House of Lords
Wednesday, 16 October 2013.
3 pm
Prayers—read by the Lord Bishop of Leicester.
Introduction: Lord Whitby
3.08 pm
Michael John Whitby, Esquire, having been created Baron Whitby, of Harborne in the City of Birmingham, was introduced and took the oath, supported by Lord Baker of Dorking and Lord Edmiston, and signed an undertaking to abide by the Code of Conduct.
Alcohol: Late Night Drinking
Question
3.13 pm
To ask Her Majesty’s Government what further steps they will take to curb the late night purchasing and consumption of alcohol.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, the Government have given local people greater powers to tackle problem drinking late at night. I am pleased to say that Newcastle is scheduled to be the first area to introduce a late night levy on 1 November. This will make premises selling alcohol late at night contribute to the cost of policing. A number of other areas are also considering banning the sale of alcohol in the early hours of the morning.
Lord Avebury (LD): My Lords, does my noble friend not agree that since only two late night levies—and no early morning restriction orders—have been imposed since they were enacted two years ago, these measures should be more closely targeted on areas and premises that cause the problems, particularly areas of cumulative impact? Secondly, will my noble friend explain how the Government’s current licensing proposals are going to reduce or curb the number of licences issued, particularly in areas of cumulative impact, bearing in mind that the number of licences issued has been increasing every year since 2003?
Lord Taylor of Holbeach: My Lords, the cumulative effect of the measures we have introduced enables licensing authorities to target problem premises and areas; for example, we have reduced the evidential threshold, given licensing authorities the power to make representations in their own right, and clarified cumulative impact policies that can apply now to the on and off trade alike.
Lord Mackenzie of Framwellgate (Non-Afl): My Lords, a police superintendent has the right to close premises where excessive disorder is being caused. Can the Minister tell the House how often this power has been exercised?
Lord Taylor of Holbeach: I cannot give the noble Lord a quantitative answer. One of the measures under the anti-social behaviour Bill, which will arrive in this House shortly, will give the power—on the authority of a police inspector—to order the immediate closure of premises.
Baroness Meacher (CB): My Lords, the Minister will be aware of the number of alcohol-related accidents that impact on A&E departments every week. Is he aware of the considerable evidence that alcohol is a far more dangerous substance than herbal cannabis which is, of course, an illegal substance in this country today? Does he believe that this is a logical policy?
Lord Taylor of Holbeach: I would not want to venture into a discussion with the noble Baroness, Lady Meacher, on the question of drugs. I believe that we have a debate on this tomorrow. Alcohol is clearly harmful if taken to excess and is responsible for considerable economic damage to the country as well as for health service costs.
Baroness Smith of Basildon (Lab): My Lords, it is worth noting that alcohol consumption dropped by 13% between 2004 and 2010, though it seems to have increased since that time. I cannot imagine why. However, we recognise that problems remain, and more needs to be done to tackle anti-social behaviour connected with the excess drinking of alcohol. I am rather concerned at what the Minister said in response to my noble friend Lord Mackenzie, who has been president of the Police Superintendents Association, about the late-night levy and the actions that police superintendents can take. This has not been a success. Problems still continue. Only one late-night levy is about to be introduced and others have not been. Can the Minister assure me that, when the anti-social behaviour Bill is debated in your Lordships’ House, the Government will seriously consider our amendments, rather than reject them, as they did in the Commons?
Lord Taylor of Holbeach: I cannot promise to accept opposition amendments to the Bill, but I am sure that noble Lords will consider all amendments that are tabled. However, I can assure the noble Baroness that this is an important piece of legislation, and I hope she recognises that the measures being introduced by the Government are designed to tackle the anti-social elements that drinking can cause.
Baroness Finlay of Llandaff (CB): My Lords, do the Government recognise that the current below-cost sales of alcohol are responsible for at least 900 major crimes per year? Do they also recognise that the introduction of minimum pricing, on top of banning low-cost sales, would probably cut out 32,000 crimes per year? When are the Government going to revise their policy on minimum pricing and below-cost sales?
Lord Taylor of Holbeach: The noble Baroness will know that the Government have made an announcement on this. Although minimum pricing is always there to be considered, the policy that we are going to introduce is that no drink can be sold at less than the cost of duty plus VAT. I can give some examples. It will mean that a 4% can of lager will have a floor price of 40 pence and a 70 centilitre bottle of vodka will not be able to be sold at below £8.89.
Lord Forsyth of Drumlean (Con): My Lords, does my noble friend not agree that, while dealing with irresponsible drinking, we should not penalise responsible drinkers and those who run responsible premises with policies like minimum alcohol pricing or, indeed, the levy? It means that people who are out celebrating—perhaps the return of good government—end up paying more than they would otherwise because of those who behave badly.
Lord Taylor of Holbeach: My noble friend is perfectly correct to say that the thrust of the Government’s policy is to tackle the irresponsible consumption of alcohol and, indeed, our measures are designed to do that. They will create situations in which people feel that, in licensing matters, they too can be involved in the decision-making process.
Lord Hughes of Woodside (Lab): My Lords, since the noble Lord does not have available the information requested by my noble friend Lord Mackenzie of Framwellgate, will he find it out and place a copy in the Library?
Lord Taylor of Holbeach: I will certainly do my best to find the information, but it may not be easy to do so because it is a police matter rather than a Home Office matter. However, I will do all I can to find out if the information is available; I will inform the noble Lord, and I will place a copy in the Library.
Baroness Browning (Con): My Lords, does my noble friend accept that the excessive consumption of alcohol in the late night economy is often carried out by people who actually hold down quite responsible jobs in the daytime? I think that many people would be shocked at that. Will he continue to consider sobriety schemes? They would be a big disincentive to those people, who will have to explain to their employers why they have been required not to attend work because of their excessive alcohol consumption.
Lord Taylor of Holbeach: It certainly has been the case that one of the by-products of excessive alcohol consumption is the cost to the British economy of absenteeism and the like. My noble friend makes a very good point.
EU: Northern Cyprus
Question
3.21 pm
To ask Her Majesty’s Government what assessment they have made of the exclusion of those living in northern Cyprus from the benefits of that island’s membership of the European Union.
The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi) (Con): My Lords, we endorse the European Council conclusions of 2004 by which the Council undertook to end the isolation of the Turkish Cypriot community, including through much needed assistance programmes. The best way for all Cypriots to enjoy the benefits of EU membership would be through a comprehensive settlement of the Cyprus problem. We continue to support the leaders of both communities in their efforts to achieve this, and we hope that the UN-led negotiations will restart and succeed in the near future.
Lord Sharkey (LD): My noble friend will know that meat and dairy products are the economic mainstay of northern Cyprus, but they are banned from the EU simply because there is no recognised body in northern Cyprus to certify them as safe, although they are safe. Will the Government look at arranging some form of bilateral certification arrangement that would allow such products to be sold in the United Kingdom?
Baroness Warsi: I cannot comment on my noble friend’s specific request, although if there is any ongoing work in the area of food, I will certainly write to him. As he will be aware, many of the rights and obligations that came with membership of the EU do not apply to the north of the island, but the EU has been working with representatives from the north to make sure that programmes are put in place for eventual reunification and membership of the EU.
Lord Hannay of Chiswick (CB): My Lords, can the noble Baroness tell us how many Turkish Cypriot citizens are members of the European institutions—the Commission, the Parliament, and so on? If, as I suspect, the answer is zero, does she not agree that it is odd that people who are regarded as citizens of the European Union cannot be recruited to its institutions?
Baroness Warsi: The noble Lord is aware of the ongoing challenges in the area. I presume that he is correct, but if he is not, I am sure that I will write to him with details of how many citizens from the north of the country are members of European Union institutions.
I come back to the basic point in this matter. The way to resolve these issues in the long run is by achieving a settlement. There is some hope for that. As noble Lords will recall, the current president, Nicos Anastasiades, was one of the few politicians who was supportive of the Annan plan during the 2004 referendum. There is therefore some hope that negotiations will resume and will proceed in a positive way.
Baroness Hussein-Ece (LD): My Lords, perhaps I may press my noble friend a little further on this. If, as she says, the United Kingdom as a guarantor power has a legal responsibility to recognise and support the Turkish Cypriot community, why does it appear that the EU border seems to end at the Green Line, so that 300,000 Turkish Cypriots are denied any fundamental rights under the European Union?
Baroness Warsi: My noble friend is a real expert on these issues so I shall not seek to question her assertions, but she will be aware that the European Commission directly implements aid programmes in the north of the country. These social, economic and development programmes are specifically for the Turkish Cypriot community. She will also be aware that if Turkish Cypriots take Republic of Cyprus passports, they can access some of the wider benefits that come with EU membership.
Lord Davies of Coity (Lab): My Lords, does the Minister think there is a measure of inconsistency in, on the one hand, encouraging the Cypriots to reunite while at the same time asking the Scots people perhaps to break up the United Kingdom?
Baroness Warsi: I do not think that this Government are encouraging the Scots not to stay part of the United Kingdom. The noble Lord will be aware that we on this side of the House, and indeed noble Lords on all sides, firmly believe that we are better together.
Identity Cards
Question
3.25 pm
Asked by Baroness Miller of Hendon
To ask Her Majesty’s Government what plans they have to introduce self-financing photo identity card cards on a purely voluntary basis to establish citizenship status.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, the Government have no plans to reintroduce identity cards. Identity cards were abolished in 2010 as part of the Government’s commitment to restore personal freedoms and curtail unnecessary intrusion by the state.
Baroness Miller of Hendon (Con): I thank the Minister for his reply. I declare an interest in family investment companies which own a few residential properties. Bearing in mind that the forthcoming Immigration Bill will impose major responsibilities on private landlords, the NHS, GPs, banks and even the DVLA to undertake the virtually impossible task of verifying the immigration status of individuals, is it not clear that the existence of some self-funding, authoritative and official identity card, paid for by those who volunteer to acquire it, will be of considerable benefit?
Lord Taylor of Holbeach: I am grateful to my noble friend for her helpful suggestion, but the Government do not believe that a voluntary identity card would help in the Immigration Bill measures. These will be implemented via a range of administrative processes, including through existing documents such as the biometric residence permit and with support from Home Office services.
Lord West of Spithead (Lab): My Lords, does the Minister not agree that, as we move forward using ever more online facilities within government, there will be a need for chip and PIN-type cards for people in this country to ensure their security with all the threats that there are from cyberattacks? People have passports and driving licences. The expression “identity card” is rather pejorative, but we will all end up having to have something because we will otherwise be very vulnerable.
Lord Taylor of Holbeach: The noble Lord is very well briefed as a result of his previous involvement in the Home Office on this subject. He will know that the Home Office takes great interest in this area. The whole question of identity and how we can establish it lies at the core of an awful lot of policies. I accept what the noble Lord says; the work is actively under review. However, we do not believe that an identity card has a part to play in that.
Lord Deben (Con): I wonder whether my noble friend would be kind enough to look at this again, simply because the proposal here is for a voluntary card and it would help people. Could we not draw a line under the political arguments which preceded this and accept that many people would like to have access to such a card and that we should provide it at their cost? Surely there is no skin off anybody’s nose for doing so.
Lord Taylor of Holbeach: I assure my noble friend that a sufficient number of documents are already in circulation which will assist identity processes. There is no need to add a further identity card to the list of cards that people have to carry.
Lord Roberts of Llandudno (LD): My Lords, I welcome the Minister’s reply on this. Of course it is part of the coalition agreement that we do not introduce ID cards. We have the citizen’s card, which is mainly available for retailers to decide on the age of those who want to buy tobacco and so on, but we also have 45 million passport holders and 43 million driving licence holders. Surely this is enough. I was really surprised that this might be linked to the Immigration Bill that is coming before us. I think we must look very warily before we even think in this direction.
Lord Taylor of Holbeach: I can only agree with my noble friend.
Lord Harris of Haringey (Lab): My Lords, surely the point is that the Government opposed the previous identity card on the basis that it was compulsory. The noble Baroness, Lady Miller, is suggesting a voluntary arrangement, one which would cost the Government nothing but would bring great convenience to many people including the carriers of such a card and those who wanted an authoritative proof of identity. Surely this is something that the Government should consider again. The ability to assure one’s own identity is increasingly necessary.
Lord Taylor of Holbeach: Noble Lords other than me have already pointed out that there is a large number of documents by which people’s identity can be recognised.
