 1968,

(iii) section 117 of the Mental Health Act 1983, or

(iv) Schedule 15 to the National Health Service (Wales) Act 2006;

(b) a reference in section (Section 47: cross-border cases) or (Temporary duty on Health and Social Care trust in Northern Ireland) to making arrangements to meet needs under section 26 or 29 of that Act is to be read as a reference to providing services as referred to in section 2 of the Carers and Disabled Children Act 2000;

(c) a reference in section (Section 47: cross-border cases) or (Temporary duty on Health and Social Care trust in Northern Ireland) to making direct payments under section 34 or 36 of that Act is to be read as a reference to making direct payments by virtue of section 57 of the Health and Social Care Act 2001;

(d) subsection (6A) is to be read as if there were substituted for it—

“(6A) Sections 21(1A) and (8) and 29(6) of the National Assistance Act 1948 apply to meeting needs under section (Temporary duty on local authority in Wales)(3) as they apply to the exercise of functions under sections 21 and 29 of that Act by a local authority in Wales (within the meaning given in paragraph 8 of Schedule 1).”

92AX: Clause 49, page 40, line 37, at end insert—

“( ) Pending the commencement of section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013—

(a) sections (Section 47: cross-border cases)(2)(b)(ii) and (Temporary duty on local authority in Wales)(2)(b)(ii) are to be read as if there were substituted for each of them—

“(ii) under section 12B of the Social Work (Scotland) Act 1968,”, and

(b) section (Temporary duty on Health and Social Care trust in Northern Ireland)(2)(b)(iii) is to be read as if there were substituted for it—

“(iii) under section 12B of the Social Work (Scotland) Act 1968.”.”

Amendments 92AM to 92AX agreed.

Clause 49, as amended, agreed.

House resumed. Committee to begin again not before 9 pm.


Public Bodies (Abolition of Administrative Justice and Tribunals Council) Order 2013

Motion to Approve

8.01 pm

Moved by Lord McNally

That the draft order laid before the House on 18 December 2012 be approved.

22 July 2013 : Column 1126

Relevant documents: 15th Report from the Joint Committee on Statutory Instruments, Session 2012–13, 25th, 32nd and 35th Reports from the Secondary Legislation Scrutiny Committee, Session 2012–13, 2nd and 7th Reports from the Secondary Legislation Scrutiny Committee, Session 2013–14

The Minister of State, Ministry of Justice (Lord McNally): My Lords, before starting my speech it would be remiss of me if I did not pay tribute to the late Lord Newton. He was passionate about administrative justice and provided rigour and challenge in your Lordships’ House to the proposals contained in the Public Bodies Act. We will all feel his presence and spirit with us in today’s debate.

The purpose of this draft order is to abolish the Administrative Justice and Tribunals Council using powers provided in the Public Bodies Act 2011. Before setting out further details on the order, I will briefly explain some of the background. The AJTC is an advisory, non-departmental public body, not a tribunal or any other form of judicial body. It does not exercise powers that relate to judicial independence or judicial decision-making. It was created before much of the reform of recent years was implemented—crucially before a unified tribunal structure was put in place.

The Government announced proposed reforms to public bodies on 14 October 2010. It was considered that the oversight of the administrative justice system and development of policy was properly a function of government, and also that the AJTC’s oversight functions with regard to tribunals were no longer required, given the governance and oversight arrangements that exist within HMCTS. The AJTC was therefore included for abolition in the Public Bodies Bill. A public consultation, including the proposal to abolish the AJTC, was launched on 12 July 2011 and closed on 11 October 2011. The Government’s response to the consultation was published on 15 December 2011. After considering all the responses to the consultation, the decision was that the AJTC should be abolished. Following further policy development and discussions with the devolved Administrations during 2012, the draft order was laid before Parliament on 18 December 2012.

Noble Lords will no doubt be aware of the scrutiny given to this draft order by both the Justice Committee in the other place and the Secondary Legislation Scrutiny Committee in this House. The Secondary Legislation Scrutiny Committee has fulfilled its role in that regard with its customary thoroughness, but that is not to say that I am in agreement with all its conclusions. Section 8 of the Public Bodies Act provides certain criteria that Ministers must consider have been met when making an order under the Act. Taking each of these in turn will give a full account of how the order meets the requirements of the Act.

