Lord Warner: My Lords, perhaps it would help the House if the character from Hogwarts actually explained what was going on in our minds when we made the recommendation. I shall quote a sentence from the report:
“In making this change, we believe it would be sensible for local authorities to be allowed to charge interest to recover their costs, to make the scheme cost neutral”.
We were not trying to second-guess how many applicants there would be, but it would be sensible to set up a scheme that worked in a way which did not actually cause a charge to be made on the Exchequer for the running of the scheme.
Earl Howe: My Lords, perhaps I may deal first with the initial point raised by the noble Lord, Lord Lipsey, about the figure that I quoted in Committee. He asked whether I had in fact meant to say that up to 40,000 people might have to sell their homes every year. The answer is that I should have said “up to 40,000”. I am afraid that there is a conscious element of vagueness in the figure because there is no one comprehensive source to provide information about what the precise figure actually is. We have arrived at a figure of up to 40,000 as the best estimate. I hope and believe that over the summer my officials provided the noble Lord with a breakdown on how we reached that figure and that he has found the information useful. The point of quoting the figure is that we believe that it is around the number of people who could benefit from the arrangements we are discussing. I apologise if I misled the Committee and the House in stating a figure that sounded precise when I should have been a little more circumspect.
The second issue raised by the noble Lord was about the deferred payment scheme and his perception that the Government have effectively emasculated it. I do not share that perception. There will be some circumstances in which local authorities must offer a deferred payment, and that is when the Bill specifies that the local authority would be under a duty to offer a deferred payment. We are consulting on the eligibility criteria for when people must be offered a deferred payment, which is where the figure of £23,250 is used. The Bill has an additional power for local authorities to offer deferred payments more widely, and we are seeking views on this through the consultation. My noble and learned friend Lord Mackay asked why we need limits at all. It is our policy intent that deferred payments will be available more widely and consistently than they currently are, which I think is what the Dilnot commission intended us to do. We need to ensure, however—
Lord Warner: Perhaps I may correct the noble Earl. We actually referred to a universal and standard scheme. We assumed that such a scheme would be wider, but we were looking for a standard scheme that would make this widely available. That is the part which is missing from the Government’s reassurances.
Earl Howe: I shall come on to the standard scheme proposal in a moment. We need to ensure that this arrangement is rolled out in a way that is financially sustainable for the local authority in each case. We will be supporting the implementation of the
capped costs system and an extension of deferred payments with £335 million, which should enable this to happen.
I shall move on to the amendments themselves. I hope that the House will forgive me if I do not rehearse at length the same points that I made about financial advice last week, but I should like to take a moment to reassure the noble Lord, Lord Lipsey, on the specifics of his proposal. It is imperative that everyone has access to sound, reliable information and advice while making decisions about their care to ensure that any option they choose makes good financial sense for them and is sustainable in the long term. It is clear that local authorities have a central role to play in ensuring that their local populations are aware of the range of information and advice, both regulated and non-regulated, that is available to them and that they know how to access it. Last Wednesday, your Lordships accepted my Amendments 16 and 17 which clarify this. The noble Lord’s amendment would underscore the need to make sure that everyone who decides to take out a deferred payment agreement reaches that decision in a considered and informed manner. I agree that that should be the case. All too often, people do not plan ahead for the possibility of needing care and so can find themselves having to make important and lasting financial decisions in a moment of crisis.
Deferred payment agreements can be used to reduce some of this urgency and ought to be accessible to ensure that they provide the peace of mind that they are intended to. For this reason I would hesitate to make the process through which a person can access a deferred payment too onerous. We are currently consulting on the information and advice a person should receive before taking out a deferred payment agreement. We will listen carefully to what is said and we will use this to inform the approach that should be taken. I have already given the noble Lord my undertaking to discuss further what remaining differences we have about financial advice, if any, and I hope that those discussions will allow us to explain in more detail our policy intentions and what our own government amendments in this area aim to achieve. I hope that the noble Lord will agree that we are essentially of the same view about this and that he will be content to discuss the matter with me further outside the Chamber. That being so, I hope that he is sufficiently reassured today to withdraw his amendment.
I turn to Amendment 63, tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Wheeler. We are in concordance with them that a model deferred payment agreement would help local authorities and that is why we already have one in place for the schemes that are currently operating. What we intend to do now is build on and improve the current model. In doing that, we will work in partnership with local authorities to learn from the well established schemes, some of which have a decade of experience. While the case for a model scheme is clear, I think it would be wrong to mandate national systems and structures for deferred payment agreements. It is important that we strike the right balance between local flexibility and national consistency. Systems and structures must be developed in partnership with local government and
allow for and, indeed, encourage local efficiencies to flourish. As noble Lords may know, we have established with the Local Government Association and the Association of Directors of Adult Social Services the joint implementation and programme board to support the implementation of these reforms more generally and, through this, we will support local authorities to deliver the universal scheme from April 2015. This work will include our commitment to providing a model deferred payment scheme, based on the current model, as well as statutory guidance to support local authorities in exercising these functions.
The statutory guidance on deferred payments, in particular, will have a clear legal status. Local authorities must act under this guidance. This means that they must consider and should follow it, unless they have a justifiable reason not to do so. This would seem to be the same status as is envisaged by noble Lords in their amendment. I hope therefore the noble Lord feels able to withdraw his amendment in light of the reassurance I have given on supporting local authorities to deliver the universal deferred payment scheme and the model agreement in particular.
My noble friend Lady Barker asked whether the scheme was a model for how local authorities manage the burden on themselves. This is not designed to be a scheme that makes a profit for local authorities. The interest rate is likely to be set at a rate which recognises local authority borrowing rates, and so ensures that the scheme is cost-neutral.
Lord Lipsey: My Lords, I thank the Minister for that reply. On the first two of the three legs of his argument, I am happy to support what he said. Through helpful discussions over the summer, I understood that he had meant to say “up to 40,000.” I make no criticism of him for misleading the House. Any misleading he did is on a tiny scale compared with the misleading that has taken place with the whole country through these repeated cuttings file references. History will now have on record in this debate the truth about these numbers. That is a form of progress, if not legislative progress.
Secondly, I should like to thank the noble Earl for what he said about advice. We are near to having another meeting before Third Reading on advice. We are all after the same things on advice with the same constraints. We have not quite cracked it yet, but I hope when the House comes back on Third Reading to the matter of advice, we shall do so, either in the form of an amendment, or of a shared understanding on where we are going which might take the form of regulation or guidance. On those two things, I agree with the Minister.
However the Minister did not confront my most important point. Let us be absolutely clear. This Bill does not provide a universal deferred payments scheme. It provides a deferred payments scheme only for people who have less than £23,250 in assets. There is no universal deferred payments scheme. Further, this has been done in a back-door manner which disgraces the Government. It was not in Dilnot. We have heard decisive testimony on that from my noble friend Lord Warner. It was not in the Government’s announcement of their response to Dilnot. It was not in the Second
Reading speeches. It came out between stages of the Bill in this consultation document. The noble Earl suggested that there would be people with more than £23,250 who could benefit from deferred payments so we did not have to worry. The relevant bit from paragraph 154 of the consultation document says:
“More generally, we also intend that authorities should have the discretion to provide deferred payments to people in residential care who do not necessarily meet all of the mandated criteria.”
Those criteria include the £23,250, so that sounds quite good. The next sentence says:
“For example, if someone has slightly more savings”—
I stress the phrase “slightly more savings”—
“than the £23,250 threshold but would qualify for a deferred payment soon, an authority might prefer to offer the option upfront.”
That is a tiny loophole. This is essentially a £23,250 threshold that the Government have smuggled in, telling nobody until they had to produce this document and hoping no doubt that by 25 October, nobody would have noticed. I shall tell you who will notice. The Daily Mail will notice. The Daily Mail and other newspapers which campaigned so that people would not have their houses seized—I applaud them and have applauded them before for doing so—are now going to learn that the Government have welched on the deal. The tsunami that will hit the Government in consequence will hurt not only this proposal but the Government as a whole.
5.45 pm
I urge the Minister to indicate at the earliest possible opportunity that the Government will give this matter fundamental reconsideration. If he does not so indicate, I am afraid that the consequences for him and for the integrity of the whole Dilnot scheme will be considerable. The Government have got to look at it again. The House may wish to reconsider this matter—which, after all, has only come up this afternoon—at Third Reading, with appropriate amendments designed to undo what the Government are attempting to do. I shall not push the amendment for the reasons I have given and beg leave to withdraw the amendment.
63: Clause 35, page 30, line 12, at end insert—
“( ) The Secretary of State shall make available to all local authorities a model deferred payment scheme and all local authorities must follow this model unless they can show due cause not to.”
Lord Hunt of Kings Heath: My Lords, I share my noble friend’s concern about what we have heard tonight. From what the noble Earl said, in essence the mandated scheme will be a scheme in which the person’s assets will have to come down below £23,250 before a deferred payment arrangement must begin. The noble Earl went on to say that he wanted to encourage local authorities to use a power more widely. That local authority power is discretionary. The great fear must be that the mandatory scheme will in essence turn out to be the scheme that all local authorities will adopt. That is why I link that concern to Amendment 63 for a model scheme. In the circumstances it is absolutely
essential. A mandated model scheme does not guarantee a universal scheme, but at least sets the framework for one. The House should consider it very carefully. I beg to move.
5.48 pm
Contents 202; Not-Contents 224.
CONTENTS
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley of Knighton, L.
Berkeley, L.
Bichard, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Bradley, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Campbell of Surbiton, B.
Carter of Coles, L.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Collins of Highbury, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Deech, B.
Desai, L.
Donaghy, B.
Donoughue, L.
Drake, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Emerton, B.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fritchie, B.
Gale, B.
Gibson of Market Rasen, B.
Glasman, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Greengross, B.
Grenfell, L.
Grey-Thompson, B.
Grocott, L.
Guildford, Bp.
Hanworth, V.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollins, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones of Whitchurch, B.
Jones, L.
Jordan, L.
Kennedy of Southwark, L.
Kerr of Kinlochard, L.
Kestenbaum, L.
Kidron, B.
Kingsmill, B.
Kinnock, L.
Kirkhill, L.
Knight of Weymouth, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Listowel, E.
Low of Dalston, L.
McAvoy, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Mendelsohn, L.
Mitchell, L.
Monks, L.
Moonie, L.
Morgan of Ely, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Myners, L.
Noon, L.
O'Loan, B.
O'Neill of Bengarve, B.
O'Neill of Clackmannan, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Radice, L.
Rea, L.
Rees of Ludlow, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rix, L.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sheldon, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Snape, L.
Soley, L.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Uddin, B.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Wills, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Hornsey, B.
Young of Norwood Green, L.
NOT CONTENTS
Addington, L.
Ahmad of Wimbledon, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Astor, V.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Bates, L.
Benjamin, B.
Berridge, B.
Bilimoria, L.
Black of Brentwood, L.
Blencathra, L.
Borwick, L.
Bottomley of Nettlestone, B.
Bourne of Aberystwyth, L.
