In trying to put my finger on the point, yes, they recognise independent advice and financial advice, but they do not recognise the need for that advice to come from people who are properly qualified to give it. It is not enough to have Tom, Dick and Harry advise in this field. It is not enough, even, for local authorities to send people to see people who they may think are quite plausible advisers, such as Citizens Advice: they do not know the complications involved in giving financial advice, particularly to people who have got some money and need to make sure that it will provide them with the care in a home that they want. They need proper, regulated financial advice, given by advisers who can be called to task by the Financial Conduct Authority if the advice they give is not sufficient, who have to follow the rules set by it and must have the kind of qualifications required by it. Therefore, in my view the Government are some way short of what is required in these amendments. It is to repair that lack that I shall later move Amendment 20.

Baroness Barker: My Lords, I think I am right in saying that in the Inuit language there are more than 300 words for snow. I suspect that if historians were to go back through the annals of the British Civil Service, they would come across thousands of ways in which officials have briefed Ministers to say “no” to requests for advocacy. During the 20 years that I have followed these sorts of issues, during which advocacy has became part of social care, Governments have had to find ways to say, “It’s a very good thing, but we’re not going to fund it”. It was therefore a real joy to see the Government’s Amendments 118 and 119 in this group.

It is fair to say that the Government have taken on board the arguments that have put forward by a wide range of people. We know that the changes to the care system and the complexity of those changes, not least those stemming from the Dilnot recommendations, mean that we are now into a level of complexity which individuals on their own—even those who are fairly well informed—will find extremely difficult to manage. Therefore I very much welcome the Government’s Amendments 118 and 119, in which they recognise that there will have to be advocacy services. I also welcome the Government’s commitment to set aside funding for that.

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The Minister will accept that his Amendments 118 and 119 fall somewhat short of my proposal in Amendment 38. I would therefore like to raise a few questions which result from the fact that the government amendments are of a much tighter scope than my proposal. I welcome the amendments, but there are several issues that I wish to ask the Minister about.

Subsection (2) of the new clause proposed in Amendment 118 states that independent advocates will,

“represent and support the individual for the purpose of facilitating the individual’s involvement”.

Advocacy in its truest sense is about much more than involvement—it is about enabling people who need help to achieve the outcomes they want. The word “involvement” is not defined, although it is used a lot in the Bill. Will the Minister say whether advocates will have a full advocacy role or whether this is just about securing the involvement of people?

Secondly, I come to individuals who qualify to have an advocate. Subsection (4) of the proposed new clause is quite clear that that is reduced to people who have substantial difficulty in understanding and retaining information, in making judgments by weighing things or in communicating their views. What is not in the Government’s Amendment 118 is a right of access for the advocate to access those people. Under the Mental Capacity Act and the Mental Health Act, where advocates are appointed they have a statutory right of access to people and a statutory right to interview those people in private. Given that we are talking about some fairly vulnerable people, would it be possible to ensure in regulations that advocates have a statutory right of access?

The third thing that is missing is that although the Government have taken this welcome step, there is absolutely no duty upon the local authority to listen to what the advocate has to say. That is a huge omission in the process; could it be dealt with in regulations? To echo the points made by the noble Lord, Lord Lipsey, it is important that people are properly trained for the roles that they will undertake in this extremely complex set of conditions which they are dealing with. Again, under the Mental Capacity Act and the Mental Health Act advocates have to be properly trained. Can that be dealt with in regulations?

Finally, can the Minister say whether it will be possible to include a general provision that in future, if additional circumstances arose in which it would be to the benefit of a person to have an advocate, they could have access to one? I am sorry to sound less than pleased—I am, in fact, very pleased by what the Government have put forward—but with a few more minor adjustments in regulations we could have something that is a great step forward.

6.15 pm

Lord Warner: My Lords, I will make a few remarks about three separate subjects that are covered in this group of amendments. First, I congratulate the noble Baroness, Lady Barker, on her tenacity on the subject of advocacy. I very much support what the Government are doing to try to respond to that, because it is a view that many of us across the House have had for some time. The Bill was deficient in terms of advocacy for those who need that kind of help and support.

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I will make one remark in relation to my noble friend Lord Lipsey’s remarks, which we will go into a bit more under the next amendment. I remind the Government of the mis-selling of pensions and insurance in the financial services sector. They would do well to dwell on that before they eliminate the idea of some regulation. I see the argument that not all types of financial advice need a regulated financial adviser. However, some types of that advice need a regulated financial adviser. My peace offering to the Government is the following. If they thought a bit more about this, given what happened in the financial services sector, it may be possible to separate out the types of financial advice and deal with it in regulation, where we need both regulated and unregulated people. At the moment, the Government are being too broad-brush in ignoring some of the complexities, particularly around equity release and deferred payments, which may be equally as complex as any of the pensions and insurance issues that were being rather gaily sold by untrained people in the financial services sector.

I take issue with the noble Baroness, Lady Meacher, on Amendment 21, drawing on my six years as a director of social services. In the 1980s, we set up a care management system where care managers did not have to be qualified social workers. These people were putting together packages of care after an in-service training course, which enabled them to deal with some very vulnerable people with quite complex needs. It is not necessary to have a social worker. Many local authority departments over the years have developed benefits advice services that run alongside their social work colleagues, which give financial benefits advice to vulnerable people who need to be helped to find their way around the social security system. I caution the Government against not going down that path. With all due respect to the professional advice that the noble Baroness, Lady Barker, has had, qualified social workers are not necessarily very good at giving some of the advice that we are talking about.

Even more to the point, we should not divert a scarce resource such as qualified social workers into this area of activity when we do not need to. I remind the noble Earl that we are seeing, in the children’s services, a 50% increase in the number of children coming into care in a four-year period. The real need for social work skills and resources is in some of those other areas of work that local authorities have to deal with. However modest the numbers may be—and this amendment does not limit them that much—we do not need to divert scarce social work resources into this area. They need to go into some of their higher priority work, particularly in the area of children.

Lord Hunt of Kings Heath: My Lords, we shall come to Amendment 20, in the name of my noble friend Lord Lipsey and that of other noble Lords, including me, in a moment. However, I want to ask the noble Earl about the point raised by the noble Baroness, Lady Barker, in relation to independent advocacy. The noble Baroness raised a pertinent point about what responsibility there is on a local authority to engage with the advocate. I hope that the noble Earl will provide the House with more information. Clearly, this is a step forward, which is to be welcomed, but

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one needs some assurance that the advocacy system will work effectively. It would be helpful to know what the noble Earl’s department thinks might be the appropriate response of a local authority where an advocate has come to the fore.

I have a great deal of sympathy with the amendment of the noble Baroness, Lady Greengross. It is one thing to provide information support grudgingly; another to be proactive in doing so. Perhaps the noble Earl would comment in particular on Clause 4, because there is a world of difference between Clause 4(1), in which a local authority must,

“establish and maintain a service for providing people in its area with information and advice”,

and Clause 4(2), which goes on to describe what type of advice. This does not assure us that a local authority will be effective in doing so. I should be grateful if the noble Earl would explain how this will be monitored. Will the Government have a role in reviewing the effectiveness of local authorities in providing that?

If one is resident in an area where the local authority does not seem to provide an effective information and advice service, what recourse does one have? I assume that there would be judicial review and the ombudsman, but those are heavy-handed approaches and it would be helpful to know whether the Government have thought through ways in which members of the public can draw attention to failures to provide effective information and advice in some local authority areas.

That might pick up on the amendment relating to the use of professionally qualified social workers. My noble friend Lord Warner, with a great deal of experience, has suggested that even in areas where there are complex needs, a qualified social worker need not necessarily provide this support. None the less, one wants some assurance that sufficient provision for support will be given. Again, it comes back to the issue of how we will monitor the performance of local authorities.

Baroness Meacher: My Lords, perhaps as a point of information in response to the noble Lord, Lord Warner, I should clarify that my amendment does not suggest that qualified social workers should provide financial advice, for example. The important point about the role of these qualified social workers is that they are used to co-ordinating services for people and would be well aware of the need for financial and all sorts of other advice. Therefore, in relation to people with very complex needs, they are in a good position to make sure that all the bits of the jigsaw are actually provided. That was the objective behind the amendment.

Earl Howe: My Lords, let there be no doubt at all that in the Government’s view high quality, accessible information is vital if we are to realise the aims set out in this Bill. We heard some excellent arguments in Committee about financial advice, advocacy, accessibility and signposting to other sources of information and advice. I hope that the amendments we are tabling today, and the commitments that we can give about our work with the sector on statutory guidance, will persuade noble Lords that we have listened to what we heard in Committee and have acted accordingly.

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The noble Baroness, Lady Greengross, has tabled two amendments, Amendments 13 and 18, which state that local authorities should facilitate access to information and advice and that they should be accessible to those who would benefit. Amendment 21, tabled by the noble Baroness, Lady Meacher, proposes regulation-making powers which specify when social workers should provide information in complex cases. Following consultation, we made clear that information and advice must be accessible to those who have a need for them in relation to care and support. It says exactly that in Clause 4(4). Local authorities will have to meet the information needs of all groups, including those who often find it most difficult to access information, such as those with sensory impairments, people from BME backgrounds, people who are socially isolated or who have complex conditions. We are absolutely clear about that.

“Accessible and proportionate”—the words that we use in the Bill—also mean ensuring that information and advice are available in the right format, in the right places and at the right time. A vital aspect of this is making them available face to face and one to one, by phone, through leaflets and posters as well as online. When appropriate and most effective, that advice should be given directly by a qualified social worker. There will be other occasions when information and advice are best and most appropriately provided by others. We are working with all interested parties on what this means in practice and on translating this into the statutory guidance.

Amendment 18, tabled by the noble Baroness, Lady Greengross, seeks to ensure that information should be accessible and proportionate to those who would benefit. We consider this amendment to be unnecessary. The duty to provide information and advice applies to a local authority’s whole population—including those who would benefit from that. Each local authority will need to tailor the service to its population’s needs. I can confirm to the noble Baroness that the detail about how to do this will be covered in statutory guidance, and we are working with stakeholders, including carers and user groups, to make sure that we get this right.

The Government have also listened carefully to concerns expressed about the provision of information and advice on financial matters. We have in response tabled Amendments 16 and 17, which seek to make clearer the active role that local authorities have. Amendment 16 requires local authorities to have regard to the importance of identifying individuals who would be likely to benefit from financial advice. This encourages a more active role for local authorities to consider whether people would benefit from financial advice. Amendment 17 means that local authorities must seek to ensure that adults understand how to access information and advice on the range of financial options available to them.

There are various options for people who could benefit from financial advice relating to care and support, both regulated and non-regulated. Our amendments highlight the importance of ensuring that people understand how to access the variety of advice available independently from local authorities. They mean that local authorities must seek to ensure

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that adults understand how to access the different financial advice available to them, thereby supporting people to make informed choices.

A particular point that I want to bring out here is that the Government do not believe it would be appropriate to require local authorities to make direct referrals. For the most part, local authorities do not possess the necessary expertise, and there is a risk that a referral leading to poor advice could bring a significant burden of accountability on to the local authority. We will work closely with stakeholders as we produce the statutory guidance to understand how different types of financial advice, including regulated financial advice, might be of benefit for people in different situations, as well as the active role of local authorities within this.

Amendments 14 and 19 seek to simplify and clarify Clause 4 and to respond to specific concerns raised in discussion in Committee. Amendment 14 simply re-words Clause 4(2)(d) in a more concise and understandable way. This makes the clear and unambiguous statement that the information and advice service must cover how a person can access independent financial advice on matters relevant to the meeting of needs for care and support. Amendment 19 responds to concerns raised about the potential confusion, particularly in the financial services industry, over the term “independent financial advice”. The amendment clarifies that the term means financial advice independent of the local authority.

6.30 pm

I turn to the amendment proposed by my noble friend Lady Barker about the importance of access to independent advocacy. The Bill requires local authorities to involve adults in the assessment, care planning and review processes. Most people will be able to carry out this involvement on their own and many others will have family or friends who are able to represent their views. However, in the light of what we have heard from noble Lords and other stakeholders, the Government accept that some people may require independent assistance to make this involvement a reality, which is why we are bringing forward Amendments 118 and 119. These are very similar to the amendments in the name of my noble friend Lady Barker. I shall address in a moment the questions that she put to me.

Following close work with the sector, we agree that the people who need this assistance most are those who have substantial difficulty in understanding, retaining, using or weighing the necessary information to allow this involvement, as well as those who have difficulty in communicating their wishes and feelings. For these people, our amendment states that local authorities would be under a duty to provide an independent advocate if there was no appropriate person to represent the individual who was not also involved in that person’s care or treatment. This would usually be a friend or family member. The Government’s amendments go further by proposing a similar duty to provide independent advocates to facilitate people’s involvement in the safeguarding processes. We consider it vital that people are at the heart of these processes, rather than having these processes done to them.

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My noble friend asked about the term “involve”. The change in the duty to involve a person as opposed to consulting them in the assessment, care planning and review processes was made as a result of public consultation. It represents a significant shift by changing the emphasis on the process from being one that is led by the local authority to one carried out jointly with the individual. In practice, this means that people will need to be actively involved throughout the process, meaning that local authorities take their views into account rather than being able to perform tick-box assessment exercises, which is sometimes the accusation now. This fits with our whole approach to reforming care and support, shifting from a paternalistic view and a system where the authorities know best to a system that is driven around people and their individual preferences.