On efficiency, abolishing the AJTC will remove duplication of functions and ensure that the state provides only what is necessary to support the administrative justice and tribunals system. The reforms of recent years mean that the vast majority of the system is now administered by HMCTS and so is managed independently of the departments whose decisions are being challenged. I believe that this is a

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vital point. I know that in a debate on the Public Bodies Bill the noble Lord, Lord Pannick, expressed concern that the Government are often defendants in tribunal proceedings. This in no way compromises the independence of the tribunals judiciary which determines cases impartially and acts independently. This independence is also reflected in the governance of HMCTS which has an independent, non-executive chair and has two judicial representatives on its board. It also has a dual reporting line to both the Lord Chancellor and the Lord Chief Justice. For those limited number of bodies that are outside the oversight of HMCTS, Ministry of Justice officials already work with the relevant departments, the bodies themselves and others to identify and share good practice as well as tackle areas of concern. This is an approach that works well. It is solution focused and one that the department is keen to build on.

The Administrative Justice and Tribunals Strategic Work Programme, published in December 2012, sets out the areas on which the Government will focus until 2015. Objectives include improving initial decision-making by government and making systems and processes more accessible and proportionate for users. The noble Lord, Lord Borrie, commented at Report that there will no longer be a group coming together and discussing important issues of administrative justice. The Government listened to such concerns and in May 2012 established the Administrative Justice Advisory Group, which provides an expert and critical forum to review the system from a user perspective against the strategic work programme. The advisory group supports and guides this by informing policy development from the perspective of users of the system. For instance, members from the group contributed to the development of the strategic work programme ahead of its publication. The group is also able to form sub-groups to look at specific issues, such as improving user guidance. To date the advisory group has been chaired by a director from the MoJ. Having reflected on concerns raised by your Lordships’ Secondary Legislation Scrutiny Committee, my right honourable friend the Secretary of State for Justice has decided to appoint an independent chair to the advisory group on abolition of the AJTC. Whoever fills the post will have responsibility for ensuring the group’s collaboration to give robust, evidence-based challenge; building consensus and ensuring that the different representative bodies work together; galvanising action to inform improvements to the system in line with the MoJ’s principles of efficiency, fairness and accessibility; providing strong leadership to the group and representing its views to Parliament; and ensuring that the group delivers on its aims and objectives, as set out in its terms of reference.

On economy, those opposed to abolition have cited the modest or insubstantial savings involved and questioned the estimates provided by the ministry. Let me be clear on both counts: the AJTC currently costs £700,000 per year to operate. While this represents a reduction from its 2010-11 budget of £1.2 million, it is still a significant amount of money at this time. Based on a revised closure date of late August, which allows for a four-week orderly close-down period following parliamentary approval to the order, we estimate gross

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savings of around £1.2 million across the remainder of 2013-14 and 2014-15. Costs of closure are estimated to be around £0.6 million over the same period. This includes £300,000 for possible redundancies at the AJTC and £300,000 for reimbursements to the Scottish and Welsh Governments for the creation of interim non-statutory bodies to replace the AJTC in Scotland and Wales. This means net savings of around £0.6 million over the rest of this spending review period and, of course, this would represent a long-term saving well beyond the spending period. No further costs are estimated from our successor arrangements. The advisory group is supported using existing resources within the policy group in MoJ. The costs of recruiting and remunerating the independent chair of the AJAG are negligible—some £10,000 to £15,000—and will be met from the budget required to implement policy changes.

I now turn to securing appropriate accountability to Ministers. The abolition of the AJTC will not result in any loss of accountability. Ministers are, and will remain, ultimately accountable for the administrative justice system and for HMCTS as an executive agency of MoJ. HMCTS is responsible for the performance of the unified system. A minority of tribunals sit outside HMCTS and remain accountable to Ministers through their respective departmental channels. MoJ will re-examine the case for bringing these remaining existing tribunals into the unified tribunal system. Where they are not brought into the unified system, MoJ will still, as it does now, keep their administration and performance under review.

On the removal or loss of protections, rights and freedoms, the abolition of the AJTC will not result in the removal of any necessary protection and no person will be prevented from exercising a right or freedom that they might reasonably expect to continue to exercise. Abolition does not prevent anyone from accessing a tribunal or an ombudsman to vindicate or protect their rights or freedoms. Tribunal users can still make their voices heard by raising concerns with their elected representatives or through the user groups that exist in most HMCTS tribunal jurisdictions. Concerns may also be raised by their elected representatives with the Parliamentary and Health Service Ombudsman.

I stress that no part of the administrative justice system currently included under the AJTC’s overview remit will be left out under the new arrangements, including those tribunals and bodies currently outside the unified tribunal system. There is no “hiatus” in oversight as has been mentioned in scrutiny reports. HMCTS’s governance structure, with its strong judicial representation, provides a clear level of protection to the public in respect of its oversight of the unified tribunal system.