Brabazon of Tara, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Buscombe, B.
Butler-Sloss, B.
Caithness, E.
Cameron of Dillington, L.
Cathcart, E.
Cavendish of Furness, L.
Chidgey, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Deben, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Dykes, L.
Eaton, B.
Eccles of Moulton, B.
Eccles, V.
Edmiston, L.
Elton, L.
Empey, L.
Erroll, E.
Falkland, V.
Faulks, L.
Fearn, L.
Feldman of Elstree, L.
Flight, L.
Fookes, B.
Fowler, L.
Framlingham, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glasgow, E.
Glenarthur, L.
Glendonbrook, L.
Goodlad, L.
Goschen, V.
Grade of Yarmouth, L.
Greenway, L.
Grender, B.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Home, E.
Hooper, B.
Horam, L.
Howe, E.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
James of Blackheath, L.
Jay of Ewelme, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Kakkar, L.
Kilclooney, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Liverpool, E.
Livingston of Parkhead, L.
Loomba, L.
Lothian, M.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Manzoor, B.
Mar, C.
Marks of Henley-on-Thames, L.
Marlesford, L.
Masham of Ilton, B.
Miller of Chilthorne Domer, B.
Montgomery of Alamein, V.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Nash, L.
Neuberger, B.
Neville-Jones, B.
Newby, L. [Teller]
Newlove, B.
Nicholson of Winterbourne, B.
Noakes, B.
Northover, B.
Oppenheim-Barnes, B.
Oxford, Bp.
Palmer of Childs Hill, L.
Parminter, B.
Patel, L.
Patten, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Popat, L.
Randerson, B.
Razzall, L.
Redesdale, L.
Rennard, L.
Ridley, V.
Risby, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Ryder of Wensum, L.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shutt of Greetland, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Stephen, L.
Sterling of Plaistow, L.
Stewartby, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taverne, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Tebbit, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Trefgarne, L.
Trenchard, V.
Tugendhat, L.
Tyler of Enfield, B.
Tyler, L.
Verma, B.
Waddington, L.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wasserman, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Willoughby de Broke, L.
Wilson of Tillyorn, L.
Wrigglesworth, L.
Younger of Leckie, V.
6.02 pm
Clause 37: Notification, assessment, etc.
63ZA: Clause 37, page 31, line 39, at end insert “with a view to securing, so far as reasonably practicable, the outcomes referred to in section 9(4)(b) or 10(5)(d)”
Baroness Campbell of Surbiton (CB): My Lords, I shall speak also to government Amendment 63A and my Amendment 63B. Before I begin, please forgive me for my speech going in stops and starts. This is the result of being an astronaut: we speak like this.
Noble Lords will know from my Private Member’s Bill, the Social Care Portability Bill, as well as my contributions to debates on this Bill, the depth of my concern about continuity of care when an older or disabled person moves to another local authority. It is a basic human right to move freely within one’s country, whether to pursue education or employment opportunities, to improve one’s family life or to seek personal support. The Government have said on several occasions that my Private Member’s Bill has informed the provisions of this Bill. It is true and I am grateful to have helped; I must say that I am also a bit flattered. We have collaborated well and I firmly believe that workable continuity of care is in sight.
The Minister for Social Care said to me in a letter last week:
“I believe that we are both of one mind and that neither of us wants a situation where there are no services in place on the day of the move, which could result in the person falling into crisis”.
I believe that too. Throughout the passage of this Bill, my two main areas of concern have been the need for a reference to outcomes in the continuity provisions and the risk of a gap in provision of care and support. We have made good progress on the second of these concerns since Committee. I am heartened by this.
Amendment 63ZA is about equivalence of outcomes. This goes to the heart of what continuity of care is about. The underlying purpose is to enable the person who moves to do the same kinds of things in their day-to-day life as they currently do. It may not always be possible and it may be through different means, but that is the aim. Certainly there are references linking plans to outcomes elsewhere in the Bill, and that is very welcome. However, signalling the intention in Clause 37 would send a clear and powerful message which could not be misconstrued by those providers who have an “I-know-what’s best-for-the-client” attitude. That is why I have tabled this amendment.
My second amendment addresses safe and seamless transition from one authority to another. The Bill says that if the second authority fails to deliver a new care package by the day of the move, it has to meet the
needs that the first authority has been meeting until it has put the new arrangements in place. This is a temporary measure to ensure there is no gap in the provision of care.
I have been concerned that, just as the new care package may not be ready in time, as Clause 38(1) acknowledges, there may also be a delay in the temporary measures, which would mean a risky gap in care and support. My amendment proposes that, in those circumstances, the first authority would have to continue to provide care until the new arrangements were in place. I remain of the view that this would provide the strongest guarantee of continuity.
The Government, however, have proposed instead a new amendment, Amendment 63A, to improve co-ordination between the person moving and the two local authorities—in effect acknowledging the importance of a dialogue between all three parties. Certainly, both local authorities working together to prepare for the person’s move is a good template for success. The amendment will require the first authority to contact the second authority and maintain this relationship until the person moves. It will also require the first authority to keep the person involved so that they are fully aware of the arrangements in advance of their move. While this is not the solution I favour, I recognise that it will help to strengthen the process by bolstering the degree of collaboration and coordination between the authorities. That would go a long way towards reducing the risk of an interruption in care and support. It would also reassure and empower the person moving.
Throughout my campaigning life, “Nothing about us without us” has driven everything. This duty is a commendable endorsement of that approach. I believe that it would be enhanced by a further small change: that the first authority remain in contact with the second authority until the new care package is in place. This would ensure a smooth transition during any temporary arrangements, when the individual would be at their most vulnerable. Moreover, it would help the second authority, which has to meet the needs that the first authority has been meeting. I believe this fine-tuning of the Government’s helpful amendment would speed up the transition and support the way that Clause 38 is intended to operate.
After some negotiation last week, I believe I reached an understanding with the Minister and his officials that there will be a review of the continuity-of-care provisions after three years. These are new responsibilities for local authorities, and it is right that we should know whether they are working and take action if they are not. I look forward to the Minister’s confirmation of this in his response.
Moving house is one of the most stressful days of your life. Let us give disabled people the confidence to move and, hopefully, improve their circumstances. To do that, they require three things: first, knowing that support is there; secondly, the knowledge about the process to reassure them during a time of potential anxiety; and, thirdly, the certainty that they can live their lives in the same way with the same outcomes in their new environment.
I am pleased that the Government have travelled a fair way in tabling their amendment and have made
significant progress in strengthening the transition process. I very much look forward to being involved in the next stage of the portability journey. I believe that we are about to have the portability celebrations but the cake has not yet been finished. If we get this right, I will feel free to chase my dream of moving to the Cornish coast when I eventually retire, which will not be yet. I beg to move.
Baroness O'Loan (CB): My Lords, I support my noble friend’s amendments, particularly because of their implication for human rights. Care and support for many older people and for disabled people underpin and enable the enjoyment of those rights. They make possible a decent life of dignity; they make possible the ability to enjoy family life, for example. Ensuring that people can continue to pursue the life that they have and that they want, with no lessening of support when they move, is crucial. I therefore warmly support my noble friend’s amendment on equivalence of outcomes. When considering the process for people moving from one local authority to another, we must consider particularly the right to freedom of movement for older and disabled people. I believe that my noble friend’s amendment on the process for ensuring no gap in services during a move guarantees such freedom on an equal basis with others.
Baroness Wheeler (Lab): My Lords, these are mostly technical amendments, which we support. We are especially pleased that the concerns and proposed improvements to the portability process put forward by the noble Baroness, Lady Campbell, are addressed in the amendments in this group. We need to do as much as possible to reduce the likelihood of the person not having services on the day of the move to the new authority.
Continuity of care is critical to portability, and the requirement placed on the first authority to keep in touch with the second in the period leading up to the move to ensure that services are in place and ready, and that the person is kept informed and up to date, is very important for a safe and risk-free move. They are also required actively to ensure continuity of care until the new assessment is in place. That is absolutely right, as is the second authority being required to have regard to the outcomes that the person wishes to achieve in the care and support plan that they had before the transfer.
I congratulate the noble Baroness on having finally achieved most of what she set out to in her own Private Member’s Bill. As she said earlier, workable continuity of care is within sight. Her tenacity and determination will mean that many people will now be able to make the move to different parts of the country, to be closer to their families or to care and support that they have not previously been able even to contemplate.
We support the government amendments dealing with cross-border issues with Wales. They follow extensive discussion and agreement with the Welsh Government. The Minister’s detailed correspondence to noble Lords explaining the purpose of the amendments in relation to such key issues as arbitration on cross-border disputes, responsibility for mental health aftercare
and sorting out direct payments for this care and residential care to reflect recent change of practice in England was very helpful to the House in getting the full picture of the proposed changes.
In respect of the amendments on ordinary residence, NHS accommodation placements, cross-border hospital stays and the need to ensure that the Care Bill provides for accommodation provided under the Welsh, Scottish and Northern Ireland legislation, the Minister’s note of last week emphasises that all changes have been agreed with each of the devolved Administrations, and obviously that is as it should be. Are the provisions for four-way reciprocity on cross-border placement in England, Wales, Scotland and Northern Ireland now fully in place with these amendments to the Bill, or does more work need to be undertaken as the detail is worked through further?
Specifically on government Amendment 64, I understand that the LGA and ADASS are looking to model the impact of a person’s place of residence on the cost pressures within the social care system. To assist this work, which will be very valuable to the whole House, will the Government now publish the information that they have on the impact of cost pressures on extending the territorial reach of the Bill into Wales?
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Earl Howe: My Lords, the Care Bill will for the first time introduce a duty on local authorities to ensure that where a person is receiving care and support they can move home to another local authority area, confident that they will have services in place on the day of the move. The noble Baroness, Lady Campbell, has been a leading advocate in this area for some time, and I acknowledge that her Private Member’s Bill was a template for the provisions in this Bill.
The noble Baroness’s Amendment 63ZA looks to ensure that when the second authority is carrying out the assessment of the adult moving and, where appropriate, their carer, it meets the outcomes that they want to achieve. I reassure her that the provisions on assessment for the person needing care and their carer apply to when a person is being assessed for continuity of care. Assessments must look at achieving the outcomes that the person or carer want to achieve, and Clause 37(8) confirms that. I also give an assurance that we will emphasise this in the statutory guidance.
Amendment 63B proposes that the first authority is responsible for arranging services on the day of the move. I say immediately that I sympathise with the sentiment of the noble Baroness’s argument; neither of us wants a gap during which a person is left without services. However, our view is that the second authority is best placed to maintain continuity of care. Our reasoning is that the person will now be living in the area of the second authority and, as for anyone who has eligible care and support needs, the second authority has a duty to meet those needs. The second authority will also know its local market and will be far better placed to put in place arrangements that support the person and maintain their level of independence from day one.
My concern is that it would be difficult for the first authority to make such arrangements, particularly where the person moves a long distance away. In practice, if the first authority is responsible for making arrangements it would have to contact the second authority to discuss the local market, which raises the question of why the second authority is not responsible for putting in place services in the first instance.
