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Lord Lipsey (Lab): My Lords, I hope that this can be a short, sharp debate because it is about a very clear matter of principle.

Clause 67(4) provides that councils can recover money paid out on claims for any benefit in Part 1 of the Bill which are made in error—and here are the operative words—“whether fraudulently or otherwise”. My amendment would substitute a longer form of words whereby councils can recover where a claim,

“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”.

That is designed to narrow the scope of the “otherwise” that allows councils to recover in all circumstances. In other words, as the Bill stands, someone who applies for a benefit who inadvertently errs in their application can be pursued to repay the full resulting cost to the council, including the cost of the council’s action, I think. My amendment preserves the recovery if the claim was fraudulent but otherwise allows it only if the old person was negligent. In a sentence, it protects the claimant who makes a slip.

I will give an example of what could happen under the Bill as it is worded. An old person applies for a deferred payment loan on their house so as not to have to sell it. Unfortunately, they make a slip in declaring their assets: they forget some bank account or other. If they had declared it, their assets would have exceeded the £23,250 limit, which the House discovered to its surprise now applies to anybody who wishes to apply for a loan; they cannot apply for a loan if they have more than £23,250. The local authority later finds out and demands its loan back; it perhaps forces the house to be sold to pay it back. I do not suggest that this is going to happen regularly or often but we should not allow the possibility that it should happen at all.

I raised this matter in Committee and subsequently discussed it, with the Minister’s encouragement, with his officials. My aim was to find a compromise that protected the old person who had made a mistake in applying for the benefit while enabling the local authority to go after somebody who was deliberately trying to get something they were not entitled to or who had behaved extremely stupidly and should have known better than to claim.

I thought we were making headway in those discussions but last week the Minister sent me a note refusing to change the Bill. I must say that this is wholly out of character for the noble Earl, Lord Howe, who is usually the most humane of men, and I beg him to think again. If he does not like my wording, that is fine; I am quite happy to consider any other wording that he and his officials may put forward that avoids the pitfalls I suggested. What I will not accept is anything short of an amendment to the Bill.

I know, because he said so in his note to me, that the Minister may claim that he can provide guidance which stops this sort of illegitimate recovery of a debt incurred through error. To that I say two things: first, a bird in the hand is worth two in the bush and I would rather change the Bill now than to rely on promised guidance, which we have not seen and could not later amend; secondly, it is not only the people the council would prosecute or seek to get their money back from

16 Oct 2013 : Column 580

that we need to worry about. A lot of old people are quite nervous about handling financial affairs—quite rightly, given the complexity of these affairs. They might be thinking of applying for a benefit but if they learn that, under a Bill passed by this Parliament, if they make a slip they can have their assets seized to repay it, many of them will simply decide not to apply at all.

I think I have a pretty thick skin but I was a bit surprised when I read in the newspapers this morning a Conservative spokesman quoted as saying that this was a politically motivated amendment. Just to set the record straight: it was not my idea to amend the Bill in this way. This amendment was put forward by Age UK, which sent a note to all noble Lords explaining why it believes it to be necessary. We all know Age UK: it is a splendid group working for old people. The noble Baroness, Lady Greengross, used to run its predecessor. A less political organisation than Age UK is hard to imagine, so I hope that the Minister will apologise for the inadvertent—I am sure—slur that has been cast on Age UK.

I should add that Age UK believes that the Bill may be in breach of Article 6 of the European Convention on Human Rights. In a House which earlier on displayed such expertise on the subject of the European Convention on Human Rights, I am certainly not going to express my own opinion on whether that view is right or wrong. Nothing could be more stupid than for us to pass this Bill in its present form and later on to find it challenged in the courts, and perhaps overturned.

My argument does not rely on the convention on human rights. It relies on what seems to me to be a simple fact, obvious to anybody who reads this clause in the Bill. This is not the kind of legislative provision that you would expect in a democracy. It is a provision which enables authorities here, in Britain, to punish the innocent and, in the process, to terrify people who might otherwise apply for benefits to which they are entitled. I beg to move.

6 pm

Lord Hunt of Kings Heath: My Lords, I support my noble friend. In our debates, both in Committee and on Report, we spent a considerable time talking about some of the complexity of the decisions that have to be made when it comes to the financial affairs of many people who require long-term care. In our debate on Clause 4, we talked about the need for regulated financial advice, because these issues are so complex. It is quite likely that people who are providing information to a local authority will make slip-ups. The kind of forms that have to be filled in can be very difficult. Clause 67(4) states:

“Where a person misrepresents or fails to disclose (whether fraudulently or otherwise)”.

That does seem a very wide definition of when a local authority can demand sums. My noble friend has come up with a compromise. He has tried to narrow the circumstances in which a local authority can require sums to be paid back to that authority.

