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House of Lords

Monday, 29 July 2013.

2.30 pm

Prayers—read by the Lord Bishop of Guildford.

Lord Borwick took the oath, following the by-election under Standing Order 9.


Economy: GDP Forecast

Question

2.37 pm

Asked by Lord Soley

To ask Her Majesty’s Government what is their forecast of the maximum public debt–gross domestic product ratio in 2016–17.

Lord Newby: My Lords, the Office for Budget Responsibility forecast public sector net debt to be 85.6% of GDP in 2016-17.

Lord Soley: In 2010, the Chancellor of the Exchequer promised to eliminate the structural deficit and to reduce the percentage of national debt to GDP. Both of those will now fail to materialise—I would argue, through low growth. When do the Government think that they will achieve them and why do they think that they have failed to achieve them?

Lord Newby: My Lords, the figure I gave was for the peak level of net debt. After that, the level will fall. Of course, if growth proves to be higher than forecast, as seems likely, for this calendar year, net debt will be less over the period ahead than has been forecast.

Lord Higgins: My Lords, is there not great confusion in the public mind between debt and deficit? Is it not the case that the debt is going up because the deficit has been cut by only one-third and that, consequently, the debt is going up by two-thirds of the rate that we inherited? Does that not show that we must make more determined efforts to cut the deficit and that the idea of Mr Balls that we are cutting too fast and too much is certainly not the case?

Lord Newby: My Lords, it is worth reminding the House that in the financial year 2011-12 the net debt was £1,106 billion. On current plans, by 2017-18, when the percentage of GDP starts to fall, it will be £1,637 billion, so the noble Lord makes a valid point.

Lord Peston: My Lords, is the noble Lord aware that research evidence shows categorically that if you want to get the debt to GDP ratio down, the vital ingredient is to increase the rate of growth of GDP? That is the way to do it. Measures such as raising taxes or cutting the deficit by cutting large chunks of public expenditure simply do not work. Overall, the lesson

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we have to learn is that an austerity package is not required; a package concentrating on raising GDP is the correct policy.

Lord Newby: I am sure that the noble Lord will therefore have been very pleased to have seen the growth figures last week. I point out to the House that a key factor in growth is the level of interest that people have to pay and that, as a result of the Government’s decisive action in 2010, interest rates have fallen compared with the forecast, as a result of which we will, by 2015-16, have paid £31 billion less in interest payments than was expected in 2010-11.

Lord Sharkey: My Lords, what impact will the improved growth figures have on the public finances in general and, in particular, will they allow the Government to do more to help supply funding to SMEs?

Lord Newby: My Lords, the increased growth figures will of course have a materially positive impact on the debt forecast going forward. With regard to lending to SMEs, the Funding for Lending scheme was strengthened at the Budget and I am pleased to say that the figures published this morning show that there has been for many months a slight uptick in lending to SMEs.

Lord McFall of Alcluith: My Lords, the Minister has recognised that the public debt that this Government inherited in 2010 will be greater when they leave office in 2015. No less a figure than the editor of the Spectator has said that the amount of debt that this coalition Government will borrow will be greater than the total amount of debt of the Labour Government in their 13 years from 1997. Is it not the case that there is not a deficit reduction strategy but a growth reduction strategy, which has been the most successful in history? This Government need to acknowledge that and do something about it.

Lord Newby: My Lords, I disagree with virtually all of that. As I pointed out earlier, during the five years of this Government we will have borrowed very significantly more to shore up the economy. That is why debt is higher. I am not sure whether the noble Lord is suggesting that we should have borrowed even more.

Lord Howell of Guildford: Is not the noble Lord, Lord Peston, leading us all into a bit of a false dichotomy? Of course we want economic growth, and we are getting a little now. The growth is coming back, as the noble Lord will have seen from the newspapers. Although we would obviously like more of it, growth depends on getting the debt curbed and on getting public expenditure under control. These things are not opposites or choices but all have to go together. Surely the noble Lord, who is a very good teacher and an expert, should be teaching us that. That is what he should be telling your Lordships.

Lord Newby: My Lords, the noble Lord, Lord Peston, is an extremely eminent economist and he knows, as a good Keynesian, that the key at this point

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of the cycle is the change in animal spirits—the sense to which people have confidence to invest. Animal spirits have been very significantly subdued over recent years. There is a suggestion in every single figure that we now see that they are returning to the positive. That, more than any single thing that the Government now do, will be what drives growth forward.

Lord Hughes of Woodside: My Lords, the Minister has taken great comfort from the reduction in the amount of interest paid. Does he have any sympathy at all for those on fixed incomes and small and medium savers, for whom the policy of low interest rates has been quite ruinous?

Lord Newby: I do, my Lords, but with interest rates you cannot have it both ways. You cannot have low interest rates for people who want to borrow and high interest rates for those who want to save. On balance, the Government’s view is that having had interest rates low has kept families being able to spend, compared with having higher interest rates. For example, a 1% increase in mortgage rates would have added £12 billion per year to interest payments. It would have sucked that out of the economy. If you have that kind of reduction in expenditure and the kind of diminution of growth which it entails it harms everybody, even those who are savers.

Lord Foster of Bishop Auckland: My Lords, we all welcome the improved rate of growth, but is it not true that this Government have not yet achieved the rate of growth that they inherited?

Lord Newby: We certainly have not seen the rate of growth that we or, indeed, anybody envisaged in 2010, but as the Office for Budget Responsibility has made absolutely clear in a succession of reports, the single greatest check on growth has been the ongoing eurozone crisis because that is where we sell most of our goods.

Referendum: European Union

Question

2.45 pm

Asked by Lord Barnett

To ask Her Majesty’s Government what discussions the Prime Minister has had with fellow European Union leaders about treaty changes that could be made before the proposed United Kingdom referendum on the European Union in 2017.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the Prime Minister regularly discusses a range of EU issues with his counterparts, including changes needed to make the EU more competitive, flexible and democratically accountable. These discussions include the substance of reforms and the means to achieve them, which range from legislation to treaty changes.

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Most recently, the Prime Minister held discussions in the margins of the June European Council and the Lough Erne summit, bilaterally with counterparts from Italy, Germany, Spain and France, and with the Commission President.

Lord Barnett: Has the noble Baroness seen a recent article in the Times which said, “A senior government figure”—the Times did not name him or her—

“said that other European leaders were privately offering concessions to Mr Cameron so long as reforms were agreed on an EU-wide basis”.

Is it not clear that if that were to happen it would require all the other 27 countries to sign and that that is extremely unlikely, to put it mildly, before 2017? Has it not always been clear that offering a referendum on the condition of various things happening is likely to create great difficulties, especially when the referendum is on a major constitutional issue? Can the Minister assure us that when the Prime Minister has an agreement, whether it is agreed Europe-wide or not, he will say to the community here that in a referendum they should say yes to staying in the eurozone?

Baroness Warsi: The noble Lord raises a number of issues. First, I can assure him that the process of reform is ongoing. This Government have been able to negotiate a number of issues in favour of the United Kingdom’s position. On the position in Europe about whether there will be a treaty change in due course, views differ. The Italian Prime Minister, Mr Enrico Letta, said recently that we need a more flexible Europe, that the role Britain plays in the European Union is a positive one, and that he thinks that treaty change can be achieved in the near future. The noble Lord will also be familiar with the statements from President Barroso and the plan published by the four Presidents in December last year, which again clearly show that the possibility of a treaty is definitely there.

Lord Clarke of Hampstead: My Lords, did the discussions the Prime Minister had with his European colleagues include the matter of the European directives on procurement policy? I am sure the Minister will know that a trusted and loyal servant of this House will lose her employment because of the European directive, which seems to work against small businesses. Does this matter concern the Government? The lady in question supplies a floristry service to this House and is going to be without an income and a job because of a directive. I hope that the Minister and the Government will join me in congratulating the Lord Speaker on initiating a collection to help ameliorate the hardship that the loss of her job will cause.

Baroness Warsi: Of course, this Government are committed to cutting the costs of European regulation and I am sure that the noble Lord will be aware of what progress has already been made in terms of cutting bureaucracy for the smallest businesses in Europe. On the very specific question he has raised, I am not familiar with the case, so I would be grateful if the noble Lord could write to me. I will write to him fully in return.

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Baroness Falkner of Margravine: My Lords, does my noble friend agree that the alternative proposals of the German finance Minister, Wolfgang Schäuble, for a two-step process towards a banking union have been floated precisely in order to avoid treaty change? The Germans have now come to the view that treaty change would be very difficult to achieve in light of the credibility of the eurozone at the moment.

Baroness Warsi: My noble friend is aware that the German finance Minister claimed that banking union could not be completed without a change to the treaties and therefore he has proceeded in the way he has. I go back to the general question on this matter, which is that reforms—including in relation to a banking union—can start to happen right now. It is right that we should continue to negotiate a better position for the United Kingdom, always keeping in mind the longer-term view of what more we can negotiate for a position that is better for us within the European Union.

Lord Pearson of Rannoch: My Lords, is there any truth in the rumour that Mrs Merkel has agreed to go along with minimal cosmetic treaty changes in the hope that the British people can be deceived into voting for what will still be a fundamentally unreformed European Union?

Baroness Warsi: My Lords, I am not in the habit of commenting on rumour. What I can say is that I am aware that Mrs Merkel is committed to a more competitive and flexible Europe and that in a number of areas we do, in fact, agree.

Lord Tugendhat: My Lords, does the noble Baroness agree that there is too much pessimism around these questions? Not only have there been encouraging responses from the German Government, the Dutch Government and the Italian Government, it is quite clear that in the coming two or three years either the eurozone will come closer together, in which case there will have to be a general negotiation with the non-eurozone countries, including ourselves, or the eurozone will split apart, in which case again there will have to be a general recasting of relationships. Within that context, the Prime Minister’s ambitions seem perfectly reasonable. Does she not agree?

Baroness Warsi: I agree completely with my noble friend.

Lord Davies of Stamford: My Lords, last week the Government faced deserved criticism and indeed derision on the farce of opting out of the justice and home affairs measures and then opting back in. Is it not equally absurd to decide now on a referendum in 2017 or on any other fixed date years ahead? An awful lot can happen between now and then. There might even be a new treaty—the Germans are already talking along those lines—that might be under negotiation in 2017, so we would not know what we were voting on. Is it not time for the Government to stop taking decisions on European policy that are illogical and do not make the slightest practical sense, but are simply

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based on attempts to pander to the eurosceptics in the Tory party and desperate attempts to try to retrieve the UKIP vote?

Baroness Warsi: I am glad the noble Lord has got that off his chest. He will recollect that the amount of support the Government had in relation to that particular opt-out was clear in relation to the majorities in both Houses.

Lord Grocott: Am I right in my understanding of the Prime Minister’s position on the European referendum? In the event of there being a Conservative victory at the next election, he will hold a referendum that will be based on negotiations which he will have conducted and, when he has completed those negotiations, he will recommend a yes vote. If I am wrong in that assumption, can the Minister explain the basis on which the Prime Minister would recommend a no vote?

Baroness Warsi: The Government’s position is very clear: there will not be a referendum before the next election. The Conservative Party has made its position entirely clear. The noble Lord understands that there will be a period of negotiation and then we will go to the country and ask people to vote. What would be interesting for these Benches and the country to hear is what the Labour Party’s position is. We believe that the country should be allowed a vote and a decision. I would like to hear what the Labour Party thinks.

Prisons: Child Suicides

Question

2.54 pm

Asked by Lord Sheldon

To ask Her Majesty’s Government what steps they are taking to reduce the number of suicides of children in prisons.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the Government are committed to reducing self-inflicted deaths of children in prison. Since the tragic deaths of three children in 2011-12, the National Offender Management Service has established a working group to extract and disseminate the learning to prevent further deaths. Additionally, a review of the assessment, care in custody and teamwork procedures for young people is being undertaken.

Lord Sheldon: The actual task is down to the mothers. The mothers should really not take the children to prisons; that is the task.

Lord McNally: I am not sure how that links to the Question on the Order Paper. If the noble Lord is asking about mother and baby units, I can try to give an answer on that. However, the Question was about the number of suicides of children in prison. That is what I was responding to.

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Lord Laming: Would the Minister agree that, no matter how serious the offences committed, or alleged to have been committed, by these young people, they are also often vulnerable young people who are confused and capable of serious self-destruction? Can the Minister expand on his earlier Answer to say what steps are taken to ensure that the assessment of risk is as strong as possible? Is he satisfied that prevention plays a key part in dealing with these young people?

Lord McNally: My Lords, first, we are talking about six deaths over 10 years; that is six too many, I readily acknowledge. We also now have an all-time low of young people in custody, for which both Administrations and those working in the youth justice system should take credit; there are fewer than 1,400 in custody, including only a handful of girls. However, the noble Lord is absolutely right that we are dealing with young people who, as well as often having a great capacity for violence against other people and self-harm, are extremely vulnerable and quite often exhibit mentally unstable behaviour. We are bringing in both initial and ongoing assessments to try to make sure that we can identify those who are at risk of either self-harm or, ultimately, of killing themselves. Looking at the briefing on this, an awful lot of hard work and deep study is going on, with the realisation of exactly the problem that the noble Lord highlights: these are vulnerable young people, who are difficult to manage and need a great deal of care and attention.