For the reasons that I have explained, I believe that the second authority must be the one responsible for delivering services on the day of the move. However, in light of the concerns raised by the noble Baroness during Committee, I have looked again at the provisions in the Bill. My Amendment 63A will require the first authority to contact the second authority and maintain this relationship so that it is aware of where the second authority is with putting services in place. It will also require the first authority to keep the person involved with discussions about their services and informed of progress for putting these in place. In other words, the amendment will put the person at the centre of the process. Both ADASS and the Local Government Association have indicated that this amendment will strengthen the process.
The noble Baroness questions whether placing the responsibility on the second authority is the right approach. I believe that it is. However, I fully understand her concerns, and I commit now to my department reviewing how the continuity of care arrangements are operating three years following implementation. This will provide us with more information, which will help us to understand if the process can be improved.
We are already considering how we might implement the provisions in the Bill. The first step will be to develop the regulations and statutory guidance. Given the noble Baroness’s knowledge in this area, I hope that we can draw on her experience and that she will be able to advise us on the preparation of the regulations and guidance. I sincerely hope that in strengthening these provisions and in the commitments that I have given, I have been able to convince her not to press her amendments.
The amendments relating to ordinary residence will provide clarity in respect of three areas: the overall principle of ordinary residence; the principle of ordinary residence so that it applies to after-care under the auspices of the Mental Health Act; and finally, the cross-border placement of individuals so that service users can move between the four countries of the UK where this is deemed to be in their best interests.
The noble Baroness, Lady Wheeler, asked whether reciprocal agreements are now in place or whether there would be more changes in this area. The answer is that the basic structure is in place in terms of reciprocal arrangements on cross-border care. However, some small details remain to be finalised through regulations and statutory guidance. We will work closely with the devolved Administrations on this.
First, government Amendments 66 and 67 address a potential lacuna in respect of people who may live in England—and therefore be ordinarily resident in an English local authority—but who are treated entirely within the NHS of a devolved Administration. The amendments ensure that they would remain ordinarily
resident in England. Secondly, Amendments 64, 65, 126 to128 and 132 to 136 apply consistent ordinary residence rules in England and Wales in respect of after-care under the Mental Health Act 1983, and reflect our agreement with Wales that Welsh Ministers or the Secretary of State will determine cross-border disputes according to agreed arrangements.
Thirdly, Amendments 68 to 75 relate to cross-border placements. The cross-border provisions in the Bill reflect the outcome of solid collaborative work with Scottish, Welsh and Northern Irish colleagues to remove legal barriers restricting the placement of an individual from one territory of the United Kingdom to another. These amendments make technical adjustments to those provisions, following further discussion with the devolved Administrations about the detail of the arrangements.
The purpose of the amendments on cross-border placements is threefold. First, they ensure that the established principle that the placing authority retains responsibility for the care of those individuals placed cross-border is not interrupted should the individual receiving care require a period in hospital or other healthcare accommodation. Secondly, they enable regulations to provide for the cross-border placements provisions to apply to individuals who receive direct payments. Thirdly, they provide a regulation-making power that would allow our cross-border provisions to apply to individuals placed in a setting other than a traditional care home—for example, supported living arrangements.
The noble Baroness, Lady Wheeler, also asked about the impact of cross-border placement provisions on cost pressures. It is our understanding that the number of placements between countries of the UK is likely to be minimal, certainly in terms of the overall budget. However, we will work closely with colleagues in the devolved Administrations to further understand and bottom out the financial implications.
This group of amendments provides further necessary clarity to enable people to receive care and support in locations that suit their needs and I commend them to the House.
Baroness Campbell of Surbiton: My Lords, I thank noble Lords and the noble Baronesses, Lady Wheeler and Lady O’Loan, for speaking in support of my amendment. I warmly thank the Minister for his thoughtful reflections on my amendments and for tabling his amendments to meet some of my concerns—followed up at the last minute by a very good, timely review. Although I had hoped to see both my amendments on the statute book tonight, I am happy to acknowledge that the Government’s proposal is a ginormous step in the right direction to full portability. If it reduces the prospect of a cliff-edge scenario, it will achieve its purpose. I know that disabled people will feel encouraged to move instead of staying put.
Finally, I am grateful to the Minister and especially his officials for their positive approach to this issue, which I have raised in Committee and, quite frankly, over the past three years. We have burned a lot of midnight oil together and I have been very impressed by their efforts to find practical solutions. It bodes
well for our continued collaboration on this landmark reform—and it is a landmark. Do not forget, we were tied to our local authorities since time began and this is the first time that disabled people will have the right to freedom of movement if they require support. I will be pleased to be involved in the regulations and of course I will be there. Frankly, you could not stop me. I beg leave to withdraw my Amendment 63ZA.
63A: Clause 37, page 31, line 44, at end insert—
“(8A) Pending the adult’s move, the first authority must keep in contact with the second authority in order to ascertain the progress that the second authority is making in preparing to meet—
(a) any needs for care and support under section 18 or 19 in the adult’s case, and
(b) where the adult is proposing to have a carer immediately after the move, any needs for support under section 20 in the carer’s case.
(8B) The first authority must keep the adult (and, where applicable, the carer) informed about its contact under subsection (8A) with the second authority and must involve the adult (and, where applicable, the carer) in the contact.”
Clause 38: Case where assessments not complete on day of move
Clause 39: Where a person’s ordinary residence is
64: Clause 39, page 34, line 1, after “authority” insert “in England or the local authority in Wales”
65: Clause 39, page 34, line 2, at end insert “; and for that purpose—
(a) “local authority in England” means a local authority for the purposes of this Part, and
(b) “local authority in Wales” means a local authority for the purposes of the Social Services and Well-being (Wales) Act 2013”
66: Clause 39, page 34, line 3, leave out “accommodation under the National Health Service Act 2006” and insert “NHS accommodation”
67: Clause 39, page 34, line 10, at end insert—
“(5A) “NHS accommodation” means accommodation under—
(a) the National Health Service Act 2006,
(b) the National Health Service (Wales) Act 2006,
(c) the National Health Service (Scotland) Act 1978, or
(d) Article 5(1) of the Health and Personal Social Services (Northern Ireland) Order 1972.”
Schedule 1: Cross-border placements
69: Schedule 1, page 102, line 17, leave out “within” and insert “where there is a dispute about the application of”
70: Schedule 1, page 102, line 19, at end insert—
“( ) After subsection (10) of that section insert—
“(10A) A person who, as a result of Schedule 1 to the Care Act 2013 (cross-border placements), is treated as ordinarily resident in an area in England, Wales or Northern Ireland (as the case may be) is to be treated as ordinarily resident in that area for the purposes of this section.
(10B) A person who, as a result of that Schedule, is not treated as ordinarily resident anywhere in England or Wales (as the case may be) is not to be treated as ordinarily resident there for the purposes of this section.”
71: Schedule 1, page 102, line 24, at end insert—
“Provision of NHS accommodation not to affect deemed ordinary residence etc.7A (1) In a case where, as a result of this Schedule, an adult is treated as ordinarily resident in an area in England, Wales or Northern Ireland (as the case may be), the adult does not cease to be so treated merely because the adult is provided with NHS accommodation.
(2) In a case where, as a result of this Schedule, an adult is not treated as ordinarily resident anywhere in England or Wales (as the case may be), the adult continues not to be so treated even if the adult is provided with NHS accommodation.
(3) In a case where, as a result of this Schedule, no duty under a relevant enactment applies, the duty does not apply merely because the adult in question is provided with NHS accommodation; and for this purpose “relevant enactment” means—
(a) Part 2 of the Social Work (Scotland) Act 1968,
(b) sections 25 to 27 of the Mental Health (Care and Treatment) (Scotland) Act 2003,
(c) the Health and Personal Social Services (Northern Ireland) Order 1972, or
(d) the Health and Social Care (Reform) Act (Northern Ireland) 2009.
(4) In a case where, as a result of paragraph 2(2), (4) or (7), an adult is treated as remaining within, or as remaining outside but ordinarily resident in, an area in Wales, the adult does not cease to be so treated merely because the adult is provided with NHS accommodation.”
72: Schedule 1, page 102, line 24, at end insert—
“Direct payments7B (1) Regulations may provide for this Schedule to apply, with such modifications as may be specified, to a case where accommodation in England, Wales, Scotland or Northern Ireland is provided for an adult by means of direct payments made by an authority in another of the territories.
(2) The reference in sub-paragraph (1) to direct payments accordingly includes a reference to direct payments made—
(a) under section 34 or 36 of the Social Services and Well-being (Wales) Act 2013,
(b) as a result of a choice made by the adult pursuant to section 5 of the Social Care (Self-directed Support) (Scotland) Act 2013, or
(c) by virtue of section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002.”
73: Schedule 1, page 102, line 24, at end insert—
“Particular types of accommodation7C (1) Regulations may provide for this Schedule to apply, with such modifications as may be specified, to a case where—
(a) an adult has needs for care and support which can be met only if the adult is living in accommodation of a type specified in the regulations,
(b) the adult is living in accommodation in England, Wales, Scotland or Northern Ireland that is of a type so specified, and
(c) the adult’s needs for care and support are being met by an authority in another of the territories providing or arranging for the provision of services other than the accommodation.
(2) In section 5 of the Community Care and Health (Scotland) Act 2002 (the title to which becomes “Local authority arrangements for residential accommodation etc. outwith Scotland”), in subsection (1), at the end insert “or for the provision in England and Wales or in Northern Ireland of a service or facility of such other description as may be specified in the regulations”.
74: Schedule 1, page 103, line 14, at end insert—
“( ) “NHS accommodation” has the meaning given in section 39(5A).”
75: Schedule 1, page 103, line 40, at end insert—
“( ) In paragraph 7B, the reference to sections 34 and 36 of the Social Services and Well-being (Wales) Act 2013 is to be read as a reference to section 57 of the Health and Social Care Act 2001.”
76: After Clause 40, insert the following new Clause—
“Appealing decisions taken by the local authority
(1) The local authority must have in place a procedure, which includes a review element that is independent of the local authority, by which adults or carers can appeal a decision made by the local authority about—
(a) whether an adult or carer’s needs meet eligibility criteria under section 13,
(b) whether to charge for meeting needs under section 14,
(c) the result of a financial assessment under section 17,
(d) the content of a care and support plan or support plan under section 25,
(e) the amount of a personal budget made under section 26 or independent personal budget made under section 28,
(f) the payment of an “additional cost” under section 30.
(2) Regulations may make further provision about any aspect of the appeals procedure mentioned in subsection (1).
(3) Wherever a decision has been made of a type referred to in subsection (1), the local authority must make the adult or carer aware of their right to appeal the decision and how to request details of the appeals procedure. Details of the procedure must be made available on request.”
Baroness Greengross: My Lords, I shall also speak to Amendment 124. Amendment 76 seeks to ensure that a clear process is in place by which adults and carers can challenge decisions that have been made about their care by local authorities, and to ensure that they are made aware of their right to challenge such decisions. I am grateful to Which?for supplying me with background information on this important issue.
