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House of Lords

Monday, 14 October 2013.

2.30 pm

Prayers—read by the Lord Bishop of Leicester.

Introduction: The Lord Bishop of Sheffield

2.36 pm

Steven John Lindsey, Lord Bishop of Sheffield, was introduced and took the oath, supported by the Bishop of Leicester and the Bishop of Wakefield, and signed an undertaking to abide by the Code of Conduct.

Introduction: Lord Bourne of Aberystwyth

2.41 pm

Nicholas Henry Bourne, Esquire, having been created Baron Bourne of Aberystwyth, of Aberystwyth in the County of Ceredigion, and of Wethersfield in the County of Essex, was introduced and took the oath, supported by Lord Elis-Thomas and Lord Hunt of Wirral, and signed an undertaking to abide by the Code of Conduct.

Supermarkets: Pricing

Question

2.46 pm

Asked by Lord Kennedy of Southwark

To ask Her Majesty’s Government what discussions they have had with the major supermarkets on delivering simple and clear pricing for consumers.

The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con): The Government agree that supermarket prices should be clear so that consumers can make informed choices. The Minister for Employment Relations and Consumer Affairs held a working group meeting with the supermarkets in May to discuss unit pricing and clarity of shelf-edge labels. We are working closely with the supermarkets and look forward to their continued positive engagement to make improvements that help consumers compare pricing information.

Lord Kennedy of Southwark (Lab): Does the noble Viscount not realise that we have a cost of living crisis in this country? Can he tell the House why the Government are not doing more to ensure that consumers are properly informed of the cost of everyday essentials?

Viscount Younger of Leckie: I should reassure the noble Lord that we are doing much. Since the working group in May, BIS has continued to engage with supermarkets to explore where further improvements can be made, and has agreed to work with supermarkets to identify barriers to doing this. We are aware that there is a bite on household spending and we are doing as much as we can to deal with that.

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Baroness Gardner of Parkes (Con): My Lords, is the Minister aware of the problem for older people, or people in single family units? The advantageous deals are three for two, or buy two and get one for a much cheaper price. While I think that is very desirable for people who have large numbers to feed, it is definitely a disadvantage for people who want smaller quantities. Quite a lot of food must also be wasted, because people cannot use it. Will he take up with the supermarkets the possibility of providing these large super-deductions, but also providing things that can be bought in smaller helpings?

Viscount Younger of Leckie: My noble friend makes a good point, and it is one of the issues that we are discussing earnestly with the supermarkets. However I should point out that “buy one, get one free” deals represent a small proportion of supermarket promotions, the majority of which are temporary price reductions. We are also in discussions over the Waste and Resources Action Programme, which works with retailers to encourage alternative promotions for perishable goods.

Lord Kinnock (Lab): My Lords, is not the sense of crisis heightened by the fact that the Prime Minister appears not to know the price of a loaf of bread? Could the Minister show rather more urgency in trying to insist that retailers, including supermarkets, have a uniformity of descriptions of the pound and kilogram cost of items on their shelves so that people can make a cogent choice in deciding what the best value for money is?

Viscount Younger of Leckie:The noble Lord raises an important point. He may be aware that there is legislation in place, in the form of the Price Marking Order 2004, which requires the selling price and, where appropriate, the unit price—65p per 100 grams, for example—to be clearly displayed on products being offered by traders to consumers. We take this seriously and we are working hard to improve communication about and the display of these items.

Lord Razzall (LD): My Lords, I assume that the Minister would wish to be congratulated on the forthcoming introduction of a consumer affairs Bill sponsored by his ministerial colleague, Jo Swinson. Can the Minister confirm that the Bill will deal with the sort of practices to which the noble Lord, Lord Kennedy, has referred?

Viscount Younger of Leckie: Indeed, although I have not yet seen the details of that particular Bill. Much is being done with the OFT, which is working with the supermarkets to develop a set of principles to address the concerns over special offers and promotions for food and drink. For example, the principles state that pre-printed value claims on packs, such as “Bigger pack, better value”, must be true.

Baroness Hayter of Kentish Town (Lab): My Lords, given the cost of living crisis, will the noble Viscount apologise to consumers for doing nothing about price increases, particularly the latest energy price rise? Will he tell the House why, for the first time since the war,

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he thinks that the Red Cross has had to launch an emergency food aid plan for our own hungry, asking volunteers in supermarkets to get shoppers to donate goods?

Viscount Younger of Leckie: I have no intention of apologising but I have recognised that there is a bite on household expenditure. I point out to the noble Baroness that the biggest drivers of UK food price inflation are global commodity prices, exchange rates and oil prices. As regards energy pricing, the Energy Bill, which is being led by the Department of Energy and Climate Change, will ensure that all households get the best deal for their gas and electricity by giving legislative backing to Ofgem’s retail market review.

Lord Tebbit (Con): My Lords, in view of the crisis in the cost of government, would my noble friend consider getting together a group of senior retailers who would be asked to look at manifestos before an election, price up the promises and make sure that we know the unit price of government as proposed between the various parties?

Viscount Younger of Leckie: My noble friend makes an interesting point and it is firmly noted.

Lord Harris of Haringey (Lab): My Lords, given the very rapid rise in food prices in this country, which is double the rate in Germany and France, can the noble Viscount comment on the fine of £300,000 imposed on Tesco for not properly declaring or misrepresenting a cut in price it claimed that it had made? Are the Government putting enough resources into the consumer protection world to make sure that consumers are protected against unfair offers of that sort? I declare an interest as chair of the National Trading Standards Board.

Viscount Younger of Leckie: I can reassure the noble Lord that we take enforcement very seriously. As the noble Lord will be aware, enforcement of the legislation is undertaken by the Office of Fair Trading and trading standards boards. If there is an issue, the first thing that complainants should do is go to trading standards. I am also extremely aware of the major supermarket that was prosecuted for giving a misleading price on strawberries.

Lord Elton (Con): My Lords, will the Minister take on board the plight of elderly single people trying to follow a balanced diet? They have to try to find a loaf of bread that does not go stale before they have finished it because the loaves are all too big.

Viscount Younger of Leckie: Indeed, that point is also noted.

Lord West of Spithead (Lab): My Lords, so that I am not caught out in the future, will the Minister tell us exactly what is meant by a loaf of bread? There seem to be so many of them.

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Viscount Younger of Leckie: I hope that the noble Lord will forgive me if I say that that goes slightly beyond my brief. However, I happen to know the price of a loaf of bread.

Bank of England: Monetary Policy Committee

Question

2.54 pm

Asked by Lord Barnett

To ask Her Majesty’s Government when the Chancellor of the Exchequer last met the Governor of the Bank of England in his capacity as chairman of the Monetary Policy Committee, and what they discussed.

Noble Lords: Hear, hear!

Lord Newby (LD): My Lords, I am sure that the whole House will wish to join me in congratulating the noble Lord on his 90th birthday. There are clearly two Barnett formulae. There is first the public one that we regularly discuss in your Lordships’ House, but secondly there must be a secret elixir that enables the noble Lord to continue to play an energetic part in our deliberations undiminished by the passage of the years. We wish him many happy returns.

The UK’s Monetary Policy Framework, set out in the Bank of England Act 1998, gives operational responsibility for monetary policy to the independent Monetary Policy Committee. The Chancellor of the Exchequer has frequent discussions with the Governor of the Bank of England on a wide range of issues in the UK economy.

Lord Barnett (Lab): My Lords, I thank the noble Lord for his initial comments. In the light of those, I had better be kind to him, but I am afraid that when he answered a similar question on 9 July, I believe that he misled the House on an important issue of the independence of the Monetary Policy Committee and the Governor of the Bank of England. I gather that he was depending on a command paper and on an exchange of letters between the Chancellor and the governor, but surely you cannot change a major Act of Parliament—the Bank of England Act 1998—by an exchange of letters and a command paper. That is clearly impossible. Can he explain how he has done that? The independence of the Monetary Policy Committee is important, as the new governor has told the country that he believes in long-term forecasts. He has forecast interest rates which clearly would be affected by QE, on which he is apparently being given unfettered power. Whether or not he has those powers, could the Minister explain and confirm that the Chancellor has agreed to allow the governor and the Monetary Policy Committee unfettered control over interest rates and QE?

Lord Newby: My Lords, that is what the Bank of England Act says. The Monetary Policy Committee is operationally independent. The remit of the Monetary Policy Committee has to be set by the Governor of the

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Bank of England. It has to be renewed every year. It was renewed this year. The difference between this year and previous years is that the Chancellor asked the governor to look at possible methods of forward guidance which would give greater certainty to the markets about the medium-term movement of interest rates and, indeed, QE. That is exactly what the governor did, in line with the request from the Chancellor which was in line with the provisions of the Bank of England Act.

Lord Bilimoria (CB): My Lords, I join in wishing the noble Lord, Lord Barnett, a very happy 90th birthday. He has asked an excellent question in that it relates to forward guidance. For a long time I have been saying that when setting interest rates the Governor of the Bank of England and the Monetary Policy Committee should look not just at inflation targeting but at the wider economy. This is excellent news. However, is it wise that the governor should tie himself down to a specific level of 7% unemployment, after which interest rates are to be raised, unless inflation is going out of control? When does the Minister think that the 7% will be achieved? Secondly, would it not have been wiser to have had a wider remit taking into account other aspects of the economy, not just inflation targeting?

Lord Newby: As the noble Lord says, the governor is now looking at unemployment in terms of when interest rates might change, but there is no iron rule that the moment unemployment rates hit 7%, interest rates will go up. There are three potential arguments which would mitigate against that, of which by far the most important is if the outlook for inflation was higher. As to when we might reach 7%, in August when the Bank of England published its report suggesting this, it thought it would be in the third quarter of 2016. The good news is that since then the economy has grown more quickly, and the consensus is now settling around summer 2015.

Lord Peston (Lab): My Lords, will the Minister cast his mind back to when your Lordships debated what is now the Bank of England Act? My noble friend Lord Barnett and I put down an amendment precisely to achieve the flexibility which is in this command paper. We were not told that the flexibility was already there, which is what the command paper says. We were told that we were idiots, and that the remit of the Monetary Policy Committee was to hit the inflation target—only after that could it look at anything else. The Government have produced a sleight of hand here. I favour it, let me add, but it is a sleight of hand.

Will the noble Lord consider the central question which arises in this context, bearing in mind that the two greatest liberal thinkers of the 20th century, Lord Beveridge and Maynard Keynes, both placed the attainment of full employment at the centre of government macroeconomic policy? Can the noble Lord tell us whether under the new regimen that we are now offered, there is any hope within my lifetime—younger Members may have something more to look forward to—that we shall at last get back to what those two great thinkers said: full employment is a must?

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Lord Newby: My Lords, I am sure that the noble Lord welcomes the fact that, for the first time, the Bank of England is looking at the employment rate as a way of deciding on the speed at which interest rates might change. I am sure he would agree, as Keynes probably would, that the quickest way to bring the rate of unemployment down is to get the growth rate moving more quickly. I am sure that he will be pleased that all the projections of growth are now being revised rapidly upwards. The IMF, for example, last week revised upwards its growth rate for this year from 0.09% to 1.4% and for next year from 1.5% to 1.9%.

Lord Flight (Con): In the discussions that the Minister is having with the Chancellor and the Governor of the Bank of England, are they focusing on what the extent is of imported inflation or deflation compared to domestic inflation? It was largely a failure to understand that domestic inflation was far higher than the mixed bag that led monetary policy under the previous Government to go off the rails.

Lord Newby: My Lords, in recent years, there has been a very different mix of imported and domestic inflation, and we have not seen any significant degree of domestically generated inflation. That remains pretty much the same today. Fortunately, we are a very long way from the 1970s and 1980s, when domestically generated inflation was the single biggest problem of macroeconomic management.

Church of England: Appointment of Bishops

Question

3.02 pm

Asked by Lord Trefgarne

To ask Her Majesty’s Government what discussions they have had with the Church of England about the procedure for the appointment of bishops in the Church of England.

Lord Wallace of Saltaire (LD): My Lords, the current procedure for the appointment of bishops to the Church of England was agreed by the previous Government in 2008 after consultation with the church and the publication of a White Paper, The Governance of Britain. There have been no further discussions between the Government and the church on this issue since 2008 and the Government see no need to initiate any such discussions.