Lord Patel of Blackburn: My Lords—

Lord Ramsbotham: My Lords—

Lord Elystan-Morgan: My Lords—

The Lord Bishop of Guildford: Would the Minister care to comment, in the light of the reports of HM Inspectorate of Prisons of May this year on the increased violence at Ashfield and Feltham—it is 10 years to this month since the Commission for Racial Equality produced its report on Feltham—on the desirability of the elimination of the use of batons and routine strip searches in juvenile prisons?

Lord McNally: Every inclination I have is in that direction. Carrying on the policy of the previous Administration, we have tried to make sure that order and discipline in young people’s institutions of various kinds are maintained with the minimum of physical intervention and with the maximum attention on trying to manage difficult situations. A lot of the training addresses how the staff themselves are able to manage down situations before they become violent. However, we also have a duty of care to our staff and a duty of care to other inmates in these institutions, who may become victims of uncontrolled violence.

Lord Patel of Bradford: My Lords, what mental health and therapeutic services are available not only to assess but to support young children and others at risk of suicide and self-harm?

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Lord McNally: My Lords, the Department of Health has made a commitment to provide access to liaison and diversion services for offenders of all ages who come into contact with the youth justice and criminal justice systems by 2014. A national liaison and diversion development network has been created, bringing together 101 sites for adults and young people with the aim of aligning service provisions where appropriate, while recognising the different pathways required for different ages. There are 37 youth pathfinder sites in this operation. The sites screen young people under suspicion of committing an offence, whether in police custody suites or in custody, and this will be followed by a full health assessment capable of identifying a range of vulnerabilities. One of the good things that has been done in recent years is the introduction of real health and mental health testing in this area. Again, I freely acknowledge that it carries on work from the previous Administration.


Energy: Electricity Supply

Question

3.01 pm

Asked by Lord Ezra

To ask Her Majesty’s Government whether, in the light of the recent report by Ofgem, they consider there will be adequate electricity generation capacity to meet winter demand in the next two to three years.

The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma): My Lords, the Government work closely with Ofgem and National Grid to consider the outlook for generation capacity each winter. Ofgem’s report is valuable for aiding this process. The Government are taking the necessary steps to ensure that we have enough capacity to maintain a secure electricity supply at the most economic cost to the consumer. This will be achieved through new system balancing services in the short term, if Ofgem decides they are needed, and then through the capacity market. We have confirmed that we will initiate a capacity market in 2014 for delivery in 2018.

Lord Ezra: My Lords, I welcome the measures proposed in the Energy Bill to avoid future shortages of electricity supply. However, as my noble friend has pointed out, these measures cannot come into effect until 2018. Meanwhile, Ofgem, in its report of 27 June, has pointed that reserve electricity capacity could fall as low as 2% by the winter of 2015. This has been brought about by more capacity being closed or mothballed than new plant coming in. Could not a better balance have been achieved, bearing in mind that Ofgem has been warning about this problem since 2009?

Baroness Verma: My Lords, my noble friend raises a number of very important points. While I cannot answer for what the previous Government should have done, since 2010, the coalition Government have been

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working closely with Ofgem and National Grid to address the security of supply as a very high priority. A significant amount of potential capacity is available through de-mothballed plant and demand-side response. The measures being consulted on by National Grid and Ofgem would, if used, enable the procurement of the amount of capacity needed to ensure security of supply, allowing them to respond accordingly.

Lord Dubs: My Lords, will the Minister confirm that in the middle of last December the lights virtually went out because there was no spare capacity at all, and if the weather had got a shade colder, the lights would have gone out? Is it not time that we made some clear decisions about our fuel supply in this country?

Baroness Verma: My Lords, the noble Lord is right that we need to make some secure decisions. That is why, through the Energy Bill, we are reforming the electricity market and also making sure that we have a greater diversity in the supply of energy. A key part of balancing the service is the short-term operating reserve that we already have. The National Grid aims to have around 1,800 megawatts of this reserve available every day across a number of contracts, so I can reassure the noble Lord that the lights will stay on.

Lord Howell of Guildford: My Lords, is the Minister aware that in Germany, CO2 emissions are rising very fast, they are burning more coal than ever, their solar industry has collapsed, and, of course, that they have banned any expansion or indeed any use of their nuclear power stations? Does she agree that that is not exactly an example that we want to follow? Is not the right course for us, as she herself has steadfastly urged, to get on and invest as fast as possible in new gas turbines and, in due course, when we can afford it, in new nuclear power?

Baroness Verma: I agree with my noble friend absolutely that we do not want to be a country that will increase CO2 emissions and that the path we have taken is a balanced one.

Lord Elis-Thomas: My Lords, does the Minister agree that this situation has been brought about by the failure of successive Governments to invest adequately in alternative low-carbon forms of renewable energy, and also to invest in new nuclear? Will she now agree that it is absolutely essential that projects such as the Horizon project at Wylfa B in Anglesey should go ahead as soon as possible?

Baroness Verma: My Lords, as I have said on a number of occasions at the Dispatch Box, the Government have taken very seriously the point that we need to ensure a diverse source of supply of energy. Among them, of course, are the renewable sector and nuclear.

Lord O'Neill of Clackmannan: My Lords, in the nuclear sector, will the Minister care to tell us how far we have got in the negotiation of a strike price? It was suggested some time ago that EDF was in a mood of

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cautious pessimism. Are we moving towards cautious optimism or is it just stalemate, as it has been for the last year and a half?

Baroness Verma: As the noble Lord knows, I am a person of great optimism and the negotiations are ongoing. We should be optimistic about what this country can offer for nuclear and for renewables.

Lord Cormack: My Lords, reverting to the point of balance raised by the noble Lord, Lord Ezra, does my noble friend agree that it is far more important that we keep the lights on than that we achieve a European target at a specific time? Perhaps some installations that are mothballed ought to be taken out of mothballs.

Baroness Verma: No, my Lords, the path that the Government have taken is absolutely the right one. A number of plants are mothballed, but, as I said earlier, they can come on board if we require them. At this moment, we do not require them.

Lord Stoddart of Swindon: Did I hear the noble Baroness aright, when she said that the spare capacity was 1,800 megawatts? If so, that represents only 4% of maximum demand. When I worked in the electricity supply industry, we believed that we could not run the system with less than 18% spare capacity. If we are down to 4%, we are in a very serious position.

Baroness Verma: My Lords, I said that we already have 1,800 megawatts to draw on, but that Ofgem and National Grid are consulting on whether, in the short term, we need to procure more.

Baroness Worthington: My Lords, is it not quite clear that the best way to solve any potential capacity crunch would be to focus on demand-side management and response? What has changed in our profile of electricity demand is that demand is now flat and falling. That can be encouraged with smart investment in strategies and policies that bring that forward at an even faster pace.

Baroness Verma: As the noble Baroness is aware— we are, of course, having rounded discussions through the Energy Bill—that is among the options we are looking at.


NHS: Out-of-Hours Services

Private Notice Question

3.08 pm

Asked by Lord Hunt of Kings Heath

To ask Her Majesty’s Government when they became aware of NHS Direct’s concerns about the 111 service; what action they took; and what action they will now take to ensure the public can have confidence in out-of-hours advice services.

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Lord Hunt of Kings Heath: My Lords, I beg leave to ask a Question of which I have given private notice. In doing so, I refer noble Lords to my health interests in the register.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, NHS England has closely monitored performance for all 111 providers, including NHS Direct, and reports weekly on performance to the Secretary of State for Health. NHS England will recommission NHS Direct’s 111 contracts and transfer staff who currently provide them to alternative providers. Patients should be reassured that they will continue to receive a safe and high-quality service when they call 111.

Lord Hunt of Kings Heath: My Lords, It is on this Government’s watch that a service staffed by unqualified call handlers has put patients at risk. When will Ministers take responsibility, and why did the noble Lord reject a plea from Dr Buckman, then chair of the BMA GP Committee, for the rollout of 111 to be slowed down because of risk to patient safety? Will the Government now agree to the release of all official advice given to Ministers on the service’s introduction?

Earl Howe: My Lords, the NHS 111 service is not unsafe—it is a safe service. In the vast majority of the country it has been provided very well for patients. We were confident that the service could be provided well, and so it has proved. The isolated cases where the service has fallen short are highly regrettable, but there is no issue about the quality of NHS Direct’s provision of NHS 111. I am afraid the issue there is that it got its sums wrong and cannot provide the service economically.

Lord Laming: The noble Earl will recall that in his response last week on the pressure on accident and emergency services, he referred to the change that had taken place in the GP contract that relieved them of the opportunity of being on call. Are the Government going to renegotiate the GP contract? If not, is there a possibility of placing a primary care service in every accident and emergency unit in the country?

Earl Howe: My Lords, we are straying a little from the Question before us, but I understand the relevance of the noble Lord’s point to the urgent care pathway generally. We are obviously looking very carefully at the GP contract. I cannot tell him at the moment how far negotiations have reached, because we are only at the start of the process. However, his point about primary care services in A&E departments is well made, and many A&E departments do indeed provide that to ensure safe triage of patients on arrival.

Baroness Gould of Potternewton: My Lords, during the process to establish this contract, concerns were raised by many GPs and others which, we are told, were ignored. Can there be a guarantee that this time there will be absolute full concentration and discussion with the relevant bodies, with the GPs and others, who want to be assured that the new contract, whenever it

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comes, is going to be valid and will work? How are we going to explain this process to the public, who are going to feel very uncertain about the future of 111?

Earl Howe: My Lords, I can give the noble Baroness that reassurance, because we want local commissioners and doctors involved in the process to be confident in the service that they are commissioning. We did not ignore the warnings from Dr Buckman and others in the BMA. Indeed, on the strength of that we allowed a six-month extension to those providers who felt they needed it to ensure that they were confident in providing a good service. Only two providers took us up on that, which seemed to indicate that our confidence in the service was not misplaced.

Baroness Jolly: My Lords, this is an issue around commissioning. As we have heard, CCGs can now commission NHS 111. Can my noble friend tell the House what support CCGs are likely to receive in commissioning these new services, and from whom?

Earl Howe: CCGs, where relevant, are receiving support from local area teams of NHS England.

Lord Reid of Cardowan: My Lords, may I gently advise the Minister against complacency? Many of these changes in the NHS will take time to show whether they are beneficial or otherwise. Anecdotally, the successor of NHS Direct—111—appears to be in turmoil, both practically and commercially. The deterioration in accident and emergency services is getting exponentially greater; trolley waits are back, and predicted potentially to reach crisis point. Sir Bruce Keogh’s report, if read carefully, identifies as underpinning many of the problems in the major hospitals a chronic shortage of skills and finance. Can I please ask the Minister not to accept this with any degree of complacency and to introduce some scheme of forensic appraisal of 111 and some of the other issues which are arising from what looks increasingly like a costly and disastrous reorganisation of the NHS?

Earl Howe: The last thing I would ever wish to be is complacent, and I certainly am not. Whenever problems and concerns arise, we take them extremely seriously. I do not think anyone takes issue with the concept of 111. Unfortunately, however, we have seen problems arising in a few isolated cases. I emphasise that the vast majority of the country is receiving a good service. Incidentally, there is no evidence that attendances at A&E have been affected by the rollout of 111; in fact, attendances have not increased since 111 was introduced—the figures have actually gone down.

Baroness Hayman: I wonder whether the noble Earl could help me, because I am genuinely puzzled about the current status of NHS Direct, its funding and governance, who makes decisions about contracts and whether they are viable or not. NHS Direct was set up as a national service, paid for and provided by the NHS. What exactly is it now?

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Earl Howe: The NHS is a provider, in certain parts of the country, of the 111 service, and other services more generally. But there is a very distinct difference between NHS Direct’s old service and the 111 service being provided now, in that 111 is a much more comprehensive service. That was an area of agreement between the Government and the noble Baroness’s own party before the last election. I sense that I have not answered the noble Baroness’s question; perhaps she would like to ask it again.

Baroness Hayman: Since I can quibble about my own party as I am now a Cross-Bencher, I take this opportunity to say that I am not puzzled about the 111 service—but who is NHS Direct now? Who is responsible for its governance, its funding and decisions about whether it goes for contracts?

Earl Howe: I apologise to the noble Baroness on two counts. NHS Direct is a separate, statutory organisation, which means that the management and controls of risk are the responsibility of the NHS Direct board.