I understand the concerns of the Government. They believe that completely to change this would lead to some perverse incentives in that people would deliberately give false information. My noble friend has met those concerns with his amendment because

16 Oct 2013 : Column 581

he has clearly drawn a distinction between fraudulent activity and claims, and slips and mistakes which are inevitably going to be made. Even at this late stage, it would be helpful if the noble Earl could reconsider this matter. I think my noble friend has put his finger on an important matter here. We are talking about very vulnerable people who will find the information required to be given to a local authority very complex. We need to make sure that we are as sympathetic as possible to those people.

Baroness Bakewell (Lab): My Lords, I wish to address the one word “otherwise”. I come under that category of otherwise. Since arriving in the House—let me see now, when was it? I am getting quite old; I can put the wrong statistics down on pieces of paper. Yes, I think it was 2011. I have in the course of the time since then turned up at the House on the wrong day. I got it wrong—not deliberately, not fraudulently, but for “otherwise” reasons—because I am old. I forget to have my post redirected during the Recess and come back to a mountain of post which I have not been able to answer, all because I get the dates wrong. That is because I am old.

As people get older, life gets more threatening. The bureaucracy weighs down on us more and we are frightened of authority. That is why I choose to support my colleague in—which amendment is it? Yes, Amendment 120.

Lord Mackay of Clashfern: My Lords, it occurs to me that the problem has been created by the use of the word “fraudulent”. It tends to suggest that the word “otherwise” is in some way connected with that. I wonder whether one could not take out that whole phrase in brackets. The idea is that, because of some mistake, something extra has been paid out. Ordinarily, it might be perfectly all right to recover that. You do not need to look into the detail of why it was wrong. The person in question—vulnerable people particularly, and those who are not so vulnerable, more recently arrived—may fall into error. The error may result in extra payments out by the local authority which, in ordinary circumstances, it should be able to recover. “Fraudulently” gives an idea of people trying to put something over on someone, and “otherwise” tends to be coloured by the same adverb. Perhaps this problem could be dealt with in that way.

Earl Howe: My Lords, we agree with the general view expressed by noble Lords that we must ensure that vulnerable elderly people are protected and are not discouraged from seeking help when they need it. However, I do not agree with the conclusions reached by the noble Lord, Lord Lipsey, and I regret to have to say that the manner in which he has expressed his concerns risks causing unnecessary worry to people who need care and support. Let me be clear: this power is not there to punish people, as the noble Lord put it, and should be used by local authorities only as a last resort, as I shall explain. Its purpose is to ensure that any charges that should have been paid can subsequently be recovered. It is not to penalise people unduly. But neither should the system reward mistakes or prevent unpaid charges being recovered. This would not only undermine the principle of personal responsibility,

16 Oct 2013 : Column 582

it could also result in local authorities having less money to provide care and support to those who need it the most. In practice, it means in some cases a licence to subsidise the better off at the expense of the worse off. Is that really what the noble Lord wants? The use of this power is to recover a debt and is not intended to imply a judgment about the person’s culpability. It does not look for the mens rea; it exists to ensure only that charges not paid can be recovered, as the equivalent current powers do now.

The principle of this provision is not new; the power is 60 years old. The noble Lord likes to make out that we are doing something radically new, but that is not the case. We recognise that there may be a number of reasons why someone has not paid the full amount of the charges due to the local authority, including misrepresentations of their assets which were entirely unintentional. But even where the reason is an accident or a mistake, local authorities still suffer a loss and must be able to recover that loss if there is no other means of doing so. This is public money.

One of the objectives of the Bill is to make access to care and support easier and more focused on people with care and support needs and their families. We expect local authorities to help and support people with care and support needs, discussing any concerns they have and providing advice and assistance as appropriate. This would include advice to help people understand the process of financial assessment and their responsibility to disclose financial assets. I absolutely fail to see why the noble Lord thinks it is socially just to allow people who misrepresent or fail to disclose their assets, whether intentionally or not, to receive more than their fair share of financial support. I reiterate that to do so would reduce the resources available to other people with care and support needs. That is what his prescription amounts to. I am concerned that this amendment would risk making it much easier for people to take advantage of the system and avoid charges and subsequent legal action. What the noble Lord is suggesting is that people could be as careless as they liked when filling out the form. Is that what he wants? The high evidential burden that local authorities would have to meet to recover debts risks making this power largely useless in practice. It would leave local authorities facing costly and uncertain legal action if they chose to pursue the matter.

Let me be clear on another point. A local authority should not, as a matter of course, use these powers to recover debts without first having discussed other options with the individual concerned. In most cases, especially those where the failure to pay the correct charges was inadvertent, there would be other simpler routes to follow, such as agreeing a repayment plan which allows for recovery over time in a way that is manageable. The noble Lord suggests that local authorities may exercise these powers in a way that will drive people out of their own homes. Quite aside from the fact that we have no evidence that local authorities behave in that way and have used their existing powers like that, I have to say that I find that assertion particularly unconvincing.