Lord Trefgarne (Con): My Lords, I am grateful to the Minister for that Answer. Is it not the case that bishops are retiring faster than they are being appointed? In a little while, there will be none at all. If the most reverend Primate’s diary is so congested that he cannot find time for additional meetings of the Crown Nominations Commission, would it not be a good idea to reappoint the noble Lord, Lord Luce, who chaired that committee so effectively when it came to choosing the most reverend Primate?

Lord Wallace of Saltaire: My Lords, I am informed that there are currently four vacancies for diocesan bishops and two forthcoming retirements. There is

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also the issue of the new combined diocese of Leeds. I accept that the Church of England has a rather lengthy consultation procedure before new bishops are appointed. I spoke to the joint secretaries of the Crown Nominations Commission last week, who were in Hereford consulting members of the diocese on the nature and needs of the diocese and thus the characteristics they wanted in a new bishop. That seems entirely desirable. I understand that in the diocese of Guildford, with which the noble Lord, Lord Trefgarne, will be concerned, the bishop is due to retire at the end of November. It is likely that his successor, after this consultation, will be agreed in June or July next year.

Lord Faulkner of Worcester (Lab): My Lords, what assistance are Her Majesty’s Government giving to the most reverend Primate the Archbishop of Canterbury in redressing the gender imbalance on the Bishops’ Benches in your Lordships’ House?

Lord Wallace of Saltaire: My Lords, the Church of England is moving with all deliberate speed towards the appointment of women bishops. I think it quite possible that the first women bishops will be consecrated before we have reached the next stage of House of Lords reform.

Baroness Brinton (LD): My Lords, synthesising the two previous questions, will the Minister tell us how many women clerics are in a senior position in the Church of England? Does he agree that a large number of vacancies might be helpful for the promotion of the majority of very good senior women to bishoprics as and when the Church of England approves their appointment?

Lord Wallace of Saltaire: It is desirable that dioceses nevertheless continue to appoint bishops. I know a number of senior women in the Church of England and have a great deal of respect for them. One of them is the wife of my good friend the Vicar of Putney. I have no doubt that in time, the Church of England will have a number of excellent women bishops in the same way that it now has a number of excellent archdeacons, canons, and others from the female sex.

Lord Foulkes of Cumnock (Lab): My Lords, will the Minister confirm that one of the great things about Church of England bishops is that their number in this House has an upper limit, whereas coalition Peers seem to be flooding in with no apparent upper limit? Are there any members of the Liberal Democrat Party who are not in the House of Lords?

Lord Wallace of Saltaire: I am sorry that the noble Lord, Lord Foulkes, did not take the other path appropriate to the Question, which is that the Bench of Bishops is the only section of this Chamber that has an upper age limit, which is 70.

Lord Cormack (Con): My Lords, after that hilarious question from the noble Lord, Lord Foulkes, does my noble friend agree with me that it is somewhat unfortunate that Episcopal vacancies are now advertised? Is there not an anti-vocationary element there?

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Lord Wallace of Saltaire: It may simply be a useful movement towards transparency. I know there are those who would like the Church of England to remain as it was 150 years ago or more, but as a member of the Church of England, I am extremely happy that it has moved and modernised over the last few years.

The Lord Bishop of Leicester: My Lords, is the Minister aware that, typically, the Crown Nominations Commission consults some 100 members of civil society in each region to which appointments are made; that legislation to bring forward the possibility of women bishops is now before the General Synod and it is anticipated that it will be brought into law within two years; and that the Archbishop of Canterbury takes a very keen interest in the proceedings of this House, and will take careful note of any concerns about the speed of Episcopal appointments made in the course of this Question Time?

Lord Wallace of Saltaire: I thank the right reverend Prelate for his question. In consulting when preparing for this Question, I was struck by how many of the people I spoke to said, “You have to understand that the workload of a diocesan bishop is enormous and that some wish to retire before the age of 70 because they feel they have done more than they can sustain for more than 10 to 15 years”.

Baroness Royall of Blaisdon (Lab): My Lords, will the Minister join me in congratulating the Church of England on all the splendid work that it does in its dioceses, especially with people who are suffering so much under the austerity programme of this Government? Will he also join me in congratulating the Church of Wales on its vote in favour of women bishops?

Lord Wallace of Saltaire: I am very happy to do so, and I look forward to the Church of England following in good time.

Ministry of Defence: Dogs

Question

3.08 pm

Asked by Baroness Oppenheim-Barnes

To ask Her Majesty’s Government what steps are taken by the Ministry of Defence to retrain and rehome dogs when their period of duty in the military at home or abroad is complete; and what proportion of those dogs are returned to the United Kingdom.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever) (Con): My Lords, military working dogs and their handlers provide a valuable range of specialist roles worldwide. The dogs’ welfare is a primary consideration during and after their service. The MoD rehomes all suitable dogs, often with someone closely involved when the dog was serving and with families who are carefully vetted. There are no time restrictions on a dog being kept while a suitable home is looked for. The majority of dogs serving overseas are re-homed in the United Kingdom.

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Baroness Oppenheim-Barnes (Con): I thank the Minister for that reply. Is he aware that I am extremely pleased with it, as will be the highly regarded Dogs Trust? These dogs have served their country very well at the side of the brave soldiers, whose lives they often save, and it is good to hear that the Army is treating them humanely on retirement.

Lord Astor of Hever: My Lords, I am delighted that my noble friend is pleased with my Answer. I join her in paying tribute to the wonderful work done by the Dogs Trust. All personnel from the military working-dog community do everything that they possibly can to rehome all suitable dogs at the end of their service life. Many dogs, understandably, are adopted by their handlers. We have rehomed around 360 dogs during the past three years and currently have 150 people waiting to offer a home to a suitable dog.

Lord Tomlinson (Lab): When the Minister has solved the problem of dogs, will he turn his undoubted abilities to solving the problem of the £2 billion cash surplus that the Ministry of Defence has apparently been unable to spend, as was reported in the Sunday Times yesterday, to the detriment of major missions in the Middle East, where we have significant defence interests?

Lord Astor of Hever: My Lords, I am sorry to disappoint the noble Lord but this Question is specifically on dogs. He can table a Question on the issue that he has raised at some other point.

Lord Trefgarne (Con): My Lords, is my noble friend aware that I have had the privilege of owning two dogs that were retired from military service, which of course I purchased from the Ministry of Defence, and that both were beautifully looked after and were quite excellent?

Lord Astor of Hever: My Lords, I am really pleased to hear what my noble friend says. There is great interest in this issue, particularly in the different types of military working dogs. I have asked my department to put in the Library a list of all the different types of specialist and protection dogs, as well as the reasons why a small number of working dogs were killed during the past three years—I think that it was two this year, one the year before and one the year before that—along with information on the number of dogs that were put to sleep and the reasons for that.

Lord Harris of Haringey (Lab): My Lords, I accept that this Question is primarily about the rehoming of military dogs, but is there not also a problem with the substantial number of ex-servicemen who end up sleeping on our streets because they are not afforded the proper moves into civilian life? I would be grateful, if he cannot do so today, if the Minister could perhaps report to the House at some future stage on the steps being taken to ensure that ex-service personnel are treated appropriately by this society?

Lord Astor of Hever: My Lords, I am very happy to do that at a future point in a defence debate, but this is a good-news story about what we are doing for military dogs. I am very unhappy to see us going off-piste.

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Baroness Doocey (LD): My Lords, will the Government examine the enactment of “Robbie’s law” in the United States, which has led to a huge reduction in the number of retired dogs that have to be put to sleep, with a view to introducing a similar system in this country?

Lord Astor of Hever: My Lords, I am very happy to look at that. The situation in this country is that the decision to put a dog to sleep is taken by a veterinary officer and only after all possible avenues have been exhausted. From 2010 to June 2013, sadly, 300 dogs had to be put down, and the reasons for this included injury, illness and age-related welfare reasons. As I have said, those cases were looked at by veterinary officers and the decision was taken only as a last resort.

Lord West of Spithead (Lab): My Lords, does the Minister agree that we have a good track record in this country of looking after animals within the military? I am sure he will be interested to hear that when we did Options for Change at the beginning of the 1990s, our one study into animals within the forces, known colloquially as the Winalot study, discovered, to the surprise of the Navy, that Army and Air Force dogs had a higher per diem rate for food than officers and men within the Royal Navy.

Lord Astor of Hever: My Lords, that is a very interesting question and I will consider it closely.

Lord Brooke of Sutton Mandeville (Con): My Lords, if I may shift the emphasis from the Government to dogs, is my noble friend aware that Greek vases demonstrate a considerable use of dogs two-and-a-half millennia ago? That tradition has been maintained for a very long time—to the enormous credit of the dogs.

Lord Astor of Hever: My Lords, I am learning a lot today.

Lord Rosser (Lab): My Lords, last week it was government policy being thwarted by badgers moving the goalposts; this week it is defunct, deceased dogs causing headaches. Presumably the Minister can give an assurance that no decisions to put down dogs are made on financial grounds, bearing in mind the recent disclosures about the hundreds of thousands of pounds being consumed within the Ministry of Defence on calls to 118 numbers at a time when money is in short supply. Will the Minister also clarify what percentage of military working dogs are put down before they are retired, and what percentage are retrained or re-homed on retirement?

Lord Astor of Hever: My Lords, I can give the noble Lord the commitment that no dogs are put down for financial reasons. The vast majority of dogs had to be put down as the animals’ condition impeded and reduced their quality of life. As noble Lords may know from sad personal experience, everyone will at times have to put animals to sleep when it is the only option. The death or destruction of a military working dog is subject to formal investigation and report, as

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required. Dogs are not usually retrained during their military service. The role that a dog undertakes is normally one which the dog has a natural inclination to perform as a result of breed characteristics and behavioural traits.

Lord Elton (Con): My Lords, there are occasions when it is impossible to find a successor owner for the dog. Would my noble friend bear in mind the work of the Cinnamon Trust, which has a fascinating remit of supplying bereaved people with dogs which have also been bereaved, and homing other difficult cases in a way which promotes the happiness of both the animal and the human?

Lord Astor of Hever: My Lords, my noble friend makes a very good point. I will certainly study carefully the excellent work of the Cinnamon Trust.

Inheritance and Trustees’ Powers Bill [HL]

Motion to Agree

3.17 pm

Moved by Lord McNally

To move that the Bill be referred to a Second Reading Committee.

Motion agreed.

Care Bill [HL]

Care Bill [HL]

Report (2nd Day)

3.17 pm

Clause 9: Assessment of an adult’s needs for care and support

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I shall speak also to the other amendments in this group, Amendments 33, 36, 37, 39, 40, 42 to 45 inclusive, 62, 90, 91, 100, 101 109, 112, 115, 116 and 117. In Committee, we had a wide-ranging and informed debate on assessment. I have reflected on the issues raised and I have tabled amendments which I hope noble Lords will agree address those concerns and clarify our intentions around the assessment process.

In Committee, we considered a provision which was intended to ensure a focus on the adult’s strengths and how these can contribute towards the outcomes they want to achieve as part of the assessment. This provision was drafted to support our aim to build the care and support system around the person and to consider the adult’s own capabilities: what they can do—as well as their needs—and what they cannot do. While most noble Lords agreed with the principle, a concern in Committee was that the provision set out in the Bill might be wrongly interpreted by local authorities as allowing them to place additional caring responsibilities

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on family and friends rather than providing care and support. Amendments 32 and 33 look to address the concerns that arose.

Amendment 32 removes the requirement to assess the adult’s capabilities and other matters as part of the needs assessment. Amendment 33 provides for a consideration of such matters to happen separate to, but alongside, the needs assessment. Local authorities should have a discussion with adults or carers in parallel to the assessment, considering how their own capabilities and any other matters can help to achieve the outcomes they want to achieve on a daily basis. These amendments remove the source of concern, while retaining the important point of policy on which we agree.

In Committee, there was also concern as to whether the assessment process was sufficiently supportive of the focus of the Bill on the prevention of need. We have considered this and have also brought forward amendments to strengthen this focus. The second part of Amendment 33 and Amendment 45 require a local authority to consider at the time of the assessment whether any universal services available locally, whether provided by the local authority under Clause 2 or Clause 4 or by another organisation, would be of benefit to the person. This replaces the previous provision in which such a consideration took place only after the eligibility determination. This would support situations where, for example, a local authority might decide to defer the final eligibility determination until the person or carer has taken part in a preventive service, such as a reablement programme. Amendments 36 and 37 make similar provision in relation to carer’s assessments. Amendments 90, 91, 100, 101, 109 and 112 make equivalent changes in relation to the assessment of children, child carers and young carers.