My noble friend also asked about the right of access. We know that there have sometimes been issues around independent advocates being unable to access a person, resulting in their being unable to perform their role properly. Proposed subsection (2) of government Amendment 118 requires an advocate to be made available to the individual, and the duty of co-operation in Clause 6 requires relevant partners of a local authority to co-operate in such matters. The regulation-making power at proposed subsection (7)(d) in Amendment 118 allows us to make provision as to the manner in which independent advocates are to perform their functions. This will allow the Government to specify that advocates will need to see the individuals, among other things. We have not yet made decisions about the specific content of these regulations, as we will work collaboratively with all interested stakeholders to produce them.

The regulation-making power will allow us to specify the manner in which independent advocates will carry out their role. There are two main ways of quality-assuring the work of advocates, which was another issue raised by my noble friend. The first is through the commissioning process, whereby local authorities set out what they expect of the advocacy service in terms of quantity and quality and monitor it through performance indicators and regular meetings. Secondly, the department has also funded a sector-specific quality assurance framework, whereby organisations start by carrying out a self-assessment and then are visited by assessors, who examine and report on the quality of the work. This is called the quality performance mark, and many commissioners require it.

My noble friend asked about the possibility of a general provision to allow for future circumstances where advocacy is appropriate. I can tell her that the regulation-making powers in proposed subsection (7)(c) of Amendment 118 allow us to do that. Statutory guidance will go into more detail about when advocacy would be appropriate.

I turn to the question posed by the noble Lord, Lord Hunt, about how we will monitor effectiveness and what recourse individuals have. First, by putting care and support law into a single statute, we are ensuring that local authorities are clear about their care and support obligations. As public bodies, they are obliged to comply with these legal obligations, and we can rightly assume that they will do so. In some circumstances, an individual bringing legal proceedings

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against a local authority may be able to argue that an authority’s failure to comply with such duties has adversely affected them, and hence a failure to comply could be subject to a legal challenge. We will, however, be coming on to debate the role of the CQC in this context, and I can perhaps elaborate further on our thoughts on the role of the CQC at that point.

I hope that by bringing forward these amendments we are showing that we have listened carefully to the many representations we have heard on the issue of advocacy and are demonstrating the Government’s commitment to improving outcomes for some of the most vulnerable people using care and support. I hope that they will receive the support of the House. Further, I trust that noble Lords will note that we have listened carefully about the importance of financial advice and will support the amendments that we are proposing, which encourage a more active role for local authorities. Finally, I hope that noble Lords are persuaded about how important we believe the statutory guidance on information and advice to be, in which we are committed to addressing in detail important issues, such as integration with areas such as health and housing and making information accessible to all.

Baroness Greengross: My Lords, I start by thanking the Minister for his very detailed response to these amendments. I am encouraged by what he said. I was, in my remarks, trying to broaden this issue so that integration is about the information and advice that people need and is not always restricted to financial advice and information. It is much broader. Obviously, the proof of the pudding in this is going to lie in what actually happens, and whether we get the sort of integrated approach to this that we hope underlies the philosophy of the whole Bill.

I am sorry that this provision cannot be in the Bill, but I am less worried about that than the eventual result of these measures. The slight muddling around the word “independence” will come out when we consider the next group of amendments and discuss the difference between regulated and independent. The two can be muddled, with regard to “independent” and “regulated”, when thinking of lots of different models for financial products, for example, and “independent” from the local authority. That all needs to be very clear in the minds of those who seek advice and those who are giving advice to very frail and vulnerable people to whom this needs to be clear, broad and helpful, and as well meaning as I know the Minister has in mind for it to be. I beg leave to withdraw my amendment.

Amendment 13 withdrawn.

Amendment 14

Moved by Earl Howe

14: Clause 4, page 4, line 22, leave out from “matters” to “, and” in line 24 and insert “relevant to the meeting of needs for care and support”

Amendment 14 agreed.

Amendment 15 not moved.

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Amendments 16 and 17

Moved by Earl Howe

16: Clause 4, page 4, line 28, after “particular” insert “—

( ) have regard to the importance of identifying adults in the authority’s area who would be likely to benefit from financial advice on matters relevant to the meeting of needs for care and support,

( ) ”

17: Clause 4, page 4, line 32, after “arise” insert “, and

(iii) to understand the different ways in which they may access independent financial advice on matters relevant to the meeting of needs for care and support.”

Amendments 16 and 17 agreed.

Amendment 18 not moved.

Amendment 19

Moved by Earl Howe

19: Clause 4, page 4, line 34, at end insert—

“( ) “Independent financial advice” means financial advice provided by a person who is independent of the local authority in question.”

Amendment 19 agreed.

Amendment 20

Moved by Lord Lipsey

20: Clause 4, page 4, line 41, at end insert—

“( ) The Secretary of State—

(a) has a duty to ensure through national public awareness campaigns that there is a high level of public awareness and understanding of the terms and implications of the cap on the cost of care; and

(b) shall publish annually a report on the levels of such awareness and understanding, including the results of a representative poll of adults.

( ) Regulations must make provision for when a local authority must refer an adult with care and support needs, or who is making plans for meeting such needs, to a regulated financial adviser; and for when a local authority may refer such an adult for such advice.

( ) The advice and information made available to adults with care and support needs must include—

(a) advice on housing options; and

(b) tailored information for individuals with specific medical conditions and complex individual needs.”

Lord Lipsey: My Lords, perhaps I may start with a procedural point. We have had these matters under discussion for quite some time, and the first three Peers named on the amendment—myself, the noble Lord, Lord Sharkey, and the noble Baroness, Lady Greengross—had a most useful meeting with the Minister and Norman Lamb from another place on 12 September. There was complete agreement at that meeting that, if it was at all possible, we wanted to go forward on the basis of consensus on the matters of advice and information, and I am sure that that is right. However, I think it fair to say that we are not quite there yet.

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The Minister very kindly agreed to share with us his notes for his speech in reply to the debate this evening in advance so that we could consider them, because many things that he might want to say are very relevant to whether we have a picture for advice that really does the job—sorry to mix the analogies. The Minister fulfilled his kind promise, but only at 2.41 pm this afternoon, and I have not had a chance to digest his words, nor to discuss them with my colleagues, whose names are on the amendment. He also suggested that we should have further talks if they would be helpful, particularly, he said, between Report stage days. Clearly we are not considering finished business here. All I am asking is that there should be agreement from him and from the House that if either he or we think that an amendment at Third Reading is appropriate and necessary—it may well not be—he will not resist it on the grounds that we have thoroughly debated it. This is open territory and we are trying to find a way forward. In that way we can avoid any Divisions this evening. I would be grateful if the Minister would agree.

Earl Howe: My Lords, I am happy to give that undertaking.

Lord Lipsey: That is marvellous. That makes it much easier.

As I said, I think we are making headway, but I do not think we are necessarily there. There are three elements to this amendment: the information campaign, which the noble Lord, Lord Sharkey, will concentrate on in his remarks; special groups and housing, which the noble Baroness, Lady Greengross, will address; and I will concentrate on the issue of advice.

Why do I spend so much time banging on about advice? This is an incredibly complicated area. The financial products are very complicated, and many people do not have a natural understanding of them. We all sort of know what a pension is. How many people, even in this House, know what a point-of-use care plan policy is? Who would be able to evaluate whether it was good value for money or bad? There is a large gap in the degree to which people know and understand the kind of products that can be involved here and the issues that can arise.

There is not a lot of this advice about, by the way. Some 53% of councils did not even refer people in care homes for independent financial advice. Only 7,000 of the 53,000 self-funders in care homes have had appropriate financial advice. A point-of-use policy can ensure that they can go on paying for their care however long they happen to stay in the home. Their whole lives are at stake, yet hardly more than 10% have received the financial advice they need.

This is costly not just to the individual but to the councils. Nearly one-fifth of self-funders end up falling back on the state to pay. It costs councils £435 million a year, which is a substantial sum. Much of this could be avoided if people got appropriate financial advice. I do not think that this is not common ground with the Government, but it is, I think, a reason why the Government need to make absolutely sure that they get it right in what they do.

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The need for financial advice has greatly increased as a result of the Dilnot scheme. The scheme has no stronger supporter than me, except possibly the Minister. I think it is a very good outcome to a very long and protracted debate. Nevertheless, it does make a lot of things more complicated. I will give an example that I gave in an earlier debate. You can apply for help under the means test and find that you are worse off if you get it because, although you get a little help under the means test, you lose attendance allowance if you get any means-tested support at all. I was amazed when I found that out, and I study this every day. How many people would know that unless they had the right kind of financial advice? That could come from citizens advice bureaux if their computer systems were up to it, but you really want an independent adviser to help you in the round. I do not think that is very controversial.

6.45 pm

It made me wonder why the original clauses in the Bill—and, as I argued earlier, even the revised clauses—are rather weak. I think I detected the answer in the Minister’s reply to the previous debate. What everybody is terribly worried about is a council saying, “Go and see Jones down the road. He will give you the right advice”. If that advice later turns out not to be very good, that person will not sue Jones or go to the Financial Ombudsman Service; he will sue the council. That seems to me a perfectly reasonable point. However, at the other end it does not work, either. It is no good if the council just hands him a list of financial advisers and says, “Why don’t you ring one of these chappies if you are not happy?” because that will not cause people to do it. What we are looking for is not a direction to go and see X, nor a vague offer that something might be a good idea if he wanted to do it. We need to nudge people pretty firmly in the direction of getting financial advice. Of course, any individual is free to say that they do not want that advice; that would then be their lookout.

I am not sure—and the House will judge when it has heard the Minister’s remarks—that even now we have cracked the dilemma of how we nudge. However, many local authorities are making very good progress in this field—for example, Nottinghamshire and West Sussex, which we have discussed before—setting up fora in which the local authority, independent financial advisers, citizens advice bureaux and the voluntary sector all co-operate and provide a service to people. Incidentally, some councils are doing this because they absolutely need to for the benefit of their own budget. A whole lot of people are moving out of inner London who are self-funders but who do not have enough money to go on self-funding forever. They will impose an impossible burden on those councils. The go-ahead ones are going ahead and the ones who do not like this area are not doing anything at all. That is why we need more vigour from the Government on this issue.

Furthermore, I am not convinced that enough is being done to get the regulation system up to speed. Regulation of advisers in this field was only reluctantly embraced by the old FSA. I am not sure that the new regime is doing very much better. I hope that the Government are doing enough to push it to take this issue seriously. Not enough is going on to make sure

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that enough qualified advisers are coming forward. It is a very good job for an adviser now that the old ways of making money by flogging people dodgy investments are becoming increasingly difficult. This is a very good field and I would advise any reputable financial adviser with the right knowledge to think seriously about going into it. It is very satisfying work and can be rewarding. However, I do not think enough of it is going on.

I see here a great shortfall—to which my amendment would be only one part of the solution, but an important part—between what is needed and what is actually happening. It is crucial that the House satisfies itself that the Minister’s department really is gripping this and not being paralysed in the headlights by thinking, “Oh, dear, some poor local authority or the Government may get the blame if this goes wrong”. The whole Dilnot scheme depends on getting advice right. It is as strong and as simple as that. If it fails for the lack of dealing with the advice problem, we as a nation, and many older people, will be the poorer as a result. I beg to move.

Lord Sharkey (LD): My Lords, I will speak to the first part of this amendment, but before I do so I will register my strong support for the remarks made by the noble Lord, Lord Lipsey, a moment ago, especially with regard to the provision of independent and regulated financial advice.

I think it is common ground that the Dilnot reforms will fail unless the public understand what they are and what their implications are. I think it is also common ground that there need to be vigorous communication campaigns to make sure people do in fact know about and understand the implications of the reforms. Where there seems to be a difference between the Minister and those who supported a similar amendment to this in Committee is over who should be directly responsible for ensuring that these campaigns take place and that they have an effective form, and over how their effectiveness is assessed.

The amendment before us gives the Secretary of State a duty to ensure through national public awareness campaigns that there is a high level of public awareness and understanding of the terms and implications of the cap on the cost of care. In his reply to a similar amendment in Committee, the Minister simply noted that the Bill as it stands places a duty on local authorities to provide information and advice, including on the cap system. In later correspondence, for which I am very grateful to the Minister, he expanded on the point. He noted that, first, the funding reforms create a shared interest on the part of local authorities, government and the financial services industry to make sure that people are aware of the reforms and have access to the right information and advice at the right time so that they can plan and be prepared to meet their care and support needs. Secondly, the Government want to act in partnership with these key stakeholders to get this right, building on the effective relationships already established. Thirdly, the Government are seeking views in a consultation on the design and technical implementation of the funding reforms, which includes addressing the best way to proceed to raise awareness of these reforms nationally and locally.

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The Minister’s remarks make it clear that there are lots of interested parties in this communications endeavour, but they entirely overlook the question of leadership. A campaign as vital as this needs leadership. I maintain that that leadership can come only from the Secretary of State. Local authorities, almost by definition, cannot easily lead in any national sense. As for the financial services industry, it is convinced that the information campaigns need clear, well defined leadership, and is quite clear that it cannot come from that industry. Who would believe facts on the reforms presented by somebody trying to sell you something? In fact, the ABI has told me that it believes that the public information initiative should be led by the Government. That is what part 1 of this amendment would do—give the Secretary of State leadership and responsibility.

The other areas where the Minister may differ about a communications campaign are how high to set the bar and how to explicitly make it plain that it is not just the terms of the reform that have to be understood but the implications of the terms of the reform. It is not much good being aware of the facts if you cannot work out what the facts mean for you. However, the difference over how high to set the bar for a communication campaign is critical. As the noble Lord, Lord Hunt, pointed out a moment ago, the Bill states only that local authorities must establish and maintain a service for providing information and advice. The Bill does not set any measure for whether anyone actually receives or understands this information and advice. It does not set targets of any kind.