Local authorities are bound by the public law principle of acting reasonably at all times and must act in accordance with human rights legislation, as well as

16 Oct 2013 : Column 583

the well-being principle, which we have already debated. That alone should prevent a local authority using this power to force someone out of their home. The noble Lord is stretching our credulity if he is asking us to imagine a set of circumstances in which a court would make an order in favour of a local authority knowingly to evict a person from their home in this kind of situation. It would be counterproductive in the extreme. Should there be any possibility of this happening, we would use statutory guidance to make the position clear. Indeed, where I do think further action is needed is in the form of guidance. We will use statutory guidance under the Bill to set out the steps that we expect local authorities to take. For example, we would expect a local authority to discuss the situation with the cared-for person and their family when appropriate to establish what, if anything, is owed to the local authority; if there is a debt, to establish whether it is appropriate to recover it, because the local authority does not have to recover it—it can choose not to do so; and, lastly, if money needs to be recovered, to find an affordable way for the money to be repaid. As I have said, whether or not the person could have been reasonably aware of something that needed to be included in the financial assessment is one of the factors that the local authority should consider when deciding whether it is appropriate to recover a debt.

We plan to engage with local authorities in the wider sector on what happens at present and how this could be improved. I accept the need for effective communication about financial assessment and the recovery of charges. This highlights the importance of high quality information and advice, including financial advice, which was debated last week, and the importance of the new duties we are placing on local authorities in this regard. Should mistakes be made, people will not be criminalised, nor will any punitive charges be imposed, but ultimately it is right that mistakes are rectified so that individuals do not benefit from any errors they make, whether they were intentional or not. Neither local authorities nor those who rely on their services should be disadvantaged, but the amendment as it stands runs the risk of failing on all these counts.

I hope that I have reassured noble Lords that the debt recovery power, while to be used only as a last resort, remains important. There is nothing that people should fear from its use. I therefore hope that the noble Lord, on reflection and at this late time, will feel able to withdraw his amendment.

6.15 pm

Lord Lipsey: My Lords, I thank the Minister for that reply and I predict that in the handbook which all civil servants use to train themselves in their art, his reply will figure as an example of how best to argue an indefensible case, because that is what I think he has just done. “Resent” would be too strong a word, but the argument that by raising this matter I am creating a problem and raising the fears of old people is not plausible. This is what Governments do the whole time: they try to do something wicked, but when that is pointed out to them, they say, “Oh no, it is you who are causing the trouble because you are pointing out

16 Oct 2013 : Column 584

that it is wicked”. The fears are raised not by my speeches or interventions; they are raised by the words in the Bill to which the Minister has put his name.

The Minister also said that this power is all right because it is 60 years old. To that I have two things to say. If a power like this has been lurking around in legislation for 60 years, it is about time we took a little look at it, and I hope the noble Earl will start some such operation. Wherever that power exists now, this is a different case because here we are dealing with elderly people. As my noble friend Lady Bakewell so graphically pointed out, with the best will in the world, older people can make mistakes. Whether it applies to other social security legislation, I cannot say. It may do so, but I do not think it is appropriate to this legislation.

The Minister then rightly said that if a local authority goes to court, the court will not grant the order. But before the local authority goes to court, it will have to deliver a letter to the old lady saying that it is going to do so. What will be the impact of that? Is she going to say, “Oh, that is fine. The court will turn it down. I will see my solicitor or my son and get this defeated”. No, the old lady will be thrown into a panic as a result of what the local authority is doing. I agree totally with the Minister that most of the time, most local authorities act perfectly reasonably. That is not what is at issue here. What is at issue is whether on the face of primary legislation there should be the scope for the odd authority to act unreasonably and thereby cause terrible fear and distress to older people. That is what the noble Earl, I am sure inadvertently, is doing.

Finally, I turn to the most powerful of the Minister’s arguments. He said that this would be very unfair because people would get away with it and they would gain at the expense of others who are also claiming benefits. But I beg the Minister and the House to study my amendment. It does not say, “Well, if you fill in the form inattentively and get it totally wrong, you will get away with it”. That would come under the phrase in my amendment, “they might have reasonably been aware”. In most conceivable circumstances, my amendment would allow recovery in just the same way as the Government’s drafting, but it would do so without that frightful “or otherwise”. It is a sword of Damocles being held over the heads of many innocent older people, and they should be spared from that.

The Minister has made his speech and the House has heard both sides of the case. I think that it is time to test its opinion in the Division Lobbies.

6.17 pm

Division on Amendment 120

Contents 198; Not-Contents 224.

Amendment 120 disagreed.

Division No.  2

CONTENTS

Adams of Craigielea, B.

Alton of Liverpool, L.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

16 Oct 2013 : Column 585

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley of Knighton, L.

Berkeley, L.

Bhattacharyya, L.

Billingham, B.

Bilston, L.

Blackstone, B.

Boateng, L.

Borrie, L.

Bragg, L.

Brennan, L.

Brookman, L.

Browne of Belmont, L.