Lord Willis of Knaresborough: My Lords, may I try to redress the balance? There is a real sense that very significant numbers of people calling the 111 service get a good service. On 9 June, I had reason to call 111 because I was having a heart attack. The response from 111 was excellent, in York. At the same time not only did the service call the paramedics but it had me in hospital within 25 minutes to an absolutely superb accident and emergency service. If York can do that in such an efficient and superb way, why cannot we guarantee that service throughout the country?

Earl Howe: I am sure that I speak for all of us in saying how pleased I am that the service worked so well in the noble Lord’s case. The answer to his broader question is that the service is working well in the vast bulk of the country. Unfortunately, in two particular areas we have seen problems, which are being gripped, and I am confident that NHS England has taken these issues forward with the seriousness that they deserve. I am assured that, even in the areas where problems have arisen, the service is good.

Baroness Masham of Ilton: Would it not have been simpler to build on NHS Direct, which would have saved confusion?

Earl Howe: The difficulty there was that we were more ambitious than simply wanting a revamped advice service. This is a service that puts a patient directly in touch with a doctor if they need one, a nurse if they need a nurse, or an ambulance if they need an ambulance, without the need for call-back. It is also free of charge, which the old NHS Direct was not.

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Public Bodies (Merger of the Gambling Commission and the National Lottery Commission) Order 2013

Motion to Approve

3.18 pm

Moved by Lord Gardiner of Kimble

That the draft order laid before the House on 25 March be approved.

Relevant documents: 35th Report from the Secondary Legislation Scrutiny Committee, Session 2012–13, 9th Report from the Secondary Legislation Scrutiny Committee, Session 2013–14, 23rd Report from the Joint Committee on Statutory Instruments, Session 2012–13, considered in Grand Committee on 15 July.

Motion agreed.

Judicial Appointments Commission Regulations 2013

Judicial Appointments Regulations 2013

Supreme Court (Judicial Appointments) Regulations 2013

Motions to Approve

3.19 pm

Moved by Lord McNally

That the draft regulations laid before the House on 20 June be approved.

Relevant document: 6th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 22 July.

Lord Scott of Foscote: Before your Lordships pronounce on the satisfactory or unsatisfactory quality of these regulations, I have a point which I endeavoured to make when these Motions were debated in the Moses Room a week or so ago. It relates to the provision regarding the appointment of members of selection committees, whose job it will be, once the committees have been established, to deal with the applications for appointments to senior judicial roles. The arrangement is that senior judges—the president, the Lord Chief Justice, the Masters of the Rolls or whoever it may be—will have the power to nominate the members of these commissions. However, the regulations go on to say that, in the event that the Lord Chancellor of the day is of the opinion that the senior judge in question suffers from an incapacity—presumably an incapacity to discharge the role of nominating members of the commissions—somebody else has that power.

I am bound to say that, when I first read these regulations, I thought it was thoroughly unsatisfactory for a senior member of the Executive to have the power to pronounce on his or her belief in the incapacity

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of a senior judge to discharge a statutory function that would otherwise be exercisable by that judge. I made this point in the course of the debate in the Moses Room and, since then, the noble Lord, Lord McNally, has been kind enough to write me a letter about these points. He drew my attention to similar provisions that can be found in primary legislation—in particular, the Constitutional Reform Act 2005 but there was another Act that he referred to where similar provisions are to be found. I was not aware of that. It is profoundly unsatisfactory that provisions of that sort allow a member of the Executive to remove powers from a senior judge on the Executive member’s belief in the incapacity of the judge to exercise those powers without any apparent necessity for the opinion to be backed up by medical evidence or psychiatric evidence. It is not consistent with the constitutional requirement of the separation of powers and I voice these objections now.

The sting is taken away by the fact that similar provisions have already found their way into primary legislation but, nonetheless, the existence of these provisions is unsatisfactory. I wish I had known that they were there in primary legislation. I would have taken the same objections at that stage. It is difficult to see why the opinion of a Lord Chancellor, who is not a medical person or necessarily even a lawyer, on the incapacity of a senior judge to exercise a particular statutory function should by itself be enough to relieve the individual of the power to exercise that function. The House should be aware of this matter before allowing these regulations into legislation. I am not proposing that the regulations should be voted down but the House should be aware of this. I regard it as unsatisfactory in principle and, up to a point, unconstitutional.

The Minister of State, Ministry of Justice (Lord McNally): My Lords, the noble and learned Lord, Lord Scott, goes even further than he did in Committee. These matters are not unconstitutional. Let me be clear that the role of the Lord Chancellor to determine the incapacity of the Lord Chief Justice and the President of the Supreme Court is not newly created by these regulations. As the noble and learned Lord, Lord Scott, has acknowledged, this role is already set out in extant primary legislation. It is also true that these regulations come before the House after extensive discussions with the President of the Supreme Court and the Lord Chief Justice. The regulations have been examined in detail by the Justice Committee and I think by the Constitution Committee of this House—but I may be wrong on that. Certainly, they have gone through quite a thorough mincer of committees and they were discussed in Committee in the Moses Room.

The Lord Chancellor’s letter to the Scrutiny Committee set out in some detail why the normal procedure for determining incapacity of the Lord Chief Justice was not appropriate in these circumstances. In short, the heads of division who normally make this determination may themselves be applicants in the appointment process in question. Therefore, to ensure there is no perception of conflict of interest, they do not have a role. It may also be helpful if I explain why we consider it entirely appropriate for the Lord Chancellor to determine

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incapacity. The Lord Chancellor has a significant number of responsibilities through the process from requesting a panel is convened, determining the content of the panel’s report and, of course, making the final selection decision. The system is therefore reliant on the Lord Chancellor discharging a range of duties and powers appropriately. The Lord Chancellor, under Section 3 of the Constitutional Reform Act, also has a statutory duty to protect the independence of the judiciary. Therefore, if the Lord Chancellor were to determine incapacity where that was not in fact the case, this would be a breach of that duty. This means that in reality it is very likely that the Lord Chancellor would consult the relevant members of the judiciary to determine incapacity, but we do not consider it necessary to spell out the nature of that consultation in the regulations. That is particularly the case as relevant persons may be different in different circumstances.

As regards determining the Lord Chief Justice’s incapacity, it may be appropriate to consult him or her personally to determine whether, for example, the incapacity results from a planned operation; or it may be appropriate to consult the heads of division if they are not the subject of the appointments process in question. Alternatively, it may be appropriate to consult the President of the Supreme Court.

The role of the Lord Chancellor in determining incapacity is taken from extant primary legislation. We do not consider that the role gives rise to any risk of inappropriate behaviour, particularly as the Lord Chancellor could not, of course, do anything that would breach his overriding duty to protect the independence of the judiciary.

Motions agreed.

Extension of Franchise (House of Lords) Bill [HL]

Extension of Franchise (House of Lords) Bill [HL]

Third Reading

3.26 pm

Bill passed and sent to the Commons.

Care Bill [HL]

Care Bill [HL]1st Report from the Delegated Powers Committee

Committee (8th Day)

3.27 pm

Amendment 104ZBA

Moved by Lord Warner

104ZBA: Before Clause 66, insert the following new Clause—

“Initial funding assessment

Before enactment of Part 1, the Secretary of State must ask the Office for Budget Responsibility to complete by the end of 2014 a review of the funding of adult social care that assesses—

(a) the adequacy of current public funding of these services;

(b) the proposals for funding the provisions in this Act; and

(c) the implications of the Act and its funding for the NHS over the next five years.”

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Lord Warner: My Lords, the purpose of this amendment is to give us a chance to discuss the funding of social care and the Bill’s provisions before we complete Committee, particularly given the continuing concerns that social care is seriously underfunded and is not in a good position to take on the changes—good changes, I should emphasise—in the Bill. Those concerns have been around for a long time and formed a major part of the evidence presented to the Dilnot committee and the Joint Select Committee on the draft Bill. I declare an interest in that I was a member of both those bodies.

On the whole, most people support the basic architecture of the Dilnot report and the Law Commission’s proposals enshrined in the Bill. They simply do not believe that the funding is in place to implement effectively the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding. This is hardly surprising, because the Government’s social care funding strategy seems almost designed to confuse. Eric Pickles curries favour with the Chancellor by signing up to swingeing cuts to local authority grants, which inevitably reduces social care funding substantially. Health Secretaries—quite sensibly in my view—then start slipping cheques from the NHS to local government to mitigate, to some extent, the Pickles butchery. Welcome as these cheques may be—but probably not to NHS England—they usually have strings attached and do not make good the shrinking base budget of adult social care, which, I have to mention to my noble friends, has been taking place since before the coalition Government.

First, a little history: the problems of funding adult social care predate the coalition, as the Dilnot commission made clear on pages 14 and 15 of its report. It stated:

“We know that the funding of social care for older people has not kept pace with that of the NHS. In the 15 years from 1994-95 to 2009-10, real spending on adult social care increased by around 70% for older people while, over the same period, real spending in the NHS has risen by almost 110%”.

Before the coalition, pay and prices in social care rose more quickly than general inflation. There was—and continues to be—rising demand as the number of older people and younger adults with care needs increases. Social care budgets rose by about 1% a year in real terms in the three years to 2010, compared with 5% to 6% for the NHS. We in the Dilnot commission showed that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding would need to change. However—and this is bad news for the Benches opposite—it has not.

The funding shortfall that the coalition inherited, of approaching £1 billion, has got worse. The LGA has estimated that just to keep up with demographic demand adult social care needs real-terms annual increases of about £0.5 billion a year. To put right the deficit and stop it getting worse, adult social care should start the next financial year, 2014-15, with a base budget at least £2.5 billion higher in real terms than in 2010. The reality is somewhat different.

The latest survey that I have seen from the directors of adult social services states that by next April local councils will have stripped £2.7 billion out of their adult social care budgets since 2010. I have heard

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Health Ministers say that this is being done by efficiency savings—so that is all right then. In practice, it has been done by denying people services, imposing tougher eligibility criteria and cutting pay and payments to service providers, with their impact on quality. These cuts have been mitigated by transfers the Government are making from the NHS by the start of 2014-15. On the basis of parliamentary Answers given to me, these look to amount to £1.5 billion in total over three years.

To sum up: the Government have not made good from the NHS what they have taken out, and have not protected the base budget against rising demand and inflation—something that the Dilnot commission said was essential if its proposals were to be implemented. My estimate is that adult social care starts 2014-15 with an underfunded base budget of at least £3 billion—some 20% of its budget.

I now turn to whether things get better between April 2014 and 2016, when the main implementation of the Bill’s proposals starts. Before the 2013 spending review, a parliamentary Answer to me suggested that approaching £0.9 billion would be transferred from the NHS to social care in 2014-15. Page 34 of the Government’s Spending Round 2013, suggests that another £200 million would be provided to progress the new pool budget scheme. However local councils still have to make another lot of savings in 2014-15, so it is difficult to see these not wiping out at least half of the transferred NHS largesse.

However, to be fairly generous to the Government, the £3 billion base budget deficit could drop to £2.5 billion by the beginning of 2016, assuming that the Government make the transfers that they promised. It therefore seems to me that, however you cut the figures, there is a pretty big hole in the base budget for adult social care in the year in which the first tranche of the Bill’s reforms begin. I am of course happy for the Government to provide me with chapter and verse in writing on why my figures are wrong.

Let me finish by turning briefly to the cavalry that the Government think is coming over the horizon—their proposal for a £3.8 billion pooled budget for 2015-16 to join up local health and social care services. Everyone in this House will welcome that pooled budget. I particularly welcome it as someone who was involved with the joint finance initiative of Barbara Castle, back in the mid-1970s. In some ways, we have not moved on very far. There is a considerable lack of clarity about this impressive-sounding figure. I therefore have some questions for the Minister.

First, can he say whether the total figure is dependent on the Department of Health making all the efficiency savings cited on page 34 of Spending Round 2013 and is safeguarded from any raiding to meet emergency demands by the NHS? Secondly, does the £2 billion that seems to be being promised to local councils for adult social care include the £335 million promised for the cap in 2015-16, as set out in paragraph 9 of the Government’s very recent document, Caring for Our Future: Consultation on Reforming What and How People Pay for Their Care and Support? Thirdly, will councils be paid the £2 billion at the beginning of the financial year, and how much of that will in practice be offset by the 2.3% reduction in local government

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spending in 2015-16, as set out in page 37 of the spending review document? This is typical of what we are seeing from the Government. Page 34 gives you some money and page 37 takes another lot away through another government department. It is a bit like the guys who practise conjuring with peas under egg cups. Finally, can the Minister confirm that £1 billion of the £3.8 billion will be paid only if local authorities can demonstrate outcomes? Therefore, in practice, the money may never reach the local level in 2015-16.

In conclusion, as a battle-hardened Whitehall warrior, I have to say that I suspect that the social care chunk of the £3.8 billion will look a lot smaller when we get to 2015-16. In principle, it is a bold and sensible initiative on which the Government are to be congratulated. However, it will not plug the gap in the base budget to which the Dilnot commission drew attention, and which has worsened since we reported. It is possible that the gap could be partially filled by the pooled budget proposal but a lot of question marks remain over how much of that budget will in practice help social care in 2015-16. I have to say to the Government that because of the funding inadequacies there is a real risk that people will be set up to fail with this new legislation. That is why the Government and, I hope, my own Front Bench should support an impartial review of the funding issues, as proposed in my amendment. I beg to move.