You can easily see a situation in which local authorities can, at least technically, fulfil a duty to provide advice and information without providing much of it, or knowing how many people are reached by it and how many of those reached understand it and the implications it has for them. That would be an entirely unsatisfactory outcome and certainly not what the Government intend. We need to make sure this does not happen and that is what part 1 of the amendment would do. It calls for,

“a high level of public awareness and understanding of the terms and implications of the cap on the cost of care”.

At Second Reading, the Minister said:

“The Government will adopt a strategic approach to maximising the public’s understanding of the new care and support system”.—[Official Report, 21/5/13; col. 827.]

The key word is “maximising”. The amendment gives written substance to the idea of maximisation.

The first part of the amendment contains a paragraph which would require the Secretary of State to publish annually a report on the levels of awareness and understanding of the reforms,

“including the results of a representative poll of adults”.

When we discussed this requirement in Committee and subsequently, the Minister felt that reviews of understanding and awareness would naturally follow in the normal course of things, and I am sure that is the case. However, the special nature of these reforms and the need to be able accurately to measure progress in informing people and keeping them informed calls for a more definite and more regular assessment. The Minister also felt that the kind of annual survey we proposed might be very expensive. I have had extensive

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experience of these surveys in business over the past 20 years and I can reassure the Minister immediately that the kind of annual survey this amendment proposes would have an essentially trivial cost. That is why, for the sake of clarity, the amendment makes reference to a “representative poll of adults”. This kind of survey would, in fact, cost very little, would be very easy to administer and would be exceptionally quick in delivering results.

I will close by saying that I strongly believe a large-scale national information and advice campaign is necessary for the success of our reforms. I believe that any such campaign must have appropriate targets and that we should see on a regular basis how these targets are being met. I believe that any such campaign must have clear leadership, and that direct responsibility for that leadership should be the duty of the Secretary of State, as the amendment proposes. I very much hope that the Minister will be able to agree with at least some of it.

Baroness Greengross: My Lords, I fully endorse what my two esteemed colleagues said regarding the need for appropriate financial advice. I am still of the opinion that people should be referred to regulated advisers, who are best placed to advise them on the full range of solutions open to them. However, to avoid repetition, I will briefly concentrate on the paragraph in Amendment 20 dealing with other areas of concern about which we have already talked in some depth, such as housing. People with specific medical conditions and complex needs are reliant on suitable housing provision. We should also not forget the needs of their carers in this regard. The local authority will need to engage with agencies and organisations such as the CABs and Age UK in an integrated way. This should be part of providing a relevant local advice and information envelope.

Plainly, there is no point in getting appropriate financial advice if, through no fault of the adviser, faithfully following that advice cannot be guaranteed to lead to good care outcomes. Those outcomes may be consequent upon ensuring that things such as the suitability of the individual’s housing and accommodation are included in any wider fact-finding conducted by the local authority alongside any care or financial assessments it performs. That housing suitability will probably depend on the complexity of the care package that the individual’s needs disclose. Those needs will probably derive directly from the specific set of conditions and symptoms that the individual faces.

No one would expect a local authority to be familiar with every possible combination of health and social circumstances that an individual may face, which is why close working alongside local agencies and organisations such as the CABs and Age UK in assuring the existence of a complete, competent advice and information envelope is so important. Indeed, it is my firm view that the quality of that integrated approach to care management may well be the key determinant on which successful outcomes depend. I urge the Minister to adopt our amendment, as we believe that it would go a long way to ensure more effective and efficient outcomes for both the service user and the taxpayer.

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7 pm

Lord Deben: My Lords, I declare an interest as chairman of the Association of Professional Financial Advisers. One of the areas that regulated financial advisers are most concerned about is that they should be able to do the job that they are there for. I am concerned that recent “reforms” have meant that there are fewer people available to give advice and fewer people getting advice. One of our problems is that this means that people get bad advice. They say something to their friend round the corner, or somebody says “I think so-and-so’s OK”, or they have read something in the newspaper. One of our difficulties here is that the perfect gets in the way of the good. People are frightened to say things like, “here is a list of people” or “here is somebody I have used”, in case they then incur some kind of responsibility. Yet if we do not help people to find someone who can give them advice, the very people who most need advice do not get it. I am concerned that this is becoming almost a social problem in the sense that those who are best off and least need advice get the best advice while those who are less well off and need advice do not get it because we have got ourselves into this mess.

I am not in a position to say that this or that amendment is ideal, but I hope the Minister will accept that, in today’s circumstances, unless we give clarity to people and make it relatively easy and simple for them to go to get advice, they will not go and will not be able to.

I have two more short points to make. First, we have concentrated on the simplicity of the advice when you get it, which seems to me to be the wrong place. It is the simplicity of getting the advice that really matters. Very often, the advice that is given may not be all that simple, because the circumstances may not be all that simple, but if the simplicity of getting the advice is right then it can be moved through more effectively.

Secondly, in considering these amendments and, indeed the Bill—at this stage and going forward—I hope the Minister will realise that one of the problems about seeking advice is that the language used is incomprehensible to anybody but the professional. I find this embarrassing: I once sat on an FSA committee designed to try to make more people more financially literate and spent my whole time asking superior people in the finance world to explain to me what they meant. I discovered that they did not always know what they meant. There is a sort of language which is used and batted backwards and forwards between these people. There is a terrible fallout in this. I remember that a friend of mine was asked for advice—not about finance, but about how to buy a theatre ticket—by a man had never gone to the theatre before but whose wife wanted to go to something. She explained and dealt with it but a friend of hers said, very superiorly: “Of course everybody knows how to buy a theatre ticket”. My friend asked, very simply: “Could you buy a football ticket”.

That is one of the problems, so I hope we can try to do this in a way which is comprehensible and simple and which does not mean that the most needy are unable to get the service they need.

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Lord Warner: My Lords, I rise to support this amendment and, particularly, to talk about the first two prongs of it. I do this partly from my experience as a member of the Dilnot commission. I remind the House what that commission said on the subject of an awareness campaign. We made only 10 recommendations, one of which was a very strong one because we had been incredibly depressed by the evidence given about people’s understanding of the present system, let alone the new one. When you have 60% of the population thinking that social care is provided by the NHS, you have a bit of a problem explaining to people how the system operates. Since they have not even mastered the existing system, you have to make a really big effort to get across some of the messages about the changes to it.

You could argue that it is a bit like Africa: if you have never had a landline and go straight to mobile phones it might be easier to make the change. Many people will not carry a lot of baggage about the existing system, but we do need to work really hard on this issue. That is why we said:

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

we used the word “invest” very deliberately—

“This should inform people of the new system and the importance of planning ahead. This campaign could be linked into the wider work to encourage pension savings”.

Those three sentences were worked over very carefully and we said exactly what we meant on those issues. We said them as strongly as that because we thought that, to some extent, the success or failure of the changes encompassed in the Bill depend on that awareness campaign. I have not seen the Minister’s reply, but I have a suspicion—because I know how health Ministers get briefed—that there will be something about how this is not appropriate stuff to put in the Bill. I can see that there is some strength in that argument but if we are not to put it in the Bill then the Minister has got to start to tell us, in detail, what the Government are going to do.

The Government have had more than two years to think about this. We were made to produce a report very quickly indeed: within 12 months. It is now more than two years since it was produced and I should have thought we could expect a reasonably detailed plan from the Department of Health about how it is actually going to make the public aware. It would be nice if the Minister accepted the amendment, but if he is not going to, we need to know: where is the budgetary provision for the awareness campaign; what work has been done on the selection of people to help run the campaign; when it will start and how long it will go on for. How much are you going to pay for this? Do you accept the idea that all good awareness campaigns have some kind of follow-up arrangements? The noble Lord, Lord Sharkey, has suggested an annual survey and I would not disagree with that. As he rightly said, these surveys are, from my experience, relatively cheap to do. Given the sums of money we are talking about in the Bill, this would be a very modest thing to do and there is certainly no point in having an awareness campaign if you are not going to check up whether there has been any increase in awareness.

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There is a raft of issues where we need to have some detail from the Government on what they have been doing on this recommendation for a couple of years. If we have not got a very convincing story, we have to consider putting this in the Bill, to generate some energy and action in this area.

I turn to the second prong, which we have already talked a little bit about under the previous group of amendments. I strongly support what my noble friend Lord Lipsey said, and I want to return to the issue of mis-selling. We have had some serious problems in this country about the way the public has been sold financial products and we ought to be able to learn from history over that. It is not any old Tom, Dick and Harry who can give sensible advice to people about complex financial issues. The noble Lord, Lord Deben, is right: many of these issues are complex and you need a simple system to get to the advice, but the advice is not always going to be simple.

Let me illustrate that with the sort of circumstances that families and older people may be faced with. It is fairly common that an older person is going to give up their house; their spouse has died and they will have to give up the house. The family might well want to have a conference about what they do with that house. There are several options: they could keep the house and rent it for income; they could go for equity release; they could go for deferred payments; or they could go for a point of care plan, as my noble friend said. Choosing the best thing to do from some of those options is not straightforward; it will require someone who knows their way around some of these issues and can give advice to people and their families on how to make a sensible, good decision that fits their particular circumstances. The Government have to give more consideration to this.

I accept that not every issue will be complicated and there could be some circumstances in which the financial advice does not need to be given by a regulated financial adviser. However, the Government now have to do the legwork on separating the sort of situations where regulated financial advice is needed from those where one can be more relaxed about it. If we do not give guidance of some standing and credibility to local authorities, we put them in an invidious position because they will be damned if they do and damned if they do not. They need some advice on the sorts of circumstances in which they, to discharge their obligations under the terms of this piece of legislation, can point people clearly in the direction of advice that is likely to be appropriate to that person’s circumstances.

Lastly, I wish to make a point to the noble Earl about the Secretary of State’s new obligation under government Amendment 138 to have regard to the local authority’s requirement in Clause 1 to promote well-being. The Secretary of State is now pretty much in the same position as that of the local authority when he is producing guidance and regulations. It is at least an arguable case that he would not be fulfilling that requirement unless he put in place some credible arrangements for sound financial advice being given to people and he helped the public to understand the details of the arrangements of the new scheme that the Government were implementing. I am not a lawyer, but it would be worth a punt by going to lawyers to

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argue that the Secretary of State would be in breach of his new obligations if he took a cavalier approach to financial advice and awareness of the new scheme.

Lord Hunt of Kings Heath: My Lords, I, too, support the amendment. I thank the noble Earl, Lord Howe, for giving us an assurance that this matter can be brought back at Third Reading, which is very helpful to our debate.

As several noble Lords have said, many people find dealing with financial products very complex indeed. They also find the system of social care funding to be complex. How much more complex will it be when the Dilnot provisions in the Bill are introduced? My noble friend made the point that many people misunderstand the current system. Many people think that social care is free at the point of use until they suddenly reach a situation where either they or their relatives are faced with catastrophic issues around long-term care. Even in relation to Dilnot, my noble friend Lord Lipsey pointed out in Committee that many people think there is this cap of £72,000 but, as we know, it is much more complex than that. The £72,000 cap is based on the fee that the local authority will pay for people who are not self-funded, but we know that self-funders, in essence, subsidise those who go into care that is in one way or another funded by the local authority because they meet the means-test requirements. Of course it is not free because there then have to be hotel costs, which Dilnot estimated to be about £12,000 a year. This matter is therefore very complex and many people find dealing with financial issues very difficult.

7.15 pm

I was very struck by a report produced two or three weeks ago by the Association of British Insurers, which looked at annuities. The range of rates of return for annuities is quite extraordinary. The ABI figures showed that people who fail to take advice or shop around for their annuity are settling for retirement incomes that in some cases are nearly a third lower than those they could receive from the best deal. Indeed, the new rates published by the ABI show that the best conventional annuity pays out 31% more than the worst, equating to a difference of more than £1,400 a year in retirement income for a £100,000 pension. The gap between the best and the worst is up to 46% for enhanced annuities available to those with ill health or certain lifestyle characteristics such as smoking.

One would have thought that in the case of annuities, when people have been paying into a fund for years, and when, it is hoped, most retire in good health and full cognisance of their faculties, they would be able to find their way around the system to ensure that they did not stick with just the fund into which they are paying their money but shopped around. However, the evidence seems to be that the public in general find annuities difficult to work with. If people cannot find their way around the annuity world, how on earth can they be expected to find their way around the complexities of finances when having to make very difficult decisions in terms of the cost of care?

I agreed with the noble Lord, Lord Deben, when he pooh-poohed the idea that local authorities should fear making available to members of the public

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information about where they might seek regulated financial advice. If we are worried about local authorities becoming liable if they provide information on where people could receive proper financial advice, this is deferring to a risk-averse culture at the expense of the public interest.

I think that there is a consensus around the House that something more needs to be done. I hope that the noble Earl will listen sympathetically to all noble Lords who have spoken and will come back on Third Reading with much more clarity and a reassurance that the Government recognise there needs to be a widespread, effective campaign in relation to financial awareness. We need to be satisfied that people will be able to find their way to proper, regulated financial advice.

Earl Howe: My Lords, I begin by thanking the noble Lord, Lord Lipsey, my noble friend Lord Sharkey, the noble Lord, Lord Hunt, and the noble Baroness, Lady Greengross, for the amendment, which covers a number of distinct issues relating to information, advice and awareness of the reforms to care and support funding. I am grateful to them all for meeting me over the summer to discuss these issues so constructively.