Browne of Ladyton, 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.

Corston, B.

Crawley, B.

Cunningham of Felling, L.

Davies of Abersoch, L.

Davies of Coity, L.

Davies of Oldham, L.

Dean of Thornton-le-Fylde, B.

Desai, L.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Emerton, B.

Evans of Parkside, L.

Evans of Watford, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Filkin, L.

Finlay of Llandaff, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gavron, L.

Gibson of Market Rasen, B.

Giddens, L.

Golding, B.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Grantchester, L.

Grenfell, L.

Grey-Thompson, B.

Grocott, L.

Hanworth, V.

Harris of Haringey, L.

Hart of Chilton, L.

Haskel, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Hilton of Eggardon, B.

Hollins, B.

Hollis of Heigham, B.

Howarth of Newport, L.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Inglewood, L.

Irvine of Lairg, L.

Janner of Braunstone, 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.

Layard, L.

Lea of Crondall, L.

Leicester, Bp.

Leitch, L.

Levy, L.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Listowel, E.

Low of Dalston, L.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

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.

Mawson, L.

Maxton, L.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Morgan of Drefelin, B.

Morgan of Ely, B.

Morgan, L.

Morris of Aberavon, L.

Morris of Handsworth, L.

Morris of Yardley, B.

Morrow, L.

Neuberger, B.

Noon, L.

Nye, B.

O'Neill of Clackmannan, L.

Palmer, L.

Patel of Bradford, L.

Pendry, L.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prescott, L.

Prosser, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Rea, L.

Rees of Ludlow, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Rogers of Riverside, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

16 Oct 2013 : Column 586

Sandwich, E.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Snape, L.

Soley, L.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Taylor of Bolton, B.

Temple-Morris, L.

Thornton, B.

Tomlinson, L.

Tonge, B.

Touhig, L.

Triesman, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

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.

Wills, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Norwood Green, L.

Young of Old Scone, B.

NOT CONTENTS

Aberdare, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Armstrong of Ilminster, L.

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

Bilimoria, L.

Black of Brentwood, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bourne of Aberystwyth, L.

Bowness, 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.

Butler-Sloss, B.

Caithness, E.

Cathcart, E.

Chadlington, L.

Chidgey, L.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Craigavon, V.

Cumberlege, B.

De Mauley, L.

Deben, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Dundee, E.

Dykes, L.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Edmiston, L.

Elton, L.

Empey, L.

Erroll, E.

Falkner of Margravine, B.

Faulks, L.

Feldman of Elstree, L.

Fellowes of West Stafford, L.

Fink, L.

Fookes, B.

Fowler, L.

Framlingham, L.

Freeman, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

Glasgow, E.

Glendonbrook, L.

Gold, L.

Goodlad, L.

Goschen, V.

Grade of Yarmouth, L.

Greaves, L.

Grender, B.

Hamwee, B.

Hanham, B.

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.

Howarth of Breckland, B.

Howe of Aberavon, L.

Howe of Idlicote, B.

Howe, E.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

16 Oct 2013 : Column 587

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.

Laming, L.

Lamont of Lerwick, L.

Lang of Monkton, L.

Lawson of Blaby, L.

Lexden, L.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Livingston of Parkhead, L.

Loomba, L.

Lothian, M.

Lucas, L.

Luke, L.

Lyell, L.

McColl of Dulwich, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, L.

Maclennan of Rogart, 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.

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.

Patel, L.

Patten, L.

Perry of Southwark, B.

Phillips of Sudbury, L.

Popat, L.

Randerson, B.

Rawlings, B.

Redesdale, L.

Renton of Mount Harry, L.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rodgers of Quarry Bank, L.

Roper, L.

Rotherwick, L.

Scott of Needham Market, B.

Seccombe, B.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Shipley, L.

Shutt of Greetland, L.

Skelmersdale, L.

Smith of Clifton, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

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.

Tordoff, L.

Trefgarne, L.

Trenchard, V.

Trimble, L.

True, L.

Tugendhat, L.

Tyler of Enfield, B.

Tyler, L.

Ullswater, V.

Verma, B.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walton of Detchant, L.

Warsi, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Williams of Crosby, B.

Willis of Knaresborough, L.

Wolfson of Aspley Guise, L.

Younger of Leckie, V.

6.30 pm

16 Oct 2013 : Column 588

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

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

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

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

(d) in particular the short and long term costs of setting the eligibility criteria at the level set out in regulations.”

Lord Hunt of Kings Heath: My Lords, as I said on Monday, the principles which underpin this Bill are widely supported, although recent revelations around deferred payments have put a considerable damper on that. We have been concerned in our debates mostly with trying to improve the Bill. A major feature of discussions has been the capacity of local authorities to do what is required, including responsibilities around assessment, providing information, preventing needs for care and support, promotion of integration, provision of information and support, direct payments, promotion of diversity and quality in the provision of services, and dealing with provider failure. Another concern has been about the amount of resources that will be available to make the Bill effective—the more so when one considers the number of self-funders who will in the end receive support as a result of the introduction of the cap.