Parliament will also have an important role to play in scrutinising the work of the department. In his response to the Public Administration Select Committee report on the future oversight of administrative justice in May 2012, the Lord Chancellor agreed, following the AJTC’s abolition, to report annually to the Public Administration Select Committee on the following: details of the resourcing of the department’s administrative justice function; actions taken by Ministers and officials to improve the operation of the system; details of how

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the views of users of the administrative justice system have been sought and addressed; and details of work undertaken with other departments, devolved Administrations and local government to improve administrative justice for the citizen. Parliament will therefore have the means of ensuring that the Government are held to account for oversight in this area and provide a further layer of protection for the public.

It is important to have had this opportunity to set out in some detail the Government’s plans for oversight of the administrative justice and tribunals system following abolition of the AJTC. What we propose is about delivering real improvements, based on ministerial priorities and on evidence gathered by capable and experienced officials working with colleagues and experts from other departments and from across the system. We disagree that oversight has always to take place at arm’s length from Ministers and departments. It is absolutely in the interest of government to reduce demand on the system, get decisions right first time and make the system accessible and proportionate to users. This, I think, we are doing. I commend this draft order to the House. I beg to move.


8.15 pm

Amendment to the Motion

Moved by Lord Beecham

At end to insert “but that this House regrets the proposed abolition of the Administrative Justice and Tribunals Council, which will remove independent oversight of the justice and tribunal system at a time when it is undergoing major change”.

Lord Beecham: My Lords, the amendment in my name would add to the Motion moved by the Minister that,

“this House regrets the proposed abolition of the Administrative Justice and Tribunals Council, which will remove independent oversight of the justice and tribunal system at a time when it is undergoing major change”.

I am grateful to the Minister for so clearly outlining the Government’s thinking and the details of their proposals.

Of course, the fate of the AJTC was debated at length during the passage of the Public Bodies Bill, which lit the torch for the Government’s proclaimed bonfire of the quangos. Deep concern was expressed in all parts of the House, led by the late and much lamented Lord Newton, to whom the Minister rightly paid tribute, and endorsed by the noble and learned Lords, Lord Mackay of Clashfern, Lord Woolf and Lord Howe, among many others.

Lord Newton had served with great distinction for 10 years as chairman of the Council on Tribunals, a non-departmental public body attached to the MoJ with oversight of the tribunal system, which in turn was replaced by the AJTC. Administrative justice as a feature of our legal system has grown in importance over the years in response to the need to offer an accessible means of redress for citizens wishing and needing to challenge the decisions of public bodies in

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a wide range of contexts. This changing landscape, incidentally, is another example of why, with justification, the original scope of the civil legal aid and advice scheme widened over the years, much to the apparent distaste of the present Government, who have in effect withdrawn administrative justice from what remains of legal aid.

The proposal to abolish the council evinced little response other than hostility both inside and outside Parliament. Having established three tests by which the status of public bodies was to be charged—namely, whether the body is needed in order to “perform a technical function”, whether it needs to be politically impartial and whether it needs to,

“act independently to establish facts”.

The Minister in the House of Commons, giving evidence to the Public Administration Select Committee, avowed that the council failed all three.

The Public Administration Select Committee, on the other hand, thought that,

“it could be, and has been, argued that the AJTC in fact meets all three of them”—

a judgment with which I profoundly concur.

The committee pointed to the high level of successful appeals across the system, with higher rates when legal representation was available, declaring:

“This poor decision-making results in injustice to individuals and cost to the taxpayer on a scale that PASC finds unacceptable. The role of the AJTC in providing an independent overview … is therefore one of vital national importance … overseeing a system that protects the rights of millions of citizens every year”.

It concluded that,

“oversight by an entity independent from Government is valuable and should be continued”.

The Justice Select Committee, in its eighth report for the previous Session, echoed many of these concerns and, while conceding that certain functions might be transferred to the Ministry of Justice, stated that it did not,

“believe that the abolition of the AJTC satisfies the statutory tests”,

set out in the Public Bodies Act,

“in respect of efficiency and effectiveness”.

I note in passing that, interestingly, in evidence to the Public Administration Select Committee, the Minister in the other place did not seem to rely on these tests. The Justice Committee concluded by recommending,

“that the Government reconsiders its decision to abolish the Council”.

The Minister, Helen Grant, rejected this recommendation in a brief letter which did not address the concerns raised by the committee, and which was copied to the Scottish Parliament Justice Committee, of which the Justice Committee knew nothing until its attention was drawn to it by the Scottish committee—clearer evidence of the woeful incompetence of the Ministry of Justice could hardly be imagined.

The Government’s proposals, affecting as they do some 650,000 people a year who appear before tribunals, sit oddly with the retention as non-departmental public bodies of the Civil Justice Council, when only 63,000

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cases, roughly 10% of those appearing before tribunals, come before the civil courts, and the Family Justice Council.