Baroness Pitkeathley: My Lords, I rise briefly to make two points, the first as a result of my membership of the Joint Committee. Every witness who came before us to give evidence said two things. The first was that this is an excellent Bill for which we have been waiting years. The second was that implementation will be impossible if no more money is put into the system. All our witnesses said that the current proposals for funding are totally inadequate. That is exactly what I feel in my role as a campaigner and spokesperson for carers—and this is my second point. The Bill is all that I could have dreamed of in terms of rights and recognition for carers but will come to nothing if all that results are fewer services that are harder to access, with more pressure being put on carers to do the caring. I am seeing that now in carers’ groups and organisations. They were elated when the Bill was published: now morale is plummeting for fear of what the reality may be.

I join the noble Lord, Lord Warner, in asking the Minister for chapter and verse in his call for a review. We all want the Bill to succeed but we cannot, as responsible legislators, ignore this important issue.

Lord Lipsey: My Lords, I should have put my name to this excellent amendment.

It would not be the first time that the OBR has looked at this issue because there is some valuable material in its report on fiscal sustainability in July 2013, to which I will return in a minute. My noble friend concentrated on how serious the problem is now and how serious it will be in 2016. Perhaps I may detain the House for a few minutes to describe the slightly further away prospect because, if we are in problems now, we shall be in crisis unless something major changes within the next eight or 10 years.

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The demographic factors have been widely appreciated, most notably in the report from the Select Committee of your Lordships’ House, Ready for Ageing, which indicates that there will be 39% more people aged 85 and over by 2021 compared with 2011, and 101% more—more than double—by 2030. The Select Committee concluded that what will happen is that they will get shoved into hospital, which will be,

“contrary to their wishes, not in their best interests, and more expensive”.

That is not a very good prospect. Moreover, as the OBR has shown, there is the prospect that stays in residential care may get longer and, therefore, cost more. It calculates a variant with a 20% longer stay, which is not implausible. So, just demographically, the situation is very difficult.

However, some less noticed factors all point the same way and add to the pressures. The most prominent factor is workforce issues. Many of your Lordships will have read the excellent report produced last week by the King’s Fund. It projects that by 2025 there will be a shortage in the care sector of 1 million workers—that is 35% of the current workforce. That is assuming that the Government’s immigration policy does not bite even more sharply than we think. You have only to go into a home to see how they are kept going by caring people who have come from overseas and are willing to work for the minimum wage, or near it, to look after our older people for us. Given the Government’s policy, these people will increasingly not be available for this purpose and so wages will inevitably go up. That will be a good thing because these people are terribly underpaid for what they do—it amazes me that the services are as good as they are, not that they occasionally fall short—but the cost to the Government is very sensitive to wages: it is the main expense because around 70% of the costs of an old persons’ home are paid out in wages.

The trite response to that is, “Let productivity increase”. However, in this sector, where one person looks after another, an increase in productivity will invariably lead to a decline in the standards of service. We know this because productivity is going down—it is down 20% over the years 1997-2010—simply because we rightly expect better services for people in the homes. There is no offset available through productivity. Those are the workforce issues.

As to the related fees shortfall, the system works at the moment by local authorities paying rock-bottom prices for the care they buy and self-funders paying rather more. The noble Baroness, Lady Greengross, sees this as an unfair tax but, being an economist, I know about marginal and average costs and I am therefore less shocked than I should be. However, it is a fact that it is taking place. The shortfall in fees over what will be necessary to provide an economic return for these homes would have cost local authorities £540 million in 2008-09, according to the latest published study by Laing and Buisson, to get the fees up to a level where they provide a reasonable return to the homes.

However, it will be much more difficult under the Bill’s scheme, because at the moment self-funders have no idea what the local authorities are paying for the

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same places that they are enjoying; they are not told. I was glad to hear the Minister confirm that under the Bill, self-funders will be told what the local authority pays. They will have to be told because the amount the local authority pays is what counts towards the cap. Thus a self-funder may be told that while they are paying £700, the local authority is only allowing £400. Your Lordships can imagine what is going to happen. I do not think that many self-funders will say, “Oh, I’ll be delighted to go on paying £700. After all, I may benefit from the cap if I live for a very long time”. They are going to be enraged. It is not a system that can be sustained. I have no doubt that the fees paid by local authorities and the fees paid by self-funders will come closer together, and that will mean increased bills for local authorities.

3.45 pm

The final factor I shall mention is this. Generally in society, we become accustomed to better standards as time goes on, and it is going to be no different in care homes. As a society we were quite content, 40 or 50 years ago, to shove older people into hospital geriatric wards where they received the absolute minimum of care in sometimes frightful situations. That was the standard of the day. Today, there are some extremely good care homes. My spirits are lifted every time I visit the care home in Oxford where my mum is because the standards are so wonderfully high—not that they are within the range of what the fees the local authority pays would provide, but they are high. The worst are dreadful and occasionally get exposed, but the majority, I would say, are so-so. They have strengths, they have weaknesses; they have good points, they have bad points.

My generation, the generation mostly in the House today, will not put up with the standards that would have been accepted by a previous generation any more than people today say, “I would not want to bother the doctor”, in the way that my mother’s generation used to do. They will require something better and they will rightly say, “Parliament will not pass legislation allowing us to do ourselves in so we have no choice but to go on living. We demand and have a right to the standards that we should expect in order to make the best of what may never be wonderful last years.” There is thus a definite scenario which is going to mean ever-increasing costs against budgets which the Government are going to have to, and already are, keeping down.

Of course there are magic wands that can be waved. There is the NHS social care integration magic wand. People have been waving this wand since at least 1999 when I was on the Royal Commission. Much less has happened when the wand has been waved. There are reasons why it is difficult, and in any case it is simply not a remedy of sufficient scale to change what is going on. People say that we should spend more on prevention. I totally agree, but the reality is that prevention postpones but does not avoid. It means that on the whole people start going into care later, but it does not mean that they will never require help. There has to be more money both from the public purse and the private purse. It is important that the insurance industry steps up to the plate and allows people to take out

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policies that will provide them with money, either on the basis of their housing equity or from drawing on their pension pots, that will enable them to chip in their fair share of the costs of keeping them in their old age.

Although I have gone on for quite a while, this is but a brief summary of a highly complicated case. Putting together the various elements reveals the dangers that we are walking into—dangers of which only some people appreciate some parts. A proper and detailed OBR investigation of the facts and the trends would throw enormous light on this issue and, even more importantly, lead to action.

Baroness Wilkins: My Lords, I, too, speak in support of the amendment in the name of my noble friend Lord Warner. I have said before that I warmly support the principles behind the Bill and the modern framework that it provides for social care. However, there is a world of difference between principle and delivery, and many things determine that difference.

Money is not everything, but the lack of it can mean the difference between certain misery and a chance of happiness, between one’s health deteriorating at an unnecessary rate and being maintained at its possible best, and between mere existence and feeling wholly human. Little will change for the better unless social care is adequately funded—and not just by funds transferred from an increasingly strained health service. As has been reiterated many times throughout the debates on this Bill, social care is in crisis. In the past few years, as the Care and Support Alliance has shown, many tens of thousands of people have lost vital services as a result of tighter eligibility criteria. Their needs have not changed; they have simply been redefined out of care, leaving them in many cases more isolated and, in some cases, at greater risk. The strain on family members has also increased as a result.

At Second Reading I raised the fears of the more than 20,000 disabled people with high support needs who have been funded by the Independent Living Fund to live independent lives. They fear a return to institutional care now that the fund has closed and the funding responsibility transferred to local authorities. I asked the Minister then for a reassurance that their fears were not justified and that the transition funding would not finish after one year. Sadly, he was unable to give any such reassurance, so the situation for more than 20,000 severely disabled people threatens to become much worse. As we know and have already heard, local authorities have been required to implement swingeing budget cuts for some time, most recently a cut of 10%. Can the Minister give that reassurance now? His department must have calculated the funding that local authorities require.

On 18 July, the Government launched the Caring for our Future consultation on reforming what and how people should pay for their care and support. This important document is over 100 pages long and covers a complex set of questions that are difficult for most of us to get our heads around unless we are specialists in the field. What plans do the Government have for making sure that people using care and support

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services and their carers are fully involved in the consultation and given the necessary information and support to make a constructive contribution?

There is no doubt in my mind that we must take a clear-eyed look at what funds would be sufficient for the aspirations of the Bill to be delivered. If we are to meet this once-in-a-generation opportunity to craft a care system that meets the real current and future challenges, we should remember that by 2030 the number of people aged over 85 is set to double; that is, a 6% increase every year on the 2013 figure. Are we prepared to aim for a decent level of well-being rather than accepting that thousands of our fellow citizens will live—and die—in misery?

Baroness Bakewell: My Lords, I endorse and support the amendment in the name of my noble friend Lord Warner. We have been watching a very impressive Bill go through this stage. If it is not funded properly, the political and social fallout in terms of the disappointment of an entire generation will be catastrophic. That generation will simply lose the trust that it puts in our capacity to legislate for the needs of society. That is what is at risk and why we need this review of the funding. I have not been a part of the debate so far and I will simply speak to one particular aspect of it, the postcode lottery.

Last week, the Office for National Statistics issued figures for life expectancy which show clearly the disparity between the north and the south. The lowest life expectancy for men is in Blackpool; for women, it is in Manchester. The highest life expectancy is in Dorset. That is not at all surprising. Dorset has the highest number of care homes in the country and has pioneered an outstanding care policy throughout the county based on early intervention and the reabling of people who fall ill. The county has found that this saves money and lives, and citizens are living longer because of it. It is exemplary.

It is not the same in the north of England. I was at a conference recently of the Local Government Association and I was constantly made aware of the pressures that councils in the north are under to trim their funding. Various statistics exist, but it is clear that the budgets of local authorities have fallen considerably. As was debated at the conference, the result is that the eligibility criteria are being squeezed across the north. It made me realise that councils in the north find it laughable that the cap of £72,000 for care should have any meaning for the citizens who live there. The outlook in the north is totally different from that in the more prosperous south. It is not as clear-cut as that, but I am generalising because it is important to grasp how fundamental the difference is. What I want to ask the noble Earl is this: does the funding under the Bill adequately address the increased disparity of care across the country?

Baroness Greengross: My Lords, I support the amendment of the noble Lord, Lord Warner. I partly echo what the noble Baroness, Lady Pitkeathley, said, because I think that the Bill is one of the best that we have seen in a long time. It really could meet our hopes

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and aspirations, but I am so worried about funding. We know that the funding seems quite generous, but the noble Lord, Lord Warner, did not mention that when he or Sir Andrew Dilnot talk about bringing these proposals into reality, if we set them against the costs of the NHS more widely, a minute part of the costs need to be covered to make the social care provisions real and thus take away the purely crisis intervention that we can see is on its way, as well as a complete lack of preventative care. That is what we hope for. I hope that the noble Earl will think again about the amendment so that we can keep the costing and funding of this under consideration on a regular basis.

Baroness Campbell of Surbiton: My Lords, briefly, I support the amendment of the noble Lord, Lord Warner. I will be brief, as I do not have a second voice. I draw the noble Earl's attention to the fact that, two years ago, the Joint Committee on Human Rights held an inquiry into Article 13 of the UN Convention on the Rights of Disabled People. Article 13 covers the right to independent living. At the time, we were given considerable evidence that disabled people’s right to independent living was beginning to be severely thwarted by the funding situation in this country. We heard very worrying evidence of disabled people losing their independence in our society—the independence that, over 20 years, they had developed. They were working and having families, and being part of society.


Two years on, the UN will begin to report on how well this country is keeping to Article 13. It will report on whether we will breach the convention, as our record on independence is severely dropping. Will the Minister be able to reassure the UN in the autumn that our record on independent living will not drop beneath the adequate levels that the UN would expect to see? I am not sure whether we will be able to do this, unless the funding elephant in the room is addressed.

4 pm

Lord Hunt of Kings Heath: My Lords, this has been a very interesting debate. I open on today’s Committee by declaring interests as president-elect of GS1, chair of a foundation trust and a consultant trainer with Cumberlege Connections.

There is no doubt that the backdrop to our discussion is one of the availability of resources. As every day goes by in Committee, we have discovered new responsibilities being placed upon local authorities: the provision of information and advice; the assessment of adults’ and carers’ needs for support and the provision of that support; the implementation of the national eligibility criteria; the Dilnot proposals; and the assessment of self-funders.