Lord Marlesford (Con): My Lords, does my noble friend agree that identity cards are dangerous things because they can be forged but the state does have the right and the need to be able to identify its own citizens? What is needed is at least a unique number. The national insurance number would be an obvious one but you do not get it until you are a certain age; probably the national health number, which you get at birth, would be the sensible one. Would he consider the possibility of amalgamating those two numbers to a number given at birth which could then link citizens to the state?
Lord Taylor of Holbeach: I am sure within your Lordships’ House there are plenty of people who can recite their national service number. I am not entirely sure that I agree with my noble friend on this. However, the Government are well aware of the importance of being able to satisfy identities in the modern age. The noble Lord, Lord West, referred to the modern age in his question. The Home Office is well aware of this and is looking at ways in which this can be done.
Lord Mackenzie of Framwellgate (Non-Afl): My Lords, the uniqueness of the previous identity card is surely the fact that it was biometric, which identified the person who was attached to the identity card very clearly without any doubt at all. In this case it is suggested that it should be voluntary. What is wrong with this idea?
Lord Taylor of Holbeach: My Lords, I have answered that question but I can reinforce the view that biometrics are important, and that is why the residence permit is biometric.
Lord Cormack (Con): My Lords, although I do not always agree with my noble friend Lord Deben, his logic this afternoon was impeccable, as was that of my noble friend Lady Miller, who asked this Question. This is a voluntary scheme and—in an age when identity theft is becoming an ever increasing problem—why cannot the Government accept a scheme that is both voluntary and costs the public purse nothing?
Lord Taylor of Holbeach: I think the noble Lord weakens his argument by that last phrase. It would cost the Government money. It could not be set up in a way whereby the issuing of such cards could be done outside the authority of the state. Given that the authority of the state requires the Government to police the issuing of these cards, then—voluntary or not—there would be an expense to the Exchequer.
Lord Brooke of Alverthorpe (Lab): Does the Minister not agree that it is ludicrous to believe that the people who create difficulties with security, problems with immigration, difficulties with claiming benefits in certain areas, and who abuse the NHS and claim benefits from it when they should not are the kind of people who—on a voluntary basis—are going to take out an
identity card? As the Government present different pieces of legislation to us where they are trying to track people, does the Minister not see increasingly that they made a major mistake in abolishing the previous Government’s policy of introducing a compulsory card? Does he not see that in due course they will have to return to this and will have to do it? Would he not reflect on the silliness of the position they now find themselves in?
Lord Taylor of Holbeach: I do not consider that the Government’s position is silly. The noble Lord himself says that the problem with the voluntary scheme is that people would not take it up if they had something to hide. That is quite clear. All I can say to him is that I am quite content with the Government’s position and content to defend it at this Dispatch Box, because it has saved the Government and the country as a whole a considerable amount of money for what would have been very dubious benefits.
Baroness Symons of Vernham Dean (Lab): My Lords, in that case, will the noble Lord reconsider his answer to the noble Lord, Lord Cormack? He said that he could not agree with him because there would be a charge on the Exchequer. Passports are already paid for by individuals on a basis that covers the costs. So are visas. If we can cover the costs for passports and visas, why could we not do it for an identity card? Will the Minister please reflect on the answer that he gave to the noble Lord, Lord Cormack?
Lord Taylor of Holbeach: I can reflect on it and I certainly promise to do so, but the noble Baroness referred to the passport, which is a perfectly good, valid document. It is very useful and an awful lot of people possess it.
Northern Ireland: Abortion
Question
3.36 pm
To ask Her Majesty’s Government what action they will take in the wake of reports last week on BBC Northern Ireland concerning access to terminations for women in Northern Ireland who are carrying foetuses with severe abnormalities and wish to end their pregnancy.
The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD): My Lords, the Abortion Act 1967 does not extend to Northern Ireland, where abortion law is governed by the Offences Against the Person Act 1861. Constitutionally, abortion law in Northern Ireland is a transferred matter. It is therefore the responsibility of Northern Ireland Executive Ministers and so not a matter where Her Majesty’s Government have any powers to intervene.
Baroness Thornton (Lab): I was hoping to have a slightly more hopeful Answer from the noble Baroness, but I thank her for what she said. I hope that she will join me in congratulating the Mary Stopes clinic,
which, tomorrow, is marking the first anniversary of its operation in Belfast. I had hoped that she might refer to the review that is taking place about the issue. That review is welcome, but, until it is completed, would it not be fair for Northern Ireland women who need and want terminations under these very unhappy circumstances to have them provided free under the NHS elsewhere in the UK, where that provision is not illegal? Would the noble Baroness care to reflect on the issue raised about how women in one part of the UK are denied rights and access to terminations that are available to all other women in the UK? I recognise that devolution is devolution, but surely it was not intended to achieve this unsatisfactory outcome for women in Northern Ireland.
Baroness Randerson: The noble Baroness will be aware that this case raises some very difficult issues and is very distressing. However, the current difference in legislation means that women travelling to England for an abortion generally make their own arrangements and fund the procedure themselves. To make exceptions to that would be a major departure from the system of residence-based responsibility and the separation of powers between the health services in the four jurisdictions of the UK. The noble Baroness will recognise that this is a sensitive issue that the previous Labour Government, when they were putting in place the devolution settlement, believed should be left to the people of Northern Ireland to decide for themselves.
Baroness Gould of Potternewton (Lab): My Lords, I am a little surprised by the Minister’s first reply and I would be grateful for clarification. In 2011, the Government supported a report from the Irish Family Planning Association to the CEDAW periodic review saying that there should be a revision of abortion law in Northern Ireland. I fail to understand why the Government did that if the Minister is right in her argument. I add that this year, again, CEDAW has told the British Government that they need to expedite an amendment to the anti-abortion law in Northern Ireland and create a law to ensure that legal abortion covers circumstances such as threats to a woman’s health and cases of serious malformation of the foetus. As a signatory to CEDAW, when are the Government going to honour their commitments?
Baroness Randerson: I think it is important that the UK Government observe the devolution settlement. However, I think it is also important, as the noble Baroness mentioned, that there is consideration of the situation in Northern Ireland. I draw the attention of noble Lords to the comments of David Ford, Justice Minister in the Northern Ireland Executive, who has made it very clear that this issue needs to be reconsidered. Indeed, the Health Minister in Northern Ireland has made similar comments about the current legislation and its applicability in this case. However, it is not an issue for the UK Government.
Lord Steel of Aikwood (LD): Is my noble friend aware that some 14 years ago, when we were legislating on setting up the devolved Administrations in Scotland
and Wales, there was serious debate in both Houses about where responsibility for administering the law on abortion should lie? The decision was taken—in my view, quite rightly—that the law should be uniform throughout the UK, so why should we leave Northern Ireland with an 1861 piece of legislation?
Baroness Randerson: The noble Lord is, of course, very much more aware of the background to this situation than I am. However, the current situation is as the previous Government intended it to be—abortion law in Northern Ireland is left to the Northern Ireland Assembly. It would not be acceptable—I am sure that it would not be acceptable to the people of Northern Ireland—for us to seek to change that unilaterally. I also draw the attention of noble Lords to the fact that when the Northern Ireland Assembly discussed new guidelines on abortion in 2007 they were unanimously rejected by Assembly Members.
Baroness O'Loan (CB): My Lords, I thank the Minister for her comments on the fact that abortion is a reserved matter for Northern Ireland and should continue so to be. Is she aware that abortions do occur in Northern Ireland and that there is an ongoing legal duty to recognise that the unborn child, whatever its state of health, is deserving of protection? Is it not the case that England and Wales now needs to reconsider the law on abortion, given that we have a situation in which it is lawful to terminate the life of a baby simply because that baby is a little girl?
Baroness Randerson: On the first point, it is, of course, very much an issue for the people of Northern Ireland. It is a devolved matter and I believe that there is no wish in Northern Ireland for that to change. I would, however, make it absolutely clear to the noble Baroness that it is very certainly not legal to terminate a pregnancy on the grounds of the sex of the child. An investigation into a recent case made that absolutely clear and the Chief Medical Officer will be issuing additional guidance to doctors in the very near future to make sure that that is perfectly clear to all those involved.
Anti-social Behaviour, Crime and Policing Bill
First Reading
3.44 pm
The Bill was brought from the Commons, read a first time and ordered to be printed.
Examiner of Petitions for Private Bills
Motion to Appoint
3.45 pm
Moved by The Chairman of Committees
That, pursuant to Private Business Standing Order 69, Mr M D Hamlyn be appointed an Examiner of Petitions for Private Bills in place of Mr S J Patrick.
Business of the House
Announcement
3.45 pm
Lord Hunt of Kings Heath (Lab): My Lords, before we move on to Report, I would like to raise a point arising from an amendment to the Care Bill that the Government laid late last night—indeed, some might say “sneaked out 10 minutes before the start of the England-Poland game”. This matter will come to be decided by your Lordships on the last day of Report on Monday night.
Amendment 168A is not a technical or insubstantial amendment; it relates to the powers of special administrators in dealing with NHS trusts that are considered to have failed. It follows what happened in south London. Following the appointment of special administrators, proposals were made to downgrade Lewisham Hospital’s accident and emergency department, even though Lewisham is a well run and much supported hospital. This hospital was completely outside the remit of the special administrators. This led to court proceedings where the Government had to back off in relation to the changes to Lewisham Hospital.
This amendment would essentially permit what the Government wanted to happen with Lewisham Hospital, but which was stopped, to be able to happen in future. Whether or not the Government are right or wrong, this is a very important subject. It deserves full scrutiny in your Lordships’ House, not to be taken as last business on the last day of Report when the House has had no other opportunity of discussing this important matter. I ask the noble Earl, Lord Howe, to agree that this amendment be recommitted to a Committee of the House in order that it can receive full and appropriate scrutiny.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I do not propose to debate this amendment now, but I will refer the noble Lord’s request through the usual channels.
Care Bill [HL]
Report (3rd Day)
3.47 pm
83: After Clause 47, insert the following new Clause—
“Human Rights Act 1998: provision of “care and support services” to be public function
(1) A person (“P”) who provides regulated “social care” is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature in doing so.
(2) This section applies to persons providing services regulated by the Care Quality Commission.
(3) In this section “social care” has the same meaning as in the Health and Social Care Act 2008.”
Lord Low of Dalston (CB): My Lords, I shall speak also to Amendments 138A and 138B, which are in my name in this group. I shall get those amendments out of the way first, as the debate is likely to focus principally on Amendment 83. Clause 75(6) says that anything done or not done by a third party authorised to carry out a particular function is treated as done or not done by the local authority. In effect, the local authority is solely responsible for the third party’s acts or omissions, subject to a couple of exceptions in subsection (7).
The Joint Committee on the draft Care and Support Bill recommended an amendment to make clear that a person with delegated authority is subject to the same legal obligations as the local authority itself. This reflected concerns that there should be a clear chain of accountability by which the individual could hold the third party, not just the local authority, responsible if their rights were infringed. The Government have contended that the clause already provides for continued accountability. They said that the local authority,
“will remain liable for the proper discharge of that function”.
This misconstrues what the Joint Committee was recommending. The Government are viewing accountability solely in terms of the relationship between the third party and the local authority. Subsection (6) precludes the possibility of the individual seeking redress from the third party, so it does not accord with the Joint Committee’s recommendation. The Minister in Committee said that care providers with delegated functions must carry them out in a way that complies with the Human Rights Act 1998 and that any failure to do so will be a failure by the local authority. That is not the same as the third party being subject to the Human Rights Act; the third party would be failing in its obligations to the local authority, but to no one else. The Minister effectively conceded as much when she said:
“By that device, the Human Rights Act would end up having an effect on what those third parties could do, even if they were not themselves directly responsible”.—[Official Report, 29/7/13; col. 1587.]
The noble Earl, in his letter to Peers following Committee stage, confirmed that individuals will have recourse only to third-party dispute resolution procedures or the local authority’s complaints process.
Without these amendments the individual will have no remedy against, for example, a private care home delivering poor service, or a private company failing to carry out proper assessments. We therefore need these amendments to give effect to the Joint Committee’s recommendation that a person with delegated authority should be subject to the same legal obligations as the local authority.