In Committee, the noble Lord, Lord Low, pointed out that while the regulation-making powers would provide for an expert to carry out complex assessments, they did not require it. I assured the noble Lord that this was not our intention and that I would look again at the provisions to ensure they provided for this. Having considered the provisions I have concluded that they needed to be strengthened to provide for when an expert must carry out an assessment for complex needs, such as for a person who is deafblind. Amendment 39 rectifies this, and I would like to thank the noble Lord for raising this in Committee.

Through Amendment 40, we will require assessors who are trained but may not have experience of carrying out an assessment for a specific condition to consult a person with experience in that area. For example, an assessor who normally assesses older people who is asked to assess a person with learning disabilities would have to consult a person with experience in that condition.

I turn now to Amendments 42, 43, 44, 62, 115, 116 and 117. Members of the Committee asked to see clear links between this Bill and the Children and Families Bill, which is also before the House. I share their view that both Bills must work together so that no one falls through a gap in the legislation. Amendment 42 ensures that a local authority can combine an adult’s assessment with any other assessment it is

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carrying out, whether under this Bill or other legislation, as long as the individual or individuals being assessed agree. For example, it clarifies that the authority can carry out a needs assessment with a young carer’s assessment. Amendment 43 allows the authority to carry out a needs or carer’s assessment jointly with another assessment being carried out by another body, whether of that person or a person relevant to the situation, as long as the individual or individuals being assessed agree. Amendment 62 ensures similarly that local authorities have powers to combine care and support plans and support plans with any other plan of that individual or another. Amendments 115, 116 and 117 make similar provision for a child’s assessment, a child carer’s assessment and a young carer’s assessment when they are transitioning to adult services. These amendments reflect similar government amendments tabled to the Children and Families Bill and reflect the synergy between both Bills and how they work together to ensure that the needs of children and young carers are considered during the adult’s assessment.

I have listened to the strength of the arguments made in Committee. I hope your Lordships will agree that the amendments I have tabled address the concerns that were raised and that they strengthen and clarify the assessment provisions. I beg to move.

Baroness Pitkeathley (Lab): My Lords, the changes that the Government have made concerning assessments are very welcome. I particularly thank the Minister for the careful and considered way in which he listened to the issues around young carers, and particularly the way in which these now mesh with the Children and Families Bill, which was a concern to many of us. That is very welcome.

Amendment 32, which removes the reference to support available from families and friends, is particularly welcome. Disability and carers’ organisations have very serious concerns that the original wording would lead to local authorities making assumptions about what families could provide without conducting a thorough assessment of a person’s needs and then carefully considering how those needs could best be met, particularly taking into consideration the family’s willingness to provide that care.

Amendment 33 also includes a requirement that when an assessment is carried out it is also considered whether the person would benefit from prevention services or from information and advice. That greater emphasis is also very welcome. However, I would like the Minister’s comments on one concern about Amendment 33. It refers to,

“which might be available in the community”.

If this wording is included in the Bill, it is vital that strong guidance is given to local authorities not to run the risk of negative, unintended consequences. There will be guidance, regulations and assessments, as we know. What assurances can the Minister give that community services will not be seen as an automatic alternative to statutory services and will not therefore create a further barrier for those in need of statutory support?

Can the Minister assure me that guidance will make it clear that local authorities cannot make assumptions about the availability and appropriateness of other

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support from community services and whether it is wanted by the disabled or older person? The Government have made it clear that they do not intend local authorities to look to families and friends to provide care and support, potentially taking on a greater caring role. Can the Minister give assurances that local authorities should also not be looking to families and carers to provide more care as a get-out clause, if you like, from providing statutory services? This is particularly important given the great variability in so-called community services from area to area and, of course, the huge stress on local authority budgets, which is a fact of life for all local authorities at present.

Lord Low of Dalston (CB): My Lords, I very much welcome the Government’s Amendments 33, 39 and 40. So far as Amendments 39 and 40 are concerned, in Committee, as the Minister has remarked, I sought a strengthening of Clause 12(1)(f) to ensure that regulations would specify the circumstances in which a specially trained person must carry out an assessment or a reassessment of persons who need one. The Minister was kind enough to thank me for raising the point, and I thank him very much for bringing forward these amendments. I am delighted that the Government have come forward with amendments that effectively meet my wishes, recognising that the Bill, as initially presented to the House, did not precisely reflect the Government’s intention.

Talking of specialist provision, I kick myself that I forgot to refer to this in connection with Amendment 26 from the noble Baroness, Lady Meacher, about the need for local authorities to commission a full range of services to meet the diversity of their residents’ needs. I meant to illustrate this by reference to the situation of deafblind people who are all too often offered mainstream services or services designed for those with a single sensory loss instead of the specialist provision appropriate to their particular needs. Perhaps, in welcoming the Government’s amendment on specialist assessments, I can slip in the thought that if local authorities are required to ensure that sufficient services are available for meeting the needs for care and support of adults in their area, they would rightly be under some pressure to identify the full range of deafblind people’s needs, and those with other specialised needs as well, and plan accordingly.

3.30 pm

On Amendment 33, I argued in Committee—I fear at too great a length for some, but I shall try not to repeat that mistake today—that the Bill would be much stronger if local authorities were also placed under a duty to take prevention into account in exercising any of their functions under Part 1, not just those relating to direct provision of care. Failure to do this meant that there was little in the Bill for those not deemed eligible for care and support, even though their needs might be quite considerable. It also did little to advance the Government’s own strategy of rebalancing the care system away from crisis intervention and in a more preventive direction.

The new government amendment, however, embraces a more strategic approach by obliging local authorities to consider whether measures short of full care and

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support, including anything which might be available in the community and not just directed at individual care, could assist the individual. This could ensure that those who did not reach the eligibility threshold were not bereft of support entirely and would in effect make the eligibility threshold go further. This is very much to be welcomed, and makes the Government’s setting of the eligibility threshold at the equivalent of “substantial” somewhat easier to accept.

However, I ask for an explicit reassurance on one or two points; perhaps the Minister might like to make a note of them in order to respond to them when he comes to wind up. I would like a reassurance that preventive services will remain universal and free of charge. We know that entitlement to many reablement services is assessed against the FACS criteria. We also know that councils have previously tried to charge for them even though it is illegal to do so. An explicit commitment has been made to minor aids and adaptations continuing to be provided free and without the need for a financial assessment. No similar statement has been made about intermediate care. I believe that the House would very much welcome the Minister giving the same explicit commitment to intermediate care services, including most reablement services, continuing to be free of charge. There is evidence to indicate that councils will look to restrict access to preventive support. I would therefore welcome the Government’s underlining their commitment to universal and uncharged preventive services.

In Committee, the Minister assured us:

“Under this Bill, local authorities would be expected to consider how the provision of reablement and other types of care and support could contribute to the achievement of an individual’s desired outcomes as part of the assessment process. Clause 13(2)(b) makes it clear that, in determining eligibility, local authorities must consider if the person would benefit from preventive services—whether or not they have eligible needs. This would include reablement services”.—[Official Report, 9/7/13; col. 262.]

However, research undertaken by the British Red Cross last month found that 64% of councillors think that preventive services provided through the duty set out in Clause 2 will be focused on adults whose needs for care and support meet their council’s eligibility criteria. It would be helpful if the Minister could give an assurance that the commitments made in respect of Clause 13(2)(b) attach to its new placement in Clause 9, so that local authorities must consider during an assessment if the person would benefit from preventive services, including reablement services, whether or not they are likely to be determined as having eligible needs.

In Committee, the noble Earl gave me an assurance, as he has observed in speaking to the government amendment, that,

“we intend to maintain the existing entitlements to aids, minor adaptations and intermediate care in regulations”.—[

Official Report

; 16/7/13; col. 695.]

However, research undertaken by the British Red Cross last month found that 60% of councillors think that services offered through the duty set out in Clause 2 are more likely to be charged for than to be free at the point of need. Therefore, can the Minister give an assurance that, as per the Community Care (Delayed Discharges etc.) Act (Qualifying Services) (England)

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Regulations 2003, intermediate care will continue to be required to be provided free of charge to any person to whom it is provided, for any period, up to and including six weeks, and without the need for a financial assessment?

Baroness Meacher (CB): My Lords, Amendment 41 is a probing amendment, so I will speak briefly. Before I say anything else, I applaud the Minister for the raft of amendments in this group. I was particularly pleased to see the amendments in relation to young carers, although this is not relevant to Amendment 41. However, government Amendments 32, 33, 36 to 38 and—perhaps in particular—39 and 40 are, of course, relevant to this amendment. My Amendment 41 requires that regulations that make further provision for carrying out a needs or carers’ assessment will specify the circumstances in which a person’s social care needs are to be regarded as complex—the amendments do not refer to that term, so I would like a further clarification of that—and that having defined “complex needs”, social workers should always be involved in the assessment of cases meeting that criterion. That is the proposal of the College of Social Work. I should say that the involvement of a professional social worker does not mean the exclusion of all others. Clearly, if a professional social worker is dealing with a deafblind person, he would need to involve a specialist in that particular group of disabilities.

The college makes the first point that a good assessor sets out to create a complete picture of a person’s situation, strengths, capabilities and aspirations. Social workers are trained and recruited on the basis that they have the necessary cognitive and emotional depth to undertake those assessments. The second point is that people with complex needs generally have an awful lot of different services to which they need to relate if all their complex needs are to be met. The role of the care co-ordinator therefore becomes vital in those situations; care co-ordinators tend to be professional social workers.

As the noble Earl knows, the Law Commission argued that where a person has complex or multiple needs, a proportionate assessment would require an in-depth and comprehensive exploration of those needs. It is difficult to imagine that somebody other than a professional social worker would be equipped to do that. The types of situation which would be treated as complex cases include: where a person is subject to legislation or national guidance; where a person is or may be subject to abuse; where there is conflict between a person and a member of their family or their carer; and where there is a need to support the applications of individuals or their families for continuing healthcare funding.

Government Amendments 32, 33, 39 and 40 could pave the way for regulations which would meet the concerns addressed in Amendment 41. The noble Earl will know that our particular concern is for clients with learning difficulties, mental health problems and, in particular, dementia—people whose needs will be quite complex and difficult to assess. You need people who have been trained in that sort of work. Can the Minister say, with respect to these vulnerable groups, whether regulations will clarify their need for a professional

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social work assessment, albeit involving others as well? If regulations will not deal directly with the assessment of people with complex needs, and in particular with those who have all those mental health problems, can the Minister explain what provision he plans to make in order to ensure that the needs of these particularly vulnerable people will be properly assessed and addressed?

Lord Dubs (Lab): My Lords, I welcome how far the Minister has moved from Committee to today. I hope that noble Lords will not think it churlish of me to say that perhaps he might be persuaded to move a little further. I will speak first to Amendment 60, which seeks to oblige a local authority to provide advice and information about what can be done in the event of an emergency, or if needs change. I am specifically talking about what I think we have referred to before as people with fluctuating conditions and needs. We know that there are many millions of people in the country who have fluctuating conditions such as multiple sclerosis, rheumatoid arthritis, HIV, Crohn’s, colitis, epilepsy and Parkinson’s disease, and there may be many others. Therefore, we are talking about a significant number of people who will be affected by the provisions of this Bill.

Not long ago I was talking to a woman in a wheelchair who had MS. She was very lively, bubbly and sparky, and she said to me: “You know, I’m not always like this. Some days I go down and I can’t even get out of bed, so don’t judge my condition by the way you see me today”. I took that very much to heart, and it is clearly the sort of situation that this amendment is about. As the Bill is currently drafted under Clause 25, it would not really make provision for such situations.

This amendment is actually operationally simple. It would help to ease the pressure placed on formal and informal carers, and would give them more certainty. Not only will it ensure that individuals get the timely care that they need when they need it but, equally importantly, it has the potential to prevent costly and unnecessary hospital admissions. If this amendment is not in place, there is always the possibility that with a downward fluctuation in condition, the person without the support will then have to be hospitalised. That in itself is costly and is utterly undesirable from the point of view of the person who could be helped in the home if this amendment were to be passed.