I am sure that my noble friend Lord Lipsey is right. We have said a number of times, without really getting a response yet from the noble Earl, that the moment that self-funders become aware that they are essentially subsidising the people funded by local authorities, there will be an end to that. I am absolutely convinced that self-funders will express the view that they ain’t going to put up with it. I wonder whether the Government

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have thought through the implications of that. I doubt that they have, but those implications will have to be thought through. People will not find it acceptable to be paying above the local authority rate, then taking longer to get to the £72,000 cap, and then finding that the local authority will fund them only at its rate, with potential consequences for where they can be provided with care. It will possibly not be in the care home to which they have already been paying for their own resources. There is real concern about the financial implications of the Bill, which noble Lords all generally welcome, and the fact that the gap between the expectation and the reality could be very wide indeed.

We are of course confronted by the very difficult funding pressures that are on local authorities at the moment. Noble Lords have spoken eloquently about that. My noble friend Lady Bakewell pointed to the differential funding as a result of the Government’s change in formula as far as local authorities are concerned. That is why the Labour Party has called for £1.2 billion of NHS underspend to be transferred to social care over the next two years. However, that is just the start. We are going to see major demographic challenges, which will affect the NHS as much as social care. That is why my noble friend’s amendment has so much ingenuity in suggesting that the Office for Budget Responsibility be asked to complete a review of funding of adult social care by the end of 2014.

This has to be linked to NHS funding as well. I was very interested in a piece in the Independent this morning, emanating from Sir Bruce Keogh. It pointed out that for the NHS since 1948, the amount of money that has been made available has gone up by an average of about 4.5% a year. Now, he says, we are looking at no increase at all. I am not sure that the bodies for which the noble Earl’s department is responsible have woken up to that. For instance, NICE continues to produce guidance which, if implemented, would cost more money. The reports coming from royal colleges and the Keogh review of the 14 trusts talk a lot about staffing deficiencies, but the whole thrust still coming from these reports is to increase expenditure. There is genuine concern that we are talking up the expectation on health and social care knowing that at the moment we cannot see our way to finding where the resources are going to be. Without making this too much of a political debate, I thought that Mr Lansley’s comments in the run-up to the previous election in relation to the so-called death tax were very unfortunate in trying to get a dispassionate debate about how we are to find our way to funding health and social care in future.

This is a very interesting debate. My noble friend has done us a great service in allowing us to discuss this in depth. I hope there may be some sympathy from the Minister for the amendment.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, in some ways this is a reprise of an earlier debate we had in Committee, but none the less it has been valuable. I am grateful to all noble Lords who have contributed. I begin by saying to the noble Lord, Lord Warner, that I am in total agreement that care and support funding is vital. It is essential for the success of the reforms we

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have been discussing that these services are fully funded. I start by assuring the noble Lord on one key point, which is that the costs of these reforms have been clearly set out in the Bill’s impact assessment, as was our duty.

I listened with care to the case put by the noble Lord that the Office for Budget Responsibility should conduct a review of care and support funding. I do not believe that such a review would be necessary or desirable. As noble Lords will be aware, the Government recently announced the conclusion of the spending round for 2015-16. It is only right that decisions on care and support funding are taken by the Government at the same time as spending plans are set for all areas of government. It is the job of the Government to decide on priorities and what is affordable. Any further review by the OBR would clearly cut across that process.

There is also an issue about the OBR’s autonomy. The OBR performs its duties independently with complete discretion to determine the content of its publications and its programme of research and analysis. It would not be in keeping with the OBR’s duties or its independence to have the Secretary of State commission a report in the way the noble Lord, Lord Warner, suggests. The main duty of the Office for Budget Responsibility is to examine and report on the sustainability of public finances, including a statutory obligation to publish an annual fiscal sustainability report. The most recent of these was published this month and already includes long-term projections of care and support spending, taking account of the cap on care costs and the extension of the means test. A further report, such as the one proposed by this amendment, would risk duplication and repetition.

It will perhaps be helpful if I confirm that the projections set out in this OBR report are broadly in line with the department’s own, and it is on the basis of this analysis that I am in a position to say that the spending round settlement delivers the funding required for the care and support system. We have identified the financial burdens facing care and support, including those arising from this Bill and demographic pressure, and we are putting enough money in to maintain service levels. This will ensure that care and support can be protected and will allow us to deliver on the reforms set out here.

However, we need to do more than simply put more money into care and support. We also need to improve the way that health and care is delivered, and in particular how these services work together. That is why the settlement includes a £3.8 billion pooled health and care budget—the noble Lord, Lord Warner, referred to this—which will be given only on the basis that services are commissioned jointly and seamlessly between the local NHS and local councils.

This is, in many ways, a historic moment. What we intend to do represents a genuinely new departure. It will help to ensure everyone gets a properly joined-up service, with people getting the care they need from whoever is best placed to deliver it—whether that is the NHS or the local authority. Chris Ham from the King’s Fund has welcomed this, calling it,

29 July 2013 : Column 1557

“a much more ambitious approach to delivering integrated care and a real opportunity to improve the co-ordination of services for patients and service-users”.

We will ask local areas to work collaboratively together in drawing up plans for the use of this money, ensuring that the priorities of both the NHS and care and support are addressed. All plans will include a commitment to protect care and support, ensuring that this money goes where it is needed.

The settlement also provides the funding for the commitments and duties set out in this Bill, and factors in the growth in demand from an ageing population and a growing number of disabled people. With additional pressure on the system, we must ensure that the NHS and care and support services are working together to offer the best possible services for patients, while also addressing the growing demand on the system, which noble Lords have rightly referred to.

The creation of pooled budgets will help to achieve the more efficient use of resources in the system as a whole, driving down costs by tackling expensive pressure points in the system, like A&E, by improving preventive services, reducing unplanned hospital admissions and by allowing people to stay in their homes and live independently for longer. It is intended that £1 billion of the pooled fund will be linked to outcomes achieved, ensuring that local areas are incentivised and rewarded for achieving better outcomes, including those that could reduce financial pressure on the system.

Noble Lords have rightly referred to the pressure on local authority budgets. Of course, we recognise that the last spending round provided local government with a challenging settlement. That is why we took the decision to provide extra funding to help local authorities maintain access to services; that includes £1.1 billion in 2014-15. In fact, spending has been roughly flat over the period since 2010-11. The latest survey shows that councils are expecting a small increase in expenditure next year. The survey also shows that the vast majority of the savings that have been made have been efficiencies. Councils have largely been able to protect services. They should now, however, be looking at how they can transform care by innovating and exploring new ways of working. Many local authorities are achieving much greater integration between health and care services and thereby improving the care for those they look after.

The latest ADASS budget survey shows that only 5% of directors of adult social services believe that quality has suffered as a result of the savings they have made. Five per cent is regrettable but it is a lot less than some of the figures that we see printed in the media.

In 2012-13, bed days lost because of delays attributable to social care were nearly 50,000 fewer than in the previous year. One of the other criticisms one hears is that quality is getting worse in social care and that that is having an impact on the NHS. But if we are going to continue to make these sorts of improvements, we need radically to rethink how we deliver health and social care and move to a more integrated system.

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4.15 pm

To answer one or two of the questions posed by the noble Lord, Lord Warner, on the £3.8 billion pooled budget, half of this fund is made up of funding that is currently spent across the health and social care system on areas relevant to both services, while the other half, nearly £2 billion, is additional NHS money. To access this funding, all areas will need to produce local plans, signed off by the NHS and local authorities, for how the money will be used across health and social care. These plans must demonstrate that social care services will be protected. Furthermore, £1 billion of the funding will be linked to outcomes achieved, as I have outlined, based on a combination of locally and nationally set outcome measures. Half of that funding will be paid at the beginning of the year, based on performance in the previous year, and the remainder will be paid in arrears against the performance in year. The noble Lord, Lord Warner, asked me about that. To flesh it out a little more, we are working with our partners in the sector, including NHS England and the Local Government Association, on the detail of the pooled budgets, but the principle is that only £1 billion will be subject to payment by performance. All the pooled budget will be subject to local areas, protecting social care—that is a key point—helping to ensure that the money does not just compensate for cuts to social care services.

The noble Lord asked whether the pooled budget includes £335 million that we have announced for funding reform. The DCLG will pay a £285 million grant to local authorities to meet the revenue costs of these reforms. There is also £50 million in the pooled budget to help local authorities improve their IT systems to help to prepare for the reforms as well to integrate systems between health and care.

The noble Lords, Lord Lipsey and Lord Hunt, spoke about self-funders and the disparity that we sometimes see between the rate that self-funders have to pay and that which other people have to pay. Local authorities and individuals can pay different prices for care. This can be because individuals have chosen premium facilities or because the local authority has negotiated a lower price in exchange for buying care for a large number of people. The Government are clear that local authorities should have regard to the cost of care when setting their prices. The noble Baroness, Lady Wilkins, asked whether I could give an assurance that funding has been calculated for independent living fund transition. I can assure the noble Baroness that we have taken account of that issue.

Lord Hunt of Kings Heath: I accept the noble Earl’s point, which he has made before, that local authorities sometimes pay less than self-funders because the self-funders are paying for a premium service. Often, however, the service is the same. I wonder whether that is not a legitimisation of what happens. Most organisations representing self-funders feel that the higher premium they pay is actually subsidising the rates paid by local authorities. If the Government are saying that the lower rates are because of bulk purchasing, quite a lot of convincing will need to happen to make people feel confident that that is the case.

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Baroness Wilkins: The noble Earl says that that transition funding has been taken into account. Can he also confirm that that is for beyond one year? Or is it only for that one year?

Earl Howe: I will come back to the noble Baroness on that question.

I take the point of the noble Lord, Lord Hunt. It could clearly be a source of resentment on the part of a self-funder if they find out through the transparency of the arrangements that we are putting in place that they are paying more than the cost of somebody else’s care. I can tell the noble Lord that we have given thought to that. It has been discussed with the LGA. I would be happy to flesh out the substance of our discussions, but we want to avoid a situation that gives rise to that kind of resentment.

The noble Baroness, Lady Wilkins, asked what plans the Government have to make sure that service users and carers are able to contribute fully to the consultation on funding reform. We intend to arrange a series of consultation events around the country to engage with those who use services, their carers and their families. We will also work with stakeholders to make the best use of their networks and local groups to make sure that we consult as widely as possible.

The noble Baroness, Lady Bakewell, asked a particular question around what she termed the “postcode lottery”, and, of course, I understand the force of that phrase. She asked whether the funding of the Bill adequately addresses the disparity of care and support across the country. The short answer is that the Care Bill provides for national eligibility criteria. That, of itself, will provide greater transparency and consistency for people across the country. I do not think that we will ever completely get away from variation in what local authorities are prepared to consider adequately meets the needs of individuals and we will see some independence of decision-making, whatever we do. However, I firmly believe that the Bill brings us much closer to greater consistency and fairness.

On top of the spending-round announcements, I believe that the Bill will have a positive effect on the NHS by strengthening joint working between health and care and support. For example, Clause 3 requires local authorities to exercise their functions with a view to ensuring integration between health and care. In addition, Clause 2 creates a clear legal duty on local authorities to ensure the provision of preventive services. We want a service that reduces dependency, as well as supporting those who already need care and support, rather than just waiting for people to reach a crisis point. By slowing and preventing the development of care needs, the onset of health conditions or the loss of independence, we believe that preventive care can increase quality of life for individuals, while having the potential to provide longer-term financial savings to the public purse. It is only with this greater focus on prevention and integration that both the NHS and care and support can respond to the financial pressures of an ageing population.

The noble Lord, Lord Lipsey, took us forward to 2025 and beyond and referred to the shortage of workers in the social care workforce predicted by the

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King’s Fund. Of course, we agree that reforming care and support to make it sustainable for the future will require more capacity and greater skills in the workforce. That is why we stated our ambition in the

Caring for Our Future

White Paper to double the number of apprenticeships in social care to 100,000 over five years. We are now working with stakeholders to make that ambition a reality.

The noble Baroness, Lady Campbell, speaking powerfully about the areas that she knows best, said that disabled people feel that they are losing their independence as a result of funding cuts, and, indeed, there is a fear that the country unwittingly may be breaching Article 13 of the UN Convention on the Rights of Disabled People. A local authority’s overriding duty under the Bill is to promote well-being. This includes control by individuals over their day-to-day lives, including the way in which care and support is provided. We are confident that the well-being principle captures the outcomes that affect an individual’s independence. We should always keep going back to that principle, not least in the context of the rights that people feel they have—and do have—under the UN convention.

In so far as I have not answered questions from noble Lords, I will, of course, follow up this debate in writing. For the time being, I hope that, for the reasons I have outlined, the noble Lord, Lord Warner, will agree to withdraw his amendment.

Lord Warner: My Lords, this has been a helpful debate and I am grateful to all noble Lords who have spoken in it—overwhelmingly, I should add, in support of my amendment. I take great confidence from that.