On Amendment 83, I set out the arguments in detail in Committee and shall not repeat them at length here. The matter is really quite simple and straightforward and can be stated briefly. The Human Rights Act 1998 applies to all public authorities and to other bodies when they are performing functions of a public nature. That means that it should apply to all providers of care, given that the provision of care is a public function. However, the matter was thrown into doubt in 2007 by the case of YL v Birmingham City Council, which held that care home services provided by private and third-sector organisations under a contract
with the local authority did not come under the definition of “public function” for the purposes of the Human Rights Act. This meant that thousands of service users had no direct remedy against their care provider for abuse, neglect or undignified treatment. Though the public body commissioning the care remained bound by the Human Rights Act, that was of little practical value to the individual on the receiving end of poor or abusive treatment, or the person given four weeks’ notice to leave because they had antagonised their provider, about whom the noble Lord, Lord Warner, told us in Committee.
Accordingly, Section 145 was introduced into the Health and Social Care Act 2008 to clarify that residential care services provided or arranged by local authorities are covered by the Human Rights Act. There has been concern that this Bill would undo Section 145 by repealing Sections 21A and 26 of the National Assistance Act 1948, under which persons were placed in residential care and through which Section 145 has operated. However, the noble Baroness, Lady Northover, responding to the debate in Committee, set minds at rest on that when she provided the assurance that,
“there will be a consequential amendment to Section 145 of the Health and Social Care Act 2008 so that there will be no regression in human rights legislation”.—[
Official Report
, 22/7/13; col. 1118.]
However, there remains concern that Section 145 does not cover all care service users, or even all residential care service users. It only protects those placed in residential care under the National Assistance Act. That being so, it is anomalous not to treat residential care provided under other legislation and domiciliary care in the same way.
The noble Baroness, Lady Northover, reflecting the position put to the Joint Committee on the draft Care and Support Bill, further stated that the Government’s position is that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors,
“should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998 and not act in a way that is incompatible with a Convention right”.
However, there are two things wrong with this. First,
“should consider themselves to be bound”,
is not the same as “covered in law”. Secondly, the Joint Committee was not convinced. It concluded that, as a result of the decision in the YL case, statutory provision is required to ensure this. As I said in Committee, I have seen a letter in which it is stated that the Government’s position is that care providers are covered, and should not just “consider themselves to be bound”. However, the House of Lords in YL said that they were not and the Joint Committee was not convinced either. Given such uncertainty, it is surely essential that the matter is put beyond doubt in legislation and Amendment 83 would achieve this by deeming that all those providing social care services regulated by the CQC are exercising a public function for the purposes of Section 6 of the Human Rights Act.
The amendment would also include those who are eligible for care but who, due to means testing, have to arrange and/or pay for their own care—so-called “self funders”—and therefore currently lack the full protection
of the Human Rights Act. To date, it has been the case, at least for those who were found to be eligible for care in their own home, that the obligation for the local authority to arrange care regardless of the person’s resources provided them with a degree of protection under the Human Rights Act. However, the changes to the system of arranging care to be introduced by the Bill weaken this protection. My amendment follows the approach of the Joint Committee and, if accepted, would provide equal protection to all users of regulated social care regardless of where that care is provided and who is paying for it.
The Government believe, as the Explanatory Notes to the draft Bill make clear, that protection under the Human Rights Act extends to care arranged by a local authority, even if it is self-funded, but the Joint Committee does not accept that this does not require explicit statutory provision. However, regardless of this view, it makes the point that it does not address the situation of self-funders, who arrange their own care and support. The Government, they say, will need to consider whether it is right that, of all adults in need of care, only this group should lack the protection of the Human Rights Act.
Given the manifold ambiguities and uncertainties surrounding this question, surely it is right to take this opportunity of putting the matter beyond doubt, as my amendment would do. What reason can the Government possibly have for resisting it, when all it does is to spell out in words of one syllable in the Bill that to which the Government have no objection—indeed, already believe to be the case—but which is subject to so much doubt in everybody else’s mind? I beg to move.
Lord Willis of Knaresborough (LD): My Lords, I support Amendments 138A and 138B, but will not add to the excellent comments of the noble Lord, Lord Low. I speak in particular to Amendment 83.
I apologise to your Lordships for not having made any comments in Committee but, as I have pointed out, I was away from the House on the orders of my wife. In supporting Amendment 83, I acknowledge the excellent supporting brief from the Equality and Human Rights Commission. In particular, I thank my noble friend Lord Lester of Herne Hill, who sadly cannot be here today, for his considerable guidance.
The amendment stems from a failure by successive Governments to heed the recommendations of the Joint Committee on Human Rights and the Joint Committee on the draft Care and Support Bill to legislate to tackle the problem created by the majority decision of the Law Lords in 2007 in the case of YL v Birmingham City Council.
In YL, the issue was whether a care home, such as that run by Southern Cross Healthcare Ltd, was performing functions of a public nature for the purposes of the Human Rights Act when providing accommodation and care to a resident such as Mrs YL under arrangements made by Southern Cross with Birmingham City Council under Sections 21 and 26 of the National Assistance Act 1948.
The Law Lords decided by three votes to two—the noble and learned Lord, Lord Bingham, and the noble and learned Baroness, Lady Hale, dissenting—that they were not performing a function of a public nature.
However, anyone reading the dissenting judgments of the noble and learned Lord and the noble and learned Baroness would understand why the majority ruling appeared contrary to the objective and purpose of the Human Rights Act. The previous Government thought that YL was wrongly decided and I assume that the present Government share that view. It would be useful if the Minister could confirm that that is the Government’s position.
The previous Government then sought to resolve the problem by intervening in test litigation to clarify or overturn YL, but that did not prove possible. The JCHR twice recommended remedial action, but the previous Government refused to take such action or to support the efforts of Andrew Dismore MP, as the chair of the JCHR, to do so by means of a Private Member’s Bill.
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Lord Wills (Lab): I am very grateful to the noble Lord for giving way and I hesitate to interrupt him, because I agree with almost everything that he is saying, but on a factual point he is wrong. The previous Government—and I was the responsible Minister—did not disagree. We were trying to find a way of resolving this and we ran out of time. It is not that we disagree with it; we were wholly in agreement with the efforts made by Andrew Dismore. We were simply trying to find a robust way of dealing with that particular problem and we ran out of time.
Lord Willis of Knaresborough: I thank my former honorary opponent for that clarification and I certainly would not wish to contradict him. The reality is that the previous Government did, in fact, try to find a way out of this judgment and to correct it in a way which they thought would be beneficial for the people of England and Wales. Instead, they introduced an amendment to the Health and Social Care Act 2008 to extend human rights protection to those receiving residential care arranged by a public authority. The amendment did not extend, as the noble Lord, Lord Low, rightly said, to home care services, even though they were provided under a similar statutory framework. It is that gap that this amendment is designed to fill. Surely there is precious little difference between a local authority securing care services of an individual in a residential care setting or in someone’s own home. That is the kernel of this particular problem.
The Department of Health has explained the Government’s position in Written Answers to the JCHR. It said that,
“all providers of publicly arranged health and social care services, including private and voluntary sector providers, should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998, and not to act in a way which is incompatible with a convention right”.—[Official Report,
Commons
, 17/7/12; col. 702W.]
“The case law supports a broad application of Section 6(3)(b) and provides that individual factors should be considered in each case. As such YL was a case on the particular facts, and it does not necessarily follow that the reasoning in that case will be applied to other social care settings”.
I find that very difficult to understand. Can the Minister explain the department’s judgment in that way?
The factual settings in YL in favour of a finding that Southern Cross was indeed performing a function of a public nature could not have been stronger, and yet were rejected by the majority so that legislative intervention became necessary. The department says that all providers should consider themselves bound by a Section 6 duty, but the law is entirely uncertain as it stands whether they are required by law to do so.
The department continues in its letter to JCHR:
“The Government do not therefore consider that an amendment to the Human Rights Act 1998 is necessary.”
But Amendment 83 is not seeking to amend the general test in Section 6 of the HRA, but to make it clear that someone who provides regulated social care is to be taken for the purpose of Section 6 (3)(b) to be exercising functions of a public nature in doing so. It is hard to see how it could be otherwise. The department continues by saying that the government position remains that:
“Any amendment to the Human Rights Act in relation to third sector and private providers … risks casting doubt about the interpretation of the Human Rights Act”.
However, the uncertainty is created not by this amendment but by the decision in YL, and by the fact that the amendment made by the previous Parliament was too narrow.
The Joint Select Committee on the draft Bill, chaired by Paul Burstow MP, included strong membership from all sides of the House. The committee’s report, published on 19 March, considered the Government’s arguments with great care at paragraphs 280 to 292, and concluded that the present amendment is absolutely necessary.
I therefore hope that the Minister will have had discussions with his ministerial colleagues and officials and will be able to accept the amendment in the name of the noble Lord, Lord Low, without the need to test the opinion of the House.
Lord Hope of Craighead (CB): My Lords, I will say a few words in support of Amendment 83 in the name of the noble Lord, Lord Low. Before I say anything I will follow the example of the noble Lord, Lord Willis, and apologise for not having taken part in proceedings on this Bill before. As the Minister may know, I have recently returned from a period of disqualification, which has now been lifted on my retirement from the UK Supreme Court, so I am now able to speak, which I was not able to before. I thought I might contribute just a few thoughts to this debate against the background of that experience.
My first point is that Section 6(3)(b) of the Human Rights Act is one of the few provisions in what was an excellently drafted Act which, in my experience, judges have found rather difficult to apply in practice. The reasons for this were explained by the noble and learned Lord, Lord Neuberger, in YL. He made the point that any reasoned decision about the meaning of that phrase,
“functions of a public nature”,
risked falling foul of—as he put it—circularity, preconception and arbitrariness. The words are quite imprecise, so one has to search for some kind of policy guidance as an aid to their interpretation. There may be a whole variety of factors in one case taken with
another that have to be brought into account as one tries to reach an answer—and in practice, answers are quite hard to predict.
With great respect to the noble Lord, Lord Willis, it is not helpful to ask at this stage whether YL was wrongly decided; we have to take the decision as we find it. That is how the law works. Of course, it is always open to Parliament to take a different view and judges—and, I am certain, noble Lords in that case—appreciate that entirely, as the noble Lord, Lord Neuberger, did for a reason I will come to in a moment. We have to assume that the judges in the lower courts will follow the decision in YL if other cases come before them, and it may not be all that easy for the Supreme Court—if the issue comes back before it in some future case—to depart from the basic reasoning in YL. I therefore suggest that one has simply to approach these issues on the basis that YL is there, and proceed accordingly.
The solution to the problem which the noble Lord, Lord Neuberger, indicated in his speech, at the very end of quite a long judgment, was that if the legislature considered it appropriate that residents in privately owned care homes should be given convention rights protection against the proprietors, it would be right for the legislature to spell that out in terms and make it clear that the rights should be enjoyed by all such residents. The words “spell it out”, which I think the noble Lord, Lord Willis, used, make the point that one has to have something which puts the matter plainly on the record and which gets over the difficulty created by the very broad reach of the subsection in Section 6.
As we have heard—I do not need to go over the ground again myself—an amendment was made to the 2008 Act which did not extend to regulated home care services, so there is a gap. There are, therefore, two questions. First, should the gap be filled? Secondly, which is a question for the Minister, how should that be done?
As far as the first point is concerned, as I understand the progress of events, and my reading has indicated this, there is not really any dispute about this because the Department of Health’s position, as explained to the Joint Committee on Human Rights, is that,
“all providers of publicly arranged health and social care services … should consider themselves to be bound by the duty imposed by section 6 … not to act in a way which is incompatible with a convention right”.—[Official Report, Commons, 17/7/12; col. WA 702.]
I think it was also suggested that it would not necessarily follow that the decision in YL, which was about a care home, would apply to other social care solutions.
I see a difficulty with that approach. Comments of the kind that were made, that people should consider themselves bound by a convention right, however well intentioned, do not have the force of law. They could not be relied upon, for example, in a court to guide a judge about the meaning of Section 6(3)(b) in the particular context. Therefore, they leave the law in a state of uncertainty because they do not have the force of law, and they have no relevance to a decision that the court would have to take.
If one takes the example of a provider who is faced with a claim from a person who is in need of care and not receiving it or whose rights are being infringed,
that provider will probably have to seek legal advice as to what should be done. Legal advice would take the provider back to YL, and we find ourselves once again faced with the gap to which other speakers have drawn attention. It is perfectly true that YL was a decision on its own facts, but I respectfully suggest that the implications of the decision go wider than that. If you read the judgments, there is a distinction between private, profit-making bodies on the one hand and state or government-owned bodies with public functions on the other. One can debate how far private and profit-making bodies may be caught by the section, but that is the area which is creating difficulty.