Local authorities are surely in a position to provide better tailored care, to promote confidence and control and allow people to prepare for such rises and falls in their care needs. The current drafting does not allow for it. A snapshot was taken by the NRAS—the National Rheumatoid Arthritis Society—which indicated that currently more than 30% of respondents with rheumatoid arthritis have been admitted to emergency care as a result of a flare-up in the disease in the past year. This is something which I trust could be prevented if we changed the way in which this clause was to operate. A survey of 1,000 people with MS revealed that 95% of respondents felt that better services during a relapse or a sudden deterioration of their condition would help them to maintain their independence. More than 80% said that they want to be able to plan their care and support in advance of that care being required. This amendment would help people whose conditions

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might suddenly worsen and, as I said earlier, would potentially prevent unnecessary and costly hospital admissions.

I turn to Amendment 61. As the wording of the Bill in Clause 27 states, local authorities have the power to generally review care plans. However, they are not required to specify when they anticipate that these reviews will take place. This amendment seeks to put some certainty into the process. There should be an agreed date between the adult and the local authority upon which a review of the care and support plan would be offered. I envisage a discussion between the local authority and the person concerned about the best way in which their care needs can be met.

An anticipated review date, agreed between the local authority and the adults, would provide stability and certainty to those being cared for. It is not a large change but it would be beneficial for the people concerned. I do not want to spell out with examples where people have said what a difference it would make if they had this element of certainty. I would like this amendment to be passed, which will give the adult the confidence that their care would continue as agreed until the specified date or until the adult themselves chooses to request a review in line with Clause 27(1)(b).

Lord Mackay of Clashfern (Con): My Lords, I generally support these government amendments, and thank the Minister for introducing them. There is just one small point I want to mention, which has been raised in my mind by the observations made by the noble Baroness, Lady Pitkeathley, in relation to Amendment 33.

I had understood paragraph (b) of Amendment 33 to carry the implication that if something was found that would benefit the person in question as a result of examination of what is in (b), the needs assessment would include that. However, I just wonder whether the last part creates the possibility that if the benefit can be received from something in the community, outside the provisions that the local authorities have made, that would be excluded; in other words, it would tend to reduce the needs assessment. I had rather thought that the proper construction of this phrase would mean that that also should be taken into account as included in the needs assessment, and that, where it was available, the cost of it should be included in the needs assessment. Perhaps my noble friend will be able to clarify that point for me.

3.45 pm

Baroness Wheeler (Lab): My Lords, this large group of amendments reflects issues that we covered extensively in Committee. We largely support the amendments as they address the suitability of the extent to which friends and family should be acknowledged in the process of assessment of the needs of adults, carers and young carers for care and support.

The group includes amendments on young carers’ support and assessment needs in relation to the Care Bill and its interface with the Children and Families Bill, about which I spoke last week. I do not intend to go into this issue again, other than to stress our support and relief that young carers are recognised in a joined-up way in both Bills. In particular, we welcome

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the safeguard in this group of amendments, which ensures that local authorities are able to combine assessments relating to adults being assessed with assessments relating to young carers only with the consent of both. The new provisions also make it explicit that it will be possible to join up care plans with other types of care plan only with the consent of the relevant parties, and we welcome this too.

We were very concerned that as originally drafted, Clause 9, which sets out the assets-based approach to assessment, could have been misinterpreted and used to push greater responsibility for meeting needs from the local authority to carers, family and friends. It blurred the distinction between an assessment being about what the needs are and the ways of meeting them by looking at how needs are met by other ways through the provision of services before any decision about eligibility has been made.

Thankfully, the Government’s amendments addressing this problem are now more in accord with the Law Commission review of adult social care legislation, which made a clear distinction between consideration of care and support needs and how the needs should be met. On specialist assessments, we are pleased to see the amendments upholding the current practice and guidance, which provide for assessments to be undertaken by people with expertise. It is an issue on which the House expressed itself very strongly, especially the need for specialist assessors in the case of people with complex health or mental health needs. The noble Lord, Lord Low, and the noble Baroness, Lady Meacher, have set out these issues again today very clearly, and I look forward to the Minister’s response to their questions on the outstanding issues.

Finally, I support the intention of my noble friend Lord Dubs in Amendment 60 to ensure that the care and support plan provides contingency planning for an emergency, such as the carer suddenly being ill or unable to provide care. The self-directed assessment model does include discussion on contingency and risk but the extent to which clear provision is covered in the care and support plan is patchy. Indeed, it is not always easy to be specific about what would happen because often the reality is that instant emergency cover is hard to organise when relatives live a considerable distance away or the cared-for person is not able to summon up emergency help. My noble friend is right to reinforce the point about the need for emergency contingency planning, especially where people have fluctuating health conditions, such as MS, rheumatoid arthritis and HIV.

In Amendment 61, my noble friend also underlines the importance of including a review date in the plan. It would be very valuable to require social services departments and providers to be clearer about not just the review date for the plan but what the monitoring and review process is and what kind of client feedback or complaints process there would be, as well as client-carer involvement in assessing quality of care and standards of service. I suspect that very few care plans currently measure up to these requirements and I would be grateful if the Minister could tell me what requirements the Government will place on local authorities and commissioners in this respect.

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Earl Howe: My Lords, I am grateful for the support that noble Lords have given to the government amendments. Perhaps I may start by covering the questions that were put to me. The noble Baroness, Lady Pitkeathley, and my noble and learned friend Lord Mackay of Clashfern asked for assurances that the guidance will make clear that local authorities cannot assume that support will be forthcoming from community services or carers as a get-out. I assure the noble Baroness and my noble and learned friend that the intention in Amendment 33 is not to place extra responsibilities on carers and families, nor to delay local authorities in providing statutory services. I will commit to making this absolutely clear in the statutory guidance that will be co-produced with stakeholders. I hope that that is a valuable reassurance.

The noble Lord, Lord Low, asked for reassurance about preventive services remaining universal and free of charge, as well as intermediate care. I can reassure him that certain services will be provided free of charge, and regulations will set out which types of prevention services must be provided free of charge. Regulations will also set out which types of prevention services local authorities can charge for. It will then be for local authorities to decide whether they charge for such services. This will maintain the current position, where charging for preventive services is determined locally, in accordance with local requirements. Additionally, we would expect intermediate care, including reablement and community equipment such as aids and minor adaptations, to remain free of charge. That is a minimum. The regulations will allow for flexibility to keep the list up-to-date as services change over time.

The noble Lord, Lord Low, also asked whether the commitments in Clause 13(2)(b) will apply also to Clause 9. Will an assessment be deemed necessary where preventive services may be of benefit, even if someone is unlikely to be eligible? The duty to assess in Clause 9 is independent of the provisions on prevention. Amendments 33 and 45 make it clear that preventive services should be considered during the assessment rather than having to wait for the eligibility determination. This will mean that people can be advised during the assessment on their preventive needs, whether or not they have eligible needs. I hope that that is helpful.

Perhaps it will be helpful if I move on to the amendments tabled by the noble Baroness, Lady Meacher. Amendment 41 seeks to ensure that an appropriately qualified social worker will carry out complex assessments. I absolutely sympathise with the noble Baroness’s amendment and believe that my Amendments 39 and 40, to which she referred, will go some way towards addressing her concerns. I also reassure her that, through the powers in Clause 12, we will require local authorities to ensure that assessors have the appropriate training to carry out the assessment. We have listened to the concerns of adults who use care and support, and to their carers. They are right to say that assessors should receive appropriate training.

Amendment 39 will enable us to specify circumstances in which a specified person, such as a social worker, must or may carry out an assessment. We believe that an expert must carry out an assessment for a deafblind person. We will consult stakeholders during the

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development of these regulations to identify any other conditions where a specified person should carry out the assessment.

I am grateful to the noble Lord, Lord Dubs, for raising in his Amendment 60 the issue of fluctuating and emergency needs, and, in his Amendment 61, anticipated review dates in the care and support planning process. Clause 25 sets out the minimum framework for the planning process, and balances the need to set out standards for care and support planning while not constraining the ability of local authorities to fit the planning process around the person. I reassure the noble Lord that providing advice and information on what can be done to meet or reduce a person’s needs will include providing advice and information where an adult may be experiencing fluctuating or emergency needs.

In addition, where it is clear that an adult experiences fluctuating needs, the care plan should reflect this by specifying how the needs will be met. I undertake to the noble Lord to ensure that statutory guidance clarifies this, and that fluctuating and emergency needs are included in what advice is to be provided.

The issue of timescales of reviews is something we have considered carefully. The review is an important part of the process as it can identify where a person’s needs have changed and if their care and support plan should be revised to reflect this. Clause 27 on the review of care plans creates a general duty for the local authority to keep plans under review as well as a specific duty to review the plan when the authority believes the person’s needs or circumstances have changed. In addition, the clause contains a right to request a review. I reassure the noble Lord that nothing in the Bill prevents the local authority and the adult agreeing a time for the next review if they wish to do so. We believe this to be a more pragmatic way of fitting reviews around the lives of people, and one which supports our policy of personalised care. I reassure the House that we intend to detail these issues in statutory guidance on care planning.

I hope that I have reassured the noble Baroness and the noble Lord and that they will feel able not to move their amendments.

Amendment 32 agreed.

Amendment 33 agreed.

Clause 10: Assessment of a carer's needs for support

Amendments 34 and 35 not moved.

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Amendments 36 and 37 agreed.

Amendment 38 not moved.

Clause 12: Assessments under sections 9 and 10: further provision

Amendments 39 and 40 agreed.

Amendment 41 not moved.

Amendments 42 to 44 agreed.

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Clause 13: The eligibility criteria

Amendment 45 agreed.

Clause 14: Power of local authority to charge

Amendments 46 to 48 not moved.

Earl Howe: In moving Amendment 49, I wish to speak also to the other government amendments in this group, Amendments 50, 51, 52, 53, 54, 59 and 169. We are currently consulting on the detail of our reforms to care and support funding, including charging. This consultation and the accompanying engagement are looking at key issues around future charging for adult care and support. We need to ensure that the Bill has sufficient flexibility to take account of the views expressed through this consultation and the on-going engagement. This work has highlighted areas where the Bill as drafted may not be sufficiently flexible. I turn to my Amendments 49, 51 and 52 concerning local flexibility in charging policies.

Currently, local authorities are free to set their own charging policies for non-residential care. The intention was to create a more consistent framework for charging across local authorities. However, there was uncertainty whether the regulation-making powers as drafted would have allowed local authorities to contribute towards the care and support costs of people who have resources above the financial limits. A rule which prohibits local authorities from making any contribution towards the care costs of such people would restrict the ability of local authorities to use different arrangements when these would best meet local needs. For example, local authorities sometimes subsidise services such as telecare. We wish to allow this to continue and do not want to require local authorities to charge people the full cost of these services.

My other amendments, Amendments 50, 53 and 54, concern circumstances in which a financial assessment has not taken place or a local authority considers that a full assessment is unnecessary. We wish to encourage people to undertake financial assessments because this will enable local authorities to charge them a fair contribution towards their care costs. However, we recognise that some people are likely to refuse to undergo a financial assessment; for example, someone may be unwilling to allow the local authority to access their financial information. In order best to promote these people’s well-being, it may be appropriate for local authorities to arrange care on their behalf. The local authority would be able to charge individuals the full cost of this care and any arrangement fee.

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These amendments will therefore allow regulations to enable local authorities to broker care on behalf of people who do not wish to undergo a financial assessment. The regulations will also make provision for light-touch financial assessments where a full financial assessment would not be proportionate, such as for low-cost care packages, in particular for carers. Regulations and guidance will be designed to ensure that such assessments are used appropriately.

The remaining government amendments in this group ensure that all those who should get an independent personal budget receive one and that the regulation-making powers retain their intended flexibility. I hope noble Lords agree that the additional flexibilities provided for by these amendments will equip local authorities with the tools they need better to promote individual well-being and that noble Lords can therefore support my amendments. I beg to move.

4 pm

Lord Lipsey (Lab): My Lords, I shall speak briefly to Amendment 55 on top-ups and comment, also briefly, on the proposal for a ministerial advisory committee.

I can be brief about top-ups but not because the issue is not important. Indeed, its substance is vital if the Government’s scheme for a cap is to work. We made good progress on the basis of the Minister’s remarks in Committee, and further progress was made in the Government’s consultation document, published on 17 July. I hope that he will indicate that things are still on the right track towards reaching final solutions in the near future.