Under the new care and support system, there are many decisions that local authorities will take that will affect an adult’s or a carer’s access to services and what they will be required to pay towards care. These decisions can fundamentally affect families’ quality of life and financial circumstances, as we have learnt. It is right
that these decisions are subject to proper scrutiny in cases where families feel that they have been made unfairly, and that those receiving care and their carers are aware of their right to challenge decisions.
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There is evidence that, in a lot of decisions made by local authorities about care, there is a certain amount of subjectivity and untransparent variation in the way they are made, both between and within local authorities. This includes decisions over eligibility, financial assessments, charging, local authority rates, top-up fees, levels of personal budgets and independent personal budgets. Under the new system, many more people will come into contact with and be assessed by their local authority, and a greater light is going to be shone on these decisions, as we debated earlier today. Currently the Bill does not contain any reference to appealing these decisions.
This has previously been highlighted, and in Committee amendments to establish a care and support tribunal were tabled. The Government’s response was to say that they recognised the need to review the current complaints arrangement, and they have included it in their consultation on funding reform, including the option of a tribunal. They pointed out that there are existing regulations under separate legislation about how local authorities handle complaints in relation to social care. However, these regulations relate to any complaint that a local authority receives about a care matter—for example, about the quality of care received by a provider acting on behalf of the local authority—but they do not include an independent review element. They are not specifically designed to deal with issues of eligibility, entitlements and payments where the challenge may be about the overall decision reached, rather than the process followed. Therefore, I believe that the mechanism for appealing these decisions should also be included in the Bill.
This amendment is designed to allow the Government flexibility over the exact format of the appeals procedure, which can follow in regulations, while ensuring that the principle is enshrined in the Bill. It also, rather importantly, requires local authorities to make individuals aware of their right to appeal a decision that has been made. Too often, care recipients feel done to rather than done with, as we know. They do not understand the basis on which decisions have been made, and they feel very powerless regarding challenging them. Awareness of an existing higher-level redress mechanism, such as the Local Government Ombudsman, is very low. People just do not know about it or how to approach that office. Making users aware of their right to appeal is therefore a key part of ensuring a redress system that works effectively.
Currently, people have limited access to an independent review of decisions regarding eligibility for continuing care. We know this is a huge problem for many people. Amendment 124 would provide access to an independent review process. I am grateful to the Alzheimer’s Society and the Care and Support Alliance for providing me with some background to this issue. NHS continuing care is a package of care arranged and funded by the NHS free of charge to the person receiving care. The
decision about eligibility rests not on the person’s condition but on whether the need for care is primarily due to health needs. However, as care provided by the NHS is free but care provided by social services is means-tested, the outcome of any decision can have a significant financial consequence for people who self-fund their care. There are also significant financial consequences to the NHS if a person is eligible. These consequences leave NHS continuing care fraught with dispute, and there is little impetus for the NHS to make a decision quickly, given the budgetary implications. Many people give up or face another long wait to appeal a refusal. While there are just over 57,000 people in receipt of continuing care in England, it is unknown how many people eligible in law have failed in their attempts to be assessed properly for it. At both assessment and appeal stages, various tiers of the NHS remain—I have mentioned this before—both judge and jury on eligibility, and it is only once these stages have been exhausted that the Parliamentary and Health Service Ombudsman can be involved as a truly independent arbiter. It is unacceptable for so many people with extensive health needs, some nearing the end of their lives, to have to deal with a system that is riven with bureaucracy, delay and dispute. People receiving local authority care have some hope that a council will support their case to move on to NHS-funded care, spurred on by its own financial interest for them to do so, but for self-funders there is no such hope. Some may seek out a solicitor, but many, we know, just give up.
The Joint Committee of which I was privileged to be a member felt that the Care Bill provides an opportunity to explore the Government’s intentions towards a much more effective system of complaint, appeal and redress for social care and NHS continuing care. This amendment is to probe the Government further on how they will address the lack of a truly independent arbiter early in the NHS continuing care process. I remain convinced that an initial refusal to award NHS continuing care at assessment should lead directly to an independent review body or procedure, rather than another tier of the NHS, so that people do not have to wait years until an independent body can review their case.
Baroness Meacher (CB): My Lords, I rise to speak to Amendment 123. In doing so, I add my support to Amendments 76 and 124, which were tabled by my noble friend Lady Greengross. Indeed, a few of my comments slightly overlap hers.
As the Bill stands, local authorities will be given many complex duties and will be required to make many decisions which will have a substantial—you could say devastating—impact on the lives of elderly and disabled people, but there is no statutory provision for any appeal or independent review process, even if decisions are made on the basis of factual or legal errors. That is the point of the comments I want to make.
I understand that the Government have committed themselves to consider a process of redress or appeal and that they recognised in their response to the Joint Committee that it is,
“vital that people have an effective way to complain and seek redress”,
but there is no assurance in the Bill that such a system will be put in place and, if one is, what its characteristics will be. As my noble friend Lady Greengross said, regulations under other legislation do not appear to do the job. I hope the Minister will comment on that situation.
For example, local authorities decide whether an elderly or disabled person should continue to receive care support. Many will lose that support as a result of cuts to local authority budgets. The impact of losing care support—an entire care package in some cases—can be catastrophic, according to Leonard Cheshire Disability and others directly in touch with disabled or elderly people. Many years ago, I worked with these people, and I find the very idea that a care package could simply be removed very frightening, even as an onlooker, let alone as somebody experiencing such a thing. People become trapped in their homes, unable to work and unable to get out. They become depressed and, in some cases, suicidal—and not surprisingly in my view. There can also be risks to people’s health. As they try to undertake tasks for which they are not well suited or which they are unable to perform on their own, they fall. Has anyone estimated the likely cost to the health service of increased falls, accidents and problems of this kind? What is the Government’s view of the economic costs to the country if family carers have to give up work in order to step into the breach when the state withdraws? The problem is that the local authority may save money but the DWP and the Treasury are likely to pick up the tab. I am not quite sure what the Minister in the other place would think about that.
It is easy for the state machinery to underestimate the incredible vulnerability of many elderly and disabled people. Applicants for care support will inevitably feel nervous and fearful of the consequences of upsetting the very people on whom they depend so heavily. It is terribly important that an appeal or review process is not only user-friendly and accessible but really is independent of the people making decisions about the person’s care. Can the Minister honestly say that care decisions will in future not vary across the country? Can he say that decisions will be made without error and always be based on the law? I do not think so. In preparing this amendment we have been mindful of the cost constraints and the need to allow Ministers flexibility to create a system that will be proportionate and sustainable. I hope the Minister will recognise this in his closing comments.
Having said that, I draw your Lordships’ attention to the fact that Leonard Cheshire Disability has specifically asked me to ensure that a full tribunal service be considered, although we did have a discussion about the financial implications of that. It argues that if such a system exists to deal with conflicts about school places, a decision to deny social care is equally as devastating. The Law Commission recognised the importance of a fair, independent and accessible system of redress.
I know that the noble Earl has discussed this issue with key stakeholders and perfectly well understands the points I am making. I hope he can give the House an assurance today that, if he is unable to accept the precise wording of the amendment, the Government
will table an amendment at Third Reading that will guarantee that a suitable appeal or review process will be in place when the Care Bill comes into effect.
Lord Warner: My Lords, I support these amendments—not necessarily the specific wording but the principles behind them. I remind the House of a real difference between many of the appeals under the new framework for adult care and support and what has gone before. We are now talking about a set of arrangements with considerable financial implications for people and their families. In the social security system we set up a tribunal system to arbitrate, which has worked pretty well for a long time. Many of these issues are more akin to the social security system than to complaints about process. There will be complaints about process but many of the things covered in these amendments are about a failure to get a resource from the public purse to which people think they are entitled and have evidence that they are. This is much more akin to the arrangements in the social security system for people who have their claims rejected. It is much nearer to that than complaints about poor processes of work by a public body. The Government should think long and hard about this issue because they are in grave danger of ending up with the whole system being overwhelmed by the number of complaints. Without a convincing system for resolving appeals in the framework of the Care Bill we are heading down a path where judicial review will start to feature quite strongly.
I remind the noble Earl of some of the other issues where there could be appeals. The Joint Committee looked at some of the friction points where there was scope for dispute. There is a raft of areas for dispute over assessment of carers and service users and a whole range of areas for dispute about ability and whether you are going to be charged or not. After the previous debate on deferred payment I can think of another fruitful area for complaints—an inability to get on to some kind of deferred payment scheme. Another area, important to patients and service users, is setting the price for contracts to providers. Clearly, the price-setting mechanism may be disputed between the providers of services who may claim that the price offered by the commissioning agent will be bad for service users and patients. I am not suggesting that these could all come together under one process, but we want more convincing architecture in this Bill to give confidence that there is a sensible way of resolving and arbitrating areas for dispute and for the service user and their carers to secure redress without going through an excessively complicated process.
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Amendment 124 deals with the knotty problem of the boundary between health and social care—the continuing care issue. We looked at this in the Dilnot commission and found the assessment process monumentally opaque. It was extremely difficult to be sure that you would have consistency of assessment in different parts of the country. So much seemed to depend on individual professionals’ judgment about dependency in a very complicated set of arrangements. It is interesting that the Law Commission recommended
that it would be desirable to put NHS continuing healthcare on a further statutory footing. The Dilnot commission report on page 58 said:
“We are strongly supportive of the Law Commission’s recommendation to put NHS Continuing Healthcare on a firmer statutory footing. Furthermore, as we are recommending a new national eligibility framework for social care, which is aimed at being more transparent and consistent, the Government may want to consider how this will work alongside the assessment process for NHS Continuing Healthcare”.
This is highly disputed territory. The changes in adult social care are likely to make it very disputed territory again. We have a whole raft of issues coming out of this Bill ripe for dispute between the citizen and the state without a convincing architecture to resolve them. The Government need to think again about this issue and look at putting some more convincing architecture in the Bill to make clear to the public what they can expect, both in statutory guidance and in any regulations the Government choose to make.
Baroness Hollins (CB): My Lords, briefly, I support all the amendments in this group, particularly Amendment 124 to which I added my name. There were a number of voices calling for an appropriate system of redress for disputed decisions. Many people do not really understand social care systems and why decisions are taken and they feel powerless, often at a time when they are facing enormous challenges and may fear that complaining is going to lead to even more negative changes to their support. It seems to be a matter of justice to have a very clear and understood route to redress and I hope these amendments will be considered seriously.
Lord Mackay of Clashfern: My Lords, I support these amendments requiring a system of adjudication able to deal with the whole raft of matters dealt with under the Care Bill, including the borderline with continuing healthcare. The local authorities—152 or something of that sort—will administer the care system. It is quite easy to see that the same problems may arise in different local authority areas. Having a respected system for dealing with these matters would simplify a good deal of this area. I therefore strongly urge the Government to have in place a system which would provide reasonably rapid adjudication of all these issues. The social security commissioners provide a kind of example. One possible solution would be to extend the jurisdiction of the social security commissioners to include this area. Social security arrangements are certainly different from the care arrangements, but there may be sufficient similarity to make that possible. Something along the lines of the social security commissioners would be necessary for dealing with this and bringing into effect a system which local authorities right across the country would respect when one local authority’s decision was dealt with by this adjudicating authority.