This is done in the context of a very tight funding situation for health and care generally. The Minister will be aware of reports from both the King’s Fund and the Nuffield Trust, and, more recently, from the NHS Confederation, which talked of the problems in healthcare and of there being basically no growth in real-terms funding in the next few years, together with a big increase in demand.

This is matched, and more so, by the additional costs which it is clear will fall to local authorities to meet the extra care responsibilities that they have been given. The Explanatory Notes to the Bill are rather disarming. They state:

“Most of the costs to the public sector associated with Part 1”—

which is what we are discussing—

“arise from introducing and funding a cap on care costs and from the proposed increase to the capital threshold. These are partly offset by consequential reduction in costs of attendance allowance and disability living allowance”.

The Minister cannot be in ignorance of the widespread concern among local authorities that, in essence, the Bill places many additional financial responsibilities on local authorities for which they have little confidence they will receive proper support from the Government. Let me give one example. We know that the settlement for 2013 provided £335 million so that councils can prepare for reforms in the system of social care funding, including the introduction of a cap, and a universal offer of deferred payment agreements from April 2015—this was in the guidance issued by CLG. That money was intended to cover assessment and reviews, capital investment in systems, capacity-building in individual councils, information and advice, and introduction of deferred payments from April 2015. However, my understanding from the Local Government Association is that that £335 million was not new money; indeed, it was top-sliced from the local government settlement. So the cost associated with funding reform should be

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seen as a new burden and funded as such. If that is only associated with the introduction—essentially with helping local authorities prepare for the provisions in this Bill—how much more will the additional funding responsibilities be when it is actually up and running?

There is widespread concern and doubt about local authorities’ capacity to set up the infrastructure to do the job, but the funding issue is even more important. That is why my Amendment 121 suggests that the Secretary of State asks the Office for Budget Responsibility to complete a review of the funding of social care that assesses the adequacy of current public funding of these services, the proposals for the funding of provisions in this Act, the implications of the Act and its funding for the NHS over the next five years and in particular the short- and long-term costs of setting the eligibility criteria at the level set out in the regulations.

The Office for Budget Responsibility has been established and we see many uses for it. This would be a very good way of getting an impartial view of the future costs resulting from the Care Bill and of the likely consequences for local authorities and the Bill’s funding. In the spirit of harmony and consensus which has prevailed over much of our discussions, I think it would be very good if the Government agreed to do this. It would provide us with a very good foundation and also help in taking forward the Bill and in terms of local authorities’ actual ability to implement the provisions. I beg to move.

Lord Warner: My Lords, I want to speak to Amendment 122 in my name. This requires the Secretary of State to publish a review of the working of Part 1 and its funding before Clause 15 is brought into operation.

I have tabled this amendment because of my continuing concern that the Government are sleepwalking into the introduction of the new arrangements in this Bill without adequate funding provision and they do not really appreciate the parlous state of adult social care funding. I think my noble friend was being rather generous in his remarks. The situation is very bad. I have a cutting about the Equality and Human Rights Commission’s report into home care, published last week, in which the commission made it clear that council cuts could be affecting the human rights of older people. This is a serious situation.

People are very supportive of the basic architecture of the Dilnot and the Law Commission’s proposals enshrined in this Bill, and are very supportive of the Government bringing this Bill forward, but they simply do not believe that the funding is in place effectively to implement the Bill’s good intentions. They remain unconvinced by the Government’s assurances on funding and I think this is hardly surprising because the Government’s social care funding strategy seems almost designed to confuse. We have Eric Pickles signing up to quite swingeing cuts to local authority grants which inevitably reduces social care funding substantially. We then see Health Secretaries having to scrabble around to slip NHS cheques to local government to mitigate some of the Pickles cuts. Of course I do not want to be ungenerous to Health Secretaries, and these cheques are better than nothing, but they do not make good the shrinking base budget of adult social care that has been taking place over many years.

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People like to claim and use bits of the Dilnot commission’s report that they favour and fancy. I would like to draw attention to pages 14 and 15, where we said:

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

We showed in this report that in the four years to 2010, demand outstripped expenditure by about 9%. We went on to say that in the future this approach to funding was going to need to change. It has changed, but not quite as we had expected or intended.

Adult social care will start the next financial year with a base budget about £3 billion lower in real terms than in 2010. So the base budget for social care is underfunded. That is where we start from. Most of the discussion that has taken place about the implementation of the Bill takes no account of the base budget deficit from which we are starting. That deficit is due only to get worse because there is another set of proposals under the DCLG settlement in Spending Review 2013 for another 2.3% cut in the budgets of local councils, which can only take even more money out of the local government budget for adult social care.