The noble Earl has made not a bad job of answering my four questions about the £3.8 billion. I am feeling generous and so will give him a B minus for his attempts. At least he has come clean that only half the money is new money, which is a helpful clarification, and that only half of the £1 billion of the rest will be paid up front, while the rest is dependent. Therefore, to some extent my point has been made that that £3.8 billion looks a little less glossy than when it was announced in terms of what new money people will get in 2015-16. I notice that the noble Earl did not answer my question about the base budget, which took up much of my speech. The bottom line in all this is that the base budget is very deficient. The local authorities which will take on these new roles are starting, essentially, from a deficit position.

The noble Earl is always one of the most plausible Ministers and has done a good job of explaining efficiencies and productivity. However, the people who gave evidence to the Joint Select Committee just do not believe that this has all been achieved through efficiencies. They are seeing cuts in services and tougher eligibility criteria. The interesting mini-debate we had about the difference in payments for publicly funded people in care homes and self-funders illustrates that local authorities have been cutting the rate for the job for those who they pay for. We will see more of that. Until we face up to this base budget issue, we will have a problem.

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I do not doubt that the Government have done a pretty reasonable job of costing the new provisions in the Bill. However, it will be introduced on the basis that the underlying base budget is too low. No one has yet answered my question with very much confidence about the fact that we are talking about a base budget deficit, which is in the Dilnot report, and which in broad terms has risen two and a half times since this Government came to office. That is the nub of this issue.

The noble Earl also glided over with his usual elegance the issue of why the Government are so preoccupied with this rather strange way of giving money to local government. First you see the Department for Communities and Local Government take money away and then local authorities have to cut other services if they want to prop up social care. Then Health Ministers, almost in desperation and worried about the implications for the NHS of what is happening to social care, long before they were betting the farm on integrated care, are—perfectly understandably—starting to slide money across to prop up social care. That is what is going on. If I were a director of social services these days, I would find it rather difficult to plan my service response to a kind of resource allocation system based on that kind of approach. That is a real problem for central government, which is expecting local authorities to plan well for these new changes. It is a pretty messy way of giving money to people at the local level.

I will read very carefully what the noble Earl has said in this debate. I am not convinced that we do not need an impartial review. If it is not the OBR I will think of somebody else. I might try a few on the noble Earl during the Recess—the Institute for Fiscal Studies comes to mind. We need a hard look by somebody who is not party pris. If my own party wins the 2015 election, it will need that hard look as well. I will think about it further, but in the mean time, I beg leave to withdraw my amendment.

Amendment 104ZBA withdrawn.

Clause 66 : Five-yearly review by Secretary of State

Amendments 104ZC and 104ZD not moved.

Clause 66 agreed.


Amendment 104ZE

Moved by Lord Dubs

104ZE: After Clause 66, insert the following new Clause—

“Access to appeals for care decisions

(1) In this section “the Tribunal” means the first tier Tribunal.

(2) Where a local authority—

(a) makes a decision under section 13(1) that some or all of an adults needs meet the eligibility criteria, or none of their needs meet the eligibility criteria,

(b) exercises its power to charge for meeting needs under section 14,

(c) completes a financial assessment under section 17,

(d) makes a determination under section 18 or 19 that it must or may provide services to meet the adults care and support needs,

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(e) makes a determination under section 20 that it must or may provide services to meet a carers needs for support,

(f) has prepared or reviewed a care and support plan, or a care plan under section 25 or 27,

(g) has prepared a personal budget under section 26 or 28, or a care account under section 29,

(h) the outcome of an inquiry under section 41,

an application may be made to the tribunal within the relevant period.

(3) The relevant period shall be prescribed by the Secretary of State in regulations.

(4) An application may be made by the relevant service user or carer who is the subject of the relevant decision listed in subsection (2).

(5) An application may be made by any other person with leave of the Tribunal.

(6) The powers of the Tribunal are to—

(a) dismiss the appeal,

(b) allow the appeal and quash the decision appealed against, and

(c) remit the case to the local authority to dispose of in accordance with the directions of the Tribunal.

(7) The Tribunal shall have powers to order costs as it see fit.

(8) The Secretary of State must make regulations concerning the process and procedures of the Tribunal.

(9) In making regulations under subsection (8), the Secretary of State must seek to ensure adequate service user and carer representation on the Tribunal.”

4.30 pm

Lord Dubs: My Lords, it is very clear that this Bill puts upon local authorities enormously complex duties as regards assessing the care needs of disabled people. The way in which local authorities exercise those decisions will have a major impact upon the lives of elderly and disabled people and may well occasionally be unjust or factually inaccurate. This will not be deliberate, but it sometimes happens in the nature of decisions that are so difficult and sensitive. The purpose of my amendment is to give the Government a duty to set up a tribunal system for issues such as individual eligibility, care plans, the level of personal budgets, and cases where individuals believe local authorities have made errors of fact or law in their decisions. Issues such as these can be challenged and put to the test. It is a complex area and I say at the outset that this is a probing amendment. Although it is quite detailed, I appreciate that the issues are difficult and will need further thought. I am anxious to see what the Government’s response is at this stage.

It hardly needs to be said how crucial these decisions are for elderly and disabled people. The system is hard for individuals to navigate. People often feel that they are powerless in the face of such a complex system. Where people lose out, in terms of the assessment made of them, they can in the worst cases feel trapped in their own homes, unable to get to work, unable to get out, depressed, and perhaps even suicidal. The consequences can be very serious indeed. They may be left in a vulnerable position without any ability to achieve redress.

The Government, in response to the Joint Committee, said,

“it is vital that people have an effective way to complain and seek redress that provides real challenge, particularly to the decision-making process.”

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That is fair enough, but I cannot see anywhere in the Bill where the Government have actually done that. Perhaps I have missed it. The point of my amendment is to give people precisely that safeguard.

The Government may say there are other ways of doing this, such as going back to the local authority and persuading it that it has made a mistake. That is not very easy to do. One might be able to require the local authorities to have a route by which individuals can formally request reconsideration of care decisions where they believe an error of law or fact has been made. Again, this is not an easy thing to do. One might even go one step further and require local authorities to convene an independent panel to consider social care decisions where there is a dispute between an individual and the local authority. In theory, such options might work; but in practice one would have to be absolutely convinced that every local authority would do it, and do it properly. I am bound to say that although some local authorities might be willing to move in this direction, I am not convinced they all would.

The difficulty is that there are alternatives. One alternative is judicial review. However, we do not want to be standing here and telling elderly and disabled people to go through the costly business of a judicial review in order to get redress for what ought to be a simple procedure. Although my amendment is fairly lengthy, what I have in mind is a process that should be simple. Not all tribunals need to be complicated. Indeed, we know in the scheme of things that some tribunals can work quickly, efficiently and in not too costly a manner. I hope the Government will not say that people can take the option of judicial review and that is okay, because I do not believe it would be. In any case, going for judicial review would be a costly additional burden for local authorities, and I do not think anybody wants that.

Let me repeat—it is inevitable that, on a national scale, some mistakes would be made. You cannot devise a system, with the best will in the world, where mistakes are not made with regard to individual assessments. So let us not have judicial review at one end of the scale and mistakes at the other, for which there is no remedy.

I appreciate that any system of tribunals has some costs attached to it. I do not want to say to the Government, or to my friends in the Labour Party, that we should rush into this blithely, never mind the costs. I am aware that the costs must be of concern, and I do not want to stand here urging that something costly should be set up. But having some proper tribunal system of redress would be a much better way in which to resolve issues than to ask people to approach the local authority, and I do not believe that we would be left with all that many cases, anyway. I am hopeful, and I hope not excessively optimistic, that the tribunal system would be there in place for a few cases that could not be resolved in any other way. An appeal option must be a feature of any decision-making; it is so for many public authorities and should be in this particular instance.

Lastly, I have thought about the question of the Local Government Ombudsman, and I hope that that

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the answer given by the Minister is not his only answer. After all, the ombudsman is there to deal with maladministration and, although one or two instances might be susceptible to local authority ombudsmen looking at maladministration, I do not believe that that is the answer. It is for different sorts of instances, not for the sort that I am talking about.

What I am putting forward is a simple proposition. I want the Minister to respond in terms of the detail. I have said that I am concerned about the cost, so I hope that the Minister will not simply say that it is too expensive. I hope that he will not say that judicial review is the answer and will appreciate that I am putting something forward quite seriously. I am indebted to Leonard Cheshire Disability for the help that it has given me in some of the details that I have put forward in my remarks.

Lord Beecham: My Lords, I have a lot of sympathy with the case that my noble friend has put in establishing the structure that would permit appeals. However, there is one potential problem. I endorse what he says about the undesirability of requiring people ultimately to have recourse to judicial review, which is a lengthy and very expensive process. However, it is likely that people wishing to make an appeal to such a tribunal would need at least legal advice and, possibly, legal aid. I would imagine, as matters stand, that such a procedure would be out of scope of the legal aid system as it has been “reformed”—I put that word between inverted commas. Perhaps the Minister and my noble friend could indicate whether they think that it would be a sensible addition to the terms of the amendment, which would command a good deal of support across your Lordships’ House.

Lord Warner: My Lords, I briefly intervene from the perspective of a member of the Joint Select Committee, which proposed that there should be some kind of body. Much of our thinking was focused on the early days of these new arrangements. We thought it highly unlikely that there would not be a lot of disputes in the first few years of what would be a pretty major change to the arrangements. There are two sources of potential dispute—those by people who do not like the results of an assessment made about them, in some form or another, and some of the stuff that comes out of making markets. There is the issue of the rate for the job between local authorities and providers. We could see some of those areas also leading to disputes.

We had it in mind that some mechanism should at least be ready to go into action should this happen. It may be that, in the longer term, things will settle down and there will not be a great problem. However, even if the Minister is not prepared to accept my noble friend’s amendment and make statutory provision, the world would be reassured if the Government at least had a plan B so that we do not end up with judicial review if things do not go well. Rather, we end up with some kind of arbitration system which is low cost, speedy and can deal with some of the inevitable teething problems of a fairly major change to these systems.

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Lord Hunt of Kings Heath: My Lords, subject to later comments about funding and the issues raised by my noble friend Lord Beecham, I have a great deal of sympathy with my noble friend Lord Dubs in wanting to have some kind of transparent appeal decision. It is clear from our debates on the Bill that local authorities will be called upon to make decisions which will have a fundamental impact on people living in their local authority area—eligibility, care plans, personal budgets, support for carers, self-funders baseline assessment and many more. We know that this will be hard for many people and their families to navigate. At the moment, it appears that the Government are relying either on local authorities themselves to develop their own mechanism, which might not enjoy public confidence, or on referrals to the Local Government Ombudsman. As my noble friend Lord Dubs says, that would be on the basis of maladministration rather than, perhaps, on the facts of the case.

Judicial review is hardly an option for many people. The reduction in legal aid will have an impact on the ability of places such as law centres to take JR cases forward on behalf of clients. I am the patron of Birmingham Law Centre, which has had to close its doors. In the last few years, the law centre was able to undertake a number of JR cases but it is no longer there to do that. The availability of a simple, low-cost appeal system would command some support.

When I was DWP Minister, I attended a day at the Birmingham tribunal centre looking at how cases were conducted. I was impressed at the ability of the three-person panels to allow the complainant to put their case across in a fairly informal setting with decisions made pretty rapidly. We know that these tribunal systems have been used more frequently with the introduction of the new arrangements. They command some public confidence. While I do not want to add to the financial burden on the system as a whole, I wonder whether it would be cost effective, as my noble friend Lord Warner says, for there to be a simple, fast, low-cost system. This will give people some confidence that, where they felt that the local authority had not made a reasonable decision, there would be allowance for it to be reconsidered. I am sure that this is a matter for discussion between Committee and Report and perhaps the noble Earl would be prepared to meet with my noble friend to discuss this further.

Earl Howe: My Lords, I am pleased that this important issue has been raised. I hope that I can provide the noble Lord, Lord Dubs, with at least a measure of reassurance relating to his concerns. As he has explained, the purpose of Amendment 104ZE is to include in the Bill provision for adults to make an appeal to the First-tier Tribunal if they disagree with the local authority about its decisions relating to matters such as eligibility, financial assessments, care and support plans and other obligations under this Bill. Often the individuals who access the care system are some of the most vulnerable in our society and it can seem daunting to challenge the decision of the local authority. I entirely agree that it is important that such people have the opportunity to make their voice heard if they feel that

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the local authority has reached the wrong decision in their case and that their argument is given the fullest consideration before a transparent, fair outcome is reached. The changes which the Bill would bring about will result in many more people being brought into contact with their local authority. This is why it is appropriate that we are now reviewing the current arrangements regarding complaints.

The current complaints arrangements for adult care and support were reformed in 2009 and are set out in regulations. The regulations require the local authority to have a publicised arrangement for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedure for dealing with complaints. Each local authority will have a different process, and we appreciate that local variation may result in varying user experiences.