Lord Hunt of Kings Heath: My Lords, I have added my name to Amendment 76 of the noble Baroness, Lady Greengross. I also support Amendments 123 and 124. Leonard Cheshire Disability put it so well
when it said that it was concerned that the Bill, in placing a number of important and complex duties on local authorities, will have a substantial impact on the lives of older and disabled people without providing appropriate routes for appeal against unjust or factually inaccurate decisions. It says that there is a compelling case for the Government to set up a system to resolve cases where there are disagreements between the local authority and the individual.
When we think of the various ways in which local authorities can impact on individuals who have come within the care system—support eligibility criteria, financial assessment, operation of the cap, charges, personal budgets and the boundary between NHS continuing care and means-tested social care—surely there have to be opportunities for a person to appeal against decisions of the local authority. In Committee, the noble Earl relied first on the current complaints system of local authorities and, secondly, he went on to point out that if a complainant was not satisfied with the response from the local authority, they were then able to refer the case to the Local Government Ombudsman.
However, a complaints system is not really what noble Lords are calling for. Anyone who has seen responses from local authorities to complaints will know that they tend to find in favour of themselves and rarely reopen a question of substance. Noble Lords want an opportunity for a person concerned to put their case and for that case to be considered by a group of people who may be said to be independent of the local authority. Like the noble and learned Lord, Lord Mackay, and my noble friend Lord Warner, I am keen on the tribunal approach which deals with social security cases; I have witnessed these cases. Although the noble Earl felt in Committee that these would be expensive, I believe that it is a cost-effective way of allowing people to put their case and for that matter to be decided. I am sure that in the long term it will be more expensive if there is no proper decision. I suspect that we will see lots of judicial reviews being initiated against local authorities. They do not and will not have a proper system for dealing with appeals.
The noble Earl said in Committee that the Government were consulting on processes for providing redress. Although he thought that the results of that review would be available before the Bill had concluded its passage through Parliament, I suspect that that will be too late for your Lordships’ consideration. I therefore hope that the noble Earl might be able to give us some comfort that he will in fact give further consideration to this. I hope that we might return to this point at Third Reading.
Earl Howe: My Lords, at the heart of these amendments is an important issue: the voice of older and disabled people. I hope that I can give some reassurance to the House.
Amendments 76, 123 and 124 would include in the Bill provisions for an appeal system that allows individuals to appeal against decisions of, first, the local authority relating to their needs for care and support and, secondly, the relevant NHS body relating to their eligibility for NHS continuing healthcare. Of course, those are quite separate matters.
On the amendments relating to local authority decisions on care and support, I will briefly run through the current, essentially complaints-based, arrangements. These arrangements were reformed via the 2009 regulations, which require local authorities to publish arrangements for the consideration and timely handling of complaints. Local authorities have flexibility in developing their own procedures, which may of course result in varying user experiences. If, having raised a complaint with a local authority, a person is not satisfied with the response, they can refer the complaint to the Local Government Ombudsman. The ombudsman is independent of the local authority. It can investigate whether the decision-making process has been conducted appropriately and make a recommendation to the local authority.
As has been said, the Bill will result in many more people being brought into contact with their local authority, so it is appropriate that we are reviewing the current arrangements regarding appeals via a public consultation. If that is consistent with what the noble Lord, Lord Hunt, regards as the Government having a second look, I believe that we are doing so. Through the consultation we have heard from user representatives a concern voiced this evening by the noble Lord, Lord Warner: that current arrangements are not sufficient to withstand the additional pressures of the Bill reforms.
While our initial view is that it is likely that some changes are needed, we really need to wait for the consultation to close before making any judgments. I will be in a position to update noble Lords about that in December. Although I acknowledge that this is a work in progress, the Government are on the case. I hope, with that assurance, that the noble Baronesses and the noble Lords will therefore be content to withdraw Amendment 76 and not to move Amendment 123.
In response to the noble Baroness, Lady Meacher, who asked whether we would consider a formal tribunal, our current assumption is that a tribunal process would be likely to slow down the process of resolving complaints and would add significant costs which would, in turn, produce a further burden on the system. There is a range of approaches to resolving complaints and providing redress. It is advantageous to have a flexible system that works well and efficiently at a local level, in a manner that is proportionate to the type of complaint.
The noble Baroness also asked whether we might consider an independent panel rather than a tribunal, although I was not sure whether those two were the same thing in her mind. The funding reform consultation that covers this issue will close late in October. Following this review, should we decide to make a change we expect we could do so through secondary legislation. Of course, we are not ruling anything out in the consultation. If it transpires that we wish to make changes that require primary legislation we would ensure that proposals were brought forward at the earliest opportunity. However, if changes were desired—for example, to introduce a requirement whereby a decision was reviewed by an independent panel—in this case we would do that by amending existing regulations.
The noble Baroness asked whether I could assert that decisions in this area will not vary across the country and that there will not be errors. Of course, there is scope for errors to take place and for variation. I can say that we would want the following principles to underpin the mechanisms for redress and resolving complaints: clarity, local accountability, fairness and timeliness. Lastly, there should be an independent element. I hope that that is helpful as a guide at this stage.
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I will now turn to Amendment 124, which relates to NHS continuing healthcare eligibility. This amendment seeks to make provisions in regulations that set out a system for the appeal or review of decisions made about NHS continuing care, independent of the NHS, on a question of fact or law. I can assure noble Lords that such a provision is not necessary. Decisions as to whether someone is eligible for NHS continuing healthcare are, of course, taken by the relevant NHS body. We have a well established process for the review of such decisions, which is well understood by the NHS and local authorities. It is set out in the 2012 regulations addressed to CCGs and the NHS Commissioning Board, and in the National Framework for NHS Continuing Healthcare. The regulations and the national framework prescribe a three-step process that involves independent scrutiny.
The first step is for an individual to request a review of an eligibility decision; this would be undertaken by the relevant body itself, usually the clinical commissioning group. In the second step, NHS England arranges for an independent review panel to review the process undertaken and the decision reached by the relevant body. The panel will have an independent chair and will include NHS and local authority representation—not, incidentally, the bodies responsible for the original decision. The relevant body should accept and action the recommendation of the panel in all but exceptional circumstances. The third and final step involves taking the case to the Parliamentary and Health Service Ombudsman for an independent review.
There is, therefore, sufficient independent scrutiny already within the current review process. However, I understand that the level of independence in this process is not always adequately communicated. We are therefore happy to explore how we might improve this, outside the legal framework. I hope that the noble Baroness, with those reassurances, will feel able to withdraw her amendment.
The noble Baroness said that in her view, individuals are left waiting too long for a decision on CHC eligibility and a panel decision. The national framework sets out that in most cases CCGs should make eligibility decisions within 28 days of receipt of a checklist or other notification of potential eligibility. However, in March last year, we issued good practice guidance to CCGs, which states that there should be a timeframe for the responsible NHS body to deal with a request for a local review, which should be within three months of receipt of a request, and a timeframe for the independent review to be conducted, which should be within three months of the request. I hope that that information is useful to the noble Baroness, and that it will guide her decision.
Lord Warner: Before the Minister sits down, I will ask on a point of clarification. He made a lot of reassuring noises about the ability at the end of the consultation process to deal with some of the outcomes of that process under secondary legislation. Can the Minister clarify whether that also included—if the Government have had a damascene conversion to a tribunal-type arrangement—that secondary legislation could introduce a tribunal-type of arrangement for adult social care?
Earl Howe: I may need to answer that question later. However, my understanding is that, yes, we can do it through secondary legislation. If I am wrong on that, I will correct myself before the end of today’s proceedings.
Lord Mackay of Clashfern: Again, before my noble friend finally sits down: he mentioned the principles that would seem applicable to local authority decision-making and appeals from that. I wonder whether one of the principles that should be given effect might be consistency across the country—in other words, fairness between people who live in X and people who live in Y. I suspect that there is a possibility that different local authorities will take different decisions in very similar cases, and consistency across the country would be an important element in the fairness of this new system.
Earl Howe: I take the point made by my noble and learned friend. We cannot iron out every kind of disparity, but we should aim for the kind of fairness that he talks about.
I have misled the House: we would not be able to establish a tribunal by secondary legislation—it would require primary legislation. However, as I said earlier, in the consultation that we are carrying out we do not rule out any solution. Clearly, if it transpires that we want to make changes for which primary legislation is needed, we would need to ensure that proposals were brought forward for consideration at the earliest opportunity. In general, we hope that the consultation will flush out any concerns in this area, not least in the area of fairness, as referred to by my noble and learned friend.
Lord Warner: Just to finish off this discussion, I have another point for the Minister to consider, which was made by the noble and learned Lord, Lord Mackay. The whole point about a tribunal system is that you build up case law, so you spread consistency across the country through the case law that individual tribunals have made. Without that structure of a tribunal system I suggest that it is very difficult to achieve the objective that the noble and learned Lord is seeking. Might the Minister ponder on that before we discuss this again?
Earl Howe: I shall certainly do so.
Baroness Greengross: My Lords, I thank all the noble Lords and noble Baronesses who have supported these amendments. I am encouraged that the issue is being taken so seriously by the noble Earl. In a way it is a shame that the timing of the consultation is as it is, and that we will not get it through until December. I have always been worried about certain aspects of
NHS complaints procedures, when the body that looks at those procedures is the NHS itself. I have felt for many years that that is unfortunate. I am very pleased that the Minister has agreed to look again seriously at all this. We need to protect these extremely vulnerable people from not getting the best level of service that they can because of a decision that could be to the detriment of their care, which could leave them feeling that their situation is hopeless and that there is nothing they can do.
I therefore thank the noble Earl. I am pleased that he is prepared to look at all this again and I hope that we can have some discussions on the outcome. This was a probing set of amendments—I did not intend to do anything other than probe—but I thank him and hope for better news about this or for more detailed decision-making in the near future. In the mean time, I beg leave to withdraw the amendment.
77: After Clause 41, insert the following new Clause—
“Power of access for confidential interviewAdult safeguarding access order
(1) An authorised officer may apply to a court for an order (an “adult safeguarding access order”) in relation to a person living in any premises within a local authority’s area.
(2) The purposes of an adult safeguarding access order are—
(a) to enable the authorised officer and any other person accompanying the officer to speak in private with a person suspected of being an adult at risk of abuse or neglect,
(b) to enable the authorised officer to assess the mental capacity of a person suspected of being an adult at risk of abuse,
(c) to enable the authorised officer to ascertain whether that person is making decisions freely, and
(d) to enable the authorised officer properly to assess whether the person is an adult at risk of abuse or neglect and to make a decision as required by section 41(2) on what, if any, action should be taken.