I have no doubt that the noble Earl will say much the same thing as he did in Committee about the Government’s proposal for a £3.8 billion pooled budget for 2015-16 to join up health and social care services. I welcome that. Most people welcome that. However, as the Minister acknowledged in Committee, only half of that £3.8 billion is new money, and only half of the new money will be paid upfront to local authorities as they start to implement the proposals under the scheme. The assurance that that new money will be in place takes no account of the further reduction of 2.3% that I mentioned in the spending of local councils in 2015-16.

We have a situation where the base budget is highly deficient, further cuts are coming out of local government expenditure by councils, which can only have a further impact on that base budget in 2015-16, when the new legislation is due to be implemented, and we have no guarantee that the lion’s share of that £3.8 billion pooled budget will be in the hands of councils when they start to implement the scheme. That is not a situation to fuel people outside with confidence that they will have successful implementation of the legislation.

The Government can protest as much as they like but, at the end of the day, we need public documentation —preferably, I would say, by someone as independent as the OBR, but I would even settle for the Institute for Fiscal Studies. If I cannot have that, I would settle for legislation requiring the Secretary of State to put some of that information in the public arena and before Parliament before the Bill is put into full operation. People who are to implement it and the public need far more convincing than they have received so far that all will be well financially, to give people a reasonable chance to implement this highly desirable, on the whole, well constructed Bill, successfully when the time comes.

Earl Howe: My Lords, I have listened with care to noble Lords as they have introduced their respective amendments and I am confident that we can all agree

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that the issues that they raise are vital to the successful implementation of government policy and are essential parts of good policy-making. Let me first address the questions about the cost and funding of these reforms. We have taken and will continue to take a robust, evidence-based approach to assessing the cost of the reforms. We are working closely with local authorities to help them to understand the costs at a local level, and we will use this knowledge to refine our national modelling further. Funding of care and support, including the reforms in Part 1, will be reviewed regularly as part of the spending review process, and the core elements of the capped-costs system will be reviewed within each five-year period.

Turning to the specific issue of the short and long-term costs of the national eligibility threshold, I can assure noble Lords that we have published an impact assessment fully setting up the costs and benefits of the policy. We have comprehensively assessed and funded those provisions. We have published impact assessments for all elements of the Bill and, in line with the Government’s approach to all new burdens on local authorities, those costs were fully funded in this year’s spending round. Those estimates are based on the best available evidence in the area. They have been produced in co-operation with academic experts and officials from across government.

6.45 pm

Similarly, I can assure the noble Lords and the noble Baroness that we have fully considered the wider impact of the reforms, including the impact on the NHS. It really would not be productive to ask the OBR to repeat that analysis in 2014. That would simply repeat what has already been done, and it would have no further evidence on which to base its work, even if it were to do it. Nor would that be an appropriate role for the OBR, which is independent and has complete discretion to determine the content of its publications and its programme of research and analysis.

The noble Lords and the noble Baroness are of course absolutely right that it is essential that sufficient funding is made available for the successful implementation of these reforms. In addition, when allocating funding for its policies, the Government need to take a broad overview of activity across all public services so that we can make the best possible decisions. That is the purpose of the spending review process and why a spending review is the best place to make funding decisions. I struggle to see how a separate official process considering funding for care and support in isolation is either appropriate or desirable.

The noble Lord, Lord Hunt, also suggests that we review the adequacy of public funding for social care services, a point reiterated by the noble Lord, Lord Warner. I can assure them that we have done precisely that in the recent spending round. As a response to the increasing demand for care and support, we have taken steps to ensure that adequate funding will be available. We have increased the NHS contribution to care and support with the health benefit by £200 million in 2013-14, taking the total amount to £1.1 billion and have gone further in 2015-16 by creating a £3.8 billion pooled budget for health and social care, which will

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provide the resources to protect care and support services and break new ground in driving closer integration.

However, of course, spending decisions for care and support will ultimately be taken by local authorities. Perhaps I could deal with the point raised by the noble Lord, Lord Hunt, when he suggested that the £335 million to which he referred had been topsliced from the local government settlement. That funding will be allocated by DCLG in 2015-16 as part of the local government settlement. That was agreed as part of the spending round, which reviewed all government spending, as I mentioned. There was no pre-existing settlement for 2015-16 before the spending round, so it is not true that this money has been topsliced.

I turn to the suggestion of the noble Lord, Lord Warner, that the Government should publish a review of the working of the reforms ahead of the first five-yearly review. Reviewing and evaluating those reforms is indeed essential; I agree with him on that. That is why we will conduct post-legislative scrutiny, as the Government have committed to do across the board for all new Acts. The agreement we have with the House Liaison Committee in another place is that that should be done between three and five years after Royal Assent. The joint programme and implementation board, which we have set up in collaboration with the Local Government Association and the Association of Directors of Adult Social Services, will also assure implementation, and we will work with local government on continuing assurance and improvement

I truly do not believe that it would be necessary or desirable to supplement those arrangements with further reviews, either by government or by other bodies. Such additional oversight would cut across the scrutiny conducted by the Health Select Committee and cross-government planning on spending through the spending round. I am sure the noble Lords will agree that it is only right that decisions on care and support are taken at the same time as spending plans are set for all areas of government.