I recapitulate the argument from Committee. You cannot at the moment top up your own care home fees. If you go into a care home, a third party—your son, daughter or friend—can top them up but you cannot put in your own money. That is important now, and the statutory bar is often got around or simply ignored. However, it will be a lot more important once the Dilnot scheme incorporated in the Bill takes effect.

Consider an old person who is living in a home in which the fees are £800 a week. Suppose that the limit to what the local authority will pay in fees is £500 a week. What happens when the person has spent up to the cap, at the local authority rate of course? It may be that a third party can give them the extra money to pay up, but suppose they are isolated and on their own. I am afraid that the answer is simple and stark. The individual would have to choose between only two alternatives. One is to accept the £500 a week from the local authority and move into a cheaper, perhaps worse, home, with all the disruption to that person’s life that that would involve. The other would be waive the local authority contribution and continue to pay the £800 themselves. That would mean that the cap had not done them a blind bit of good. The way round this is to permit individual top-ups, so £500 would come from the local authority, £300 from the individual. The noble Earl endorsed this in Committer when he said that,

“people should be able to use their savings to purchase more expensive care if they want to”.

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He went on to say that revised arrangements to this effect would,

“be set out in regulations made under Clause 30(2) of the Bill”. —[

Official Report

, 16/7/13; col. 736.]

This is spelt out in paragraphs 263 to 266 of the consultative document, which also has pointers to some of the potential risks. I hope that this was with a view to solving those risks and not to coming along at a later stage and saying that they are insuperable. I ask the Minister to make a brief progress report to reassure the House that this bar on individual top-ups is going to be rescinded. Without it, the Dilnot scheme simply will not work.

I will now say a word on the ministerial advisory committee amendment in the name of my noble friend Lord Hunt of Kings Heath, who kindly adopted a proposal that I made in Committee. As the House knows, I have previous in this field, having been working on long-term care since I was on the royal commission in 1999. I also have a bit of previous on public policy in general because I started working for Tony Crosland when he was shadow Environment Minister in 1972. Of all the myriad subjects on which I have had to do reasonably serious work in this time, this is by far the most complicated. It involves a mix of financial and administrative problems with the most sensitive human considerations, particularly since it concerns people at a stage of their life when they are going into the second age of vulnerability due to age. Public and private are inextricably mixed in a way that complicates things. The whole cap is part of a private/public co-operation; therefore, it is crucial to align what both parts are doing.

The scale and range of the stakeholders involved is enormous. The Care and Support Alliance had more than 100 individual voluntary organisations which came together to promote a solution in this Bill. There are also a lot of nooks and crannies that are not obvious. I am going to come to one in a speech later this afternoon, a feature of this Bill which only became known to me on Friday which greatly changes the deferred payment scheme under the Bill. There are nooks and crannies that can be simply ignored. We had another one earlier in the Bill. It suddenly turned out that if somebody had an income close to the top for which they could claim means-tested support, they had better not claim it, because otherwise they would lose more than they gained through attendance allowance. So it is a hugely complicated field.

I am not a critic of the department on this, nor of its Ministers. They have wrestled bravely with this, helped of course by the superb Dilnot report—I am standing behind my noble friend Lord Warner, who was involved in that process—which helped hugely to clarify the intellectual framework. But there are complications as yet unfathomed. As the scheme goes forward I promise that there will be lots of unexpected and unintended effects. In particular, how people register they are getting care needs, how they are then assessed, and how it builds up towards a care cap will work out quite strangely. The Government will need the best possible advice on how to do it.

All I am suggesting, as my noble friend Lord Hunt will propose in his amendment, is that it would be well for us to set up right at the beginning a ministerial

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advisory committee that includes everyone—the voluntary groups, the financial services industry and those who regulate it, and government departments—that can keep on top of these things. As major problems are identified, the committee can report to the Minister on them. As I say, it is not a vote of no confidence in the Department of Health. Indeed, I hope that the department will welcome the proposal because it has shown itself to be willing to talk openly throughout this progress of this Bill. The Minister used a good phrase to describe it when discussing the regulations earlier—co-production. We will need co-production as much after the Bill and the regulations have gone through as before. An advisory committee would provide that.

Lord Hunt of Kings Heath (Lab): My Lords, I welcome the noble Earl’s amendments. As we start another day on Report I should declare my interests as chair of a foundation trust, as a consultant trainer with Cumberlege Connections, and as president of GS1. The noble Earl said that the first group of amendments is designed to give more flexibility to local authorities so that they can make a contribution to a person who might normally be affected by the means test. That is entirely reasonable, but I wonder if he could tell us a little more about the consultation timetable from which this has clearly flowed.

I have also noted the amendments that will allow the local authority to charge the cost of care to those people who refuse to undergo a financial assessment. Again, this seems reasonable, but given the difficult circumstances in which that scenario might arise, does the noble Earl not consider that that lends support to those noble Lords who think that there ought to be appeals systems in place? When we come to appeals, I wonder whether the noble Earl might be a little more sympathetic to those amendments.

I want to lend my support to my noble friend Lord Lipsey in relation to top-ups. He argued persuasively in Committee to allow self-funders to top up if they reach the cap but wish to remain resident within a care setting where the costs are higher than the local authority is paying. That is a strong argument, and I, too, welcome the progress that has been made. However, like my noble friend, I hope that the noble Earl will be able to give us a further report on progress on this matter.

I come now to my Amendment 56, which has been very effectively trailed by my noble friend; in fact, it is difficult for me to do as much justice to the amendment as he has done. It requires the establishment of an independent ministerial advisory committee to keep under review the workings of the cap and the means-testing arrangements set out in Clause 17. It is fair to say that all noble Lords who have debated this Bill have welcomed its general intent and the principles that underpin it. The Dilnot commission marked a significant step forward in creating consensus on how people are to be protected from financial catastrophe if they have to fund their own care. We have debated in detail the Government’s response as set out in this Bill: the establishment and operation of the cap, the level of the cap, the continued financial risk to self-funders, the deferred payment scheme, the capacity of local authorities to accept the responsibilities being placed on them, and in particular, I would identify the

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responsibility for assessing thousands of self-funders who will come into contact with the local authority for the first time. We have discussed the advice to be made available to vulnerable people in a complex area and its interrelationship with the eligibility criteria.

No one, in welcoming the general thrust of the Bill, will believe that this is the last word. I am sure that the operation of the care packages set out in this Bill will need to be kept under frequent review by the Government and particularly by the noble Earl’s department. Oversight of the system would surely benefit from a bipartisan group of people from whom the Government could continue to take advice. My noble friend Lord Lipsey has gone back many years in relation to the debates in this area. Of course, he served on the 1999 Sutherland royal commission. In parallel we have had the Turner commission on pensions and we have seen the benefit of a bipartisan approach in relation to Dilnot.

We would all agree that the funding of long-term care requires stability as far as possible and, even more importantly, a long-term political consensus. As my noble friend Lord Lipsey said, this is a very complex, complicated set of arrangements. We would be best served by the establishment of an independent group that could advise Ministers on how the system was working and enable politicians from all sides to benefit from serious, impartial advice.

I know that the noble Earl has yet to be persuaded of the benefits of an advisory committee, but it would be an effective way to build on the consensus that I think has been created. I hope that even at this late stage, he might be sympathetic.

4.15 pm

Lord Warner (Lab): My Lords, as the self-appointed keeper to this House of the Dilnot tablets, I support Amendments 55 and 56, spoken to so ably by my two noble friends. Turning to Amendment 55, in framing our recommendations in our report, it was never our intention to impose a new set of rigidities in place of the old set of rigidities. It is important that the new system retains as much flexibility as possible. It is worth thinking about what lies behind much of the argumentation in our report and the new architecture that that report proposes. It is all about people, in as fair, orderly and manageable a way as possible, making contributions from their own resources to the rising costs of adult social care as we cope with, live with and adapt to an ageing population. Given the messiness of the present arrangements for top-ups, it would be perverse not to create the maximum flexibility for people to top up, particularly where these top-ups relate to their ability to stay in a home where they and their family have been very comfortable with the arrangements. Preventing such top-ups would be a truly perverse way of implementing the Dilnot architecture. We need a more flexible way of coping with this. Therefore I support my noble friend Lord Lipsey’s set of amendments.

On Amendment 56, my noble friend has a very strong point. I say this as someone who spent 10 years wrestling with means tests as a senior civil servant coping with social security. In those 10 years, numerous were the times when we had to cope with unforeseen

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consequences of what we thought were well designed social policy changes, but which turned out not quite to work when subjected to the scrutiny of the real world across a large population. I congratulate the Government on taking our report and turning it into a largely workable—we have a few doubts, but largely workable—set of arrangements that can be brought into operation quickly. However it would be very optimistic to think that there would be no unforeseen consequences—wrinkles, if I may use the word—which needed to be looked at, in particular in the areas of means-testing and the working of the cap. I emphasise that this is not a job application from the Dilnot commission to make, like Frank Sinatra, another return appearance, but we do need some kind of credible, independent body to take a look at this.

I would just gently remind the noble Earl that, at the end of our report, on page 69, we talked about some of these potential wrinkles, including the potential further changes in and around means-testing, which we did not have time to wrestle with but which we just flagged up for the Government. I will go not into the details but just the headlines. Under “Consistent treatment of housing assets”, we noted the way they are treated differently across the social care means test in terms of domiciliary and residential care—they are not treated on the same basis. There is also the issue of whether the means-test taper actually disincentivises savings and the issue of consistency between the way people in residential and nursing care, where it is not continuing care, have to meet general living costs but do not have to meet them where it is continuing care. We know that there are already some potential anomalies in the way that the new architecture will interact with some of those areas. We flagged that up in the report.

My noble friend has argued for some kind of independent advisory committee. He may not altogether thank me for raising some of these potential further changes but they are issues that have to be wrestled with. The new set of arrangements will throw up their own issues, which will also have to be wrestled with. Some kind of independent advisory committee, looking at the way in which the new scheme has worked and has bedded down, particularly in the area of the means test, would be a valuable contribution. I do not think it is a partisan issue. It would be welcomed across the parties and I hope that the Minister can look a bit more favourably on my noble friend’s amendment.

Baroness Greengross (CB): My Lords, first, I add my voice in support of Amendment 55, in the name of the noble Lord, Lord Lipsey. We have not fully taken into account the impact that the Bill will have, when it becomes an Act and is brought into being, on the many people who are now in care homes and where the funding of those homes will suddenly become much more public. Everybody will report to the local authority to get on the meter and the extent of people’s self-funding will become better known. There will be a sort of explosion if we do not get this right and do not allow people to make top-ups. What are we going to do: assume that some of these people will be moved from the care home that they are in and where they are, we hope, happy to another care home because

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there is inflexibility with the top-up system? That would be really cruel and I hope that we can get as much flexibility and remove as many restrictions on people as we can.

Several cases have been brought to my attention of people who are already in a care home running out of money. They, or their relatives, cannot afford the whole amount but want to be able to top up the local authority amount, which, at the moment, nobody is fully aware of. As this is all going to become much more public knowledge, it is important to have as much flexibility as possible. I hope the Minister will have another look at this.

Earl Howe: My Lords, first, I turn to Amendment 55, in the name of the noble Lord, Lord Lipsey, which concerns the circumstances in which people wish to top up their own fees to pay for more expensive accommodation. To begin with, and for the avoidance of any doubt, I will emphasise that I agree that people should be able to choose to spend their own money on more expensive care, provided it is affordable. Like the noble Lord, Lord Lipsey, I want people to be able to choose to live in more expensive accommodation and gain from a cap on care costs, so that they pay part of the cost of care from their own savings and still receive local authority support.

Through the consultation and stakeholder engagement, we are seeking to better understand the impact of relaxing the rules on self-top-ups and to determine what protections may be needed for vulnerable people.

The answer to the question posed by the noble Lord, Lord Hunt, is that consultation will close on 25 October. The Minister of State for Care and Support and departmental officials have, over the past quarter, attended a variety of events covering the care and support sector, local authorities and financial services providers. These have been broadly supportive of the principle that people should be able to contribute towards their care costs from their own assets. Stakeholders have also recognised that people need to make decisions which are financially sustainable for the long term, and that financial information and advice need to play an important role in achieving this. We will be able to provide a more comprehensive overview of the views expressed in our response to the consultation in the new year. I repeat that we are on the noble Lord’s side. Our only concern is to ensure that when we relax the rules, there are sufficient protections, both for the individual and for the local authority.