(3) When an adult safeguarding access order is in force the authorised officer, a constable and any other specified person accompanying the officer in accordance with the order, may enter the premises specified in the order for the purposes set out in subsection (2).
(4) The court may make an adult safeguarding access order if satisfied that—
(a) the authorised officer has reasonable cause to suspect that a person is an adult who is experiencing or at risk of abuse or neglect,
(b) it is necessary for the authorised officer to gain access to the person in order to make whatever enquiries thought necessary and to make a decision as required by section 41(2) on what, if any, action should be taken,
(c) exercising the power of access conferred by the order will not result in the person being at greater risk of abuse or neglect.
(5) An adult safeguarding access order must—
(a) specify the premises to which it relates,
(b) provide that the authorised officer may be accompanied by a constable,
(c) specify the period for which the order is to be in force.
(6) Other conditions may be attached to an adult safeguarding access order, for example—
(a) specifying restrictions on the time that the power of access conferred by the order may be exercised,
(b) providing for the authorised officer to be accompanied by another specified person,
(c) requiring notice of the order to be given to the occupier of the premises and to the person suspected of being an adult at risk of abuse.
(7) A constable accompanying the authorised officer may use reasonable force if necessary in order to fulfil the purposes of an adult safeguarding access order set out in subsection (2).
(8) On entering the premises in accordance with an adult safeguarding access order, the authorised officer must—
(a) state the object of the visit,
(b) produce evidence of the authorisation to enter the premises, and
(c) provide an explanation to the occupier of the premises of how to complain about how the power of access has been exercised.
(9) In this section “an authorised officer” means a person authorised by a local authority for the purposes of this section, but regulations may set restrictions on the persons or categories of persons who may be authorised.”
Baroness Greengross: My Lords, I am sorry to be popping up and down. This amendment and the others are about elder abuse. I have been involved in the issue of elder abuse for very many years—it is something that I am very familiar with. It is an issue which we have not, as yet, focused on nearly enough in this country. We have recently learnt, from data from the Health & Social Care Information Centre and Age UK, that there has been a “disturbing” rise in the number of reports of possible abuse of vulnerable elderly people in England. Unfortunately, the majority of this abuse is, as we know, by people who are close to the person—that is, family, carers and friends living in the same household, because the majority of abuse happens in people’s homes.
We have seen a 4% rise in the number of cases of alleged abuse referred for investigation in the past year. I urge the Government to do more to protect vulnerable adults. It is a serious issue and, in my view, the danger might unwittingly be increased as a result of some of the positive things that we are doing; for example, personal care planning, which gives people the opportunity to give money to relatives and to use the money for care which has not been planned in the way it used to be. There are many more doors for abuse opening than there used to be, so we have to prevent abuse even more effectively than we did in the past.
In response to the situation, the BBC has reported a Department of Health spokesman as saying:
“No-one should suffer abuse or neglect in a place they are meant to feel safe in, whether this is in their own home or in a care setting”.
Nobody is going to argue about that, but we must put this principle into practice and seek out abuse rather than passively wait for victims to appear. Sadly, some of those victims will never appear. We know why: people are not going to report their son or daughter who is hitting them, being violent or stealing their money because this might make them appear a bad mother or bring the family into disrepute. There are all sorts of reasons why very few people complain.
I am aware that new measures are being considered to make directors of care homes and hospitals personally and criminally accountable for failures in care if they allow neglect or abuse to take place. However, this will not really help people who are being abused in their own homes.
Figures from the Health & Social Care Information Centre have shown that the number of cases referred for investigation by councils in England rose from 108,000 in 2011-12 to 112,000 in 2012-13. While 45% of these cases took place in a care home, 38% of the alleged abuse took place in the older person’s own home. Physical abuse and neglect were the most common types of abuse reported. In 6% of cases the abuser was the older person’s partner; in 16% it was another family member; and in 37% it was a social care worker. Three-fifths of the referrals were for vulnerable adults—those described in the report as people who may be in need of community care services because they are elderly or suffer mental illness, disability or another ailment and are aged 65 or older.
I endorse the expressed views of Age UK and Action on Elder Abuse in that any abuse of older people is unacceptable. We need a zero-tolerance approach to any abuse, whether through neglect, financial manipulation or physical or mental cruelty. My greatest fear is that there are still many cases that are not reported. This amendment would assist the authorities in gaining access to such victims where their abusers may naturally be the very individuals preventing legitimate access.
In my first proposed new clause, I seek to support Action on Elder Abuse in its claim that there are situations where victims of abuse are imprisoned in their homes by a perpetrator who subsequently denies access to adult safeguarding staff. In such circumstances there are no current legal means by which access can be achieved. There is need, therefore, for a power of access for confidential interview, but to occur only where the reasonable suspicion of a social worker or another practitioner is tested by application to a court, which would consider whether to authorise such access. This is available in the Scottish Act and it is proposed in the Welsh Bill through application to a justice of the peace.
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In my second proposed new clause, I seek to rectify the fact that there is also currently no duty on agencies to notify a local authority if they believe that an adult is at risk of abuse. Local authorities cannot be expected to identify all abused people by themselves, or to rely on the goodwill of others to make referrals. There is a need to underline the responsibility of all agencies to report if they reasonably believe that an adult is at risk.
My third proposed new clause seeks to create a specific offence to protect adults with capacity who are the subject of neglect or abuse but who are not covered by the Mental Health Act or the Mental Capacity Act. In such circumstances, they can be covered by the inherent jurisdiction of the courts. That is the only way and is time-consuming, costly and not widely used in such circumstances.
Safeguarding adults review teams should also include a social worker with substantial experience of safeguarding work. We really want an experienced social worker, with the support of the local police when there is not a sufficiently senior social worker, to be able to access the person in their own home. Unless we achieve that, we are not going to protect these vulnerable people, who will not report the abuse for all sorts of reasons—it may be a family history of abuse; it may be revenge on a parent for what they did in the past; it may be all sorts of reasons. If people cannot get into their home, we are not going to deal with this problem.
I know that there is a huge reluctance to demand access—we had the same story with children many years ago—but we have to have it; we have to get access in these circumstances, with the support of the judiciary. I beg to move.
Lord Rix (CB): My Lords, I lend my support to Amendment 77, tabled by my noble friend Lady Greengross. I would also like to express astonishment that we seem to have reached the target for tonight before the dinner hour.
My interest, of course, is with people with a learning disability and what is increasingly referred to as mate crime. This is where someone has befriended a person with a learning disability and is exploiting or abusing them in some way. In some cases this person may be living with them and, for example, concerns may have been raised by neighbours that the person may be being abused. Currently, the local authority would be unable to speak to the adult with a learning disability to establish if they are all right as the other person, the third party, always answers the door and will not let them in. This power would change that. I understand that the power on the statute book in Scotland is being used sparingly, and I believe that it is used appropriately.
I now turn to Amendments 79A and 81A, which are tabled in my name, on strengthening the safeguarding clause. Currently only financial abuse is defined in the Bill. However, there are of course many other types of abuse, such as physical, psychological and sexual abuse, as well as neglect. The amendment seeks to rebalance the definition. I understand that there has to be a definition of financial abuse in the Bill as there is not a legal definition elsewhere. However, limiting the definition to financial abuse, suggests that there are no other forms of abuse or that professionals and agencies should focus on financial abuse alone.
Although I do not doubt that people with a learning disability suffer financial abuse, other forms of abuse are far more common. Indeed, statistics on the number of safeguarding referrals detailed in the Abuse of Vulnerable Adults in England report for 2012-13 show that physical abuse and neglect were the most common. We would not wish inadvertently to elevate financial abuse above and beyond other forms of abuse. Of course, I understand that there is a reluctance to list types of abuse in case the list appears to be exhaustive and never-ending. The amendment adds the option to specify other forms as detailed in guidance, which I hope will allay such fears.
Amendment 81A, the second amendment tabled in my name, places a duty on safeguarding adults boards to send a copy of their annual report to the Secretary of State. These reports are important in that they detail the findings from safeguarding adult reviews that have been carried out. In addition, a welcome government amendment has added that these reports must now show the actions that boards have taken to implement the findings.
At the moment Schedule 2 says that a copy of the annual report must be sent to the CEO and leader of the local authority, the local policing body, the local Healthwatch and the chair of the health and well-being board. It is important that lessons are learnt nationally and sending these annual reports to the Secretary of State will allow us to understand the national picture and issue guidance as appropriate. People with a learning disability are some of the most vulnerable people in our country and not to monitor and respond to abuse at a national level is quite unacceptable.
Baroness Meacher: My Lords, I support Amendments 77, 80 and 82, to which I have added my name. I will also comment on Amendment 79.
I strongly support the need for adult safeguarding access orders and applaud the noble Baroness, Lady Greengross, for tabling the relevant amendments. As we discussed last week, as local authority resources shrink further—the Minister referred to a 5% reduction so far—the reality is that care will be left more and more in the hands of relatives, many of whom may themselves be elderly and frail; or indeed they may be younger, with childcare responsibilities and have great difficulty in providing support in all directions. Inevitably, many family carers will find it extremely hard to cope, and there will undoubtedly be situations when elderly or disabled people are neglected or in some way abused. I fear that the only way in which family carers will get the help they need will be if adult safeguarding access orders are available, so that following an alert the local authority can become involved, assess the situation and, where appropriate, prioritise further support.
As public services shrink, the neglect of elderly and disabled people—even gross negligence in some cases—will become a growing problem that could very easily become a national scandal. Having said all that, I part company with my noble friend Lady Greengross when it comes to Amendment 79. We have the criminal law. It may not cover absolutely everything but I would not want to see any increase in the likelihood that an overburdened family carer could face criminal charges if they reach the point where they cannot continue to care appropriately for a relative. For me, the purpose of adult safeguarding access orders is to ensure that problems are identified—they certainly need to be—and support is made available in order to enable a carer to cope in the style they would wish to provide.
Baroness Hollins: My Lords, I support the amendment in the name of my noble friend Lady Greengross on the duty to report adults at risk, which replicates a duty within the Welsh Bill. I spoke to a similar amendment in Committee.
Providers, together with other partners, will often be best placed to identify abuse and neglect, and it makes sense for them to report to the local authority. At Winterbourne View there were 40 safeguarding alerts, 29 incidents where the police were involved and 78 attendances at A&E but agencies did not take any action. They believed it was someone else’s duty to report and take action. Putting this duty in the Bill would emphasise its importance and would be a vital step in ensuring that the local authority is notified so that it can then take the appropriate action. Leaving this to guidance and local protocols is not a satisfactory solution.
I also support my noble friend Lord Rix’s Amendments 79A and 81A on safeguarding. My noble friend has highlighted how abuse comes in many different forms. The breakdown of the nature of referrals is set out clearly in the Abuse of Vulnerable Adults in England 2012-13 report. The most common was physical abuse at 38,500. There were 24,500 referrals for financial abuse, the third highest. It seems an eminently sensible amendment to add some balance to this clause.