A number of speakers, including the noble Lords, Lord Hunt and Lord Warner, stated that public awareness of these matters, particularly on the potential cost of care, is woefully low and that this needs to be addressed. My noble friend Lord Deben made some telling points in that connection. The Government agree that if we are to realise in the fullest sense the benefits of these reforms, it is critical that people are made aware of them and what the reforms mean for them. There is absolutely no dispute on that point. I explained in Committee that Clause 4 requires local authorities to provide information and advice on care and support, and that this must be accessible to their whole population. This will need to include information on the capped costs system.

However, we accept that local awareness-raising alone might not be sufficient. Furthermore, we accept that the department has an important role to play at the national level. For an awareness campaign to be successful it needs to be delivered in partnership—national and local government working alongside the wider care sector. We do not believe that a specific duty in the Bill would achieve this and we do not think that it is necessary. It is not necessary, for one thing, because we are already building a partnership without legislation. We have embarked upon a joint programme with local government to implement the reforms, and I can assure my noble friend Lord Sharkey, and the noble Lord, Lord Warner, in particular, that awareness-raising will be a part of this. We are engaging with the voluntary sector, care providers and the financial services industry to make sure that we all play our part in communicating these reforms effectively. It is a joint effort and a joint responsibility.

To answer my noble friend Lord Sharkey, the public awareness campaign will be timed to coincide with the coming into force of the key elements—that is, April 2015 for most; April 2016 for the capped costs system. I can assure him, too, that the Government do not intend to shy away from the need to raise public awareness.

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Turning to the second limb of the amendment, the Government are not convinced that it is proportionate to require the Secretary of State to conduct a poll and publish a subsequent annual report on awareness of the capped costs system. However, we do agree with the need to monitor the effectiveness of the reforms and the Government have committed to conduct post-legislative scrutiny of all new legislation. Moreover, recognising the need to improve data on public understanding of care and support, we have also taken steps to develop and include new survey questions for the annual Health Survey for England. The new questions will be used to monitor and track public awareness over time. If questions are included, fieldwork will be conducted throughout 2014, and the report will be published at the end of 2015. These data would provide us with a baseline against which we can evaluate changes in public awareness. The survey is conducted annually, so there is scope to include the questions in subsequent years. Additionally, there are already questions in the English Longitudinal Study of Ageing— ELSA—which capture public awareness of care and support and expectations of how it is funded. Some data are already available and the next set will be available at the start of 2016. Together, these steps will inform the ongoing implementation and policy development process that will take place in the years to come. I hope that is helpful to my noble friend and provides him with some reassurance.

We are currently consulting about the design and implementation of the funding reforms. Through this we are seeking views about how best to raise awareness of these reforms nationally and locally. We will consider the responses carefully before deciding on the way forward. I can assure the House that this will include a role for the department nationally.

The next part of Amendment 20 would introduce a regulation-making power to specify circumstances where local authorities must, and where they may, make referrals to financial advisers regulated by the Financial Conduct Authority. Given that quite a bit of the ground covered in this amendment was discussed at length earlier in the debate, and relates to a number of government amendments which have been accepted by the House, I hope that noble Lords will forgive me if I do not rehearse all the arguments they have already heard.

The noble Lord, Lord Lipsey, emphasised the importance of people understanding the various products that are available. We agree that, in some instances where someone is considering a financial product such as a care annuity, financial advice should be regulated through the Financial Conduct Authority. However, there are many sources of valuable financial advice that do not need to be regulated and can be provided free of charge—such as advice on managing money from the citizens advice bureaux or from the Money Advice Service. In addition, the fact that financial advice is regulated does not mean that it is appropriate for care and support purposes. Very few regulated financial advisers currently have a qualification or expert knowledge of care and support, though we hope that this sector will develop over the coming

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months and years. In this context, the term “independent financial advice” covers both regulated and non-regulated advice.

The noble Lord, Lord Lipsey, also asked about the regulation of advisers in this particular field and what we are doing about this. The regulation of financial advisers comes within the remit of the Financial Conduct Authority. We have opened up discussions with the authority and with the Association of British Insurers on the regulation of financial products and advice.

From the comments of the noble Lord, I took it that he accepted that it would be inappropriate to require local authorities to make direct referrals where, for the most part, they do not possess the necessary expertise to judge between advisers. Requiring them to do so would present a significant burden and could result in a local authority making an unnecessary or inappropriate referral. There is the further risk that a referral leading to poor advice could be seen as the fault of the local authority, a point he acknowledged, bringing yet more of a burden of responsibility in increased disputes, and even legal challenge. We believe that the decision to take up financial advice, of whatever form, and the choice of adviser, should belong to the individual and not to the local authority.

In respect of the third limb of the amendment, about housing, this is very similar to Amendment 15 tabled by the noble Lord, Lord Best, which we have already discussed. If the noble Lord has any further concerns, I should of course be happy to speak to him separately.

With regard to the provision of information and advice to people with specific health conditions, this is primarily the responsibility of the NHS. For example, there is a wealth of tailored health and social care information on the NHS Choices website that is public-focused and available to local authorities to use however they see fit. Health and housing are, of course, vital for people using care and support. Clause 3 puts local authorities under a duty to promote the integration of care and support with health and health-related services. The House has accepted Amendment 12 to clarify that this incorporates housing, which includes joining up the provision of information and advice. We will address this in detail through statutory guidance.

I hope that this persuades at least some noble Lords that these issues are all being considered very seriously by the Government, as we work with local authorities and others to implement the reforms. On that basis, I hope that they feel able to withdraw their amendments.

Lord Lipsey: My Lords, I thank the Minister for that reply and for the positive things that he said from which we can draw encouragement. I was particularly pleased to hear him talk about the national role of the department in information provision and confirm that there will be campaigns around landmarks in the Dilnot report to carry that forward. Equally, there are some things on which, if I may say so, he still is not quite there. Nobody advocates direct referrals—nobody. I accept his argument—everybody does—that you cannot just send people to say, “You have to go and see so and so”, or, “So and so is your man”. The other extreme is to say that you do nothing. You provide, for

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example, a list of suitably qualified advisers within the local authority area; you tell people how to get hold of them. We should not set up straw men, whom nobody is advocating, in order to fend off suggestions that need to be acted upon.

Some things the Minister said would be valuable to follow up in writing. I am sure that the noble Lord, Lord Sharkey, will agree with me that it would be fascinating to see the monitoring suggestions as a substitute for the poll that he suggested, because if they work, that is fine and we will not press it, but if they seem to fall short, that would be different. I think that there will be room to ask the Minister for further discussions with the movers of this amendment so that we can narrow even further the ground before us. I do not pretend to be fully satisfied as I stand here tonight. I gave my reasons earlier why I do not think that the Government’s amendments to the Bill complete the picture, but we are making progress, as we all want to, and we are having a good dialogue. With the Minister’s help, I want to carry that forward before Third Reading, at which stage we will see whether an amendment is needed. With that, I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Consideration on Report adjourned until not before 8.30 pm.

Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Bill

First Reading

7.29 pm

The Bill was brought from the Commons, read a first time and ordered to be printed.

EUC Report: Court of Justice of the European Union

Question for Short Debate

7.30 pm

Asked by Baroness Corston

To ask Her Majesty’s Government what is their response to the Report of the European Union Committee on Workload of the Court of Justice of the European Union: follow-up (16th Report, Session 2012–13, HL Paper 163).

Baroness Corston (Lab): My Lords, in opening this debate, which seeks the Government’s response to the European Union Committee report on the workload of the Court of Justice of the European Union, it is important to stress at the outset that the Justice, Institutions and Consumer Protection Sub-Committee, which I have the honour to chair, has been interested for some time in the operation of the CJEU. In 2011, the sub-committee carried out an inquiry under the

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excellent chairmanship of the noble Lord, Lord Bowness, into the workload of the Court of Justice and produced a report in April of that year. Among other things, the sub-committee recommended that the number of advocates-general appointed to the Court of Justice should be increased; the General Court should consider establishing specialist chambers; and, most significantly, that the number of judges appointed to the General Court should be increased in order for the court to deal with its workload efficiently and to speed up proceedings.

Shortly after the report was published, the president of the CJEU put forward a series of proposals designed to increase the efficiency of the court. Most notable were the proposals to increase the number of judges in the General Court by 12 in order to tackle the increasing number of pending cases before the court. The Commission thought that increasing the number of judges in the General Court would be the only possible solution to the court’s workload problems, stating that,

“only by immediately increasing the number of judges . . . will it be possible to stem the flow of new cases and effectively tackle the backlog of cases”.

Member states generally agreed that the number of judges ought to be increased. However, agreement proved elusive, principally over the method for appointing the additional judges. In May 2012, the aspects of the president’s proposal dealing with increasing the General Court’s judiciary were dropped in order to facilitate agreement by the member states to the other parts of his proposals.

Subsequently, a Friends of the Presidency Group was established by the Council, comprising representatives from all member states with a view to examining the case for increasing the number of judges in the General Court. However, the group failed to reach any conclusions and the presidency put forward a proposal for consideration at the General Affairs Council on 11 December 2012 which included the appointment of nine additional judges appointed through a rotation system. The proposal was rejected by the member states.

At this point, the sub-committee decided to conduct a follow-up inquiry to determine whether the adopted proposals were having an impact on the workload of the court and whether there was still a case for increasing the number of advocates-general in the Court of Justice and increasing the number of judges in the General Court. The sub-committee wrote to the witnesses who had participated in the original inquiry and asked them to provide written evidence. Evidence was also heard from the Minister for Europe, the right honourable Mr David Lidington, in March. Shortly after we published our call for evidence, the CJEU requested that the number of advocates-general be increased by three, and after debates in both Houses of Parliament, as required by the European Union Act 2011, the proposal was agreed by the Council on 25 June. The first of the new advocates-general will be from Poland and is due to take up the post shortly. In line with the existing rotation, the other two will be of Czech and Danish nationality. They will take up their posts in October 2015.

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In our follow-up inquiry we concluded that there was still a case for increasing the number of judges to the General Court. The latest statistics from the court indicate that there has been a reduction in the number of pending cases due to a fall in the number of new cases. The average time that it takes the General Court to dispose of a case has fallen by 1.9 months to 24.8 months. The sub-committee welcomed the decrease in the number of new cases but considered it a temporary respite. It argued that little could be inferred from the decrease in the number of new cases brought before the court as the long-term trend was clearly upwards. The sub-committee called on the Government to make the case strongly in discussions with member states to increase the number of judges and to urge member states to find a system of appointment of additional judges that safeguards the stability of the court and the quality of the judiciary. The Government responded to our follow-up report in July. They agreed with most of the conclusions in the report and appeared to be more positive about appointing additional judges to the General Court as a means to deal with the court’s backlog of cases. They also seemed to favour a merit-based selection process to appoint additional judges. The Commission also agreed with the follow-up report’s conclusions. It stated that “an overwhelming majority” of member states and MEPs supported the appointment of more judges to the General Court. However, the Commission cautioned that it is up to the member states to agree, by what is called “common accord”, a method for appointing additional judges.

Given the inability of member states to reach agreement on a method for the appointment of additional judges to the General Court, the Commission appears to have lost interest in the issue for the time being. However, the Legal Affairs Committee of the European Parliament, the JURI committee, continues to push for an increase in the number of judges. In June 2013, it agreed a report on the draft regulation of the European Parliament and of the Council amending the Protocol on the Statute of the Court of Justice of the European Union by increasing the number of judges at the General Court. The report states:

“As a consequence of the progressive expansion of its jurisdiction since its creation, the number of cases before the General Court is now constantly increasing . . . resulting over time in an increase in the number of cases pending before that court and an increase in the duration of proceedings”.

It concludes:

“The General Court—in spite of its substantial efforts—can no longer handle the growing workload”.

The JURI committee has proposed a number of amendments to the draft legislation governing the statute of the CJEU which include an increase in the number of judges in the General Court by 12; that the additional judges should be appointed,

“exclusively on the basis of their professional and personal suitability”;

that there should be no more than two judges per member state; and that during a procedure to appoint one or more of the 12 additional judges, member states may submit nominations, and judges retiring from the General Court may nominate themselves. The report appears to be sound. It follows months of work by the rapporteur, Alexandra Thein, meetings in

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Luxemburg with officials from the General Court and the president of the CJEU, and discussions at five JURI committee meetings.

The proposals safeguard the geographical balance and representation of national legal systems as there will continue to be one judge per member state and no more than two judges for any member state. Appointing additional judges on the basis of their professional and personal suitability, as assessed by the Judicial Appointment Commission, seems quite sensible and hard to refute. However, Ms Thein proposes that the European Parliament should be receptive to compromise proposals from the Council or the CJEU. She considers that, given the urgency in appointing additional judges to the General Court:

“Any agreement is better than further delay.”

The report is due to be considered in plenary by the European Parliament on 10 December 2013.

The questions that arise for the Minister are: can the Government confirm whether they support appointing more judges to the General Court? If so, would they support a system for appointing those judges based solely on merit? Will the Government make representations to the Commission and the Council to adopt the JURI committee's report?

7.41 pm

Lord Bowness (Con): My Lords, I wish to do little more tonight than support the noble Baroness, Lady Corston, in her plea to the Government for answers to those questions and particularly that they ensure that additional judges are indeed appointed to the General Court as soon as possible. As the noble Baroness has told the House, the committee concluded that this was necessary some time ago while I had the pleasure of serving on that committee and nothing, to my knowledge, has changed. I am pleased to say that, from the Government’s response to the follow-up report, they now appear to agree that the case for increasing the number of judges has been well made. If that is indeed the case, I am pleased that they have been converted to the idea. As I have said on previous occasions, I trust that resources will not again be considered the problem.