Amendment 56 concerns review of the operation of the capped-cost system. I am sure we can all agree unhesitatingly that these reforms need to be implemented effectively to deliver the outcomes we are striving for. The capped-cost system will provide peace of mind and protection against catastrophic costs and will target most help at those with the greatest need. I am confident that we can further agree that to deliver these benefits, we need good oversight. Therefore, I am with the noble Lords opposite in spirit. To that end, we will be reviewing and assuring both implementation and funding, and have committed to reviewing the core elements of the capped-costs system within each five-year period. We will also conduct post-legislative scrutiny, as the Government have

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committed to do across the board for all new Acts. The agreement we have with the Liaison Committee in the other place is that this should be done between three and five years after Royal Assent.

Furthermore, we have established the Joint Implementation and Programme Board with the Local Government Association and the Association of Directors of Adult Social Services. We will use this to work with local government on continuing assurance and improvement of the arrangements. We are confident that, in their totality, these arrangements provide generous opportunity for assurance and review to ensure that the reforms remain true to our vision.

For that reason, I do not believe it would be necessary or desirable to supplement these arrangements with a further review by additional oversight bodies, such as an independent ministerial advisory committee. Such additional oversight would cut across the scrutiny conducted by the Health Select Committee and cross-government planning on spending through spending rounds. I am sure that noble Lords opposite will not be totally satisfied with that, but I hope that they will be sufficiently reassured by the confirmation I have given that we will conduct a proper review of the operation and funding of these reforms through several channels. I hope that they will agree that this amendment is, therefore, unnecessary.

Lord Mackay of Clashfern: Before the Minister sits down, is he satisfied that, without the amendment of the noble Lord, Lord Lipsey, there is sufficient flexibility under the system as it is presently provided to allow for the sort of difficulties that are envisaged as possibly coming out after the consultation?

Earl Howe: I can reassure my noble and learned friend that, if we look at the arrangements we are proposing in combination, there will be sufficient mechanisms in place to take account of any unexpected wrinkles that emerge of the kind that the noble Lord, Lord Lipsey, perfectly reasonably anticipates; and to react and respond to those difficulties as appropriate. The answer, in a nutshell, is yes.

Amendment 49 agreed.

Amendment 50 agreed.

4.30 pm

Clause 17: Assessment of financial resources

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52: Clause 17, page 15, line 22, leave out “provide that where” and insert “make provision as to cases or circumstances in which, if”

Amendments 51 to 54 agreed.

Amendments 55 and 56 not moved.

Clause 19: Power to meet needs for care and support

Earl Howe: My Lords, I assure the House that the Government are in agreement with the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. We are working hard to deliver our shared objective of improving care for people approaching the end of their lives. It is in that context that I shall move government Amendment 57.

On the issue of treating the assessment of terminally ill people as urgent, I fully recognise noble Lords’ concerns. With that in view, I have tabled an amendment to make it explicit that the end of life is an example of when local authorities may treat cases as urgent. We do not believe that it would be right to require local authorities to treat all cases in this way—circumstances have to dictate the approach taken—but we agree that clarity around end-of-life cases as examples of urgent situations for the purposes of Clause 19 may provide a useful indication to improve practice. I shall not anticipate noble Lords’ remarks in support of their amendments, so at this stage I beg to move.

Lord Warner: My Lords, while I welcome Amendment 57, I want to set out the case for the Minister going a good deal further. Amendment 137 follows the discussion in Committee of amendments proposed by the noble Lord, Lord Patel, and myself. We have come back with an alternative amendment, which has also been signed by the noble Baroness, Lady Greengross. We have done this in consultation with voluntary organisations over the summer, and the wording of Amendment 137 reflects those discussions. To summarise, the amendment would enable the Secretary of State, after discussion, to make regulations that did three things: first, allow people to have their preference for place of death recorded by local health and social care services and for that preference to be implemented wherever practicable; secondly, have their care and support needs and those of carers treated as urgent in assessing needs—and we

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think, reasonably, that Amendment 57 deals with that; and, thirdly, exempt terminally ill patients from adult social care charges.

Since Committee the Government have brought forward Amendment 57 and, as I have said, I think that it meets many of our concerns about urgent assessment at the end of life. It has certainly had the effect of diluting enthusiasm in some parts of the voluntary sector for a more wide-ranging amendment on end-of-life choice, and I slightly backhandedly congratulate the Minister and his civil servants on achieving that. However, I would still like to have another go at trying to convince the Government, and possibly some members of my own Front Bench, that we should be a bit more ambitious.

Around half a million people die each year in England, about two-thirds of them over the age of 75. A century ago most of us would have died in our own homes. Today, most will die in hospital. The latest figures show that in April 2012, about 42% of people died at home or in a care home. This is an improvement from 38% four years previously, but on present trends it will be at least the end of this decade before half of deaths occur in the place of usual residence. These figures of improvement at the national level, however, conceal considerable regional and local variations.

If you live in the south-west, with 48% of deaths occurring in the place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. Of course, as a Londoner I think there are many benefits of living in London, but choosing where I die is not likely to be one of them. There is an even wider variation between local authority areas. The great majority of us want to die at home or the place we normally live rather than, I suggest, the hectic and somewhat impersonal environment of an acute hospital ward. Perversely, we end up not only dying not only in the place where we least want to be but also in the most expensive place.

Marie Curie research has shown that a week of palliative care in the community costs about £1,000 a week, whereas a week of hospital in-patient specialist palliative care costs virtually £3,000 a week. The National End of Life Care Programme shows an estimated potential net saving of £958 per person if you die in the community rather than in hospital. Polling for Macmillan has shown that eight out of 10 health and social care professionals agree that community-based end-of-life care would save money. On top of this, nine out of 10 MPs think their constituents should have the choice to die at home. What is not to like about the first prong of Amendment 137?

I am not trying to dragoon people into dying outside hospital to save money. I want people to have as good and dignified a death as possible, with their friends and families around them. That is more likely to be achieved if they have a right to register their preference for dying at home or their place of normal residence. This would mean fewer people dying in hospital and it would also reduce pressure on A&E departments and acute hospital beds. I suggest that this is a not inconsiderable benefit—as Sir Humphrey would have said—in terms of the cost savings that could arise from allowing people to express their preferences on their right to die at home.

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I accept that at this point it may be rushing our fences a bit to pay for exempting terminally-ill patients from local authority care charges. We need some detailed costings and possibly—I suspect the Minister will say this—we need to wait to hear what comes out of the pilot schemes in this area. However, we would also welcome having more information from the Minister on the progress being made in those pilots.

Accepting the first part of Amendment 137 would lay down a clear marker that Parliament wants government to move in the direction that most people want: which is the right to choose to die at home or their place of normal residence wherever practicable. This amendment gives the Government plenty of time to consult on all the detailed arrangements. It does not require those regulations to be made by any particular time and it gives the Government a lot of freedom about what the nature of those regulations might be. We should not miss the chance of this Bill being before Parliament to move in this area and put this change on the statute book. I hope the Minister will respond favourably and be prepared to entertain at Third Reading an amendment of the kind set out in the first prong of Amendment 137. I would certainly be happy—as I am sure my colleagues would—to discuss this further with him.

Baroness Greengross (CB): I support the comments made by the noble Lord, Lord Warner, about this amendment. We know that the things people say they dread as their final days approach are loss of dignity and loss of respect, and we hear far too much about poor care at the end of life. Very often, it is poor care because people are not in the place they would like to be. We also know that the number of carers identified and signposted by the NHS to the enhanced support is not widely known. We know that much more needs to be done to draw together all the various approaches—I am involved in one of those approaches at the moment, looking with a group of experts at how to improve end-of-life care with doctors, professionals in end-of-life care and lawyers who deal with patients’ wishes. There is still a lot be looked at and brought together, and this Bill gives us a good chance of getting this right, or at least much nearer to being right than it is at the moment.

As the noble Lord, Lord Warner, mentioned, the coalition of charities has also suggested that end-of-life care should be free at the point of delivery. I know that this requires much more consideration—the noble Lord talked about that. I want to concentrate on hoping that this will be considered and that services to dying people and possible loss of dignity and respect will get a far higher profile as things that need urgent attention. Terminally ill people should have their preferred place of death recorded by local health and social care services. That preference needs to be implemented wherever it is practical. People must have their care and support needs and those of their carers treated as urgent by the local authority responsible for assessing those needs.

For people who are dying, every day is precious. They cannot wait while the bureaucratic wheels grind slowly along, and not always in their favour. I support the amendment tabled by the noble Lord, Lord Warner.

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Lord Patel (CB): My Lords, I spoke about this issue when we debated the gracious Speech, at Second Reading and in Committee, when I supported the amendment put forward by the noble Lord, Lord Warner, and today I support Amendment 137. Every time we have debated this, the Minister has been sympathetic to the idea of providing free social care to those who are dying. When I think about this amendment, I think of a patient who has just been told of a diagnosis of terminal cancer, that their life will now last a few months at the most, and that medicine cannot offer much more than perhaps palliative care or treatment of some kind. Once the patient and the family have recovered from the shock, their immediate thoughts are, “Can I cope with my life—which will now be very short—at home, and what support can I get?”.

Currently, the means test for free social care can represent a barrier for those who wish to die at home. It makes it unaffordable for some, but it also means that the person may be passed between the local authority and the NHS while the two systems decide who is eligible for care and whether it should be free or means-tested. Government Amendment 57 is a demonstration of the Minister’s clear intention. He wishes to see this happen, and I thank him for moving this amendment, but it does not go far enough to achieve what I think he, too, wishes to achieve.

The second subsection in the new clause proposed by Amendment 137 is addressed, at least in part, by government Amendment 57. However, Amendment 57 does not introduce any new duties for local authorities. It highlights the existing ability of local authorities to regard the care and support needs of people at the end of life as urgent. In contrast, Amendment 137 allows the Government to introduce secondary legislation to require local authorities to regard the assessment of needs at the end of life as urgent. If the intention of the government amendment is to do that, is it clear enough? The final part of Amendment 137 relates to free social care at the end of life. Research suggests that the introduction of free social care at the end of life has broad-based support. I believe this will help to prevent expensive, unnecessary hospital admissions, prevent burdensome financial assessment during a difficult time and is an important part of giving people genuine choice at the end of life.

4.45 pm

From the debates we have had I believe the Government, and particularly the noble Earl, are sympathetic to the idea of providing free social care for the terminally ill. The Government stated in the care and support White Paper that they see,

“much merit in providing free … social care … at the end of life”.

Indeed, they committed £1.8 million to collect the data necessary to assess the policy’s benefit through the palliative care funding review pilots. I recognise the importance of the PCFR pilots in providing data on how a system for funding end-of-life care can be implemented. When they launched the pilots the Government committed to introducing the new funding system in 2015, following the conclusion of the pilots in 2014.

I seek a firm commitment from the Government that they will make a decision by the end of this

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Parliament on free social care at the end of life. Indeed, the Joint Committee on the draft Care and Support Bill called for free social care at the end of life to be introduced, “at the earliest opportunity”, and the Government had confirmed that the Care Bill provides a statutory framework to implement free social care at the end of life in the future.

There needs to be a firm commitment from the Government and a timetable for making a final decision and implementing the policy. Do the Government still support the principle of free social care at the end of life and giving patients the choice of dying at home? Are they confident that the pilots will be able to collect enough data to implement free social care at the end of life? What assessment have the Government made of the number of people who will be unable to die at home if this choice is not implemented by 2016? Finally, what assessment have they made of the savings for hospitals of enabling patients at the end of life to be cared for and die at home? I look forward to the noble Earl’s response.

Baroness Finlay of Llandaff (CB): My Lords, I declare all my interests in this field, which are listed. These amendments are incredibly important for patients who are dying. The Government’s amendment is to be welcomed; I can see no problems with it. It might sound bizarre but I have some slight anxieties over the wording in two places in Amendment 137. It refers to a preferred place of death, whereas I would rather see the words, “preferred place of care”. Many people who are dying know that they want to spend their last days, weeks or months at home. They want to have everything done to support them at home, particularly out of hours. We have debated this for some time within my own specialist teams and specialist services. We are worried that there could be two unintended consequences. People who are not yet ready to confront the fact that they really are dying will be pushed to have that conversation before they are ready, which would be traumatic. There could also be the unintended consequence of some kind of target developing and patients being whipped out of one place of care.