My noble friend’s amendment on safeguarding adults boards sending copies of their annual report to the Secretary of State also seems eminently sensible. Looking at safeguarding annual reports across the country would allow the Secretary of State to see the national picture as well as to monitor what works and what does not. Guidance can be issued where worrying trends are observed and good practice shared. This is about leadership at a national and strategic level, which could help to tackle the abuse and neglect of the most vulnerable members of our society. I do not think it is about extra bureaucracy.
Lord Warner: My Lords, I rise briefly to support Amendment 77 and to ask the noble Earl whether his department has actually looked at the legislation that protects children to see whether this is in line with that legislation.
My child protection legislation knowledge and expertise are a bit rusty but the basic rule of child protection is that you see the child in their home environment. That is rule number one. If you look at many of the cases that have hit the headlines after going wrong, it is due to a failure to secure entry early on in the proceedings to see the child in their home environment. The noble Baroness, Lady Greengross, has highlighted a very important issue. I am still struggling to understand why the Scots and the Welsh think it is important to retain this kind of approach but we in England do not. There does not seem to be a consistency of purpose across the borders.
Lastly, with regard to neglect, if you look at the data on child protection, I think the fastest growing area in which courts are authorising care orders and approving care proceedings for children is neglect. We should not shy away from the fact that when times are hard this may be a growth area. I am very pleased that the noble Baroness, Lady Greengross, has included abuse and neglect in her amendment.
Baroness Barker (LD): My Lords, I support the noble Baroness, Lady Greengross, particularly on Amendment 77 about powers of access and entry. She
and I were both there at the birth of Action on Elder Abuse, which grew for a reason: people had identified and begun to codify the many different forms of elder abuse.
I absolutely sympathise with what the noble Lord, Lord Rix, is trying to do. Indeed, I had the same thought myself but I will defend the Bill by saying that other forms of abuse—physical, sexual, whatever—are set out in different pieces of legislation. What this Bill does is define financial abuse for the first time. That is really important because we know that very many older people are financially abused by relatives and until now the financial services industry has been pretty hopeless about dealing with it. That is why that is there.
A power of access is important precisely for the reasons identified by the noble Lord, Lord Warner. What we are talking about here is the right of a social worker with a police escort, having got permission via a legal document, to go into somebody’s house, where there is a suspicion that criminal activity may be taking place. That is the magnitude of what we are talking about.
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That leads to my second point, which is that it is right for us to anticipate that, just as in Scotland where these powers have been put into law, they will be used very sparingly. There will not be many cases. However, these types of cases are awful, with people suffering truly horrendous abuse. Therefore, it is important that we act.
In the lead-up to this debate, at an earlier stage of the Bill, noble Lords argued against the proposals of the noble Baroness, Lady Greengross, for two reasons. One was that we have legislation already in place that is sufficient, and that it is simply a matter of practitioners not knowing about it. That is not a defence of existing legislation. If it is ineffective and does not work, it should be redrawn and redefined.
The Minister said—I think in Committee—that the police know what they are supposed to do. They may well do, but members of the general public do not know what to do if they suspect that an older person is being abused. They probably do know what to do if they think that a child is being abused, but not if an older person is being abused. Therefore, that would be another benefit of having clear law on statute.
In Committee, the noble Lord, Lord Patel of Bradford, said that people from mental health organisations were very much against the proposal to grant powers of entry because they believed that it would weaken the necessary trust between mental health service users and the staff with whom they work. We discussed this when community treatment orders were coming into being under the Mental Health Act. I understand those fears, but with older people we are talking about something different; we are talking about a third party, usually a relative or close friend, deliberately keeping other people out of somebody’s home in order to go on perpetrating abuse. That is a completely different situation from a mental health professional dealing with a client. Therefore, I support the amendments.
I say to the noble Baroness, Lady Meacher, who opposes Amendment 79, that the first time anybody talked to me about elder abuse—I was sitting in a hall with a bunch of colleagues—they impressed on us above all that there is carers’ stress and there is elder abuse, and that they are two completely different things. We are not talking about penalising carers who are stressed; we are talking about taking proper action against people who are perpetrating criminal abuse on vulnerable people. That is a wholly different thing. That is why the noble Baroness, Lady Greengross, is right.
Baroness Wheeler: My Lords, in addressing these amendments I once again emphasise that we very much welcome the placing of safeguarding on a statutory footing in the Bill, and the establishing of statutory safeguarding adults boards. This builds on the legislation, regulations and advice on principles and frameworks for safeguarding for both adults and children that we established up to 2009, which are now being taken forward in the Bill.
The noble Baroness, Lady Greengross, and other noble Lords, again made a comprehensive case for granting the power of access by a third party to private premises if they suspect that a vulnerable adult is being abused. The noble Lord, Lord Rix, spoke of “mate” relationships among people with learning difficulties. It was a powerful example of what we need to address.
We know that there is both strong support and strong opposition among local authorities, NHS trusts, the health and social care professions, and patients and user organisations on this sensitive and complex issue. However, we have to remember that the Government's consultation had a relatively low response, particularly in terms of local council and NHS trust participation. On top of that, many of the consultation responses appeared not to have fully understood the limited nature of the change that was being proposed: namely, that the new power would apply only to situations where it is the third party who is denying access, not the individual.
The noble Baroness’s amendment sets out tough limitations and restrictions that would apply to such a power. Local authorities would have to apply to the courts and demonstrate reasonable cause for suspecting that someone was in danger of abuse. The power of access would be to enable the local authority to access the person and speak to them alone to assess the situation. It is clear that it is intended as a last-resort power to address third-party denial of access to a vulnerable adult, for use after all other efforts and mechanisms have failed.
Getting the balance right between proactively intervening in the lives of individuals in this way and limiting the extent to which this interferes with their rights to freedom and family life is the challenge that we face. Certainly there is widespread acceptance that the existing powers to intervene under government legislation are not being fully utilised and are not addressing the issues, and that the training of specialist staff needs urgently to address this. Will the Minister explain to the House how the Government intend to deal with this?
As we said in Committee, on balance we support the case for inclusion in the Bill of the power of access by a social worker or the police where there is a danger of third-party abuse. Our work on safeguarding when we were in government, especially in relation to children, makes us sympathetic to the approach in the amendment of the noble Baroness, Lady Greengross. We recognise that safety should be paramount in this instance. However, we recognise the strong concerns of Mind on this issue, and of the Royal College of General Practitioners, which would prefer to use other powers, such as working with the sector to co-produce best-practice guidelines. Will the Minister explain how the Government propose that denial of access by a third party to a potentially vulnerable adult will be addressed if the issue is not dealt with in the Bill?
I support the intention of Amendment 79A, tabled by the noble Lord, Lord Rix, to include in the Bill a definition of abuse that reflects other types of abuse besides the financial abuse currently included in the Bill. The noble Lord has the very real concern that this would encourage hard-pressed local authorities to narrow their focus to financial abuse alone. The Confidential Inquiry into Premature Deaths of People with Learning Disabilities published its findings in March 2013. It looked at the deaths of 233 adults and 14 children with a learning disability in the south-west and found that 20% of the people concerned had experienced safeguarding concerns. While some of these may have been due to financial abuse, it is more likely that they concerned other forms of abuse: in particular, neglect. The study showed that 37% of deaths would have been potentially avoidable if good-quality healthcare had been provided. Neglect is undoubtedly one of the reasons, and thus the definition in the Bill should be broadened. I ask the Minister to look again at this and come back with a more balanced clause reflecting other types of neglect and abuse. It is important, for example, that hospital safeguarding leads should be clear that the definition is broad, and should take appropriate action.
The noble Lord’s Amendment 81A would also be a welcome alteration to the Bill. It is a small but important matter, because sending SAB annual reports to the Secretary of State will ensure that safeguarding is given the high level of oversight needed, particularly over areas that might be failing.
We also support the amendments to Schedule 2 contained in Amendment 81 from the Government, and Amendments 80 and 82 from the noble Baroness, Lady Greengross. The SABs would benefit from professional social worker representation, as would safeguarding adult review teams from having a qualified social worker supervising the review.
The two final amendments of the noble Baroness, Lady Greengross—Amendments 78 and 79—raise the important issue of establishing a new duty of care on a local authority or its relevant partner to report to the authority if they suspect that there is a failure of care, and to set out the terms of conviction for any person guilty of neglecting or ill treating an adult at risk of abuse. We share some of the concerns of the LGA, for example, on these amendments: namely, that there would need to be clarification of exactly what the care
quality, professional practice and safeguarding concerns would be under the new duty, and how the duty would relate to other partners involved in service delivery. We also share concerns that while the criminal conviction provision may present the way forward in cases of neglect, it might unintentionally create a lower order of offence and tariff for older and disabled victims of crime.
Finally, I underline the vital need, when so much care now is contracted out and provided by the independent, private and voluntary sectors, to ensure that safeguarding is built into procurement and contract management in health and social care. Will the Minister tell the House how the Government intend to ensure that this will happen?
Earl Howe: My Lords, for the first time the Government will, through this Bill, place adult safeguarding in primary legislation. Local authorities, the NHS and police will have statutory duties to work together to help prevent and respond to abuse and neglect. This sends a clear message that safeguarding is not the sole responsibility of one agency but requires the very best of partnership working and information sharing. Amendment 77, which would introduce a power of access to a person for a confidential interview, runs counter to that message. Having said that, I am well aware of the strength of feeling in relation to this matter, both inside your Lordships’ House and elsewhere. Whether there ought to be a power of access or entry is a sensitive question. That is precisely why the Government launched a three-month consultation in 2012 to gauge the opinions of professionals and the public. The consultation revealed no clear consensus. Of 212 respondents, 50% backed a new power, with 40% opposed. However, among individuals, 77% disapproved. The majority of respondents in favour of a new power of access were health and care professionals, yet it was very noticeable that their responses revealed the painstaking weighing of potential benefits against unforeseen consequences.
The mental health charity Mind said:
“A power of entry risks being seen as a quick solution, in place of greater focus on community engagement, co-operation and a preventative approach that can be truly empowering to the people involved”.
This was a theme found in many responses. I stumble over the consequences of what the noble Baroness seeks to do. Here I respectfully but fundamentally disagree with my noble friend Lady Barker who said that there was no real comparison with the situation in mental health. A power such as this might well ensure access but the central issue will remain—how will the professionals then work with the situation to achieve the best outcomes? Trust will have been compromised and, short of a power of removal, which we certainly would not want to see, the options for action seem pretty limited.
Our consultation revealed no compelling evidence for further legislation. Even those respondents in favour pointed to how rarely a new power might be applied and identified potential unforeseen consequences. Proposed new Subsection 4(c) of the amendment states that an access order should be granted only if doing so,
“will not result in the person being at greater risk of abuse or neglect”.
I have to ask how a court could ever reliably make such a judgment in these circumstances.