The fact that that body was regulated, which was the situation in YL, was not determinative. The fact that we are dealing with social care which is regulated is not the answer to the problem. That is where the gap now confronts us. I would respectfully suggest, in support of the amendment of the noble Lord, Lord Low, that the answer is to do as the noble and learned Lord, Lord Neuberger, urged us to do at the end of his judgment and to spell it out in terms that a person who provides regulated social care is to be taken to be exercising a public function.
There is another point. A failure by Parliament to grasp this opportunity now and to make it clear will be noticed. There is a risk that, if that opportunity is not taken by Parliament now, courts may take this as a sign that Parliament is content with the law as it stands and may be understood to be on the basis of YL.
I absolutely appreciate that there is a question for the Minister whether this amendment would have wider implications. From my own experience, and having read the judgment in YL too, I am quite certain that thought passed through the minds of the judges. There is reference, for example, to schools and other institutions; the judges may have considered, “If we make a pronouncement about this, it may affect other circumstances and situations”. There is a difference, of course, between a judge making that kind of pronouncement and Parliament’s putting forward or putting into a measure a precisely targeted measure which deals with a particular problem. It is the difference between a sledgehammer, I would say, to crack a nut, and a rapier which deals with a particular issue. I do not see that there is any real risk that, by dealing with the matter in the targeted way that the amendment of the noble Lord, Lord Low, seeks to do, it will be taken as a signal in the courts that there is some wider reach in Section 6(3)(b) from that which was being discussed in YL.
It is a difficult issue, but I respectfully suggest that it has to be addressed now and that there is a real risk that, if we do not do it now, it will give rise to real problems later. I warmly support the initiative of the noble Lord, Lord Low.
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Baroness Campbell of Surbiton (CB): My Lords, I will speak briefly in support of Amendment 83. I would have spoken on this in Committee, but unfortunately I was drowning in continuity of care. I feel that we are missing an important aspect in the debate: namely, the provider’s voice. I will give noble Lords an example
from the Joint Committee on Human Rights. We ran an inquiry into Article 13 of the UN convention on the rights of disabled people. We took evidence from a range of providers, including private sector providers. We heard very good evidence from a private sector provider. When they were questioned about the Human Rights Act, it became evident that there was a great deal of confusion about when their homes were covered and when they were not. They erred towards saying, “No, we don’t think we’re covered because we haven’t been trained in that area”.
It became very evident to me that there was a crying need for clarification in this area. I asked a very simple question about what the witness thought that this meant for her private sector homes. She said, “Well, to be honest, we already do it. We allow our residents to go to bed at whatever time they like before 10 pm”. I feel that the misunderstanding of how the Human Rights Act covers private sector care homes was illustrated in that one moment. Therefore, the law needs clarifying—and this clarification would be welcomed not only by private sector care home providers.
Lord Mackay of Clashfern (Con): My Lords, my name is on the amendment and, of course, I warmly support it. My noble and learned friend, Lord Hope of Craighead, analysed the situation in full, and in a way that in my view was absolutely correct and worthy of being followed. It is quite something for me to realise that my pupil has returned here as a result of his age, but obviously so far his acumen has been in no way affected.
The department says that people who provide this sort of care should consider themselves bound by the Human Rights Act. Why? Is that a mistake? No. So let us make it correct. Let us make sure that they are bound by the Human Rights Act. We are doing exactly what the noble and learned Lord, Lord Neuberger, suggested: where a particular function is to be regarded as of a public nature, the easiest thing to do is to say that. That is exactly what the amendment of the noble Lord, Lord Low, does.
I do not wish to get into the history of the previous Administration. The noble Lord, Lord Wills, came to the battlefront on that on previous occasions in my hearing. I do not know anything at all about that. However, there are two ways of approaching this. One is to consider amending the Human Rights Act, which I think was happening until the demise of the previous Government put an end to their considerations. The other is what the noble and learned Lord, Lord Neuberger, said: do not trouble with trying to provide a better policy in the Human Rights Act but say when you want it to apply. That is exactly what is required here.
I sincerely hope that the Minister will be able to accept the amendment—or that he will table his own amendment at Third Reading. I also hope that this will not be a matter on which we will have to test the opinion of the House, because we agree on the policy that the Human Rights Act should apply. The only question is whether the law has been properly framed to deal with that—and we can have no higher authority speaking on that matter in this House than a retired member of the Supreme Court.
Lord Warner (Lab): I rise as a member of the Joint Select Committee to strongly support the amendment. I shall not go over the previous legal history, or repeat what I said in Committee, other than to emphasise a particular aspect of the case to which I drew attention then. That case related to an elderly woman in her 90s who was resident in a private care home and was totally self-funded. She had been a resident for some time and had the temerity to air her views on assisted dying, which did not please some of the home’s staff. She did not seek anybody’s help to commit suicide; she just expressed her views. The home’s management gave her four weeks’ notice to leave the home as a result. When her son raised the issue of her rights under the Human Rights Act with legal counsel, the opinion he was given was that she lacked protection under that Act because she was not in receipt of a service from a body providing a function of a public nature as her placement was neither publicly provided nor in a publicly funded home.
As a member of the Joint Select Committee I raised this matter when we were looking at the Bill and, after deliberation, the committee was unanimous in recommending that the Bill should be amended to clarify matters. This is what the amendment moved by the noble Lord, Lord Low, does. It covers all users of a regulated social care service. It is clear that there are differences of legal opinion on this matter when particular cases are raised. I consider that as parliamentarians, it is our duty to put the matter beyond doubt and provide self-funders with the legal certainty that other elderly people may have when they are in receipt of either domiciliary or residential care.
One of the most important new points that has been made on this issue since we debated it before was made by the noble and learned Lord, Lord Hope of Craighead, when he said that courts will notice if we do not take this opportunity to amend and clarify this legislation. That means that we cannot—as one of my children would say—faff around any longer on this issue. We have to make a decision; the amendment makes that decision, and we should all support it. Frankly, the Government should stop the legal equivalent of counting how many angels can be put on the head of a pin and accept the legal certainty that the amendment moved by the noble Lord, Lord Low, provides. They should be supporting people who are paying their own way by funding their care, not the reverse. There will be a lot more of them in the future so let us provide that protection now.
Lord Faulks (Con): My Lords, I share, of course, the concern of all noble Lords that we should take all reasonable steps to protect vulnerable people who receive social care in whatever circumstances. I enter this debate for the first time with considerable trepidation, having regard to the great distinction of those, both present and absent, who support this amendment. I have to express some real doubts about it.
As far as I am aware this is the first time an attempt has been made to include, within the scope of the Human Rights Act, what may be a purely private function. Those who receive care may not be overly concerned with whether it is being provided by a public authority, a private provider, or in some hybrid
arrangement. Nevertheless, this amendment is in effect extending the scope of the convention beyond the terms of the Human Rights Act.
It is important to consider what protection would be available anyway, in the absence of this amendment. If a poor standard of care is provided to an individual, it is likely that the provider will be in breach of an express term of any contract or in breach of a term implied by the Supply of Goods and Services Act 1982. There will almost certainly be a claim in tort, probably relying on the tort of negligence. There is, of course, a further safeguard in relation to all providers of publicly arranged care, in that all such providers have a duty imposed by Section 6 of the Human Rights Act, at least following what I would submit was the closing of the YL loophole by Section 145 of the Health and Social Care Act. The CQC, as a regulator and a public authority, is subject to the convention.
However, the amendment would, as I understand it, purport to provide some additional remedy; presumably some award of damages. The noble Lord should be aware of the relatively limited scope of damages awards under the Human Rights Act. As Lord Bingham said in the Greenfield case in 2005,
“the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official”.
The House of Lords also emphasised that the Human Rights Act was not to be regarded as a panacea. Indeed, Lord Bingham went on in Greenfield to say that the purpose of the Act,
“was not to give victims better remedies at home than they could recover in Strasbourg”.
However, that would be the position here if this amendment was passed. My conclusion is that the amendment amounts to an illegitimate extension of the Human Rights Act and would not, in reality, provide any significant extra protection for those who, quite understandably, we wish to protect.
The future of the Human Rights Act will have to await the outcome of the next election. However, amending the Act, which is what in effect this will do, would be inappropriate and, I have to say, unnecessary.
Lord Mackay of Clashfern: Before the noble Lord sits down, can he explain what, in his view, the remedy is for the case to which the noble Lord, Lord Warner, referred?
Lord Faulks: I understand that in the case to which the noble Lord referred, there was a private provider. There would therefore be the remedies I referred to earlier in my remarks—the normal remedies that those who receive services through a private arrangement would have. The Human Rights Act of course is concerned entirely with remedies against public authorities. I respectfully suggest that one must not lose sight of the remedies that exist, and have always existed, in relation to breaches or violations of anybody’s rights in the circumstances described.
Baroness Finlay of Llandaff (CB): Before the noble Lord sits down, can he just clarify something? Noble Lords will have to forgive me, because we have had some very learned legal arguments here and I speak as a simple clinician. Half of the patients in a place of care run by a private provider may be funded by, and have gone through assessments provided by, the NHS. They would therefore be covered by the Human Rights Act but the other half, who have to fund their own care because some official somewhere said that they did not fall within the bar for continuing care funding, would not be covered. The decision as to whether the cover, at the end of the day, applies or does not apply will be left to whichever person determines the funding bar for that individual, as opposed to our knowing that we have protection for those who are vulnerable across the piece.
Lord Faulks: The noble Baroness refers to protection. With respect, the assumption behind her question is that, whatever the arrangements, those people would lack any protection. The burden of my speech is that they would have protection anyway. There is, of course, a distinction between whether their care is a result of a publicly procured arrangement or a purely private arrangement. In the latter case, as the law is currently, there would not be any involvement of the Human Rights Act. But, with respect, the House should not be under any illusion that there is no remedy or no protection for people in the circumstances where there is a private arrangement.
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Lord Mackay of Clashfern: The noble Lord sat down without answering the question that I asked him, which I am very keen for him to answer. My understanding is that this elderly lady was in a home and she was given full notice to leave; there was no question of any breach of contract or anything of that kind. Therefore, the sorts of remedies to which the noble Lord has referred would not be available, whereas under the Human Rights Act there is at least a very considerable probability that she would have some protection.
Lord Faulks: I am sorry that I did not answer the question adequately for the noble and learned Lord. My response is that actually the Human Rights Act remedies, which I endeavoured to deal with in my remarks, would not of themselves provide the sort of remedy that the noble Lord, Lord Warner, had in mind. As was outlined by Lord Bingham in the Greenfield case, the remedies are in fact very limited, very often amounting to a decision that there has been a violation, rather than the sort of practical remedy that I understand the noble Lord to have in mind. That is my response.
Lord Warner: My Lords, just to clarify matters, if this lady had been covered by the Human Rights Act, the son would have been able to take legal action to try to prevent the home removing her. The mischief that was being committed was the forcible removal of a woman in her 90s from the place that she had lived in for a very long time. What the Human Rights Act—as I understand it; I am not a lawyer—would have provided protection for was the ability of a relative to seek
protection from the courts that this home, in taking that action, was actually in breach of the Human Rights Act. I do not think that the noble Lord’s suggested remedies would have helped in this case or any other like it.
While I am on my feet, I say to the noble Lord that this Act changes the position anyway, because that lady, or a similar person in the future, might well have come up against the cap on her privately funded care and her care would then be paid for by the state, which would be performing a public function—or a function of a public nature—in paying for her care in that private provision. This Act changes the dimension from the past as well.
Lord Hope of Craighead: My Lords, I do not know whether I am permitted to speak again since we are on Report but perhaps I might just say for clarification that in my opinion the analysis by the noble Lord, Lord Warner, of the reach of the Human Rights Act is entirely accurate. We have had a number of cases, in both the House of Lords Appellate Committee and the Supreme Court, dealing with the kind of problem where people say that they are losing their home because of steps being taken to remove them from premises that they occupy. It is that reach and the uncertainty that has been drawn attention to, where some people have the protection and some do not, that causes real problems.
Lord Faulks: In response to that, of course the Act provides that a court can give just satisfaction, and the remedy may include something of the sort to which the noble and learned Lord refers. However, if there is, as I think I understand the facts of the case, a violation of ordinary private law principles, the remedy should in those circumstances be available. But I think I have trespassed on the House’s patience for long enough.