I hope that noble Lords will be somewhat reassured and convinced by what I have said. I have a sinking feeling, looking at noble Lords opposite, that they may be intent on dividing the House. I ask them not to, and ask the noble Lord, Lord Hunt of Kings Heath, to withdraw the amendment. Their underlying concerns are perfectly reasonable, but I believe that their prescription is misplaced and quite unnecessary.

Lord Hunt of Kings Heath: My Lords, I am grateful to the Minister, although I am disappointed by his response. He argues that the cost and funding elements in the Bill have been subject to a robust, evidence-based approach and are reviewed regularly, and he prays in aid the spending reviews. However, there is often a distance from ministerial assurances about well-being and the reality on the ground floor, and I have to say to him that the experience up and down the country is of a health and social care system under huge pressure. The Bill brings more pressures and many local authorities do not see how they will be able to find resources in order to pay for the extra demands and responsibilities the Bill places upon them. That is the reality up and down the country.

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The noble Earl does not like the referral to the Office for Budget Responsibility. This is a remarkable institution set up by the Government with a great fanfare; now they seem very reluctant to use it. That is a great pity. My noble friend suggests the Institute for Fiscal Studies, another organisation to which we might refer it.

It would have been of great benefit to all of us concerned to see some independent work that could be published and would inform the Bill’s implementation, but I fear the noble Earl is not going down that path. It is probably time to move on to another debate, so I beg leave to withdraw the amendment.

Amendment 121 withdrawn.

Clause 69: Five-yearly review by Secretary of State

Lord Warner: I am not going to detain the House. I remain unconvinced about the direction of travel that we are taking and I learnt long ago in Richmond House not to believe everything I was assured of which came to me in my Red Box. I hope that the Minister is right, but I have a terrible feeling that I shall be saying, “I told you so” in a few years’ time.

Amendment 122 not moved.

Amendments 123 and 124 not moved.

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

Amendment 125 not moved.

Clause 71: After-care under the Mental Health Act 1983

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(c) if the dispute is between a local social services authority in England and a local social services authority in Wales, it is to be determined by the Secretary of State or the Welsh Ministers.

(4A) The Secretary of State and the Welsh Ministers shall make and publish arrangements for determining which of them is to determine a dispute under subsection (4)(c); and the arrangements may, in particular, provide for the dispute to be determined by whichever of them agree is to do so.”

Amendments 126 to 128 agreed.

Lord Patel of Bradford (Lab): My Lords, I am speaking to Amendment 128A which affects Clause 71(5) that aims to provide a definition of “after-care services” as they relate to the Mental Health Act 1983.

We had an extensive debate on this clause in Committee and as a result the Government have tabled their own amendment. I am grateful to the Minister for Care and Support, Norman Lamb, and his officials for taking time to meet me and discuss my concerns about this clause. During the debate in Committee, I highlighted the importance of Section 117 in providing a comprehensive care package of health and social care services to a very specific and extremely vulnerable group of patients when they are discharged after detention in a psychiatric hospital. Without appropriate community health and social care support they may relapse, come to harm or even present a risk to others.

In recognition of the inherent vulnerability of these patients and the risks involved, and to encourage take-up by them, after-care services under Section 117 have required local authorities and clinical commissioning groups to provide after-care services free of charge and are deliberately not defined in statue, as there is a wide range of services that a detained patient might need in order to leave hospital and live in the community. Mental health professionals need to have the widest flexibility possible to devise creative care packages to keep patients who have been detained well and prevent them relapsing. The concept appears well understood by both health and local authorities and has been for over 30 years.

There is also a clear public health policy purpose behind Section 117, which is to help get vulnerable people out of hospitals and back into the community. No one should remain in hospital any longer than they need and after-care services should be provided to enable a safe discharge and to avoid all the emotional harm and exposure of a deterioration. This is vital to prevent our hospitals being bedblocked—I am sure that all noble Lords saw the news headlines this morning about the severe lack of in-patient psychiatric beds. So what does this clause do and why?

Clause 71(5) proposes to provide the first ever statutory definition of after-care services, but it is a narrow definition which I and many others believe will be detrimental to patients’ welfare. For example, an

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after-care package may include daytime activities, welfare benefits and financial advice, residential accommodation and medication. However, if the proposed definition is introduced, after-care providers may argue—I think they will argue—that it is only the provision of psychiatric medicine that meets,

“a need arising from … the mental disorder”,

of the person.

I accept that the Government have made some concessions on this issue. For example, concerns were raised that the definition in the Bill refers to, “the mental disorder”, which might refer only to the medical treatment of a single diagnosis, rather than looking at a person holistically. In response to these concerns, amendments have been tabled by the Government to make it clearer that Section 117 after-care services are to meet needs,

“arising from or related to the person’s mental disorder”.