The difficulty we see clinically is that when clinical situations change, patients sometimes change their mind. It is not uncommon for someone who originally said they wanted to die at home to say, when they really are dying, that they feel safer where they are and want their family brought in and as much of a home environment created as possible. It may be the regulations at ward level, or the way in which they are interpreted, which are blocking that and need to be addressed. For example, it does not matter at all if you have a husband on an all-female ward, but I have occasionally known staff to think that it does and that it is not appropriate to have a man stay overnight, which is absolutely appalling. Staff need to recreate the home environment where that person is as much as possible. However, if they have complex needs or unstable symptoms, they may well feel safer in whichever place they are, whether it is hospice or hospital.

In looking at the amendment I also tried to get some details of how many patients are successful under the DS1500 special rules. It is quite difficult,

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because I understand that the Department for Work and Pensions does not routinely collect that data. However, it seems as if in the year 2011-12, 11% of all successful claims were for the category of patients who were deemed to be terminally ill. One of the difficulties when you are looking at local authority charges for adult social care is that we cannot predict prognosis. That is always the catch with defining terminal illness. We are making our best guess, as it says in the Welfare Reform Act, as to whether someone can “reasonably be expected” to die within six months, but it is no better than that. It is a guess. There are patients who outlive their prognosis. I understand that the DWP does not push for reassessment inside three years, so there is quite a lengthy period of leeway. The potential difficulty that I can see unless this is really thought through and costed is that if somebody turns out not to be dying, what will then happen? Would they be forced to go through a reassessment? Would that then be used to try to claim back money from them afterwards? I raise those questions which would have to be thought through very carefully.

I certainly find it difficult—in fact, offensive—when people have to be assessed for care when they are quite clearly dying. However, there is that group of people you really do not know about. They appear as if they are dying. They tend to be more in the non-cancer rather than the cancer population, where their prognosis prediction becomes really difficult.

Those are just some caveats, although I support the spirit of the amendment wholeheartedly in terms of having patients where they want to be. However, as I said before, we need to focus on their place of care during their last days, weeks and months, and not only on their place of death.

Lord Mackay of Clashfern: My Lords, I very much welcome government Amendment 57. Of course, I have supported the recommendation of the Joint Committee on this matter, and continue to do so. Subsection (a) of Amendment 137 is important as a way forward. However, the difficulties to which the noble Baroness, Lady Finlay, has referred, are quite important in this connection. Many people in terminal situations would find a hospice one of the best places to go if that choice were open to them. Many people, of course, would prefer to die at home in a family situation. The hospices are normally able to engender a family atmosphere around death. People I have spoken to in the hospices have said, “If you have to die, this is the place to do so”; the “if” is not all that important.

There are practical questions to be taken into account, but it would be quite a step forward if the Government were able to come forward at Third Reading with an amendment which allowed some form of indication of the place of care, as the noble Baroness, Lady Finlay, says, or the place where one would wish to terminate one’s life in a way that was registered, so that those responsible would be able to give effect to it, so far as is possible, having regard to the changes that can take place in the last few months, days and hours.

Baroness Wheeler: My Lords, we welcome another opportunity to consider the very important issue of how people are cared for at the end of their life. The

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Joint Committee on the Bill urged progress on this vital matter and strongly endorsed the case for the introduction at the earliest opportunity of free social care for terminally ill people. In this context, the Government’s amendment is very much work in progress as it makes explicit the local authority’s power to treat end-of-life care as urgent, in a similar way to how fast-tracked access to welfare benefits such as the disabled living allowance is expedited and works in practice under other legislation, which the noble Baroness, Lady Finlay referred to. The amendment makes it clear that local authorities have the ability to consider the needs of terminally ill people as urgent and to meet their needs ahead of conducting assessments.

We welcome this provision. Many councils already fast track social care in this way, and I hope that this amendment will give those councils that do not the push and impetus that they need to take up this very self-evident and fundamental requirement. The new clause in the Bill is rightly welcomed by the Sue Ryder Foundation, Help the Hospices and Macmillan Cancer Support. However, as Macmillan also points out, the provision is permissive and does not legally require local authorities to meet a terminally ill person’s need for care and support without a needs or financial assessment.

We recognise that there is still much work to be done on this matter. The Government are currently undertaking a review and refocus of the end-of-life strategy and I read in the press over the summer that it was shortly to be published. It is now six years since the strategy was introduced under Labour so I would be grateful if the Minister could update the House on the timetable for that.

As we recognised during the debate in Committee, the results of the seven adult and one children’s palliative care pilots will be crucial to considering the move towards the provision of free end-of-life care as called for by the Joint Committee and as set out in Amendment 137 in the name of my noble friend Lord Warner, supported by the noble Baroness, Lady Greengross, and the noble Lord, Lord Patel. We need to understand current patterns and resource use across health and social care at the end of life, and to have the vital data—from across care provided by the NHS, social care, and the voluntary and private sectors—from which the costs of an integrated end-of-life care system can be properly assessed. The Minister reassured the House that the pilots are on track, despite the handover of responsibility to NHS England and concerns that the work was falling behind. We certainly hope that this is the case as the pilot findings will be so important to how future services can be shaped and delivered.

We acknowledge and share the Government’s concerns about the issues raised in Amendment 137 that the infrastructure may not be in place to support people’s preferences about where they wish to die; commissioners need to be sure that the right services are in place in the community to support people being looked after in their home. My own party is currently working on this as part of our policy review and whole-person care commission, and I know that my noble friend Lord Warner’s contribution to that work will be much appreciated and valued. Enabling NHS patients to have the right to die in the place they regard as home

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or their normal residence can be achieved only if end-of-life care is fully integrated across the NHS, local councils and hospices, to foster mechanisms to make it achievable and not simply an aspiration.

Once again, the position of carers of people who are terminally ill, as well as those they are caring for, needs to remain to the fore when we are looking at this matter. In Committee my noble friend Lady Pitkeathley cited the Carers UK survey that showed just how much more support is needed for carers to help them think and plan for the end of life of the person they are caring for—something that we can and should be taking action on now. Many carers just do not know how to plan for the death of a loved one and how to try to look ahead when caring ends—returning to or taking up work, social contact and managing financially.

One of our bereaved carers I spoke to recently through our local Carer Support Elmbridge had had a nightmare experience over funding and not being able to ascertain who was paying for what in the transition from social care to NHS continuing care before her husband died. This included two months’ overpayment by social services, which had to be sorted out after the death, at a time of great anxiety about family finances. To add to this, an ambulance turned up two months after her husband’s death to take him to his routine blood test at the local hospital. Your Lordships can imagine how devastating this experience was for the carer. Sadly, this is not an isolated case, and an integrated end-of-life strategy has to make sure that these things do not happen.

Finally, in Committee I raised the issue of access to palliative care and end-of-life care for BME groups following the recent and alarming findings of the Marie Curie Cancer Care and Public Health England survey and the shockingly low use of these services among black, Asian and ethnic minority groups. The report identified major problems involving lack of knowledge about services, misunderstanding, mistrust and a lack of cultural sensitivity on the part of providers. In his August letter to noble Lords, the Minister referred to the work that NHS England is undertaking on this in conjunction with palliative care pilots. Will the Government be responding specifically to the Public Health England report, or is it part of the strategy review and refocus? Will the Minister set out for the House the Government’s outline timetable for the review and publication consultation, the timing of the publication of the pilot’s results, as requested by my noble friend Lord Warner, and the introduction of the new funding system for palliative care as promised for 2015?

5 pm

Earl Howe: My Lords, I am grateful to noble Lords for expressing their views on this important subject so eloquently. As I said in Committee, I support the intentions behind the amendment tabled by the noble Lords, Lord Warner and Lord Patel. In looking at the amendment, the first essential question is whether we need to take legal powers in this Bill to fulfil those objectives.

I want to assure noble Lords that we already have the necessary legal powers to implement both choice in end-of-life care and a new palliative care funding

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system. In relation to choice, there is already a power in Section 6E of the National Health Service Act 2006 to make regulations, or standing rules, to require NHS England and clinical commissioning groups to make arrangements for patient choice in respect of specified treatments or services. We would use these powers to implement a choice offer in end-of-life care.

As noble Lords know, making the changes to the system required to offer real choice, which includes enhancements in community palliative care services, will not be straightforward. Not least of the issues is the cost of making these changes. I agree with noble Lords that there is the potential for savings to be made in moving these services out of hospitals and into the community. However, one of the most comprehensive studies in this area, the Cochrane review, found that while there were small but significant improvements from community-based palliative care, the evidence for its cost-effectiveness was inconclusive.

We must also guard against the danger of making changes too quickly, and I am thinking of a particular danger. It would be in no one’s interests if the upfront investment required to enhance community services came at the expense of existing services. That is why the Department of Health and NHS England will be working together, and with organisations from across the end-of-life and palliative care sector, on a review of the timescale for introducing this choice offer at a time that will be right for patients and for those in the NHS working in this vital area. We have to ensure that when a choice offer is introduced, it will be a real choice backed by a system that is able to deliver it.

On palliative care funding, as I stated earlier, the Government’s position remains that there is much merit in providing free health and social care in a fully integrated service at the end of life. One of the key conclusions of the Palliative Care Funding Review was:

“There is a stunning lack of good data surrounding costs for palliative care in England”.

We responded to that by establishing eight palliative care funding pilots, involving more than 80 organisations. The noble Lord, Lord Patel, asked me whether those pilots were essentially big enough to produce meaningful results. The palliative care pilots cover 80 organisations in those eight areas and we are confident that they will give us sufficient evidence to design a new palliative care funding system. We need to be absolutely sure that the evidence being gathered by the pilots, which are running for two years, until 2014, is thoroughly analysed and a complete picture is available to both the department and NHS England before the details of the new funding system are finalised. To answer the noble Lord, Lord Patel, yes, we are acutely aware of the benefits of introducing a new system in this important area.

The noble Baroness, Lady Wheeler, asked about the pilots. The Public Health England review that is taking place welcomed the work that is going on. NHS England is also looking at this, in conjunction with its review of the end-of-life strategy. As regards the timetable for that, NHS England is working to publish early in the new year. Supported by the data from the pilots, we aim to have a new funding system in place by 2015,

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a year sooner than the review proposed. Similar to any new policies on choice in end-of-life care, this can also be introduced through secondary legislation. In this case, Clause 14(6) of the Bill provides powers to make regulations that prohibit local authorities from making charges in specific cases.

I hope I have convinced noble Lords that I am very much behind their laudable aims in tabling this amendment and I completely understand their desire for us to do the right thing. I am grateful for the opportunity to set out on the Floor of the House the Government’s commitment to delivering solutions in relation to end-of-life care. But I hope I have also persuaded noble Lords that decisions on end-of-life care funding and on choice of place of death cannot be taken lightly or inadvisedly, and that we must first take account of the evidence and implications.

I am doubtful that I will be able to say anything further on these subjects at Third Reading beyond what I have said today, but I would of course be more than happy to meet with the noble Lords, Lord Warner and Lord Patel, and other noble Lords, after Report to explore the practicalities around all these issues, and indeed some of the very pertinent issues raised by the noble Baroness, Lady Finlay. I hope that for now noble Lords are assured that our plans for quality and choice in end-of-life care will deliver improvements, and that they feel sufficiently assured to withdraw their amendment.

Amendment 57 agreed.

Lord Warner: I thought I had a right to respond to the noble Earl on Amendment 137.

The Deputy Chairman of Committees (Lord Colwyn) (Con): It was the noble Earl’s amendment. Can we go back to it? We cannot.

Clause 20: Duty and power to meet a carer’s needs for support

Amendment 58 not moved.

Clause 24: The steps for the local authority to take

Amendment 59 agreed.

Clause 25: Care and support plan, support plan

Amendments 60 and 61 not moved.

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Amendment 62 agreed.

Clause 35: Deferred payment agreements and loans: further provision

Lord Lipsey: My Lords, am I speaking at the right time on the right subject?

A noble Lord: Yes.

Lord Lipsey: That is a great relief to me. I will come to the narrow-ish point in the amendments shortly but I want to put them in context.