Lord Skelmersdale (Con): My Lords, this debate seems to have degenerated into a recommittal stage, which the noble Lord on the Front Bench opposite called for at the very beginning of today’s proceedings. However, I do not think that he, or I, or probably anybody else, wants to recommit this particular clause which is, after all, a new clause.
Lord Wills: My Lords, I support Amendment 83. I should also apologise to the House for not being present in Committee on this Bill. However, as the noble and learned Lord, Lord Mackay, has already said, I do have form on this particular issue.
This amendment deals with what is a long-standing anomaly in the scope of the Human Rights Act, which was created originally by the YL case. As the noble and learned Lord, Lord Hope, has said, it is not for politicians to determine whether cases are rightly or wrongly decided. It was the considered view of the previous Government—and it remains my own view—that that case produced a result that was not compatible with the original intentions of Parliament in passing the Human Rights Act. With respect to the noble Lord, Lord Faulks, and to all the discussion we have just heard, the intent of the Human Rights Act was not only to provide specific remedies in the sort of case that the noble Lord, Lord Warner, has just described.
Among other things, it was also to try to create a new culture in the delivery of public services—a culture of dignity and respect for the individual in relation to the state. It seems to me that this is precisely what this amendment sets out to do. As the noble Lord, Lord Low, said in introducing it, it seeks to extend, and to put beyond all doubt, the fundamental protections of the Human Rights Act to some of the most vulnerable members of our society. I support everything that has been said today in favour of this amendment; there have been very powerful speeches putting forward the argument far better than I can.
As we have heard, this anomaly is something that the previous Government wanted to address. We ran out of time before we could adopt the particular remedy that we thought was appropriate. It is an anomaly that your Lordships have debated before, but without finding a way of making progress. Today we have a real chance to make progress. It is significant that two of the proposers of the amendment—the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Lester—have in the past expressed concerns about previous attempts to deal with this particular issue. The fact that they are supporting this amendment suggests that their concerns have now been satisfied and that they do not feel that there are going to be unwelcome and perverse consequences from dealing with this issue in the way that this amendment proposes. For this reason, and for all the other reasons we have already heard, I hope your Lordships will take this opportunity to put this issue beyond doubt and extend these protections to some of the most vulnerable members of our society.
Lord Hunt of Kings Heath: My Lords, this has been a very important debate and I am sure we are grateful to the noble Lord, Lord Low, for the persuasive way in which he moved his amendment. There was a lack of certainty about the scope of the Human Rights Act, arising from the YL case which decided that a private care home providing residential care services under contract to a local authority was not performing a public function and its residents were therefore excluded from the protection of the Human Rights Act.
The noble Lord, Lord Skelmersdale, was right to remind us that we are on Report, but I wanted to reflect on a point made by the noble Lord, Lord Pannick, in Committee. To an extent, it is an answer to the noble Lord, Lord Faulks. What the noble Lord, Lord Pannick, said is that the vulnerability of the person receiving care and the risk of abuse is the reason why he thought the law should impose duties on the provider under the Human Rights Act. In all those circumstances, it should encourage the maintenance of high standards and provide a direct remedy for the victim in appropriate cases.
In Committee, we heard from the then Minister, the noble Baroness, Lady Northover, who relied on two defences of the Government’s position. The first was—as the noble and learned Lord, Lord Hope, has reminded us—that those providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves bound by the duty. I am sure that we should all consider ourselves to be bound by many things, but the fact that we consider ourselves to be so does not mean that we are bound by them.
The Government’s second defence was that the Care Quality Commission as the regulator is subject to the Human Rights Act and that may give rise to a positive obligation to ensure that individuals are protected from treatment that is contrary to their convention rights. It is a duty that falls on the CQC itself, and I remind the House that we are talking about thousands and thousands of providers of services. I do not think that it is a sufficient defence for people who are caught in a vulnerable situation. The noble Lord, Lord Faulks, expressed doubts about including a private function and he pointed to a number of safeguards that already exist, including Section 6 and the CQC, but the vulnerability of so many of the people who we are concerned about seems to express a need for greater statutory provision.
I also remind noble Lords that many of the people we are talking about will move in and out of private care and public care, and at some point under this legislation will actually be in receipt of public support as well as contributing to the cost of their care. We know that when the cap comes in, people will then be entitled to public support, but that does not cover the hotel costs which are estimated at around £12,000 a year. Many people will be in receipt of public support while also having some form of private contract and top-ups, which we have discussed. It would ensure that people had a relationship both in terms of public support and a personal relationship with their private providers. For all these reasons, the argument put by the noble Lord, Lord Low, is very persuasive indeed.
In Committee, the noble Baroness, Lady Northover, said that she thought that talks would be undertaken. I am not aware of those talks and certainly the Opposition have not been invited to them. I hope that the noble Earl will be able to report on what discussions have taken place. At this point, however, we should note the arguments that have been put and I have great sympathy with the noble Lord, Lord Low.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, noble Lords have spoken eloquently in support of these amendments and I appreciate the strength of feeling across the House. This is an important issue that is fundamentally concerned with the safeguarding of vulnerable people. While I always hesitate in the extreme to disagree with so many distinguished noble Lords, including noble and learned Lords, I have to say to the House emphatically that these amendments are neither necessary nor an appropriate way to achieve the objectives that are being sought.
As I said before on this issue, the Human Rights Act is about public functions; in other words, it is legislation that concerns the interface between the individual and the state. This philosophy underpins the European Convention on Human Rights and therefore also the Human Rights Act. The noble and learned Lord, Lord Hope of Craighead, to whom I listened with great attention, referred to the case of YL in response to my noble friend Lord Willis, and he urged that the judgment in that case should be accepted and that we should essentially move on. I respectfully agree with that, but I suggest that the key point in this context is what the previous Government did through the Health and Social Care Act 2008. The Act
strengthened the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements that are in line with the relevant provisions of the European convention, and this applies to all providers of regulated activity, which includes personal care whether publicly or privately funded.
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I hope that the House listened to my noble friend Lord Faulks. Amendment 83 would represent an unprecedented change to the scope of the Human Rights Act. For the first time, it would capture purely private arrangements, such as a privately arranged social care contract between a private care home and a private individual—an arrangement in which there is no state involvement.
The European Convention on Human Rights and the Human Rights Act, which gives further effect to the convention rights in our domestic law, impose public law obligations that apply separately from, and in addition to, the duties and obligations on the private sector.
However desirable it might appear to be, it is obviously difficult to draw a crisp dividing line as to whether a function is of a public or a private nature. Ultimately, the legislation has to bear the test of time. The courts have acknowledged that there is no single test to determine whether a function is of a public nature and have pointed out that there are “serious dangers” in trying to formulate such a test.
In determining whether a function is a public function for the purposes of Section 6, our courts undertake a factor-based approach which is fact-specific in each case. Consequently, it is neither appropriate nor desirable to introduce amendments bringing specific categories of person within the Human Rights Act which do not reflect the factors that have been applied by our courts.
Difficult as it may be to do so, it is important to take a wider view of how the Human Rights Act applies outside the immediate context of social care and to see whether the amendment would have any unfortunate unintended consequences, such as calling into question whether other groups are covered.
It is clear that the amendment seeks to expand Section 6 of our own domestic Human Rights Act. However, as I have already noted, the Human Rights Act is not free-standing legislation. Its purpose is to give effect in our domestic law to the rights in the European Convention on Human Rights. Arguably, the proposed amendment would mean that, for the first time, we would be legislating for an expansion in scope of the Human Rights Act that included claims that cannot be brought before the European Court of Human Rights.
Lord Wills: I would not want the Minister to pray in aid the previous Government’s approach to this. The measures that we took, and which he seems to suggest have sorted out this problem, were in our own minds an interim measure while we tried to work out what any consequences would be not of expanding the scope of the Human Rights Act but of making clear the original intent of Parliament. The Minister suggests that there would be perverse consequences of accepting the amendment. In which areas of public policy does he think those consequences will manifest themselves?
Earl Howe: My Lords, I have just described one of those perverse consequences: that we would purport to be giving rights to people which could not be pursued before the European Court of Human Rights. If I could correct the noble Lord, I was not seeking to suggest that the previous Government had addressed the issue that I have been talking about. They addressed part of the issue in the Health and Social Care Act 2008, but there is another dimension to it, as I have said. The amendment would risk creating an asymmetry, which once again risks creating legal uncertainty and confusion.
What people using services and their families want and need is reassurance that they will be treated with care, compassion, kindness and skill. This amendment would not provide any of those things. People are not, surely, really exercised about which route of redress they have if things go wrong so long as they have one, which they do; what they expect is for things not to go wrong in the first place.
I do not accept the argument that putting this measure into legislation will deter those who abuse or neglect, or galvanise providers into preventing those things. It would not send some kind of message that should not otherwise already be amply clear to all providers of care and support: that poor-quality care is unacceptable.
What I think will make much more of a difference are the stronger measures to improve care that the Government are proposing: the emphasis the CQC is placing on individual experience as opposed to paperwork, the improvements in commissioning and the safe routes for whistleblowers. We are amending the requirements that providers have to meet to enable the CQC to take effective action against providers that do not provide acceptable levels of care. With these things in place, it is my view that when things go wrong we will have a strong and effective mechanism for dealing with the situation. For all these reasons I say to the House that the amendment should be decisively and emphatically rejected.
I now turn to Amendments 138A and 138B, also in the name of the noble Lord, Lord Low. Their effect would be that, where a local authority delegates a function, in addition to the local authority remaining subject to all of its legal obligations in the way the function is discharged, the person authorised under the delegation would also be directly subject to those same obligations. These would include, for example, obligations arising under the Human Rights Act. The amendments are unnecessary because when it delegates its functions, Clause 75(6) is clear that the local authority remains responsible for the way that that function is discharged. The person using care and support will therefore always have a route of redress against the local authority even if the local authority has delegated the discharge of the function to a third party.
Furthermore, these amendments could prove unhelpful because, by making both the local authority and the contractor liable, they could create a lack of clarity about who is ultimately responsible for complying with the local authority’s statutory obligations when a function is delegated. We believe strongly that it must remain absolutely clear that the ultimate responsibility lies with the local authority and that it cannot absolve
itself of this in any way. This is an important principle of allowing local authorities to delegate their functions and we do not want to cast any doubt on this.
The underlying intent of these amendments is unexceptionable as they are about protecting the rights of people using health and care services. However, I am absolutely and firmly resolved that these amendments will not achieve what we all want, which is that everyone receives safe, dignified and respectful care and that we must prevent abuse in the first place. With that, I can only express the hope that the noble Lord will think again and decide to withdraw Amendment 83.
Lord Warner: Before the noble Earl sits down, can he clarify something from his earlier remarks about the Human Rights Act? I ask with a certain amount of humility but also from the perspective of one of the people who wrote the Labour Party’s policy in 1996 on the incorporation of the European Convention on Human Rights into what became the Human Rights Act in this country. When that Act was framed, the definition of a public function, or the nature of a public function, was one which did not to a great extent anticipate the move over the next 10 to 15 years in which public services would actually be undertaken and provided by private and voluntary bodies. It simply did not do that. However, the terminology was wide enough at the time to embrace an organisation like Channel 4, which had a mix of public and private functions. It was incorporated, as I recall, into that legislation on the basis of its partial role in performing public functions.
The noble Earl seems to accept that, over time, case law can change the definition of the nature of a public function. He seems to be saying that we have to plod through the courts, case by case, to change the definition. I rather lost him when he then tried to argue that you cannot do it by groups of cases, which is effectively what this amendment does. Is the noble Earl saying that the definition of the nature of a public function—in the law as it is—cannot be changed by cases and can only be changed by amending the primary legislation itself?
Earl Howe: I think that I covered that point when I said that the courts have ruled that there is no single test to determine whether a function is of a public or a private nature. They have also pointed out that there are serious dangers in trying to formulate such a test, which is what the amendment is trying to do, in its own way. If we go back to the noble Lord’s example of the 90 year-old lady in the care home and even if the Human Rights Act were to apply, it is impossible to predict the outcome of an application to a court for—let us say—an injunction to prevent her removal, because each case is fact-specific. It may be found that the lady’s human rights were not violated, but it is not possible to predict that in advance. I hope that clarifies the position and answers the noble Lord’s question.