If a complainant is not satisfied with the response from the local authority, they are then able to refer the case to the Local Government Ombudsman, as has been mentioned. The Local Government Ombudsman is independent of the local authority. It can investigate complaints about whether the decision-making process has been conducted appropriately and can make a recommendation to the local authority.

4.45 pm

Having said all that, as indicated in the consultation on implementing funding reform which was published on 18 July, we are considering whether the current arrangements provide an effective means of challenging local authority decisions or whether changes need to be made. We believe that mechanisms should be clear and easy to understand, should promote local resolution and should resolve issues in a timely and effective way. It is important that they win the confidence of the public by being transparent and fair.

While there is a range of approaches to providing redress, we believe that there are great advantages to having a flexible system that works well and efficiently at a local level and that works in a manner that is proportionate to the type of complaint. We also see merit in the idea of independent consideration of appeals as part of the process. However, our initial consideration of the benefits and disadvantages of introducing a tribunal process, as this amendment proposes, is that this would be likely to slow down the process of resolving complaints rather than speed it up and, as the noble Lord, Lord Dubs, acknowledged, add significant costs, or could do so.

As part of our review, we are consulting on processes for providing redress. We are seeking views on current channels for providing such redress and asking for evidence of mechanisms which have worked well in other sectors. We are also asking for views on the advantages and disadvantages of the tribunal system. We will also consider the findings of the Clwyd/ Hart review on complaints. Once we have reviewed the evidence that we have gathered, we will be in a good position to decide whether there is a need to change or add to the existing arrangements. That is a partial reassurance to the noble Lord but I see that he would like to intervene before I conclude.

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Lord Dubs: I am grateful to the Minister. What he says is very interesting but will the review be completed before the Bill completes its passage or will we have to look at it after the Bill has gone through?

Earl Howe: Certainly, I anticipate that the results of the review will be available before the Bill has concluded its passage through Parliament. I stand to be corrected on that but I think I am right. In any case, changes to the way in which complaints are handled can be made through regulations under existing legislation, so I think that provides the necessary flexibility.

Lord Hunt of Kings Heath: Would the noble Earl find it helpful if, on Report, we introduced an order-making power in the primary legislation that is specifically built around the Bill?

Earl Howe: That might prove helpful but I will take advice on it. We do not want to duplicate powers that already exist in legislation. However, if we decide that changes are needed, we need to make sure that they can be expedited properly. I am advised that the consultation will close in October this year and that the review of complaints arrangements, of which the consultation is a part, will conclude in the winter. Therefore, if changes need to be made to the Bill, they will need to be made in another place.

The noble Lord, Lord Dubs, said that in our response to the Joint Committee it is vital to consider redress. Of course, the principle of that is not in dispute. Our review of complaints arrangements is in line with our response to the Joint Committee’s recommendation, as I hope he acknowledges. In answer to the noble Lord, Lord Warner, I agree with him that there are likely to be teething problems as this system is established. That is precisely why we felt the need to review the current system. We will aim to ensure that any new mechanisms are in place before implementing the new system, as I have already indicated.

With that, I hope that I have provided at least some reassurance to noble Lords opposite that we take this issue seriously. We understand the concerns that have prompted this amendment and will certainly give further consideration to the noble Lord’s idea of a tribunal system in the light of the outcome of the consultation. I hope therefore that for the time being he will feel content to withdraw his amendment.

Lord Dubs: I am grateful to the Minister and I am interested in what he has to say. First, I thank my noble friends who have contributed to the debate and for the useful suggestions that they made, some of which, however, have been overtaken by what the Minister has said. My noble friend Lord Hunt talked about a simple, low-cost appeals system. That is very much in line with what the Minister said. The only issue is what chance we have to discuss further the outcome of the review and the Government’s further proposals.

I think the Minister said that either it will be possible in the Commons to consider any proposals the Government put forward as a result of their review; alternatively, it may be done by order, in which case we

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would all have a chance to look at it. In any case, that takes us quite a lot further. I am grateful to the Minister for what he has said and I beg leave to withdraw the amendment.

Amendment 104ZE withdrawn.

Clause 67 agreed.

Schedule 3 : Discharge of hospital patients with care and support needs

Amendment 104A not moved.

Schedule 3 agreed.

Clause 68 : After-care under the Mental Health Act 1983

Amendment 105

Moved by Lord Patel of Bradford

105: Clause 68, page 56, leave out lines 4 to 11 and insert—

““(5) In this section, “after-care services” means services to reduce the likelihood of the person requiring admission to a hospital again for treatment for mental disorder.””

Lord Patel of Bradford: My Lords, my amendment affects Clause 68(5), which aims to provide a definition of aftercare services as they relate to Section 117 of the Mental Health Act 1983. It was only just over 12 months ago, while debating amendments to the Health and Social Care Bill, that I was concerned about elements of that legislation affecting Section 117, which could have had a detrimental effect on the recovery of mental health patients. So it is a little disappointing that we have to rehearse some of those earlier arguments again today.

I must make it clear from the outset that this is not a probing amendment, nor does it seek assurance or clarification. It is an amendment that I believe is essential, and unless the noble Earl or the noble Baroness can persuade me of a better form of words, they should look to accept it. I will also tell the Minister from the outset that we are on the same side on this issue. We both want the same outcome, which is that this extremely vulnerable group of people covered by Section 117 gets access to all the help and services that it needs.

As the Minister outlined in his speech at Second Reading, the Government have already redrafted the original wording of the clause in response to the many concerns of mental health organisations in the country. However, it is clear to me and to them that we still need to do more to protect and safeguard this essential statutory provision. I apologise if I speak at length on this amendment, but it is essential that I make my case. I will try to be as logical in my arguments as possible; therefore, I will first outline why Section 117 is a unique statutory provision and needs the protection that Parliament intended it to have.

Secondly, I will highlight what the current drafting in the Bill does and why it will result in a detrimental effect. I shall conclude by explaining what I am proposing and why. I have taken time to explore many of the arguments and must thank the Care and Support Alliance, a consortium of more than 70 organisations,

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including Mind, the national mental health charity, which has been leading the charge on this issue. I also place on record my sincere thanks to members of the Law Society, especially Sophy Miles, the chair of the mental health and disability committee and counsel from the Mental Health Lawyers Association. It is also important that the Minister knows that I have received advice from Nicola Mackintosh, a principal solicitor, who is widely recognised as a national expert in community care, health and mental health law. I have taken seriously all their views on this issue.

First, what is Section 117 of the Mental Health Act all about and why is it unique? As noble Lords will be aware, that section concerns the provision of aftercare services for people who are discharged from hospital treatment after a period of compulsory detention in hospital. Parliament placed a joint duty on health services and local authorities to provide that aftercare. The group of people to whom Section 117 applies are the most vulnerable in the mental health system. They have been detained in hospital for psychiatric treatment following an established diagnosis. There are two groups, one of which is made up of those detained under Section 3 of the Act, and the other of those detained by the criminal justice system for in-patient treatment. It is likely that those in both groups will have had extensive previous contact with psychiatric services and support, which have failed them and been unsuccessful, hence they require longer-term detention for treatment.

These are therefore groups at the highest level of vulnerability because of risks to themselves, including their own health, or others. They are in a special group that has been recognised by Parliament as such. Among the statutory provisions in community care and healthcare law, Section 117 is unique in several respects. First, it relates to the duty owed to a particular individual. Secondly, it arises only in limited circumstances and for a very specific group of people, and is not a target duty. Thirdly, it is a joint duty placed on the relevant health authority and the social services body to work together to provide appropriate aftercare services, free of charge and for as long as necessary, and to sort out the funding between them. The aim has been to ensure that the group of people to whom the duty is owed receives the services at the time that they are needed, thereby avoiding extensive disputes about whether health or social care agencies are responsible.

Exactly which services are provided will depend on the individual’s needs and can vary greatly. The mental health code of practice stipulates for patients:

“As well as meeting their immediate needs for health and social care, after-care should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital”.

The code goes on to provide a fairly comprehensive list of factors for professionals to consider when creating an aftercare package. These include patients’ psychological and mental health needs, physical healthcare, daytime activities, appropriate accommodation, assistance in welfare rights and managing financing, social and cultural needs and specific needs arising from drinking alcohol. The services cannot be withdrawn until both

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the health body and the local authority are satisfied that the patient no longer needs them.

Let me give a real case example. A man was sectioned in 1996 when he was very unwell. Since that time, he has been stable and in receipt of joint supervision and support by the then primary care trust and social services. He lives in a London borough and qualifies for Section 117 aftercare because he was previously detained under the Mental Health Act. He is in a supported placement funded by social services. His social services care co-ordinator decided that he could be discharged from the care home and that there should be a review of the duty under Section 117 to provide aftercare. However, the patient’s psychiatrist strongly opposed this move, stating that his condition was only partially controlled by medication and that he continued to have challenging behaviour as a result of his condition. The psychiatrist strongly believed that the joint duty was still required, as was funding under Section 117, because the patient needed the supervision and safe environment that was provided in the care home. As a result, that duty to the patient has remained and he continues to reside in the care home. This example shows that the effective healthcare being provided to keep the patient stable and safe was directly dependent on the social care. However, social services saw only that he was managing in the supported setting, which led to the suggestion that he should move on, which could have resulted in a deterioration in his health and well-being, and eventually to his being readmitted to hospital. Without the joint duty, a decision could be taken regardless of the views of a patient’s medical team.

5 pm

This example shows that the duty under Section 117 is not indefinite. It continues only until such time as both statutory agencies decide that the person is no longer in need of aftercare services. For some people this will be a short period of time, for others it will be longer, but the point is that the duty is unique because the client group is unique. As Lord Justice Buxton stated in the Court of Appeal stage of the Stennett v Manchester City Council case it applies to an “an exceptionally vulnerable class”.

There is also clear public health policy and purpose behind Section 117—to help get vulnerable people out of hospitals and back into the community. I am sure noble Lords will agree that no one should remain in hospital any longer than they need and that aftercare services should be provided to enable a safe discharge and to avoid the emotional harm and expense of deterioration. This is vital to prevent our hospitals becoming bottle-necked. As we all know, it is more cost efficient to work with people in the community than in hospitals. I would argue that Section 117 focuses on ensuring the well-being of some of the most severely vulnerable people in our communities, which is in line with the principles of this Care Bill.

So what does the Care Bill do? What is my issue with Clause 68(5)? The subsection introduces a new, two-part statutory definition of the aftercare services provided under Section 117 of the Mental Health Act. There may have been some concern among the

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Government that there was no definition of “aftercare services”, as if this was an oversight that needed to be addressed. However, let us be clear, there was no error and no oversight. The aftercare services in Section 117 were deliberately not defined by Parliament. This is because there is a wide variety of mental disorders and the ways in which they manifest themselves require the most flexible approach to meet a person’s needs and it would be nonsensical to bind the hands of professionals in deciding what services should be provided. Aftercare packages will be different for each person and should be developed based on the needs of each individual. Flexibility in the definition was therefore essential as it would be impossible to list all the potential services that could make up these individual aftercare packages.

Clause 68 as it stands would result in this carefully crafted provision being stripped of its content. Disputes could arise as to whether services were required simply because of a physical as opposed to a mental disorder. There could be a split in the service entitlement between physical and mental symptoms, and expensive litigation between authorities as to what was meant. There could also be far more disputes between health and social care agencies because the definition would be more restrictive than now.

Amid all this, the person concerned would be stuck in the middle, needing essential services to be safe and well cared for and yet unable to be discharged. This will cost the taxpayer far more and fail the very group Parliament intended would be served by this provision. Hospital beds would be blocked by people unable to be discharged because of funding disputes and arguments about whether a need fell within the amended definition. This is not progress and will do much to undo the good work that has been done in ensuring that people receive the services they need, for both their sakes and for others.

Let me give a real case example of the kind of issues that could arise. A man has a severe anxiety disorder and depression. He lives in a residential care home. He has been admitted to hospital because he has become incontinent when anxious and this has resulted in an infection. In hospital he becomes more anxious and attempts to self-harm on several occasions. He is then detained under the Mental Health Act. An assessment is undertaken which concludes that he needs nursing care and not residential care. However, there is then a dispute between health and social care about whether his nursing needs are a result of his mental disorder or a physical health problem and who is responsible for them. He remains in hospital unnecessarily for weeks without a decision being made because of the stand-off. Eventually, through threatened legal action against both health and social care agencies, reminding them of their joint obligations under Section 117, they agree a way forward which results in him being discharged from hospital to a place which meets his needs and releases a hospital bed.

I think that example demonstrates that vulnerable people may be detained in hospital for longer than necessary while disputes are settled and that they are usually not in a position to fight for aftercare services when disputes such as this arise. Moreover, if it is decided that elements of care do not fall into the remit

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of Section 117, the person may have to go through difficult and lengthy financial assessments at a time when they should be focusing on their recovery. If people are asked to pay for a service on discharge from hospital, in my experience, they may well choose to go without the service, and without the right aftercare people are likely to become very unwell and risk falling out of society and being subject to more compulsory treatment.