A robust functioning legal system is invaluable. The rule of law in the widest sense is perhaps the greatest bulwark against bad government, and preserving the quality and effectiveness of the European Court system is important. The court is a vital institution for the proper functioning of the Union. Without the court we have nothing to buttress the operation of the single market which is so much more complicated than a trade deal and is, we are told and all agree, essential for our interests.

The question of resources should be put in the context of the sums involved. From an overall EU budget of the cost of the court is just over 0.25%. It is difficult to know how much the United Kingdom contributes to that because statistics do not give a breakdown. However, on the basis that we contribute something like 11.5% of our share to the overall EU budget, our share of the court budget would be £32 million.

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Put into context, we are quite happy to spend some £25 million, if a Statement made by my right honourable friend the Foreign Secretary in July of this year is correct, on various international tribunes, all of which are very worthy, but are certainly no more important than the Court of Justice of the European Union.

The issue, as the noble Baroness, Lady Corston, has indicated, is how we appoint these additional judges. I am rather disappointed that paragraph 10 of the response says:

“The Government looks forward to examining detailed proposals in the Council”.

We all look forward to something coming; the question is, what are we going to do about bringing it forward? I understand and, to some extent, support the principle of a merit-based system, but if not, I am at a loss to understand why the procedures for the appointment of the advocates-general cannot be used.

I am sure that we are all delighted to see my noble friend the Minister on the Front Bench replying to this short debate on what, in the scheme of the many things with which she is concerned, may appear a small matter. It is nevertheless an important matter for the European Union. I will therefore perhaps trespass upon her good will to seek assurances from her that the Government will keep this matter, and other important matters within the European Union, at the forefront of the agenda at European Union meetings, taking positive steps to ensure that they are considered.

The United Kingdom could have great influence. Indeed, we often speak of our worldwide influence, so it would be good to know that that influence can be brought to bear within the European Union. There are matters which are not for the grand world stage, not the material of headlines but important nevertheless. If I may stray slightly from the topic, there are problems such as progress on the admission of Macedonia, Moldova, Transnistria, Serbia and Kosovo to name but a few. Of course, there is also the problem of more judges for the General Court—another kind of problem but one that needs a solution.

I believe that a British lead on such issues would be both welcome and constructive, and a change—if I may say so—from our apparent obsession with our relationship with the European Union.

7.46 pm

Lord Dykes (LD): My Lords, it is a great pleasure to be able to follow the noble Lord, Lord Bowness, and I very much agree with the content of his remarks. Not wishing to embarrass my noble friend in any way, or cause him any difficulties, I will also add that there have not been many occasions when I find myself strongly disagreeing with what he says on all sorts of different kinds of European matters. He has the reputation of having been an excellent chairman of the sub-committee before the noble Baroness, Lady Corston, and we were grateful for his guidance on many matters, particularly those in more recent times.

We are now coming to an important moment in the development of the European Union, albeit with at least one member Government who seem hesitant on a number of aspects. That is disappointing to the observers of the general scene in Europe. I hope that

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that attitude will change over time. The Government face enormous complications about how they will handle these matters in the UK’s political cockpit between now and the next general election, either with or without a change of Government, and with or without a coalition.

Under the provisions of the Lisbon treaty, the Court of Justice of the European Union, by the beginning of December next year, will undertake a much greater, with widespread consent and enthusiasm, and will need extra resources. Although there was a temporary dip, the workload is already showing signs of renewed increase and that will become a major element of its work in future as it deals with all aspects under the treaties—the contents of the two main treaties and dealing principally with the single market and all the things of greater complexity that flow from that as time goes on. One thinks of all the possible cases that will arise over trade marks, patents and intellectual property, as well as more mundane disputes that will arise between corporations, and between Governments and corporations in different member states, as the single market develops. There is still a lot of work to be done in the single market context. People tend to think that it is mostly completed, but that really is not true; it is an ongoing situation and the Court of Justice is going to be a vital part of that.

On the Government’s side, there seems to be a psychological reluctance to show any enthusiasm for these matters at all, which is a great pity. I am sure that that view is shared be members of the main European Union Select Committee, of all parties and backgrounds, as well as the sub-committees. Although scrutiny means the right to be critical about things that are either manifestly not in our national interest or against the practical interest of a particular piece of policy formation or political decision, the general picture should be more positive. As my noble friend Lord Bowness quite rightly said, the amount of money involved in making sure that this court works efficiently and properly on an expanded basis with additional judges—who, I personally hope, will be chosen on their merits, as has already been enunciated; we thank the noble Baroness, Lady Corston, for her opening remarks—is so minuscule as to be within any of the foreseeable elements of the European Union budget totals anyway. I think I am right in saying that year in, year out, the actual expenditure outlays of the European Union budget are below the allocated amounts from the previous decision-making period.

Although the idea that there should be hold-ups because there is an austerity programme that should affect everybody is right in terms of many other aspects of the Commission budget—the big stuff in the budget and the modernisation of that budget—it cannot be right to harm the effective functioning and future efficiency of this important body, which will be much more influential and powerful, quite rightly, in future in adjudicating on legal matters affecting all the member states and the various parties involved in those cases.

I share the disappointment that the indication in the debate on 23 July that this had to be done under the European Union Act was not greeted with much enthusiasm in this House, as we recall; indeed, there

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were members of the coalition who were very strongly opposed to it and thought that it was the wrong kind of procedure to bring in at this time on treaty-based matters, which are international treaties and should be treated on that basis in the future. Be that as it may, I was particularly pleased that one of the report’s main suggestions was:

“The Court should take further steps to encourage national courts requesting preliminary rulings to include a provisional answer”.

I think that is a very practical suggestion.

As has already been mentioned, the Government’s response was very unenthusiastic, which we found disappointing. The report states:

“On the most important reform, namely the increase in the GC’s judiciary, the Government ‘noted’ the recommendation while pointing out that they were seeking significant cuts to administrative spending over the following years and that any budgetary implications relating to proposals for reform of the CJEU would have to be consistent with their position”.

Bearing in mind the minuscule amounts of money involved, it seems to be more of an ideological reluctance to show any enthusiasm for the Court of Justice because of the very nature of the institution itself. That cannot be right, when it has been agreed under the Lisbon treaty as a vital part of the future development of the European Union, and is supported overwhelmingly by the other member states, including of course with great enthusiasm by the new member states, which do not fear this magical loss of pretend national sovereignty which seems to be an obsession of at least one of the political parties, or a good segment thereof, in this country. I cannot understand that.

I hope, therefore, that the Government, in the form of my noble friend Lady Warsi, whom we thank for coming to conclude this debate, will give us an encouraging answer on these matters. It is time to face up to these things. Time is short between now and the beginning of December next year for these matters to be resolved. The sub-committees are going into other areas, too, where the Government need to show greater enthusiasm: the big stuff in policy, the opt-outs and all that, which is a continuing saga to which I will not refer any longer.

The European Commission letter of 17 September says that,

“in line with the view of the House of Lords, the Commission is of the opinion that it is too early to tell to what extent the amendments to the Statute of the Court of Justice of the European Union which, together with changes to the Rules of Procedure of the Court, only entered into force last year, will lead to a decrease in the number of pending cases”.

That means that it did not really feel that that was going to be so in the future, as has been suggested. The letter goes on to say that,

“the Commission is pleased to see that an overwhelming majority both amongst the Member States and within the European Parliament support the idea of additional judges”.

The letter concludes:

“The Commission agrees with the House of Lords that an increase in the number of judges should be preferred over the creation of specialised courts”.

That is an extremely important point. I hope that the Government tonight will agree.

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7.55 pm

Lord Liddle (Lab): My Lords, it is somewhat paradoxical that this is the fourth time in the past two years that I, as European spokesman for the Opposition, have had to speak on this matter. I cannot think of any European topic on which we have had so many debates, other than our membership of the EU itself. Some people might say that to have four debates on the European Court of Justice in the space of two years shows that the House of Lords has got its priorities wrong in timetabling its business. That may be a true general point but in this case it actually demonstrates the persistence of your Lordships’ European Union Committee and the quality and commitment of its members to see that its recommendations are acted on by the Government. The noble Baroness, Lady Corston, and the noble Lord, Lord Bowness, are to be greatly praised for the determination they have shown in making this case for Court of Justice reform.

We last debated this in June, when we had to approve the Government’s support for three new advocates-general. There was a bit of self-congratulation that we had at least achieved something. The Polish advocate-general takes office this year and there are to be another two advocates-general by October 2015. This seems to be reform at a snail’s pace. There are very strong reasons why that pace should be quickened.

First, there is already a backlog. Secondly, it is overwhelmingly in our national interest. The coalition has made one of the prime objectives of its European policy the deepening of the single market in the areas of digital economy, energy and services. I can tell your Lordships that in all these three areas progress will be very dependent on the court and its judgments. The digital area is full of competing vested interests. The energy area is full of strong national incumbent companies that want to hang on to their monopoly positions. We had the services directive in 2005 and there has been a great deal of foot-dragging by some member states in its implementation. If you are to achieve your objective, all these things require a much stronger court that is able to deal with these issues in a more speedy way.

Thirdly, there is in 2014 the “communitisation”—in the European parlance—of justice and home affairs as a result of the Lisbon treaty, which means that vast areas of what has been intergovernmental legislation will come under the jurisdiction of the Court of Justice, increasing the workload again. Of course, we are going to be participating if we get our opt-ins in some of those areas.

As the noble Lord, Lord Bowness, and the noble Baroness, Lady Corston, have said, the argument about cost is really absurd. The court is 0.26% of the EU budget —one-quarter of one-hundredth of the EU budget. The EU budget itself is only 1% of EU GDP. If my arithmetic is right, and it may be wrong because I am getting a little rusty, the cost of the court is one forty-thousandth of Europe’s GDP.

In terms of Britain’s national interests, which ought to be at the forefront of this Government’s policy for Europe, there is indisputable academic evidence that the single market has permanently added 1.9% to British GDP. That is a result of our being members of the single market. Potentially, if we get what we want,

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it could be much more. The noble Lord, Lord Bowness, calculated that the cost of the court is roughly £30 million. That addition to our GDP is worth over £30 billion. When one thinks about the importance of the single market to our economy, it is absurd to allow some ideological points about the jurisdiction of the court to get in the way of sensible moves to strengthen its efficiency.

I hope that the Government will support the case for more judges. I should like to make one point. The noble Lord, Lord Wallace, answering the debate in June on behalf of the coalition, said:

“We are strongly in favour of additional members—not another 27 but another nine or 12”.—[Official Report, 10/7/13; col. 1484.]

We very much hope that will be agreed. It will be a pleasure if the noble Baroness, Lady Warsi, will reiterate that firm commitment given by the noble Lord, Lord Wallace, that British policy is to press for an increase in the number of judges in the court.

The noble Lord, Lord Wallace, went on to say that the problem lay in the difficulty of agreeing how the extra judges should be chosen: which member states would have them and which would not. This raises a difficulty of fundamental importance to the Government’s ambitions to see reform in the European Union. For instance, if we are to have a more efficient European Commission that does not over-regulate, we have to get away from every member state having a commissioner of its own, each with a portfolio of their own. That inevitably results in an extension of European action. We want a much more focused Commission. At the very minimum, there has to be some system of senior and junior commissioners. The equality of member states will have to be addressed in that case.

Similarly, if the costs of Europe are to be cut, it is absurd that there is a Court of Auditors in which every member state has an auditor with their own cabinet system. To cut the costs, it is necessary to move away from the principle of every member state having its own person. The question of reconstituting the court on a basis where not every member state gets an additional judge is at the heart of the reform agenda for Brussels. It is a fundamental point. The Government have to seize this and elevate it if they want reform to the top political level of the European Council. I urge the Government to press on and to pursue a genuine reform strategy for Europe. If they do that, they will have our full support.

8.04 pm

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, I am grateful to the noble Baroness, Lady Corston, for opening this debate, and also to all members of the sub-committee on justice, institutions and consumer protection—both for their report and for their continued interest in this matter. I am also grateful to members of the European Union Committee. I am grateful to the noble Baroness for her detailed opening remarks, some of which I may repeat for the record.

A well functioning European Court is in the interests of all EU member states. I accept the view of the noble Lord, Lord Liddle, that it is in our national interest too. The Government have consistently supported efforts

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to reform the court to uphold the integrity of EU law and to increase the capacity and efficiency of the court. We all benefit from effective EU law—including British businesses operating within the single market. I accept the views of the noble Lord, Lord Liddle, on that. In evaluating any proposed reforms, the UK has been keen to ensure a number of things. First, reform should promote the effective passage of justice. Secondly, it should be based on clear evidence of need. Thirdly, it should not place additional burdens on the EU’s budget. Fourthly, it should avoid full-scale treaty change; and fifthly, it should be acceptable to Parliament.

Since the European sub-committee’s initial report in 2011, several useful reforms have been implemented. These include increasing the number of judges in the Grand Chamber from 13 to 15; streamlining procedures by, for example, abolishing the requirement to read the report for the hearing in full; allowing for the appointment of temporary judges to the Civil Service Tribunal and establishing a new office of vice-president in the Court of Justice and the General Court. In the debate of 23 July 2012, when this House agreed to support these changes, my noble friend Lord Howell noted that they were fairly modest. The Government agree that their impact on the processing speed of the court is also likely to be modest. However, we believe that even a modest impact is to be welcomed. Given that these measures came into effect only towards the end of last year, it is too early to assess their substantive impact. We will monitor their effect over the coming months.