Lord Low of Dalston: My Lords, I thank the Minister for his response, although it obviously leaves me a little disappointed. I do not propose to respond on Amendments 138A and 138B, because I do not propose to press them to a Division when we finally reach them. However, I should like to say something in response to what has been said about Amendment 83.
First, I thank all noble Lords who have spoken, especially those who have spoken in support from all quarters of the House. It has been a high-calibre debate which does credit to a House noted for characteristically engaging in debate of a high calibre. This one was, I think, particularly authoritative. Without wishing to be invidious in any way, I particularly give thanks for the exceptionally thoughtful, careful and authoritative analysis to which we were treated by the noble and learned Lord, Lord Hope of Craighead.
I also observe that we were deprived of the analysis of two of my other supporters who attached their names to the amendment, the noble Lords, Lord Pannick and Lord Lester, who were unable to be here. In those who added their names to the amendment, those who have spoken and those who would have spoken had they been here, we could not have had a more authoritative and heavyweight line-up in support of the amendment in this House.
There has been general agreement that the matter should be put beyond doubt. Indeed, as the noble and learned Lord, Lord Hope, pointed out, it would actually be dangerous if we were not to do so. If I understood the noble Earl correctly, he said that we should stick with the position that was arrived at as a result of Section 145 of the Health and Social Care Act. As the noble Lord, Lord Wills, made clear, when he said that noble Lords should not pray in aid the position arrived at by the previous Government, this is unfinished business. No one can pretend that we have reached a final resolution of these matters with Section 145 of the Health and Social Care Act. That is why it is so important that we should take the opportunity presented by the Bill to take the further steps necessary to put the matter beyond doubt.
We have heard what the noble Earl had to say in response to the debate, but I confess that I am baffled. Between Committee and Report, the Government seem to have executed a complete volte face and completely changed their position. The position explained to us in Committee was that the Government did not believe that the amendment was necessary because the matters that it sought to put beyond doubt were already provided for. Today, the noble Earl tells us that he must urge the House to reject the amendment because the matters should not be provided for. The Government need to make up their mind what their position is.
The Minister also made the point that we should not take this step because it would deliver to service users rights over and above those available under the ECHR. I am sorry, but I simply do not understand that point. The amendment simply delivers to service users rights which are available under the Human Rights Act, which is predicated upon the ECHR. Even the noble Lord, Lord Faulks, agrees, I think, that we should put the matter beyond doubt; he just does not think that we should put it beyond doubt in this way or that the Human Rights Act should be extended this far. Having listened to all the debate, I submit that the noble Lord, Lord Faulks, and of course the Minister in adopting his remarks, are on their own in this matter in the House. There is general agreement not only that we should put the matter beyond doubt, but
that we should put it beyond doubt in the manner which this amendment secures. Indeed, until today this agreement used to include the Government.
I think we should put the matter to rest, as the Minister has said, decisively and emphatically in the terms this amendment provides for and which the Government, until very recently, supported in substance, so I wish to test the opinion of the House.
5.01 pm
Contents 247; Not-Contents 218.
CONTENTS
Aberdare, L.
Adams of Craigielea, B.
Adonis, L.
Alli, L.
Anderson of Swansea, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Bassam of Brighton, L.
Beecham, L.
Berkeley, L.
Best, L.
Bhatia, L.
Bhattacharyya, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Bowness, L.
Bragg, L.
Brennan, L.
Brookman, L.
Brown of Eaton-under-Heywood, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Butler-Sloss, B.
Cameron of Dillington, L.
Campbell of Surbiton, B.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clancarty, E.
Clarke of Hampstead, L.
Cohen of Pimlico, B.
Collins of Highbury, L.
Collins of Mapesbury, L.
Condon, L.
Corston, B.
Coussins, B.
Cox, B.
Craig of Radley, L.
Craigavon, V.
Crawley, B.
Cunningham of Felling, L.
Davies of Oldham, 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.
Erroll, E.
Evans of Parkside, L.
Evans of Watford, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fellowes, L.
Filkin, L.
Finlay of Llandaff, B. [Teller]
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Glasman, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grantchester, L.
Greengross, B.
Grenfell, L.
Grey-Thompson, B.
Grocott, L.
Hannay of Chiswick, L.
Hanworth, V.
Harries of Pentregarth, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, 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.
Hope of Craighead, L.
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 Kings Heath, L.
Hutton of Furness, L.
Hylton, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones of Whitchurch, B.
Jones, L.
Jordan, L.
Judd, L.
Kennedy of Southwark, L.
Kingsmill, B.
Kinnock of Holyhead, B.
Kinnock, L.
Kirkhill, L.
Knight of Weymouth, L.
Laming, L.
Lane-Fox of Soho, B.
Layard, L.
Lea of Crondall, L.
Leicester, Bp.
Leitch, L.
Levy, L.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Listowel, E.
Lloyd of Berwick, L.
Low of Dalston, L.
Lytton, E.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
Mackay of Clashfern, L.
Mackay of Drumadoon, L.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mallalieu, B.
Mandelson, L.
Mar, C.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mendelsohn, L.
Monks, L.
Morgan of Drefelin, B.
Morgan of Ely, B.
Morgan, L.
Morris of Aberavon, L.
Morris of Yardley, B.
Morrow, L.
Murphy, B.
Myners, L.
Neuberger, B.
Noon, L.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Palmer, L.
Patel of Bradford, L.
Patel, L. [Teller]
Paul, L.
Pendry, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Quin, B.
Quirk, L.
Radice, L.
Ramsay of Cartvale, B.
Rana, L.
Rea, L.
Rees of Ludlow, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rix, L.
Rodgers of Quarry Bank, L.
Rogers of Riverside, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
St John of Bletso, L.
Sandwich, E.
Sawyer, L.
Scotland of Asthal, B.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Snape, L.
Soley, L.
Stair, E.
Stern, B.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taverne, L.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tonge, B.
Touhig, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, 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 Baglan, L.
Williams of Elvel, L.
Willis of Knaresborough, L.
Wills, L.
Winston, L.
Woolmer of Leeds, L.
Worthington, B.
Wright of Richmond, L.
Young of Hornsey, B.
Young of Norwood Green, L.
NOT CONTENTS
Addington, L.
Ahmad of Wimbledon, L.
Alderdice, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Ashton of Hyde, L.
Astor of Hever, L.
Astor, V.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Bakewell of Hardington Mandeville, B.
Bates, L.
Benjamin, B.
Berridge, B.
Black of Brentwood, L.
Blackwell, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Borwick, L.
Bourne of Aberystwyth, L.
Brabazon of Tara, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Caithness, E.
Cathcart, E.
Chadlington, L.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Deben, L.
Denham, L.
Dholakia, L.
Dobbs, L.
Doocey, B.
Dundee, E.
Dykes, L.
Eaton, B.
Eccles of Moulton, B.
Eccles, V.
Edmiston, L.
Elton, L.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Fearn, L.
Fellowes of West Stafford, L.
Fink, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Freeman, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Garel-Jones, L.
Geddes, L.
German, L.
Glenarthur, L.
Glendonbrook, L.
Gold, L.
Goodlad, L.
Grade of Yarmouth, L.
Greaves, L.
Grender, B.
Hamwee, B.
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Home, E.
Hooper, B.
Horam, L.
Howard of Rising, L.
Howe of Aberavon, L.
Howe, E.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Cheltenham, L.
Jopling, L.
Kilclooney, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Kramer, B.
Lamont of Lerwick, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Livingston of Parkhead, L.
Loomba, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Manzoor, B.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mawson, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Naseby, L.
Nash, L.
Neville-Jones, B.
Newby, L. [Teller]
Newlove, B.
Noakes, B.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Palmer of Childs Hill, L.
Parminter, B.
Patten, L.
Perry of Southwark, B.
Popat, L.
Randerson, B.
Rawlings, B.
Redesdale, L.
Renton of Mount Harry, L.
Ribeiro, L.
Ridley, V.
Risby, L.
Roberts of Llandudno, L.
Rogan, L.
Roper, L.
Rotherwick, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Shaw of Northstead, L.
Shephard of Northwold, B.
Shipley, L.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Spicer, L.
Stedman-Scott, B.
Sterling of Plaistow, L.
Stewartby, L.
Stirrup, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Teverson, L.
Thomas of Winchester, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
True, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Ullswater, V.
Verma, B.
Vinson, L.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Warsi, B.
Wasserman, L.
Wei, L.
Wheatcroft, B.
Whitby, L.
Wilcox, B.
Young of Graffham, L.
Younger of Leckie, V.
5.18 pm
Clause 58: Assessment of a child’s needs for care and support
83A: Clause 58, page 47, line 5, at beginning insert “When a child receiving services reaches the age of 14 or”
Lord Patel (CB): My Lords, I shall speak also to the other amendments in my name in this group. I thank the Minister for the government amendments, which go a considerable way towards helping the arrangements for the transition of children to adulthood. My amendments are intended to strengthen that. I thank my noble friend Lady Finlay for putting her name to the amendments.
Amendment 83A is one of a series of amendments which I have tabled with the intention of bringing about better outcomes for young people who need to transition from child to adult palliative care services. These young people are represented by the Transition Taskforce, a partnership of organisations which includes Help the Hospices, the National Council for Palliative Care, Marie Curie Cancer Care and Together for Short Lives. All these organisations support these amendments.
I have spoken previously at other stages of the Bill about the 40,000 children and young people—these are the numbers we are talking about—aged from 0 to 19 in England who live with long-term health conditions, which for most of these children will eventually end their lives and for which they may require palliative care. Medical advances mean, however, that young
people with a range of different conditions now live to adulthood—some 10% of the 40,000 children now live beyond 19 years.
Good planned transition, when it works, changes the lives of these young people. Unfortunately, for the majority that is not happening. I will give the example of one young girl, Lucy Watts, who is 20 years old, and has Ehlers-Danlos syndrome, which means that Lucy has a number of inherited conditions which were diagnosed by the time she was a teenager and is unable to eat normal food. Her system does not digest food and she is fed intravenously all the time. While she is able to sit up for a few hours a day, Lucy spends most of her time in bed. Lucy’s mum, who has a full-time job, carries out the majority of her care and all of her day-to-day medical care.
However, Lucy is fortunate, because her transition to adult service was excellent because there was joint working between children’s and adult services over the course of a whole year. That is the important point. It takes a long time for transition arrangements to be put in place for these children. Lucy is quite a feisty young lady. She said:
“Transitioning from children’s to adult in the medical and social world is a huge step ... The people involved in my care have been very supportive and were brought in before I started the transition”.
Lucy’s case demonstrates how important it is for young people and families that their transition is planned well in advance of their 18th birthday and why our amendments to stipulate a timeframe for a child’s needs assessment are so important.
I very much welcome the fact that the Government have amended the Bill to ensure that when it appears to a local authority that the child or their carer is likely to have needs for care and support after the child becomes 18, the local authority must assess them. I appreciate, too, the Government’s stated position that the needs of very young people are different and that their care needs can change between the ages of 14 and 18 in a variety of ways. However, our amendments would provide flexibility by ensuring that assessments could be initiated before the age of 14 if requested by the child or parent or if it appears to the local authority that an assessment is necessary and appropriate. Local authorities would have until the age of 16 to assess the child’s needs. They would not be prevented from reassessing a young person if their needs changed before they reached 18. They would also enable local authorities a period of two years to assess the child’s needs in cases where their care needs become apparent only after the age of 14. Without these important thresholds, it is feasible that a local authority may leave it too late to carry out a child’s needs assessment.
Setting the age threshold for a child’s needs assessment at 14 is also based on the existing statutory requirement for every young person in year 9—that is, aged 14 to 15—with a statement of special educational needs to have a transition plan. Our amendment would ensure that transition planning correlates with that requirement and reflects best practice in exemplary palliative care services in England. It is entirely reasonable that some young people with life-limiting conditions, including those with conditions such as Duchenne muscular dystrophy and cerebral palsy, could be expected from
an early stage to live beyond 18. Assessing and planning for their future needs should therefore begin at the age of 14. Our amendments would ensure that this is the case without disadvantaging young people with other disabilities, which is the concern that was expressed. The Bill already stipulates that where a local authority deems a child’s assessment not to be in the best interest of the young person or the young person does not consent to being assessed, an assessment will not take place.