Why, then, are the Government doing this? Ministers accepted my arguments and amendments to the Health and Social Care Bill regarding Section 117 of the Mental Health Act. In fact, the Minister, the noble Baroness, Lady Northover, stated during the Health and Social Care Bill debate,

“the Government have no plans to bring in measures that would change the position on charging for Section 117 services”.—[

Official Report

, 29/2/12; col. 1368.]

That assurance was very welcome. Yet here we are again, facing significant changes to the definition of aftercare that could remove these services from very many people.

I am not 100% sure what the Government’s decision is based on, but I fear that they are being influenced by what I and other legal experts consider to be a very unusual case that clearly does not reflect the vast majority of Section 117 cases: R (Mwanza) v the London Borough of Greenwich in 2010. I argue that this statute should be decided not by such an unusual case, but by Parliament.

The Minister will be aware that Mr Mwanza was an illegal overstayer who tried to use a Section 3 admission eight years earlier, and nine years after his discharge from hospital, to obtain free accommodation. However, perhaps rightly, the judge decided that he was not entitled to Section 117 help, because the decision had already been made to terminate Section 117 services, and the judge took the view that Section 117 services must,

“meet a need arising from a person's mental disorder.”

I disagree, because it suggests that the focus of Section 117 should be only on the mental disorder of the patient. As I have previously stated, Section 117 cannot just be tied to the needs around the mental disorder. It should be tied to the overall needs of the person for both healthcare and social care, to enable them to get out of hospital and back into the community as quickly as possible.

Let me give a hypothetical but typical example of a case that could arise where there is a dispute and a narrow definition of aftercare is adopted. A man with a diagnosis of schizophrenia is detained under the Mental Health Act. To be discharged into the community he needs welfare benefits advice and floating support for managing his flat, his bills and his daily activities so as to keep appointments. The local authority says that the floating support and welfare benefits advice are generic services that are needed by many people, not just those who have been discharged from a mental health hospital. These cannot be described as needs relating to or arising from the mental disorder that resulted in the man’s detention. The local authority

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therefore argues that they are not Section 117 services, and he must be means-assessed to pay for them if he requires them.

What I find worrying is that some local authorities have already used the Mwanza case to argue that social care services should be excluded from Section 117 care packages. We know that during times of economic austerity such as these, local authorities will try to reduce their responsibilities for service provision if they can. A prescriptive definition of aftercare services may allow them to do that. A recent survey of 81 councils found that almost half said they were planning to reduce spending on care services for adults, specifically those with learning disabilities or learning difficulties. Eight have already scrapped care for those deemed to have moderate needs, leaving thousands of vulnerable people with reduced support.

Mind has provided me with details of two current cases that I believe clearly demonstrate the problems and show that local authorities will sometimes refuse to provide care services until they are legally required to do so. The first case is about a woman who was detained for many years with a diagnosis of personality disorder. The local authority wanted to fund only partly supported accommodation when she clearly needed 24-hour accommodation. The local authority was willing to fund the much needed accommodation only after a letter threatening legal action. This delayed the woman’s discharge for months.

The second case is of a man who was granted a deferred conditional discharge by a tribunal, but could not be discharged for many months since the local authority refused to fund aftercare accommodation and look for an appropriate community psychiatrist. Once again, after many letters, phone calls and a letter before legal action, the local authority conceded and the man is likely to be granted a conditional treatment discharge next week. These cases show why it is important not to let one unusual case form the basis for a statutory definition of aftercare for Section 117.

I am sorry because I am going on a bit, but another five minutes would allow me to lay out this important argument very clearly. I will quickly say that the House of Lords, in contrast to Mwanza, agreed in R v Manchester City Council ex parte Stennett with the definition in a previous judgment that aftercare services,

“would normally include social work, support in helping the ex-patient with problems of employment, accommodation or family relationships, the provision of domiciliary services and the use of day centre and residential facilities”.

That is more in line with the code of practice. I have a real problem with the use of the definite article and the term “mental disorder”, which I will come back to when I respond to the Minister. I think there is a real problem with that.

Ideally, I would like to delete Clause 68 completely and the whole idea of setting a definition of aftercare. Reluctantly, I have not gone down that road, as I suspect the proposal would fail. However, if there must be a definition, I would strongly argue that it must be as wide as possible. The amendment that I have proposed to Clause 68 would ensure that the focus on aftercare is on preventing readmission to

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hospital, whether that requires social care services, health services or, most likely, both. I do not believe it is necessary to state that services must meet needs arising from, or related to, mental disorder, since the aftercare package will be reviewed at regular intervals as a person’s mental health improves. If it is no longer needed, then there will be a reassessment by social care.

Section 117 provides a vital level of protection for vulnerable people with mental health problems. The impact of diminishing this duty should not be underestimated. I apologise for going over time.

Baroness Barker: My Lords, I thank the noble Lord, Lord Patel of Bradford, for introducing this extremely important issue, which this House has addressed on a number of occasions, including during the passage of the Mental Health Bill, when the noble Earl and I were in opposition and argued very strongly for the retention of Section 117. It also came up during the Health and Social Care Bill.

I do not want to go into any detail because the noble Lord has done that excellently and there is no need for much more to be said. I would simply say that Section 117, which has been around for about the past 30 years, is the one piece of legislation that enables health and social care to work effectively together to deal with the needs of a very vulnerable group of people. It seems very odd, when the whole thrust of the rest of the Bill is aimed at integrating health and social care, that the one piece of legislation where that actually works is constantly coming under attack. People’s mental health deteriorates for reasons to do with their social circumstances as much as their mental condition. The noble Lord is right yet again to defend this piece of legislation and I support his amendment.

Baroness Wheeler: My Lords, my noble friend is right to express his frustration and dismay that, once again, we are faced with government proposals which would change the statutory provision of free aftercare services for people leaving hospital who have been treated under the Mental Health Act 1983 and people subject to community treatment orders—Section 117 services.

As we know, the Government have promised to address concerns about changes made to Section 117 in the code of practice guidance under the Act, but my noble friend has shown clearly today why the Bill’s current wording under Clause 68(5) needs to be changed. As it is drafted, it would have very serious consequences and cause complete confusion over the responsibility for provision of aftercare services for mentally ill people, which we all thought had been addressed and resolved last year under the finally agreed provisions of the Health and Social Care Act.

The current statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising due to the mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. Amendment 105 to Clause 68 instead defines aftercare services as those services designed to reduce the likelihood of a person requiring readmission for the same mental

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disorder. It is right that the definition of aftercare services focuses on reducing readmission to hospital and does not lead to confusion or legal disputes about a local authority’s role in this or about what services should be provided under Section 117.

Recent surveys by the mental health charity Mind have shown, generally, that many people with mental health problems are never properly assessed to see if they need social care—such as somebody to help with admin or household tasks, washing, dressing or something meaningful to do with the day. At least under the current legislation, people with mental health problems who have been treated under the Mental Health Act are entitled to receive free aftercare services when they leave hospital, and we must take care to safeguard that entitlement.

We on these Benches strongly support my noble friend’s amendment to ensure that that entitlement is carried through into the Care Bill. My noble friend has both the expertise and the dogged determination to pursue his case, and I hope that the Minister has some very good news for him today that addresses his rightful concerns.

5.15 pm

Baroness Northover: My Lords, we understand and respect the desire of the noble Lord, Lord Patel of Bradford, to achieve the best that he possibly can for people with severe mental disorders and pay tribute to his many achievements in the mental health field over many years. We are indeed, as he said, on the same side. We recognise the special vulnerability of this group, and I listened very carefully to what he said.

The Government’s view is that our proposed definition of aftercare services meets the objective of providing clarity on the duty to ensure such provision. That will give greater certainty to those needing or providing aftercare so that it can be provided when it is needed. The inclusion of a definition of aftercare services followed a recommendation by the Law Commission that aftercare services should be defined in accordance with a two-limbed definition from the Mwanza case. This case law defined the services to mean services necessary to meet a need arising from the person’s mental disorder and aimed at reducing the likelihood of the person’s readmission to hospital for further treatment of the disorder.

The Government’s definition of aftercare services builds on the definition recommended by the Law Commission. That was the starting point for the definition. We accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. The clause now clarifies that the Section 117 duty requires services to be provided to meet needs arising from or related to the person's mental disorder, as well as reducing the risk that the person’s mental condition could deteriorate, requiring their readmission to hospital.

Following public consultation, the Government expanded the proposed definition to put it in the Bill in what we feel is a much improved form. The noble Lord’s amendment omits the first limb of the Government’s definition while making changes to the second. In particular, his amendment weakens the connection between the services required to be provided under

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Section 117—I assure the noble Baroness, Lady Wheeler, that we are fully committed to continuing those—and the specific needs linked to a mental disorder, meaning that the scope of the definition would be unclear.

The Government are concerned that this amendment may confuse rather than clarify the circumstances in which aftercare services should be provided. That would run counter to the purpose of introducing a new definition. If there are disputes over the aftercare services to be provided, the wait that some people would have to endure before the aftercare services would be in place to enable them to leave hospital could be prolonged, something which the noble Lord wants to avoid. In our view, given that it omits the criterion that services must have the purpose of,

“meeting a need arising from or related to the mental disorder of the person concerned”—

I can assure the noble Lord that the definite article does not simply mean something singular but encompasses the plural as well, something to which he briefly referred—the amendment is likely to give rise to more disputes and administrative uncertainty than would be the case with the clause as it stands. Examples of disputes arising under the current Section 117, with no definition, highlight why a statutory definition will add clarity. As highlighted by the Law Commission, having no definition means that the interpretation is left to case law, which has provided varying interpretations.

Nothing in Clause 68 will change the guidance in chapter 27 of the code of practice. It covers housing, employment counselling, and cultural and spiritual needs. The professionals involved include mental health professionals, GPs, employment experts, independent advocates and others. The proposed definition sets out the essential elements and requirements for services to fall within Section 117. The Government do not wish to be more prescriptive as aftercare services should be agreed by health and social care professionals as guided by the code. I hope that that reassures the noble Lord. This has to be done, of course, in the light of each patient’s particular needs.

Finally, the current clause introduces a purpose for Section 117 services to reduce the risk of deterioration in a person’s mental condition, which the noble Lord’s amendment leaves out. I found myself looking at his examples as he went through them. I could not see that they would be excluded by the definition in the Bill, so we see no compelling reason to alter the definition of aftercare from what has been proposed, which is based on research and consultation by the Law Commission and the Government. Perhaps I should propose to the noble Lord that we meet between now and the Report stage to discuss his concerns and make sure that they are not well founded. I am very happy to take this forward and see whether we can involve my honourable friend Norman Lamb in those discussions. I hope that, on the basis of this response, the noble Lord will be happy to withdraw his amendment.

Lord Patel of Bradford: I suppose the only bit of that I was pleased about was the proposal that we should meet. Unfortunately, I disagree with everything the Minister has said. The Law Society, the Mental Health Lawyers Association, Mind, and the Care and

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Support Alliance—an alliance of over 70 organisations—agree with me that the Mwanza case is completely unique and off the wall. It concerned someone who was sectioned nine years ago and had nothing to do with Section 117 services, but his lawyers were trying to use that as a basis to get free accommodation.

Baroness Northover: Does the noble Lord accept what I have just said: that it was doubt over cases like that which led the Law Commission to come up with a recommendation that there should be a definition as a starting point for where the Government would then take this?

Lord Patel of Bradford: I still have a problem because the definition is very clear, as the noble Baroness has said. It is about being related to “the mental disorder”. I know that the Minister said that this is standard legislative language and that it is not intended to be a singular disorder, but I disagree. First, the definition does not give us a sense that aftercare should be holistic and thus in line with the underlying well-being principle. Secondly, the use of the definitive article in “the mental disorder” is completely out of keeping with the Mental Health Act. I can give a couple of examples from some of the trigger sections of the 1983 Act. Section 1 of that Act defines mental disorder but Sections 2 and 3, which refer to mental disorder, have no definite article. The wording is completely separate from that of the Mental Health Act, so officials should go back to the drawing board and look at it a bit more carefully. It is very unclear and it poses huge legal arguments, as people will say that this is about “a mental disorder”.

Baroness Northover: Under the Interpretation Act 1978, words in the singular may include the plural.

Lord Patel of Bradford: I completely agree that legally that is what it means, but the 1983 Act does not use the word “the” in front of “mental disorder” in any of its important trigger sections. What is important is that it is not in keeping with the 1983 Act at all. Moreover, we have already seen local authorities trying to use this case. We should be dictating what happens. I am not sure whether the judge in that case—I do not know if I should be saying this—was by any stretch a mental health expert. I think he was a family court judge, so it was completely different. The Stennett case, which was appealed to the House of Lords, clearly stated a definition that was very different from this. We should not be dictated to by that; Parliament should dictate. The Bill will dictate what aftercare services are.