Moving to more substantive reforms, your Lordships will remember that earlier this year, the Government received the approval of both Houses to agree to increase the number of advocates-general at the Court of Justice to nine from 1 July 2013, and to 11 from 7 October 2015. The Government share the belief of the sub-committee that this reform will help the court to handle cases more quickly and improve the quality of decision-making. At the Council of Ministers meeting in June, the Government agreed to this reform. We expect the first of these additional appointments—a permanent Polish advocate-general—to be made soon. This appointment will bring Poland into line with the other “Big Six” member states, including the UK, all of which have permanent advocates-general. The two other additional advocates-general will increase the existing rotation system from three to five. Under the current arrangements, we expect that the first two, due to be appointed in October 2015, will be Czech and Danish.

In its request, the court sought to have the first additional advocate-general in post from 1 July 2013. Since this request was made only on 16 January 2013, and as the Council agreed to it only in June, this was always an ambitious timetable. The Poles estimate that their nomination process will take four months. We therefore expect that we will shortly be presented with the Polish nomination. The court and other member states are keen for the Polish advocate-general to be in post as soon as possible. The UK therefore stands ready to approve any suitable candidate.

Most of these reforms have concentrated on the Court of Justice, so there is now a need to focus on reform to the General Court. The Government share

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the European Union Committee’s eagerness for a resolution to the question of additional judges for the General Court. These negotiations have continued since March 2011, and still seem some way from a successful conclusion. While there is a case to be made for additional judicial appointments, the questions of how many more judges there should be, and how they should be appointed, remain open; as does the question of cost-effectiveness. In particular, the debate on selection method has reached an impasse. The political reality is that there is currently no agreement on any particular system.

The Government have a set of key priorities. Among other things, we want to ensure that the legal expertise and judicial memory of the court remain strong, that there is an appropriate balance in terms of the representation of common and civil law and that reforms are cost effective. Within this framework, the Government are maintaining a flexible stance in negotiations to help to facilitate an agreement. We are working hard to find a solution, and I assure my noble friend Lord Dykes that we are committed to finding a solution on which necessary agreement can be reached.

In response to the noble Baroness, Lady Corston, the Government believe that increasing the number of judges in the General Court could form part of the solution to the problem of the court’s backlog of cases but, alongside this, we think that the court must also review its working practices and processes to ensure that they are as efficient as possible. In this context, we are expecting the court to publish a recast of its rules of procedure later this year and to submit it to the Council for approval.

A merit-based system would better meet our priorities than the rotation-based systems previously discussed, and I should like to think that UK judges would have a good chance of nomination under those circumstances. The problem, however, is that there simply is not the consensus in the Council that would be needed to move towards a merit-based system. Many details still need to be worked out, and many states have strong objections in principle. That said, we are encouraged by President Skouris’ comments on the benefits and feasibility of a merit-based system, and we look forward to negotiations continuing.

I hear what my noble friend Lord Bowness said on budgets. In the current economic climate, there is an imperative on all the EU’s institutions to reduce their administrative costs. The Government have been clear throughout that any additional advocates-general or additional General Court judges should not result in an increase to the EU’s budgetary demands. We believe that the relatively small additional financial pressures of appointing the advocates-general can be met from within the court’s existing budget, which was more than €354 million for 2013, and which the court has underspent in previous years. When we agreed to these appointments at the Council of Ministers meeting of 25 June, we submitted a statement noting this expectation. Likewise, we will continue to emphasise that any additional reform costs must not create pressure for an increase in the EU’s administrative budget. During discussions on the annual budgetary framework next year, we,

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alongside like-minded member states, will press very firmly for costs to be met from within the court’s existing budget.

I note what my noble friend Lord Dykes said, but in the current economic climate there is an imperative to find ways to reduce administrative costs. In the same way that we have asked our domestic institutions to do more, we look to the EU to do likewise. I also assure him that we are heavily engaged on a wide range of European issues. My honourable friend the Minister for Europe regularly updates Members of your Lordships’ House on the broader issues raised by my noble friend Lord Bowness.

The Government are committed to promoting the effective passage of justice by the Court of Justice of the European Union. We believe that the appointment of additional advocates-general, alongside the reforms that the court has already made, will contribute to this goal. The Government will continue to work closely with the court, the Commission and other EU member states to identify and take forward both long and short-term solutions to the General Court’s backlog, and we will continue to explore the full range of options for structural reform in order to find a solution that meets the objectives I have outlined today.

Lord Bowness: When does my noble friend anticipate that this matter will next be before the Council?

Baroness Warsi: I do not have that information to hand, but I will write to my noble friend with full details.

8.13 pm

Sitting suspended.

Care Bill [HL]

Report (1st Day) (Continued)

8.30 pm

Amendment 21 not moved.

Clause 5: Promoting diversity and quality in provision of services

Amendment 22

Moved by Baroness Meacher (CB)

22: Clause 5, page 5, line 19, at end insert—

“( ) the need to adhere to specific minimum quality standards and requirements in the commissioning and provision of services to adults, as regulations may prescribe;”

Baroness Meacher (CB): My Lords, I will also speak to Amendments 25 and 26 in this group and acknowledge the Government’s Amendments 24 and 27, which I will mention later. I start with Amendments 22 and 25. As many noble Lords have said, the Care Bill has the potential very significantly to improve the care of elderly and disabled people. However, there is also

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the possibility that only a part of that potential will be realised, particularly in the face of significant cuts to local authority budgets. Amendment 22 therefore places in the Bill a requirement for there to be regulations about how services are commissioned to ensure that they offer at least a sufficient level of quality to the individual. Amendment 25 ensures that home visits are not normally commissioned for less than 30 minutes. The amendments provide for a service of at least minimum quality, as I said, which will ensure the dignity of each elderly or disabled person. They also allow flexibility—which is important—for short visits, for example for the delivery of a meal or for giving an injection, and also for longer visits.

This became very clear to me when I met the director of the Bikur Cholim social care organisation, which has been in operation for many years looking after people in the Jewish community. The director told me that for a disabled, doubly-incontinent client, a morning visit cannot be completed in less than one hour. Dealing with the incontinence—and one does not want to go into too much detail about that—can be time consuming. A bath or shower is essential for a doubly-incontinent person; they need a change of clothes, possibly a change of sheets, to have food provided and help to get dressed.

When you think about all that, it is fairly obvious that you could not possibly do it in half an hour. However, in our financial context there is an increasing tendency to commission ever-shorter home visits, many lasting only 15 minutes, as has been well publicised on the “Today” programme twice this week. Indeed, a survey by the UK Homecare Association found that one in 10 visits already last only 15 minutes and the proportion of 15-minute visits has increased by 17% over the past five years.

Leonard Cheshire Disability has seen tenders for visits of only 10 minutes and, according to the person on the “Today” programme, these carers tend to take 10 minutes to take off what they describe as “their hat and coat”. I am quite curious about carers arriving in a hat and coat, but there we go. It means they would then have to shoot out of the door without their hat and coat. The mind boggles. This is a very serious issue and a tragic quote from a disabled client makes the point better than I can: “By the time they have got me to the commode and helped me to change, the time is up. I end up choosing between getting my meal prepared or having my commode emptied. Do I get a drink or do I go to the toilet?”.

Imagine having to make those kinds of choices. The public do not support depriving elderly and disabled people of a dignified service. Some 96% are critical of these very short visits for personal care; people understand about an injection, I think. Will the Minister clarify on the Floor of the House that a visit to deliver personal care, including, as it will inevitably, dressing, taking the client to the toilet or bathing, within a timeframe of 15 minutes is simply impossible and always will be. Therefore, one can say something pretty firm about it.

From the point of view of the carers too, workers complain that they have had to stay longer than 15 minutes in almost every visit, even though they are paid only for 15 minutes and they are not paid for their travel

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time either. As one said, “You just cannot possibly do this job in that length of time”. The question is whether we are giving sufficient priority to elderly and disabled people living at home. I think we have to answer, “Surely not”. The Minister, Norman Lamb, has very publicly criticised 15-minute personal care visits, but there is nothing in the Bill to prevent this practice from continuing and, indeed, from spreading further. The government amendments do not really tackle the problem, although I know that the Minister always tries very hard to do what he can. He will be aware of the 2,000 plus e-mails that have landed—not necessarily on his desk but in the office—within the past few days expressing concerns about this issue. It has concerned people very deeply.

I hope that the Minister can assure the House today that the Government will guarantee that our most vulnerable people can rest assured that their needs will be met and their dignity will be protected. This means, I fear, carers having enough time. I know, of course, that this means resources, so we are here coming down to priorities and where they really lie.

Amendment 26 is supported by the Care & Support Alliance of 70 organisations representing old and disabled persons, those with long-term conditions and their families. Clause 5 acknowledges the benefits of quality services but only requires local authorities to,

“have regard to … the need to ensure”,

that sufficient services are available. I am not quite sure how one has regard to those matters and then disregards them, so I am genuinely not sure what that means. The amendment would “require” local authorities to ensure that sufficient services are available to meet the needs for care and support of adults and their carers in their area. We are talking here about good planning of services over time, and also the planning of a comprehensive range of services for people with very different disabilities and needs being undertaken.

We take the view that the social care system is in crisis, too often leaving older and disabled people and their families without essential care and support; certainly, I take that view. Indeed, I emphasise that I fear that abuse of elderly and disabled people is very likely to be the next national scandal. We have had physical abuse of children; we have had sexual abuse of children. One has only to think about the love of parents for children to wonder, if parents are doing that to their children, how many elderly and disabled people may face abuse? I say this with the greatest possible sympathy and understanding for carers. How many of us can honestly say that we could live with, say, a dementing parent—I have had a dementing parent, so I have an understanding of this—year after year, without sufficient support, and always find the emotional, physical and every other kind of energy to provide that care, and often to give up your life to do so, without being reduced to behaviours of which one would be profoundly ashamed? If abuse occurs, we cannot blame the overburdened carers. It is up to us.

Meeting short-term needs is essential. This is not straightforward for people with fluctuating disorders. Somebody with multiple sclerosis, for example, can from time to time need full-time, 24-hour care. If that is not available, that person will have no option but to

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be moved into a residential home. Very often, the only space is in a residential home for the elderly. For, say, a 25 or 30 year-old, that is a deeply distressing experience, apart from being very expensive.

On the range of quality services, a tragic story about a deafblind man says it all. Some unqualified person delivered his breakfast but never told him where it was, so he went without breakfast for days. It was sitting on the fridge, but you have to have the training to tell you that you need to be very good on your communication. You could say that it is all very basic stuff, but this poor chap went hungry.

I very much welcome the Government’s amendments in response to these concerns but, unless I have missed something important—I confess that I may have—they do not seem to ensure that sufficient appropriate services are made available for vulnerable people. I am confident, nevertheless, that the Minister well understands the importance of this issue and very much hope that he can assure the House this evening. I beg to move.

Baroness Masham of Ilton (CB): My Lords, I support Amendment 22 but am concerned about Amendment 25. Is it wise to mention 30 minutes? I declare an interest as president of a spinal injuries association. Some of our members have broken their necks and are paralysed from their neck down. To get a paralysed person up, to do an evacuation of their bowels and to wash and dress them, using a hoist, might take at least three hours. Surely it is better to stress the individual’s needs rather than to set in stone half an hour. Providers of care may use that as a marker.

A visit taking 15 minutes, as has recently been in the headlines, is totally ridiculous. Having the choice of whether a carer takes someone to the lavatory or gives them a drink is unacceptable. If stress is put on the carer who cannot do the job in that time, they will leave and not do the job at all. The person needing care is left in a dangerous position if adequate care is not given. The amendments need to be flexible and aimed at an individual’s personal needs. I hope very much that the Minister will look at this and will do something to make it acceptable.

Baroness Greengross (CB): My Lords, I was the lead commissioner at the Equality and Human Rights Commission during a big inquiry looking at home care for older, frail people. We found that half of the people receiving such care were satisfied with it. Half were not. Mostly, the complaints were about breaches of their human rights. This is a terrible indictment of our care system: to be able to say that because of the care that is regularly given to people, their human rights are breached is absolutely unacceptable.

We know that the number of 15-minute care visits, as Leonard Cheshire Disability discovered this week, is going up: 60% of local authorities commission them and the number has risen by 17% in the past five years. I do not want to delay colleagues in the House for very long; it is just that you cannot do the sorts of jobs that the majority of people need in 15 minutes. Of course, one needs flexibility: to give somebody a

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dose of medicine does not take very long, but to really care for someone, which involves all the tasks that the noble Baroness, Lady Meacher, mentioned so lucidly and clearly, takes much longer. We need some way in the Bill of making absolutely sure that this cannot continue. It is absolutely disgraceful that we have to have this conversation at all.

8.45 pm

Baroness Finlay of Llandaff (CB): My Lords, on reading carefully the amendments in the name of the Minister, I hope that he will be able to provide reassurance that his amendments will go further than Amendments 22 and 25 to which I have added my name and that they will be much more about the whole person and the whole person’s needs. I recognise that there are dangers in putting a timeframe around anything; there is the danger that it will be used as a so-called minimum standard, down to which people will drop. I initially wanted to support these amendments and I suppose, if I had a choice, I would have added my name to those of the Minister now, because there is a real problem if care is not adequate in quality and promoting well-being in that it creates dependency rather than reablement towards increasing independence. There is a sense of personal worth that goes along with being able to do things, however slowly, rather than having to accept somebody doing them for you because they are in a terrible rush. I hope that the Minister will provide us with a much wider reassurance than the words suggest at first glance.