Amendment 89B, which is a long amendment, corrects the anomaly of the transition and the duty on local authorities. While the Bill currently makes provisions to enable local authorities to carry out a child’s needs assessment, there is no duty on local authorities to use the assessment to create a transition plan for the young person. Amendment 89B would ensure that, if a child’s needs assessment finds that a young person is likely to need health or social care when they reach adulthood, a statutory five-year rolling transition plan should be prepared by the time they are 16.
The amendment has a number of other important features. It would ensure that children, parents and carers were involved in the transition planning process and that transition plans are maintained until the young person reaches the age of 25, which 10% of these children would probably reach. Further, one of the provisions included in the Children and Families Bill is to introduce an integrated education, health and care plan—or EHC plan—for young people who have special educational needs. This will include many—but, crucially, not all—young people who need palliative care. Where a young person stays in education or training, they will be eligible for an EHC plan until the age of 25. I recognise that an EHC plan could fulfil the functions which I intend the transition plan in my amendment to fulfil. An optimal position would be for EHC plans to be available to all young disabled people up to the age of 25—but that is not the case. Our amendments will provide similarly joined-up transition provision for young people who need palliative care but do not have SEN.
Amendments 93A, 94A and 94B would amend and address the carer’s needs. In considering young people who need to transition from children’s to adult services, it is also important that we address the needs of those who care for them. I welcome the Government’s aspiration to do so and the amendment that the Government have already tabled to strengthen the Bill. However, as with the clauses relating to planning for young people’s needs on transition, we need to go further in order to ensure that planning for carers also happens in a timely fashion. Amendment 93A would introduce an age threshold of 14 at which a local authority would be duty-bound to undertake a child carer’s needs assessment.
I hope that I have persuaded the Minister that his amendments, excellent as they are, need a bit more tweaking to make it possible to streamline the process of transition of children to adulthood. My amendments merely help to do that. Some children may of course begin to need long-term health or social care after they are 14. In such cases it may not be reasonable to expect a local authority to complete a child carer’s needs assessment before the child reaches the age
of 16. I hope that the Minister will be persuaded enough to add to his excellent amendments a few more to fulfil these needs. I look forward to hearing his response.
Baroness Finlay of Llandaff (CB): My Lords, I am most grateful to my noble friend Lord Patel for the way in which he has introduced our amendments. I greatly welcome the Government’s amendments in this area of transition. The reason that our amendments are written as they are is because this group of children are different to adults who are terminally ill. They have life-limiting conditions, but their prognosis may be years. However, during that time they know that they will deteriorate, as do their parents. We are therefore looking at completely different timeframes, and with completely unpredictable prognoses, except for the likelihood that they will live through into adulthood. Some of them, of course, live surprisingly long periods of time and may live several decades into adulthood. They tend to have the inherited disorders of metabolism. They are a different cohort from those who have terminal illnesses such as cancer. There are also those children who, for example, have had very severe sudden injuries, such as a severe head injury, and then develop epilepsy, which can then become so severe that it is life threatening. Many of the children also have learning difficulties and educational needs.
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Our amendments, I hope, will create the triangulation that is required between health, education, and social care in the context of this Bill so that many of the young people can carry on having their educational needs provided for. This group of young people often describes leaving paediatric care and entering adult care as “falling off a cliff”. They feel that they are going into an enormous chasm. They have been under the care of one service in paediatrics, but there is not a neat fit for adult services with the different specialities. That creates a major difficulty for them. That is why we feel that the assessments have to happen early. It is important for the young person to develop confidence in the assessment process in order to disclose what their needs are and to develop confidence in those doing the assessment.
The other reason that it is important to do it early is for the sake of the parents. These parents are getting older. They know that their lives may not carry on. They may well be outlived by their child. That is an enormous worry to many of them. Often the families have already split apart; many marriages break up with the strain that caring for some of these young people has imposed. The remaining parent really needs to know that the plans are in place and will be maintained. The reason for continuing to 25 is precisely that. Most educational services for these children stop at 21. It is very unusual for them to have anywhere to go after that. They have housing needs and care needs. However much one hopes that they may live independently, not all of them achieve that.
Placing them for care can be very complex. A young person with all the needs of a young person and all the emotional needs and sexual-development needs does not want to be placed in an institution which is full of people over 85, some of whom have got dementia,
where the staff are not comfortable even discussing with them some of their more intimate needs and desires. These young people want to discuss contraception; they want to discuss sexual experience; they may want to drink alcohol. In an older person’s environment, that is not always the atmosphere. As the parents get older, they know that the physical strain of providing care is becoming too great, and they will not be able to do it anymore. That is why we feel strongly that the government amendments are fantastic, as far as they go, but having an extension with clear timelines to make sure that this is a gentle process is particularly important. I hope that the Minister might have some words of comfort for us, if it is not to accept the amendment but certainly within regulational guidance later, that this period of transition will be looked at because it is so difficult for both the young people and for their parents or carers.
Baroness Gardner of Parkes (Con): My Lords, I particularly wish to speak on Amendments 83A and 84, but I could just as easily have spoken on any one of these amendments—there is such a big group of them—because the issue that I wish to raise is my concern over this care issue falling down between this Bill and the Children and Families Bill. The timing of these two Bills makes it very difficult unless the Minister, having heard all these debates that everyone will give now, and the comments on these issues, gives us an undertaking that he will liaise with the noble Lord, Lord Nash, and that between them they might try and sort out where it is going to go. This is what worries me: that it will end up going nowhere or come up from the noble Lord, Lord Nash, in a form that will make it too late to bring back here, unless the Minister says that he will look at everything said today and bring back an amendment—or at least accept an amendment if we could all agree on one.
So much of what has been said made sense. The comments of the noble Baroness, Lady Finlay, were fascinating, and the noble Lord, Lord Patel, put it all very clearly. The noble Baroness spoke more on issues about which I am particularly concerned. My eldest grandson is a Down’s child. His Down’s is fairly severe. He has been fortunate in having wonderful care at a Mencap home. He is 22 and this is his last year of receiving full support. He was very happy at the home for some years, until a glitch appeared in the past year. In his unit, a number of residents are put together to live a normal life and to learn how to go out and live in society. Unfortunately, a very aggressive boy was put into the group. No one knew that he was aggressive. He attacked the staff quite violently. As a result, others—I do not know whether it was just my grandson, or whether it was others as well—copied him. This is a terrible risk. If we do not supervise people and have continuing care and assessment of them, how do we know that they will not meet a violent person who behaves in this way, either deliberately or for some other reason—for example, because they are violent and cannot help trying to impose violence on everyone else? It is a real worry not only for the person but for society and the community.
The noble Baroness, Lady Finlay, spoke about the parents who care so much. The parents of this boy are both very clever doctors. One of his siblings is just
starting medicine and the other hopes to in the next year or so. So he has siblings who would be able to care if his parents die before him. However, people with Down’s syndrome can live to a considerable age. I have met people of 50 and 60 who have the syndrome. In many cases, their parents will not be alive. It is a huge responsibility to pass on to siblings. Therefore, it is important that, as far as possible, these people should be brought into society to live as normally as they can. As they grow older, they usually grow bigger and stronger. Therefore, they are more of a worry to themselves and to other people. It is terribly important that the assessment of cases for continuing care should be made, and should continue to be made—and not just at 25. If people are going to live to 50, they may need support until then.
A number of the amendments put down by the noble Earl, Lord Howe, cover that issue, but without defining it clearly. This is why I am speaking in general on the amendments in this group. It is important that this should be clear. I have added my name to an amendment of the noble Lord, Lord Rix, in the Children and Families Bill. It is in response to the implication that the Government are thinking of taking out care completely: that once education finishes, nothing more will follow. That is why it is so important to be assured in this Bill that something else will follow.
My daughter tells me—and she has sent me a letter from another parent—that there is great concern that parents are not listened to nearly as much as other people are. The noble Earl’s Amendment 84 does not really cover anyone except a remote person in a local authority who will be responsible for needs. There is nothing to say that they will consult, or even consider the views of, parents or the person who is doing most of the caring for the person concerned. None of the amendments in this group quite reaches what is necessary to cover the issue. I hope that when the Minister sums up, he will give an assurance that will leave the way open for this to be considered at Third Reading. The rules on what can be brought back at Third Reading are very specific. If today we all ended up either winning or losing on some particular thing, it would not necessarily mean that we could modify it in a way that we all thought was better and brought a better answer. I support Amendment 83A and probably quite a number of others, but I will not go into the details because my argument applies both for and against so many of these amendments and I do not want to waste the House’s time by speaking more than once.
Earl Howe: My Lords, I am pleased that I have been able to table amendments that significantly strengthen these important provisions, and I am grateful to noble Lords for acknowledging that. Currently, assessment under the transition provisions has to be requested and I sympathise with the concern that in some instances, people who are unaware that they can request an assessment may lose out.
Amendments 84, 87, 89, 92, 94, 96, 98, 102, 103, 106, 108 and 113 remove the need to request the assessment. I have also tabled Amendments 85, 95, 99 and 104. They will replace provision that local authorities may assess a child, a child’s carer or a young carer when it
appears to them that it will be of significant benefit to the individual to assess and where they are likely to have needs once they turn 18, with a duty that a local authority must assess in these circumstances.
Amendments 110 and 111 reflect an amendment to the young carer’s amendment to the Children and Families Bill. This is an example of the detailed work undertaken to ensure that the two Bills work together. I want to reassure my noble friend Lady Gardner in that context that we have done a great deal of work over the summer to make sure that that is indeed the case. Amendments 83A, 84A, 89A, 93A, 94A and 94B, tabled by the noble Lord, Lord Patel, and the noble Baroness, Lady Finlay, reflect concern that a local authority may leave it too late to carry out an assessment. I need to be very clear about this. The amendments I have tabled place a duty on local authorities that they must assess at the time where it appears to them that there is likely to be a need when the young person turns 18, and it is of significant benefit to that individual to assess at that time. My noble friend Lady Gardner was worried that the government amendments might not be sufficiently precise or prescriptive. The clauses are formulated in this way precisely so that assessments happen at the right time, whether that is before or after the age of 14, depending on the individual. The Bill approaches transition planning with a firm focus on assessing at the right time for the individual by the new duty to assess where it would be of significant benefit to the individual. I am not persuaded that the interests of young people are best served by prescribing when assessment should take place.
Lord Hunt of Kings Heath: I understand what the noble Earl is saying: it is difficult to prescribe in legislation. However, does he take the point that experience suggests that in the main assessments do not take place early enough, so when the young person is a little older it is often too late to put in the necessary arrangements? Behind the stricture of saying that it should be done at that age lies a real concern about how it works out in practice.
Earl Howe: My Lords, I accept that that is a problem in many cases and it needs to be addressed. It should be addressed satisfactorily by the government amendments in combination with guidance, which I am about to refer to.
To prescribe the age thresholds proposed would run the risk of failing young people and their families by creating a system that is run according to the age of an individual, rather than according to what is best for the individual at a given time in their life. I remain absolutely committed to ensuring that the question of when to assess a child, carer or parent carer is further addressed in guidance. This will do justice to the broad range of needs and circumstances of young people and their families at the point of transition. Guidance will be developed with the involvement of stakeholders.
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I turn to Amendment 89B, which concerns a number of elements of transition planning. In response to proposed new subsection (8), I simply say that provision
that the plan must run until the age of 25 is not appropriate because it does not take account of whether this is appropriate for each individual and would create a blanket rule irrespective of the individual’s needs and wishes. We agree that information and planning are crucial. They form the cornerstone of these provisions. Clauses 59, 61 and 64 already provide that the information provided will include an indication of whether they are likely to be eligible, and advice and information about what can be done to meet any needs and about what can be done to prevent or delay the development of needs.
The noble Lord and the noble Baroness seek additional detail in the Bill. The clauses, as drafted, are focused on the outcomes that the individual wants to achieve. I will address some of the particular concerns in turn. First, I can give a commitment, as I confirmed in Committee, that outcomes may include employment, education or housing. Further, the Bill already specifies that the individual must be involved in the assessment. However, details about the name of the document arising out of this assessment, what its contents should be and the practicalities of its preparation should not be prescribed in the Bill but will be addressed in guidance. Statutory guidance will provide clear direction to local authorities about how we expect them to exercise this function.
The noble Lord and the noble Baroness are concerned about co-operation between agencies and about the link to education, health and care plans. My noble friend Lady Gardner also expressed concern around this. The Bill and the Children and Families Bill include provision that assessment can be joint, including for joined-up assessments in relation to an education, health and care plan. Practical questions about how to achieve a joined-up approach will be addressed by the guidance supporting the Care Bill, informed by learning from the pathfinders that have been exploring how best to streamline the assessment process, putting families and young people at the centre.