The other key point which I would like to believe may sway the House is the following. There exists no legislative vacuum preventing care or other professionals accessing those in urgent need of assistance. Under the Police and Criminal Evidence Act 1984, the police have the power to enter premises if harm has occurred or, indeed, is likely to occur. The Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 and, for those lacking capacity to make decisions, the Mental Capacity Act 2005, provide a wealth of powers for use at the front line, and the inherent jurisdiction of the courts to intervene provides a secure safety net. Therefore, it is not the lack of legislation; rather, as safeguarding lead directors at ADASS have put it, it is a question of a “lack of legal literacy” within the social care and other professions. What is needed is greater knowledge of existing legislative options. If they have that, professionals will be fully equipped to support people to be safe. The core role of an adult social worker is to support people. Further legislation for a new power of access risks undermining this approach, sending the message that legal intervention takes primacy over negotiations and consensus. I stress that legal intervention, on those rare occasions when it is needed, is already possible under the law. For those reasons, I cannot accept this amendment.
7.45 pm
I understand the concerns behind Amendment 78, tabled by the noble Baroness, Lady Greengross. It is, of course, imperative that anyone, but particularly local authorities and their relevant partners such as those in the NHS, who suspects someone is at risk of abuse or neglect knows what action to take. Our best chance of ensuring that relevant partners take action when they suspect abuse or neglect has occurred will be through the adult safeguarding boards which comprise the local authority and relevant representatives of the NHS, police and anyone else the board considers appropriate. The duties in Schedule 2 provide a clear foundation for boards to produce and refine their own protocols for dealing with suspected abuse or neglect.
Existing regulations and guidance are clear that partners and staff are required to report abuse and we will be issuing new guidance on safeguarding under the powers in the Care Bill. Professional codes of practice, regulators’ requirements and employers’ policies should provide clarity in this respect. Furthermore, the changes we propose to its registration requirements would make it easier for the CQC to take action against registered providers in cases of abuse.
A fundamental truth at the heart of all this is that no amount of legislation will prevent abuse of adults vulnerable to abuse. Rather, it is through developing effective partnerships and ensuring the active engagement of the community that we can best protect individuals.
On Amendment 79, I agree with the noble Baroness, Lady Greengross, that people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution where an offence has been
committed. However, civil law already provides redress for cases of neglect, and criminal law prohibits assault, which would include much of what is sought by this amendment. Further specific offences exist under health and safety legislation which would enable employees in care establishments and agencies to be prosecuted for failing to take reasonable care over the health and safety of others, while CQC registration requirements would enable providers of regulated activities to be prosecuted for neglect or acts of omission which cause harm or place service users at risk of harm. Where an adult lacks capacity, there is an existing offence of ill treatment or neglect by a person who has care of the adult, or is authorised to act for the adult under the provisions of the Mental Capacity Act. A specific offence is justified here because of the evidence that such people are highly vulnerable to abuse or neglect.
I turn to Amendment 79A, tabled by the noble Lord, Lord Rix, which seeks to make a statutory definition of “abuse”. Our decision not to do this reflects a desire not to restrict the scope of local authorities’ inquiry duty. It seems to us inevitable that creating any list of types of abuse risks excluding something which a local authority or its partners may wish to inquire into. I think that is a real danger. We have made an exception regarding financial abuse to be absolutely clear on our intention for financial abuse to be included within the scope of the duty when it may not necessarily be considered as falling within the natural meaning of “abuse”. It is worth reminding ourselves that the Joint Committee which carried out pre-legislative scrutiny on the draft Bill agreed that “abuse” is an ordinary English word, capable of being understood without being defined.
Amendments 80 and 82 emphasise the need for involvement of social work-qualified staff—
Lord Rix: I fully understand the argument that the Government do not want a great list of what constitutes abuse. However, the Minister said earlier that it would be possible to give local authorities a batting order, as it were, of what is in legislation. I realise that abuse is covered in legislation, but would it be possible at least to make sure that local authorities do not suddenly think that only financial abuse is to be considered when they look at this Bill? That is all I am asking for.
Earl Howe: I will gladly look into that point. I am sure that it is possible to do that but, as the noble Baroness, Lady Barker, said, many provisions on the statute book are designed to protect individuals from abuse in one form or another and make criminal offences of those actions. Nothing has changed as regards those criminal provisions. If they need to be underlined, however, and if there is scope for misunderstanding what the Government are doing here, then I take the noble Lord’s point, and will gladly reflect and come back to him on that.
Amendments 80 and 82 emphasise the need for involvement of social work-qualified staff in boards and reviews. In Schedule 2 we make it clear that chairs and members of boards must have the “required skills and experience”. It would be impracticable to put into primary legislation every possible type of expertise
and professional knowledge that might be needed. We must allow boards the flexibility to appoint members as they see fit. We will, however, ensure that the importance of social work is recognised in guidance, which will also cover the importance of ensuring appropriately qualified oversight of safeguarding adults reviews.
Government Amendment 81 responds to an amendment tabled in Committee by the noble Lord, Lord Rix, and the noble Baroness, Lady Hollins. On reflection, I see merit in placing a duty on safeguarding adults boards to publish an annual report. This amendment will increase the transparency and accountability of boards.
Finally, Amendment 81A, tabled by the noble Lord, Lord Rix, requires that safeguarding adults boards provide their annual reports to the Secretary of State. With a duty on boards to publish their annual report, we can be assured that they will be publicly available. We would expect the local Healthwatch and health and well-being boards to monitor the safeguarding adults board’s progress and report to the Secretary of State if there are particular matters of concern. To require the board formally to submit a report to the Secretary of State would, if nothing else, undermine the primacy of local accountability, which is at the heart of our approach to safeguarding. I hope that, on reflection, the noble Lord will agree with me.
I hope that I have convinced your Lordships that we have done all that we properly can to provide the right legislative framework for safeguarding and, in consequence, that noble Lords will feel able not to move their amendments.
Baroness Greengross: My Lords, I have to say that I am extremely disappointed that the noble Earl cannot in some way meet the requirements that I put forward in my amendments. Unfortunately, the number of older people who suffer abuse is growing all the time. The sort of personal plans for care that we now want to introduce for everyone just make such abuse a greater risk than it was before. We know that an awful lot of older people are shoved in a room, the door is closed, they get their meal and no one does anything else. Over a long period, those people’s conditions can get worse and worse. When and if they are eventually discovered, it is too late to do anything to help them.
The sort of care that we want to provide for people might be damaged by a refusal to look at this issue in greater detail. I am really disappointed. I understand the noble Earl’s views but disagree with them. I thank all noble Lords who supported what I have said and I assure my noble friend Lady Meacher that I was not intending to persecute carers. My intention related to people who, I am afraid, inflict real harm and hurt on some of the most vulnerable people in our society. I have worked on this issue for years; that is why we set up Action on Elder Abuse, the only specialist agency to look at this. Its view is strong and has not changed. We must have some sort of protection for these very vulnerable people. I hope that one day we can get this matter looked at again and I hope that the Minister will consider it in the future. In the mean time, I withdraw my amendment.
Earl Howe: Before the noble Baroness makes a final decision, I hope that I have been clear that I have reflected on her amendment. I cannot give her false hope that I will reflect further between now and Third Reading; so if she wishes to test the opinion of the House, she should do so now.
Baroness Greengross: I am hesitating only because of time and I know that a lot of people have gone home. I thank the noble Earl for his advice and, on that basis, I seek to test the opinion of the House.
7.55 pm
Contents 72; Not-Contents 143.
CONTENTS
Andrews, B.
Barker, B.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Blackstone, B.
Blood, B.
Boateng, L.
Browne of Ladyton, L.
Butler-Sloss, B.
Campbell of Surbiton, B.
Carter of Coles, L.
Davies of Stamford, L.
Dubs, L.
Elystan-Morgan, L.
Emerton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gibson of Market Rasen, B.
Gordon of Strathblane, L.
Greengross, B.
Grey-Thompson, B.
Harris of Haringey, L.
Hattersley, L.
Hollins, B.
Howarth of Breckland, B.
Howe of Idlicote, B.
Hoyle, L.
Hughes of Stretford, B.
Hunt of Kings Heath, L.
Jones of Whitchurch, B.
Jones, L.
Jordan, L.
Kennedy of Southwark, L.
Kirkwood of Kirkhope, L.
Layard, L.
Lea of Crondall, L.
Liddle, L.
Listowel, E.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
McFall of Alcluith, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Morgan of Ely, B.
Morris of Yardley, B.
O'Loan, B.
Pitkeathley, B.
Prosser, B.
Richard, L.
Rix, L.
Royall of Blaisdon, B.
Sherlock, B.
Simon, V.
Smith of Basildon, B. [Teller]
Taylor of Bolton, B.
Touhig, L.
Walpole, L.
Warner, L.
Wheeler, B.
Wigley, L.
Wilkins, B.
Willis of Knaresborough, L.
Young of Hornsey, B.
Young of Norwood Green, L.
Young of Old Scone, B.
NOT CONTENTS
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Attlee, E.
Bates, L.
Black of Brentwood, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Borwick, L.
Bottomley of Nettlestone, B.
Bourne of Aberystwyth, L.
Brabazon of Tara, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Caithness, E.
Cavendish of Furness, L.
Cumberlege, B.
De Mauley, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Eaton, B.
Eccles of Moulton, B.
Eccles, V.
Edmiston, L.
Empey, L.
Fearn, L.
Feldman of Elstree, L.
Fink, L.
Fookes, B.
Fowler, L.
Framlingham, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glenarthur, L.
Greenway, L.
Grender, B.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Henley, L.
Higgins, L.
Hill of Oareford, L.
Home, E.
Hooper, B.
Horam, L.
Howe of Aberavon, L.
Howe, E.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
King of Bridgwater, L.
Kirkham, L.
Knight of Collingtree, B.
Kramer, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lexden, L.
Loomba, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
McNally, L.
Maddock, B.
Manzoor, B.
Marks of Henley-on-Thames, L.
Marlesford, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Nash, L.
Neville-Jones, B.
Newby, L. [Teller]
Newlove, B.
Nicholson of Winterbourne, B.
Northover, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Popat, L.
Randerson, B.
Rennard, L.
Ridley, V.
Roberts of Llandudno, L.
Roper, L.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Sharkey, L.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shrewsbury, E.
Shutt of Greetland, L.
Skelmersdale, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stewartby, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strathclyde, L.
Taylor of Holbeach, L.
Tebbit, L.
Thomas of Gresford, L.
Trefgarne, L.
Trenchard, V.
True, L.
Tugendhat, L.
Tyler, L.
Verma, B.
Waddington, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Wasserman, L.
Wilcox, B.
Younger of Leckie, V.
8.06 pm
Amendments 78 and 79 not moved.
Clause 42: Enquiry by local authority
Schedule 2: Safeguarding Adults Boards
81: Schedule 2, page 105, line 34, at end insert—
“( ) what it has done during that year to implement the findings of reviews arranged by it under that section, and
( ) where it decides during that year not to implement a finding of a review arranged by it under that section, the reasons for its decision.”
Clause 44: Safeguarding adults reviews
Consideration on Report adjourned.
European Union (Approvals) Bill [HL]
European Union (Approvals) Bill [HL]
Committee and Report
8.08 pm
Bill reported without amendment.