Baroness Gardner of Parkes (Con): My Lords, I was most interested to hear the comments of the noble Baroness, Lady Meacher, and I agreed with every word, but I do think the time limit specified would not be right and I strongly support Amendment 27. However, there are other aspects of this care issue that we have not really thought about.

One that is covered in Amendment 27 is about the well-being of carers. I find it very disturbing that a woman I know who lives in with a person needing pretty comprehensive care every Saturday and Sunday and stays overnight on both nights, is appallingly paid for this because she is self-employed. I said to her that I could not believe she was earning so little when it is such a very important job and so very time consuming. I told her I would look on the internet to see what she is entitled to as a minimum wage. It turns out that there is no minimum wage for a self-employed person. That quite stunned me; there is a great reservoir of people who would be willing to take on self-employed caring positions and do them for quite long periods, not rushing people, but not at her rate of pay, which worked out at a little over £2 an hour for all the hours she was there. I suggested that, since she had done training in care, she should work instead for the people who provide a service for the local authority. She followed that up and it turned out that she would not earn much more, because they are not paid for travelling time. Unless the organisation improved so that her two, three, four or 10 jobs—whatever it is—were almost next door to one another, the unpaid travelling time would constitute much more of her day than the time actually caring for people.

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The other point raised by the noble Baroness, Lady Finlay, is that it is more than just physical care. We have heard much in recent days about people’s extreme loneliness, how they can go almost for days with hardly a word with anyone. That is a most essential thing in life, to feel that you have not been abandoned. The woman in the television report talked about taking your coat off, making your booking and going through it all, and how you are left with 10 minutes in the middle and then you book in a final 10 minutes to reverse everything. That is exactly what I remember from when I was chairman of local social services 30 years ago; that was exactly the same problem then.

These are not new problems; because there are so many more older people who need more care, and there is more awareness, with people wanting to stay in their own homes, this problem has grown, and we do not have the solutions to match the need. I strongly support the emphasis on the well-being of carers, which is mentioned in Amendment 27—that is important. People should feel that they are doing a worthwhile job and that what they are doing is helping other people. They should also be reasonably remunerated for it. There is so much that we would all support; I feel that all noble Lords in this Chamber want to see more help and more efficiently used help. Amendment 27 in particular covers a lot, but whatever offers can be made, so much the better.

Baroness Emerton (CB): My Lords, I apologise for not having heard the first part of the speech made by my noble friend Lady Meacher; I can only say how much I agree with her. In the past nine weeks, while the carer was away, I had the personal experience of doing two weeks’ full-time caring. I timed waking up, giving the medication, getting breakfast, rushing up to do my post while she was having her breakfast, and then attending to her personal care and getting her dressed. It took an hour and a half, every day, and that was just the morning.

On the point made by the noble Baroness, Lady Finlay, the minimum quality standards in the noble Earl’s amendment set a good standard. However, that needs to be supported by an assessment and care programme. There needs to be a proper assessment of what is required in terms of the total care, not just the minimum. We have a system for some of our residents in the retirement development where I live, where prevention to admission to hospital is done by an assessment of how much time care is required. Two people come from the unit—a nurse and a physiotherapist—and fully assess the patient. If there is a proper care programme, that gives the time element. Amendment 25 says “excluding travel time” and that a visit should not take less than 30 minutes. It is difficult to be so prescriptive, but if that was according to the care plan, it might go a long way.

Lord Hunt of Kings Heath (Lab): My Lords, Amendment 151 is in my name. This is a very important group that goes right to the heart of our debates about the quality of care that is being given to many vulnerable people. You cannot distinguish the quality of care from the way in which care workers themselves are treated. I very much agree with the noble Baroness, Lady Gardner, on that.

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In Committee I quoted from a Unison survey called Time to Care, and I will quote one or two statistics from it. In this survey, 79.1% of the staff surveyed said that they had to rush work or leave one care visit early to go to another. Some 56% earned between £6.08 and £8 per hour. The majority do not get set wages. Their turnover is very high: 57.8% of those surveyed were not paid for travelling time between visits. That is not the foundation for providing good-quality, comprehensive and continuous care.

We know that many people on these so-called zero-hour contracts have had to sacrifice time with their children in order to be available when their employer requires them to be—even if there is no work. Others are required to work exclusively for one employer with no guarantee that they work enough hours to pay the bills. The Opposition believe that employers ought to be banned from insisting that zero-hour workers be available even when there is no guarantee of any work. We should stop zero-hour contracts that require workers to work exclusively for one business, and we should end the misuse of those contracts where employees in practice work regular hours over a sustained period.

The issue of how care workers are treated and employed is directly linked to the arguments of the noble Baronesses, Lady Meacher and Lady Greengross, about 15-minute care visits. There is no doubt that there is widespread concern about the impact of local authorities setting what can seem to many to be arbitrary limits in the time allowed for care. I do not necessarily go along with the amendment sponsored by the Leonard Cheshire organisation, but the argument that it raises about care workers being asked to provide personal care, including supporting service users to dress, bathe, eat and go to the bathroom in a timeframe that simply does not allow dignity or respect, seems powerful.

Equally, I have noted the comments of the president of the Association of Directors of Adult Social Services, who cautions against taking a broad-brush approach in terms of the time that should be given to each client. The association agrees with Leonard Cheshire Disability that 15 minutes is not long enough to allow some homecare tasks to be done, but it says that there is a need for some flexible and truly personal approach, so that each person can be assessed and provided with the appropriate care. The noble Baroness, Lady Masham, made a powerful point that if one seeks to place in legislation a minimum number of minutes, the risk is that it would not meet some people’s needs. However, the problem is that if one starts to define it in legislation, it might become the maximum. That seems to be one of the great dangers.

That is why we need to look carefully at the noble Earl’s two amendments. I appreciate the fact that he has come back to your Lordships’ House with some amendments which seek to deal with the substance of the issues that we are talking about. In essence, they say that local authorities, in promoting the effective operation of a market, must first have regard to,

“the importance of fostering a workforce whose members are able to ensure the delivery of high quality services”,

which is in Amendment 24; and in Amendment 27 they must have regard to,

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“the importance of promoting the well-being of adults … with needs for care and support and the well-being of carers in its area”.

The question for us is whether that is enough. I rather doubt it. That a local authority “must have regard to” does not seem a particularly strong message to local authorities. Where is the beef in that? Where is the leverage to make local authorities do the right thing in a context, which we must recognise, where they are extremely pressurised in relation to resources?

The reason why I tabled Amendment 151 is that, given that it is difficult in legislation to prescribe the kind of behaviour that we want from local authorities—for the reasons that we have already debated and which the noble Baroness, Lady Masham, illustrated effectively —one way to deal with this issue is through the regulatory system, as I said in Committee. Noble Lords will know that later in the Bill we will discuss the Care Quality Commission and already in the current Bill it states:

“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social services provided or commissioned by the authorities as may be prescribed”.

There is an opportunity for the Government to say that the CQC will take this on as a major responsibility, to review, monitor and, in some cases, take effective regulatory action, if they believe that the action of those people providing care, either in terms of how they have been commissioned by local authorities or by self-funders, is inadequate. However, the problem with the clause is that there is no guarantee that that is going to happen, because all we are doing is essentially giving the Government regulation-making powers. There is no certainty that this approach will be prescribed.

9 pm

My Amendment 151 makes it clear that a duty would be imposed on the Care Quality Commission to undertake,

“periodic reviews and assessments of the standards of employment in health and social care provision with particular emphasis on workforce conditions which support continuity and quality of care, and are consistent with the wellbeing principle as set out in section 1”.

That would go very well with the noble Earl’s own amendments in relation to local authorities when we ask local authorities to have regard to this issue. It would give an edge or a guarantee that an independent organisation, or an organisation about to become independent, would monitor, report and, as a backstop, be able to use the regulatory powers at its disposal to intervene with regard to employment conditions or a very limited time allowed for visits to people who require care and support. I hope that the amendment might commend itself to noble Lords.

Lord Warner (Lab): My Lords, I want to speak to all the amendments in this group—and, in doing so, I have tried to take myself back in time and then, like the Doctor in “Doctor Who”, come forward again quickly. How would I deal with this set of circumstances if I was a director of social services today, as distinct from the late 1980s and early 1990s? I do not envy them because I think that they have a very difficult job

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to do in balancing the resources available with the expectations of the public, which this Bill will increase. I am not sure that we crack the problem with any of these amendments, on their own. I remind the Minister that in Committee I tabled an amendment, so that we could debate this, which gave the Secretary of State powers to make regulations when there were unsatisfactory employment practices. I deliberately drew that amendment widely, because I do not think that we should just concentrate on the 15-minute visits. That is today’s problem—but we have a series of problems, and there could be another lot of problems with employment practices coming along a few months or years down the track.

At the moment, we have four areas in which there are concerns about employment practices. We have zero-hour contracts with exclusivity and no guarantees of working, 15-minute visits and unpaid travelling time, which I would suggest are all incompatible for the most part with the ambitions of this Bill. I am not saying that my previous amendment was perfect or right—and I am pleased that the Minister has come back with some attempts to grapple with these problems. I do not dismiss his attempts, because these are intrinsically difficult problems, but we need to future-proof this Bill against new practices that may creep up.

What I like about Amendment 151, in the name of my noble friend, is that it puts things very clearly in the court of the regulator, and enables the regulator to look at both providers and commissioners. On some of this, providers are doing only what they are asked to do; they are responding to what the commissioners are expecting of them. So we cannot just blame the providers, although I would like to blame some of them, when local authorities are engaging and encouraging them, in some parts of the country, to engage in practices that are totally incompatible with the aspirations of this Bill.

Where do we go from here? I still think that the Minister might be wise to consider the idea of taking a regulation-making power for the Secretary of State, but I equally accept that that may not produce change fast enough. I found Amendment 27 noble in spirit but a little unclear about what its effect would be. Therefore I come back to Amendment 151. Of all the amendments, I think that is the one that gives me more confidence that there is a capacity to respond to concerns about commissioning practices and provider practices. I do not like the idea of a time limit for visits being set in this Bill because I would not want to be running a social services department with that kind of limitation on my ability to deploy my staff in a sensible way and in the best interests of the service users.

I do not think that we have cracked this problem fully. I think my noble friend has come forward with a better way of getting a grip on these issues, where the regulator picks up noise in the system about these unsuitable employment practices and can take some action both on the commissioning side and on the provider side. My only concern is that there is a later amendment that slightly moves the CQC away from intervening in local authority commissioning, which I think would be incompatible with what we need to do to tackle some of the problems covered by this group

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of amendments. I hope the Minister can tell me that I have got that bit wrong, but my reading of a later amendment is that it removes the CQC from actually monitoring the commissioning of adult social care.

Lord Low of Dalston (CB): My Lords, perhaps I might be permitted a word before the end of the debate. I supported these amendments in Committee and am happy to do so again this evening, though I take the points that have been made about being too prescriptive about time limits in Amendment 25. I think the essential point is that the Bill introduces a number of important new duties and responsibilities designed to enshrine the right values at the heart of our care system—for example, the primacy of the well-being of the individual. However, these values are only as good as the services that are put in place to give effect to them. It is not enough simply to put empty principles into legislation. The Bill needs to contain concrete requirements that will help to guarantee quality in the services that are delivered.

The Government’s amendment requiring local authorities to have regard to the well-being principle when commissioning services is welcome, but I do not feel that it is clear or specific enough to underwrite even the very modest guarantee of quality sought by the amendments of the noble Baroness, Lady Meacher. It provides no assurance that the practice of commissioning very short personal care visits will stop. It also fails to commit the Government to producing regulations that set out in greater detail what should count as quality commissioning. From those points of view, I still feel that the amendments of the noble Baroness are in every way to be preferred.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I begin by thanking noble Lords for the excellent debates that we have had on these topics in Committee and again this evening. As the report by Leonard Cheshire Disability highlighted earlier this week, we need to move away from overly prescriptive commissioning, which focuses on price and time slots, to consider how local authorities can deliver better outcomes and quality care. I therefore fully agree with the principles behind the amendments that noble Lords have tabled with regard to poor local authority commissioning practices. Of course, noble Lords will be aware that Clause 5 requires local authorities to promote a market in high-quality services and specifically requires authorities to consider this duty when arranging services to meet people’s needs. This would make it very difficult for local authorities to commission services in 15-minute slots where doing so undermines the quality of those services.

Clause 5 also requires local authorities, in fulfilling this duty, to have regard to the need to ensure there are sufficient services available to meet people’s needs. With regard to Amendment 26, it is important to recognise that local authorities can achieve this only through working with providers in their area. We therefore do not believe that it would be appropriate to require local authorities to ensure sufficiency of services independently. This could lead to local authorities finding themselves forced into providing services where a market had not developed otherwise. Therefore,

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I cannot support the amendment tabled by the noble Baroness. She asked me to clarify what “having regard to something” means. Where that duty is present, it is not something that local authorities are able to ignore. In other words, if they have to have regard to a particular thing, that is not something they can disregard. Rather, the clause as drafted is intended to recognise, as I have said, that sufficiency of services can be achieved by local authorities only when working with providers and not by local authorities alone.