One of the reasons why advice is absolutely crucial in the deferred payments scheme is that this is one of the least understood and least explored facets of the Bill. I will come on to one or two aspects of that. In a way, it makes it hard to make the case for the importance of advice, because so many things on which advice will be needed have not yet seen the light of day. In Committee I referred to some of the unresolved issues that have been raised by Partnership, the Equity Release Council and others. They will emerge, and this will make it clearer why advice is needed.

I will first put the issue in the following context, to show how unexplored it is. If the noble Earl, Lord Howe, will forgive me, I will correct something that he said in Committee. He said that 40,000 people each year have to sell their house to pay for care. I think that the noble Earl mis-spoke and that he meant to say, “up to 40,000”. That is the explanation that has

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come to me of what he said. I make no complaint; it is hard when one’s words are examined in such terrible detail.

I have spent a surprising—perhaps wasted—amount of my time trying to trace the figure that 40,000 people each year are forced to sell their home to pay for care. I have been doing it ever since I sat on the royal commission 15 years ago. When we were sitting on the royal commission, we eventually found a very dodgy piece of research, now more than 20 years old, which kind of concluded that the number might be about 40,000. Of course, what happened was not that the piece of research was examined and found to be accurate but that the figure got into the Daily Mail cuttings library, so that every time that paper campaigned against people having to sell their house to pay for care—I praise it for this—the figure was repeated, until it became accepted throughout the world as the number involved.

Having spent all these years studying the subject, I am very tempted to go into greater detail, but I do not think that the House would thank me for it. However, I refer any noble Lord who might be interested to the Full Fact website. It is a fact-checking organisation, of which I am a director, which goes into the matter in minute but very clear detail, and points out that the Government’s claim is based on exploratory research that is almost 20 years out of date.

More importantly, the 40,000 figure is used as if it were the number of people who are forced to sell their house. “Forced” is a funny word in this context. For most people who go into a home, selling their house is the sensible thing to do to fund the cost of care. You do not want to leave the house empty; that benefits nobody. It does not provide housing for anybody; the house starts to crumble and is worth less to you and your family, so you had best sell it and get something that is more suitable. However, the deferred payment scheme is so important because there are people for whom that is not true. For example, some people want their families to live in their house and therefore cannot get cash for it. That is why we have a deferred payment scheme. “Forced” suggests that this is something dreadful in all cases, when in fact it is dreadful in some cases. It is absolutely right, as I said before, that we have such a scheme for some cases but not for all cases.

I now come to another severe complication, and I am afraid that I will have to resort to the vernacular in order to make clear to the House what has happened. The original scheme put forward by Dilnot has had its balls cut off by the Government in the consultation document. That is not too strong a way of putting it, and I will explain why. Yes, every council will offer a scheme, but there is now a huge restriction that will mean that very few people will take advantage of the deferred payment scheme. It would not in any case have been 40,000, but now I think that it will be nearly nil. Why is that? The consultation paper makes it clear, in paragraph 150 on page 44, that you are eligible for a deferred payment loan only if your other assets in total come to less than £23,250. If you have more than that, you have to spend down until you have £23,250 left in the bank or wherever it is, and then you can consider a deferred payment scheme. However,

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most people who have reasonably valuable houses, who are the people most likely to want to adopt this measure, will have far more than £23,250 worth of other assets. Most of them will not feel the least bit happy if they have to spend down until they have only £23,250 left in the bank before they can get any help from the deferred payment scheme. That hardly pays for a daily delivery of the

Racing Post

for the rest of their lives, their nightly gin and tonic or more important things such as the literature they want to read or all the things that make their life fuller. For those people, a deferred payment scheme is simply not available.

5.15 pm

You have to think about the timing of this measure. In theory, people could let their money run down to the £23,250 sum and then apply for a deferred payment scheme, but what is going to happen to the house in the mean time? They must either let it or leave it empty. Something has to happen with it. Usually, people make decisions about funding when they go into a care home. That is the moment when a deferred payment scheme has to come into effect if it is to be effective. However, the answer given to most people with funds of £23,250 will be, “You might want to do this but you can’t because the Government say that you can’t”.

I am a veteran of the long struggles that have taken place on this issue, with the politicians saying that we need a deferred payment scheme because it is wrong that people should be forced to sell their houses and officials saying that it will be expensive and a nuisance, and blocking it. I do not know whether that is what happened in this case but, as I say, this is now a castrated deferred payment system with a brutal limitation imposed by the consultation document, which was nowhere heralded or mentioned when the scheme was drawn up. That is very sad. Indeed, it is more than very sad; it will cause fury because people have read in their newspapers that a deferred payment scheme means they will not have to sell their house. However, they will then find that they will have to do so because of this arbitrary change by the Government. The result will be fury.

I support the Bill strongly but one of my concerns about it is that I fear that in various ways it falls short of the billing it has been given. That is certainly true of the cap, which will be reached only at the rate of local authority payments. The issue we are discussing is another case in point. People will believe that the Government have dealt with this problem but they have not. That was an error and I hope that the Government will think again about this.

One thing that might help a little when people reach the stage when they need to think about deferred payments and that sort of thing is if they are directed to proper advice so that someone who is on their side—their financial adviser—can explain to them why they are not eligible, if an explanation can be given, or perhaps suggest alternatives to the deferred payment scheme. For example, if you take out a deferred payment scheme, an alternative would be to let your house and use the money you receive in rent to pay for your care. A financial adviser will point to that. That

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alternative has various advantages and disadvantages: for example, you avoid paying interest on the money but you have to pay tax on the income. I will not go into all the complications but it is crucial that people get the right advice.

To return to my previous point, I tried out this discovery of the £23,250 limit, which I made courtesy of an adviser only last week, on three Members of this House who are most knowledgeable about the subject of care, and not one of them knew about it, which must mean that it is pretty obscure.

To try to dispose of a red herring that gets thrown in the way of this subject, I am not saying in the amendment that people should be forced to take financial advice. You cannot force people to do so. If it is forced advice, they will not take it seriously and it will not work. However, the council can point people in the direction of financial advice—not to an individual financial adviser, because councils do not know which of them offers good advice, but to somebody who is appropriately qualified to give people the advice they need. The consultation paper pays lip service to this in paragraphs 171 to 174. However, we need more than lips; we need teeth if people are to get the advice they need to navigate around this very complicated aspect of the Bill.

Lord Hunt of Kings Heath: My Lords, this is an important subject. Clause 34 provides for deferred payment agreements and loans. In such an agreement,

“the charges or loan advanced is repaid by the adult or from their estate at a later specified date, or on the happening of a specified event, such as the sale of property. The debt is normally secured against the person’s property to ensure repayment”.

I say at once that we welcome the support to be given to such a scheme. However, I hope that the noble Earl will be able to respond to my noble friend on the point that he raised. His essential argument is that the scheme as originally recommended has been severely restricted, as indicated in paragraph 150 of the consultation, whereby a person is eligible only if other assets are less than the £23,250 limit. Can the noble Earl confirm that figure? If so, can he estimate for the House how many people he thinks are likely to want to use the scheme? The 40,000 figure seems even more mythical if people’s other assets have to be reduced to such a level. We need to clear up that important point either today or, if the Minister is unable to do so, perhaps on Third Reading.

I wish to speak now to my Amendment 63. One worry which we discussed in Committee concerns how local authorities are to run these schemes, and that worry remains. My noble friend Lord Lipsey spoke in Committee of his concerns about the creation of administrative difficulties for local authorities because each local authority would have to design and implement its own scheme. There would be a risk not only that the amount of energy which each authority had to expend would be extremely wasteful but that some very poor quality schemes could be developed. My noble friend Lord Warner, when discussing the balance of arguments between a national scheme or local schemes, said:

“The worst of all worlds would be not to take hold of this issue and leave it to a marketplace of 152 different bodies”—

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in other words, local authorities—

“without much guidance or assistance with compatibility of IT and issues of that kind”.—[

Official Report

, 22/7/13; col. 1065.]

In Committee the noble Earl seemed a bit reluctant to accept the need for national direction in this area. The fact is that only a minority of local authorities currently operate deferred payment schemes. The local authorities’ responsibilities that we have discussed in relation to the Bill are many and extensive, and I shall not go through the list again. There is no doubt whatever that there are worries about whether local authorities really have the capacity to implement the legislation as noble Lords require. Instead of these 152 local authorities having all to develop their own deferred payment schemes, surely there is a persuasive case for a model scheme to be drawn up based on the experience of local authorities which are already operating a scheme but which are in a minority at the moment.

I have little doubt that a model scheme would save money by reducing the work that an individual local authority would have to do. The scheme would be informed by best practice and individual decisions would still be left to individual local authorities because they would be given a model scheme to which they could make adjustments. I should have thought that that would help ensure that the use of deferred payments would be developed and expanded as effectively as possible. I very much hope that the noble Earl will be able to agree to this amendment.

Lord Warner: My Lords, I rise again as the keeper of the Dilnot tablets on the subject of deferred payments. If we had intended that access to a deferred payment scheme was to be limited to people with assets of less than £23,000, we would have said so in our report. That was not what we intended. I commend the report to the noble Lord, and I hope the House will forgive me if I just cite a few bits of it.

I refer the noble Lord to page 41 of our report. We said:

“Evidence submitted to the Commission suggests that the availability and use of deferred payment schemes is patchy”,

and we went on to explain that. The government consultation document suggests that it will continue to be pretty patchy as well because very few people are likely to come forward for this. We said—and this was a recommendation:

“At a minimum, the Commission recommends an extension to the current deferred payment scheme so that it is a full, universal offer across the country.”

That is what we said.

The Government have given the impression in various interviews—I have gone head to head with government spokesmen about this on a number of programmes—that they were going to support an extended deferred payment scheme and that it would be pretty much similar across the country. If you had a deferred payment scheme in Cumberland, it would look remarkably like a deferred payment scheme in Cornwall. It seems that we are getting into a position where none of this will be the case. It is pretty rough on the public if the Government and their spokesmen are giving the impression that they are implementing the Dilnot recommendations on deferred payment schemes when they are palpably not doing so under the present set of proposals as I understand them.

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It is not too late for the sinner to repent—the consultation period is open until later this month. However, it is necessary to revisit this in terms of what government policy is on this particular issue, both in terms of access to a deferred payment scheme and on the issue of a model scheme. The two go hand in hand. It is no good having a model scheme if it is a model scheme for a handful of cases in different parts of the country. We need a model scheme that is actually available so that people who want to cope with the issue of how they fund their care can access a deferred payment scheme. It is always a risk when you are on a committee such as the Dilnot committee that, quietly and unobtrusively, the bureaucracies will nibble away at well intentioned recommendations. Some of us have had this experience ourselves, and some of us have done a bit of nibbling as well from time to time as civil servants, so we recognise nibbling when it is going on. We are in that position here.

It is down to the Minister to start some discussions about this issue, not to leave things to the marketplace, and not to give the public impression that there is going to be a widely available deferred payments scheme when, in fact, it is going to be available only to a fairly limited number of people.

Lord Mackay of Clashfern: I do not understand why it is necessary to have any kind of limit in relation to this matter so long as there is sufficient security to allow the deferred payment to be feasible from the point of view of the Government. The proposition that the deferred payment scheme should be limited by the amount of assets a person has strikes me as rather unnecessary. So far as a model scheme is concerned, I would have thought that there is a lot to be said for having a form of document which is universal. There would of course be the possibility of different particular provisions relating to particular cases, but the central core of a deferred payment agreement could be put in a form of universal application.

5.30 pm

Baroness Barker: My Lords, I rise only to ask a question. I agree with the noble Lords, Lord Warner and Lord Lipsey, that a deferred payment scheme was an important selling point for the Dilnot report. Even though very few local authorities are running such schemes at the moment, it is an important and live issue in the minds of older people and their families; it is one that they dwell on quite a lot. I want to ask the keeper of the Dilnot tablets—who is not a character from Harry Potter—whether the commission gave any consideration to setting a figure as outlined by the noble Lord, Lord Lipsey. Did it have a level of assets in mind that people should be able to exclude?

When the noble Lord, Lord Hunt, talks about a scheme, is it a model that would apply to individuals or is it really a model that would apply to local authorities and their ability to carry the costs of the Dilnot scheme in their area for a defined period of time? I can see what the noble Lord, Lord Hunt, is saying in terms of having a model, but I am slightly confused about it. Perhaps when the Minister comes to reply, in telling us about the Government’s thinking on all of this, he might address what to me appears to be the key underlying factor.