I reiterate that where a young person over the age of 18 has an EHC plan and, as such, the “care” part of that plan is provided under this Bill, we expect co-operation between adult and children’s services in relation to any review of the plan. Co-operation with the preparation, maintenance and review of the EHC plan, as provided for by the Children and Families Bill in respect of children, would be required by Clause 6(3), which sets a clear duty on the local authority in this respect, and by Clause 6(5)(c), which underlines that this duty relates to transition cases. Guidance can be used to ensure that this is clear.
I add that requiring a local authority to make arrangements to secure provision for children and young people with a transition plan is not appropriate or necessary. Services to children cannot, and should not, be provided under this Bill—children’s legislation provides for this. Services to young people over the age of 18 would be provided, if necessary, under provisions earlier in Part 1.
I am keen to respond to my noble friend Lady Gardner, who asked me whether the local authority has to consider the parent carer in the kind of situation that she outlined. Yes—Clauses 60 and 61 provide the
duty to assess this group of people in a similar manner to young people with needs and young carers. I have a note setting out the clear links between this Bill and the Children and Families Bill. If it would help my noble friend, I would be happy to send it to her. However, it is rather lengthy and I hope that she will forgive me if I do not read them all out.
I trust that I have provided some reassurance on these issues and that the noble Lord will feel able to withdraw his amendment.
Lord Patel: I am grateful to the Minister for his comments. If I had known before I started speaking that he was going to produce the guidance to cover all these issues, I might have said that I would not move this amendment. But having heard him say that there will be guidance in statute to cover all these issues, I am extremely grateful. I thank the other noble Lords and noble Baronesses who spoke. I thought for a minute that the Opposition were going to remain silent on this amendment but I am glad that the noble Lord, Lord Hunt of Kings Heath, felt obliged to intervene, and I am grateful to him for that. I withdraw the amendment.
84: Clause 58, page 47, line 5, leave out from “Where” to “after” in line 7 and insert “it appears to a local authority that a child is likely to have needs for care and support”
88: Clause 58, page 47, line 25, at end insert—
“( ) Where a child refuses a child’s needs assessment and the consent condition is accordingly not met, the local authority must nonetheless carry out the assessment if the child is experiencing, or is at risk of, abuse or neglect.”
89: Clause 58, page 47, line 26, leave out from beginning to “must” and insert “Where a local authority, having received a request to carry out a child’s assessment from the child concerned or a parent or carer of the child, decides not to comply with the request, it”
Clause 59: Child’s needs assessment: requirements etc.
91: Clause 59, page 48, line 14, at end insert—
“( ) When carrying out a child’s needs assessment, a local authority must also consider whether, and if so to what extent, matters other than the provision of care and support could contribute to the achievement of the outcomes that the child wishes to achieve in day-to-day life.”
93: Clause 59, page 48, line 24, at end insert—
“( ) But in a case where the child is not competent or lacks capacity to understand the things which the local authority is required to give under subsection (3), that subsection is to have effect as if for “must give the child” there were substituted “must give the child’s parents”.”
Clause 60: Assessment of a child’s carer’s needs for support
94: Clause 60, page 48, line 38, leave out from “Where” to “after” in line 40 and insert “it appears to a local authority that a carer of a child is likely to have needs for support”
Amendments 94A and 94B not moved.
97: Clause 60, page 49, line 11, at end insert—
“(3A) Where a child’s carer refuses a child’s carer’s assessment, the local authority is not required to carry out the assessment (and subsection (1) does not apply in the carer’s case).
(3B) Where, having refused a child’s carer’s assessment, a child’s carer requests the assessment, subsection (1) applies in the carer’s case (and subsection (3A) does not).
(3C) Where a child’s carer has refused a child’s carer’s assessment and the local authority concerned thinks that the carer’s needs or circumstances have changed, subsection (1) applies in the carer’s case (but subject to further refusal as mentioned in subsection (3A).”
98: Clause 60, page 49, leave out lines 12 and 13 and insert “Where a local authority, having received a request to carry out a child’s carer’s assessment from the carer concerned, decides not to comply with the request, it must give the carer—”
Clause 61: Child’s carer’s assessment: requirements etc.
101: Clause 61, page 50, line 21, at end insert—
“( ) When carrying out a child’s carer’s assessment, a local authority must also consider whether, and if so to what extent, matters other than the provision of support could contribute to the achievement of the outcomes that the carer wishes to achieve in day-to-day life.”
Clause 63: Assessment of a young carer’s needs for support
103: Clause 63, page 50, line 44, leave out from “Where” to “after” in line 1 on page 51 and insert “it appears to a local authority that a young carer is likely to have needs for support”
107: Clause 63, page 51, line 20, at end insert—
“( ) Where a young carer refuses a young carer’s assessment and the consent condition is accordingly not met, the local authority must nonetheless carry out the assessment if the young carer is experiencing, or is at risk of, abuse or neglect.”
108: Clause 63, page 51, line 21, leave out from beginning to “must” and insert “Where a local authority, having received a request to carry out a young carer’s assessment from the young carer concerned or a parent of the young carer, decides not to comply with the request, it”
Clause 64: Young carer’s assessment: requirements etc.
112: Clause 64, page 52, line 23, at end insert—
“( ) When carrying out a young carer’s assessment, a local authority must also consider whether, and if so to what extent, matters other than the provision of support could contribute to the achievement of the outcomes that the young carer wishes to achieve in day-to-day life.”
“( ) But in a case where the young carer is not competent or lacks capacity to understand the things which the local authority is required to give under subsection (3), that subsection is to have effect as if for “must give the young carer” there were substituted “must give the young carer’s parents”.”
Clause 65: Assessments under sections 58 to 64: further provision
115: Clause 65, page 53, line 6, leave out subsections (2) and (3) and insert—
“(2) A local authority may combine a child’s needs assessment or young carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the consent condition is met in relation to the child to whom the child’s needs or young carer’s assessment relates and—
(a) where the combination would include an assessment relating to another child, the consent condition is met in relation to that other child;
(b) where the combination would include an assessment relating to an adult, the adult agrees.
(3) A local authority may combine a child’s carer’s assessment with an assessment it is carrying out (whether or not under this Part) in relation to another person only if the adult to whom the child’s carer’s assessment relates agrees and—
(a) where the combination would include an assessment relating to another adult, that other adult agrees, and
(b) where the combination would include an assessment relating to a child, the consent condition is met in relation to that child.
(3A) The consent condition is met in relation to a child if—
(a) the child has capacity or is competent to agree to the assessments being combined and does so agree, or
(b) the child lacks capacity or is not competent so to agree but the local authority is satisfied that combining the assessments would be in the child’s best interests.”
116: Clause 65, page 53, line 24, leave out from “in” to “, the” in line 25 and insert “relation to the person to whom the assessment relates or in relation to a relevant person”
117: Clause 65, page 53, line 30, at end insert—
“( ) A person is a “relevant person”, in relation to a child’s needs, child’s carer’s or young carer’s assessment, if it would be reasonable to combine an assessment relating to that person with the child’s needs, child’s carer’s or young carer’s assessment (as mentioned in subsections (2) and (3)).”
118: After Clause 66, insert the following new Clause—
“Independent advocacy support: involvement in assessments, plans etc.
(1) This section applies where a local authority is required by a relevant provision to involve an individual in its exercise of a function.
(2) The authority must, if the condition in subsection (4) is met, arrange for a person who is independent of the authority (an “independent advocate”) to be available to represent and support the individual for the purpose of facilitating the individual’s involvement; but see subsection (5).
(3) The relevant provisions are—
(a) section 9(5)(a) and (b) (carrying out needs assessment);
(b) section 10(7)(a) (carrying out carer’s assessment);
(c) section 25(3)(a) and (b) (preparing care and support plan);
(d) section 25(4)(a) and (b) (preparing support plan);
(e) section 27(2)(b)(i) and (ii) (revising care and support plan);
(f) section 27(3)(b)(i) and (ii) (revising support plan);
(g) section 59(2)(a) and (b) (carrying out child’s needs assessment);
(h) section 61(3)(a) (carrying out child’s carer’s assessment);
(i) section 64(3)(a) and (b) (carrying out young carer’s assessment).
(4) The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—
(a) understanding relevant information;
(b) retaining that information;
(c) using or weighing that information as part of the process of being involved;
(d) communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).
(5) The duty under subsection (2) does not apply if the local authority is satisfied that there is a person—
(a) who would be an appropriate person to represent and support the individual for the purpose of facilitating the individual’s involvement, and
(b) who is not engaged in providing care or treatment for the individual in a professional capacity or for remuneration.
(6) For the purposes of subsection (5), a person is not to be regarded as an appropriate person unless—
(a) where the individual has capacity or is competent to consent to being represented and supported by that person, the individual does so consent, or
(b) where the individual lacks capacity or is not competent so to consent, the local authority is satisfied that being represented and supported by that person would be in the individual’s best interests.
(7) Regulations may make provision in connection with the making of arrangements under subsection (2); the regulations may in particular—
(a) specify requirements that must be met for a person to be independent for the purposes of subsection (2);
(b) specify matters to which a local authority must have regard in deciding whether an individual would experience substantial difficulty of the kind mentioned in subsection (4);
(c) specify circumstances in which the exception in subsection (5) does not apply;
(d) make provision as to the manner in which independent advocates are to perform their functions;
(e) specify circumstances in which, if an assessment under this Part is combined with an assessment under this Part that relates to another person, each person may or must be represented and supported by the same independent advocate or by different independent advocates;
(f) provide that an independent advocate may, in such circumstances or subject to such conditions as may be specified, examine and take copies of relevant records relating to the individual.
(8) This section does not restrict the provision that may be made under any other provision of this Act.
(a) a health record (within the meaning given in section 68 of the Data Protection Act 1998 (as read with section 69 of that Act)),
(b) a record of, or held by, a local authority and compiled in connection with a function under this Part or a social services function (within the meaning given in section 1A of the Local Authority Social Services Act 1970),
(c) a record held by a person registered under Part 2 of the Care Standards Act 2000 or Chapter 2 of Part 1 of the Health and Social Care Act 2008, or
(d) a record of such other description as may be specified in the regulations.”
119: After Clause 66, insert the following new Clause—
“Independent advocacy support: safeguarding enquiries and reviews
(1) This section applies where there is to be—
(a) an enquiry under section 42(2),
(b) a review under section 44(1) of a case in which condition 2 in section 44(3) is met or a review under section 44(4).
(2) The relevant local authority must, if the condition in subsection (3) is met, arrange for a person who is independent of the authority (an “independent advocate”) to be available to represent and support the adult to whose case the enquiry or review relates for the purpose of facilitating his or her involvement in the enquiry or review; but see subsections (4) and (6).
(3) The condition is that the local authority considers that, were an independent advocate not to be available, the individual would experience substantial difficulty in doing one or more of the following—
(a) understanding relevant information;
(b) retaining that information;
(c) using or weighing that information as part of the process of being involved;
(d) communicating the individual’s views, wishes or feelings (whether by talking, using sign language or any other means).
(4) The duty under subsection (2) does not apply if the local authority is satisfied that there is a person—
(a) who would be an appropriate person to represent and support the adult for the purpose of facilitating the adult’s involvement, and
(b) who is not engaged in providing care or treatment for the adult in a professional capacity or for remuneration.
(5) For the purposes of subsection (4), a person is not to be regarded as an appropriate person unless—
(a) where the adult has capacity to consent to being represented and supported by that person, the adult does so consent, or
(b) where the adult lacks capacity so to consent, the local authority is satisfied that being represented and supported by that person would be in the adult’s best interests.
(6) If the enquiry or review needs to begin as a matter of urgency, it may do so even if the authority has not yet been able to comply with the duty under subsection (2) (and the authority continues to be subject to the duty).
(7) “Relevant local authority” means—
(a) in a case within subsection (1)(a), the authority making the enquiry or causing it to be made;
(b) in a case within subsection (1)(b), the authority which established the SAB arranging the review.”
Amendments 118 and 119 agreed.
Clause 67: Recovery of charges, interest etc.
120: Clause 67, page 57, line 17, leave out from “person” to “in” in line 18 and insert “fraudulently or negligently misrepresents or fails to disclose any material fact that they might have reasonably been aware would have a bearing on expenditure incurred by the local authority”