It was clear in Committee that, in the view of many in this House, the Bill as it stands does not go far enough in relation to poor local authority commissioning practices. We have reconsidered our position and developed our own amendment, Amendment 27, in the light of the concerns raised. This amendment would require local authorities, when commissioning services, to consider the effect of their commissioning decisions on the well-being of the people using those services. Our approach has some significant differences from and, I would argue, three clear advantages over, the approach suggested in Amendments 22 and 25, which seek to prohibit specific commissioning practices and in particular to require homecare visits to last at least 30 minutes. The first advantage is that our approach sends a clear message on the face of the Bill that commissioning services without properly considering the impact on individuals’ well-being is unacceptable. We believe, in the light of the arguments expressed in Committee, that it is important that we are able to send this message on the face of the Bill.

Secondly, our approach also explicitly prevents local authorities making decisions about how they commission services without giving due regard to the impact on individuals’ well-being. This goes a long way towards achieving the objective we all share of tackling poor commissioning practices while maintaining local authorities’ ability to decide the most appropriate approach to commissioning services for the people in their area, and acknowledging that the underlying issues here are cultural and cannot be tackled by legislation alone.

Thirdly, our approach has a singular focus on the outcome that we all want to achieve of promoting individuals’ well-being. Consequently, our approach is holistic of all poor commissioning practices and future-proofed against new practices that could emerge without risking the creation of perverse incentives through taking an overly prescriptive approach. Moreover, our approach is also holistic of commissioning for all types of care and support, not merely focused on one area: that is, not just on personal care.

In contrast, there are three reasons why I cannot support the approach set out in the amendments of the noble Baroness, Lady Meacher. First, it is important to recognise that local authority commissioners do not act in ways that undermine well-being because they want to, but rather because they do not recognise the effects of their decisions or feel unable to commission in other ways. As the president of the Association of Directors of Adult Social Services has argued, we should be careful of assuming that,

“simply by abolishing 15-minute slots a magic wand will have been waved, and improvements automatically achieved”.

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It is important to recognise the limitations of legislation in tackling this issue. We have heard during this debate some appalling examples of people having to choose between being fed and being cleaned as a result of homecare visits being commissioned for too short a time. Local authorities that commission such services are palpably failing in their duty to meet people’s needs. That they still commission such services demonstrates the fact that the underlying problems here are cultural and cannot simply be legislated away. Banning specific poor practices will only lead to other poor practices emerging. Instead, I strongly believe that we need to work with authorities to enhance commissioners’ understanding of the effects of their commissioning decisions on individuals’ well-being and of how they can commission more effectively.

9.15 pm

Lord Hunt of Kings Heath: My Lords, I agree with the noble Earl that the commissioning policies of some local authorities are called into question. However, are there some issues here regarding the resources they have available? Is the overall reduction in local authority expenditure not also responsible for some of these policies?

Earl Howe: My Lords, we certainly know that the reduction in resources has had some effect. However, it is interesting that the feedback from local authority chief executives and directors of adult social services suggests clearly that the detrimental effect on the provision of adult social care is not as dramatic as one might suppose from the drop in local authority budgets. This is partly because of the funding provided by my department to local authorities to make up some of the gap. I would not wish to say that there has been zero effect. We think, from the feedback, that the volume of services has diminished by about 5%. This is 5% too much, in most people’s eyes, but may not be as significant as some have feared.

My second point is that central prescription risks prohibiting practices that may, in some circumstances, be consistent with high-quality care. For example, 15-minute homecare visits could well be appropriate in some situations, for instance for helping people to take medication, which is not a process that takes very long at all. Further, using legislation to ban specific processes may result in perverse incentives arising, without addressing the actual problem. A number of noble Lords made that point.

Thirdly, legislating for a specific period of time for which homecare visits must last risks reinforcing one of the key problems here: inappropriate use of time and task commissioning. Instead, we need to move away from overly prescriptive commissioning practices which focus on—

Baroness Meacher: My Lords, I apologise for intervening, but I want to make clear that there is absolutely no prescription: there is flexibility. It is simply saying that you cannot do a personal care visit of less than 30 minutes.

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Earl Howe: I do understand that and apologise if I implied anything different. I was seeking to make the point that once you specify a period of time in a Bill it starts to look prescriptive, even if that is not the intent or the effect.

As I was saying, we need to move away from overly prescriptive commissioning practices that focus on price and time-slots, to consider how local authorities can deliver better outcomes and quality care. None the less, there is more that we can and will do to tackle poor commissioning practices. There is a role for regulation. We are therefore proposing an amendment that will make it clear that the CQC may, with approval from both Secretaries of State of DH and DCLG, undertake a special review of local authority commissioning of adult social services in cases of systematic failure. Subsequent to any such review, CQC could issue an improvement notice in the event of a non-substantial failing and recommend special measures to the Secretary of State in the event of substantial failings.

We also intend to issue statutory guidance specifically on local authority commissioning. This will be a valuable opportunity to influence local practice. In particular, we will include in this guidance clear examples of high-quality and poor-quality commissioning practices to support local authorities to develop and improve their own approach.

As well as tabling Amendment 27, we have also, in response to points raised in Committee, tabled Amendment 24, which will require local authorities to consider through their commissioning decisions the importance of fostering a workforce able to deliver high-quality services when shaping local markets. This amendment is, of course, not just about local authority commissioning practices but more widely about how the local authority can work with the market in its area, including with providers from which it does not commission services, to foster a high-quality workforce. This reflects our strong belief that the characteristics of the workforce, including opportunities for learning and skills development, have a direct relationship with the quality of the care that individuals receive. Improving the capability of the workforce through continued skills development and appropriate working conditions is therefore a key component of market shaping.

I therefore fully agree with the intention behind Amendment 151, but I note that the CQC already has powers to take into account standards of employment as part of its inspection of providers. A separate duty on the CQC to undertake periodic assessments of employment standards would duplicate what the commission is already able to do and compel it to undertake assessments of a very specific nature. For that reason, I cannot support Amendment 151, tabled by the noble Lord, Lord Hunt. It is vital that we give the commission the time and freedom to develop its own performance-assessment methodology. In the fullness of time, this may mean that ratings consider employment standards, but this should be a matter for CQC to determine after considering the views of key stakeholders.

Lord Hunt of Kings Heath: I am grateful to the noble Earl for giving way and I imagine that we can debate this more fully when we come to his amendments

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around CQC independence. However, there is surely a distinction to be drawn between the way that the commission does its work and the overall strategic framework in which it does it. I should have thought that it would be appropriate for Parliament to lay down that it would be right for the CQC to focus on standards in the care sector. Does the noble Earl agree that you can draw a distinction between the framework that is set out in legislation and the way in which the CQC does its work—and I very much support the idea of its independence?

Earl Howe: Yes, I accept that distinction, but Parliament has already vested in the CQC considerable scope to focus on any aspect of a provider it wishes to, which could well include its employment practices. It is not as if, when the CQC moves in on a provider and conducts an inspection, it cannot decide for itself that the employment practices are the mischief that it needs to investigate most closely.

Lord Warner: Can I be clear about something arising from what the noble Earl said? I am struggling with whether the CQC can look at these employment practices only as it plods its way around the country, one authority at a time, or whether, if it starts to pick up something—either from looking at one or two authorities or from public reactions—it can commission a generic review or study of commissioning practices across the country. I am not clear what the noble Earl is saying about this—whether the commission has to work its way through authority after authority, or whether it can make a generic review of particular practices.

Earl Howe: My Lords, I was distinguishing between providers and commissioners. The CQC can do thematic reviews under, I believe, Section 48 of the Act, but we are talking there about providers. As regards commissioners, we are proposing in a later amendment to give the CQC powers to conduct special reviews where concerns have been raised about a particular local authority or NHS commissioner; there would not be periodic, regular reviews. However, the CQC will be looking at every provider over a period of time. The amendment from the noble Lord, Lord Hunt, specifically addresses the ability of the CQC to examine providers. I was saying earlier that it already has the necessary powers to do detailed work in whatever area it chooses.

I return to the issue of local authority commissioning practices. As I argued, the underlying causes of poor commissioning are cultural, and we need to work with local authorities to tackle these issues. We are therefore undertaking a number of non-legislative activities, including the development in co-operation with ADASS of a set of commissioning standards. These standards will enable individual authorities to gauge their own effectiveness, and will support the LGA and ADASS to drive sector-led improvement.

In addition, we are working with the Towards Excellence in Adult Social Care initiative to support local authorities to seek continuous improvement in their adult social care functions, and in the outcomes achieved. This programme brings together local, regional and national stakeholders, and is focused on providing

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peer support and interventions by local government to share learning, find new ways of engaging local people, and use knowledge of what works, data and innovation to drive improvement in the quality of services.

I hope that these arguments, and the amendments we have tabled, are sufficient to demonstrate to the House that we understand and agree with the strength of feeling around these issues. For the reasons I have set out, I cannot support the amendments tabled by noble Lords, but I hope that the arguments I have made today will be sufficient for those noble Lords to feel able not to press their amendments. I do not yet know what the noble Baroness, Lady Meacher, intends to do with her amendment, but it may be helpful for noble Lords to know that the Government do not consider that a decision on Amendment 25 is consequential on Amendment 22.

Baroness Meacher: My Lords, I thank the noble Earl for his thoughtful response and also all noble Lords who contributed to this debate. It has been very considered, and the points raised have been very important. These visits can require three hours of work, or one and a half hours—all sorts of different lengths of time. Whatever is decided ultimately must enable those visits needing that length of time to be undertaken in that way. I welcome the amendment of the noble Lord, Lord Hunt, and I am sure that the CQC has an enormously important role to play in this. I wonder whether the Minister would think it appropriate to require a thematic review of this issue to be undertaken by the CQC, bearing in mind the level of concern across the country about what is happening at the moment, which clearly is not acceptable in terms of these very short visits for personal care.

The noble Earl mentioned the 5% reduction in the budget for adult social care. It sounds small, but we all know that the adult social care budget has always been incredibly low—way below what it should be. Priority has never been given to this area of work, so a 5% reduction is pretty serious. There is a lot to be done. The noble Earl referred to guidance, regulations, and so on. I personally would welcome an opportunity to have a discussion with him about how, in the guidance and regulations, it might be possible to ensure that adequate priority is given to this area of work. This is really what we are talking about here.

My amendments are aimed at stimulating the debate. They are also an effort to draw out some commitments from the noble Earl, and to some degree I think we have achieved that objective. I do not know whether the Minister would be willing to have a conversation about what might be included in the guidance and regulations.

Earl Howe: My Lords, if it will assist the noble Baroness, I will be very happy to have a conversation with her at a mutually convenient time.

Baroness Meacher: With that assurance, I am happy to withdraw the amendment.

Amendment 22 withdrawn.

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9.30 pm

Amendment 23 not moved.

Amendment 24

Moved by Earl Howe

24: Clause 5, page 5, line 22, at end insert—

“( ) the importance of fostering a workforce whose members are able to ensure the delivery of high quality services (because, for example, they have relevant skills and appropriate working conditions).”

Amendment 24 agreed.

Amendments 25 and 26 not moved.

Amendment 27

Moved by Earl Howe

27: Clause 5, page 5, line 26, at end insert—

“( ) In arranging for the provision by persons other than it of services for meeting care and support needs, a local authority must have regard to the importance of promoting the well-being of adults in its area with needs for care and support and the well-being of carers in its area.”

Amendment 27 agreed.

Clause 6: Co-operating generally

Amendment 28

Moved by Earl Howe

28: Clause 6, page 6, line 6, at end insert—

“( ) The following are examples of persons with whom a local authority may consider it appropriate to co-operate for the purposes of subsection (2)—

(a) a person who provides services to meet adults’ needs for care and support, services to meet carers’ needs for support or services, facilities or resources of the kind referred to in section 2(1);

(b) a person who provides primary medical services, primary dental services, primary ophthalmic services, pharmaceutical services or local pharmaceutical services under the National Health Service Act 2006;

(c) a person in whom a hospital in England is vested which is not a health service hospital as defined by that Act;

(d) a private registered provider of social housing.”

Amendment 28 agreed.

Amendment 29

Moved by Baroness Greengross

29: Clause 6, page 6, line 37, at end insert—

“( ) ensuring that consideration of the early and co-ordinated assessment of an adult who may have care and support needs, following discharge from hospital or other acute care setting, is initiated upon admission to that acute care setting.”

Baroness Greengross: My Lords, this amendment concerns discharge plans for people in hospital. I shall start by saying that, in response to my Amendment 87ZA tabled in Committee on this issue, the Minister was

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understandably reluctant to specify the particular circumstances in which the high-level aims of the general duty to co-operate, as set out in Clause 6(5), should apply. He felt that there should not be an exhaustive list of circumstances, such as discharge plan management, in which the power should be used, and said that he expected authorities and their relevant partners to co-operate when an individual was discharged from acute care under this clause. He asserted that Schedule 3 to the Bill sets out clear steps to ensure the safe discharge of a patient from an acute care setting, and that an assessment for care and support should be made before the patient is discharged, not afterwards. Clause 12(1)(b) already allows for regulations to specify other matters to which the local authority must have regard in carrying out an assessment. Given that this involves setting out procedural detail and related matters, he felt it more appropriate to set out such detail in regulations rather than in the Bill.

While I agree with much of that, my main point regarding the importance of discharge being included as part of admission planning into an acute care setting may have been misunderstood. The subject of discharge should be considered as part of the admission process, long before the actual discharge is instigated. That is the important point here, and I remain firm in my belief that it should be included in the Bill. The most important thing is the idea that discharge planning should be part of the admission process. We have all heard a large number of stories of people who have been discharged inappropriately because everything is decided too late in the day and no one is ready for the discharge. I personally could talk about two or three relatives aged 80 to 90 who have been dumped out of hospital in the middle of the night. Such instances are horrific, but I am afraid that they will continue unless we get this right.