That can mean one or more mental disorders, and not necessarily the mental disorder for which the person was detained in hospital for treatment. While this concession is, of course, welcome, and the current proposed definition is wider than that set out in the draft Bill, I still remain extremely concerned about the risk of confusion, litigation and delays, which is why I have tabled my amendments.

Noble Lords will be very relieved to hear that I will not repeat the many reasons I have for tabling Amendment 128A; I simply want to give two very clear reasons why this amendment should be accepted. First, I want to challenge the basis on which the Government have introduced this definition and say why it is wrong. Secondly, I think that the definition, even with the Government’s amendment, remains problematic and harmful to patients.

The Government have clearly stated that they have put this definition into the Bill following the recommendation from the Law Commission’s report Adult Social Care, a recommendation that is based on the Law Commission’s concerns around one case, Mwanza v the London Borough of Greenwich in 2010. I am not a lawyer, but I had a nasty feeling about this case, so I contacted the counsel, Nicholas Armstrong from Matrix Chambers, who actually represented Mr Mwanza in this case, to get his views. I am extremely grateful for his time and the explanation he gave me. Suffice to say he was very concerned to hear that the case is being used in this way. He informed me that there were a number of issues that make this case unique and unrepresentative, explaining that,

“this is a very unstable basis on which to disturb a provision of primary legislation that has benefited many and operated largely without difficulty for 30 years (rather a long time in these areas of law and, some might feel, a testament to its success)”.

I have shared the full contents of the communication from Nicholas Armstrong with the Department of Health so that it can clearly see the issues and concerns that Mr Armstrong has raised about his own case. Most importantly, he states:

“Mwanza was highly unusual and complex. First, it is critical to recognise that it was a migrant case. The family had no immigration status and so were cut out of mainstream benefits and sources of support, including housing. Their possible routes

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to support and, in particular, accommodation were therefore very limited. Normally, accommodation is not an issue because people get it from any number of other routes. Not so here . . . Second, the Section 117 issue had to be addressed here, despite how difficult it was, because of the way the other possible route to accommodation (Section 21 of the National Assistance Act 1948), works. That provision cannot provide accommodation if there is an alternative. Hence, to resolve where a Section 21 duty was owed, the court had first to decide whether Section 117 applied . . . We were, in other words, only in Section 117 at all because of the way the migrant exceptions work.”

The situation was then complicated by the detention under Section 3 many years earlier—about eight to nine years prior to this case—and it looked like the duty had not been discharged properly by the local council. Nicholas Armstrong continued:

“It is critical to recognise that it was a disabled migrant case where another local authority wanted to avoid liability under Section 21 of the National Assistance Act 1948, and we had to resolve the Section 117 question because we could not get to Section 21 unless Section 117 was definitely not in play . . . That was a pretty rare set of circumstances. So far as Section 117 is concerned, Mwanza is a permission decision only. It was fully argued but it is not binding, even on courts below the High Court”.

7 pm

As Nicholas Armstrong says, I am not convinced that this is a very stable basis on which to disturb the provision of primary legislation that has benefited many and operated largely without difficulty for the last 30 years. I accept that some effort has been made to address the issue by devising the Care Bill’s Explanatory Notes, but I do not think that goes far enough. In fact, this just highlights for me how unclear and confusing the proposed definition is—if you need Explanatory Notes to clarify something in the Bill, why are you doing it?

Even putting Mwanza aside, I have consulted widely on the proposed definition, and I must say that so far only the Department of Health officials and the Law Commission believe that this is the way forward. No one operating in the mental health field that I have spoken to, no experts or professionals, agrees that this is the right way forward. I have had discussions with, among others, representatives from Mind, the national mental health charity, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association, all of which have reached a consensus that, even with the extended Explanatory Notes, they still believe that the best outcome would be to remove Clause 71(5)(a). The Care and Support Alliance, representing over 70 organisations, after having taken extensive legal advice, firmly believes that paragraph (a) is too restrictive.

The reasons for this are that, first, the proposed definition as it stands is too restrictive and will not clarify the purpose or content of aftercare packages; rather, it will narrow and limit the services that can be regarded as aftercare services, so it runs the risk of imposing a medical model. Secondly, it opens the way for legal disputes and conflicts about whether or not a service is directly linked to a person’s mental disorder, and there is a real risk that aftercare services will be narrowly interpreted, encompassing only health provision.

I have a whole batch of real case examples provided by Mind and others although, again, I will not share them with the House today. Given all these points and

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all the consultation that I have done, my preference would be for the Government to delete Clause 71 altogether. However, if a definition is to be introduced, it must retain a broad, flexible approach. Therefore, in the spirit of co-operation, which I know that the Minister always aims for, and in trying to reach a way forward, I propose Amendment 128A, which once again I urge the Government to consider seriously. I beg to move.

The Lord Speaker: I remind your Lordships that if this amendment is agreed, I cannot call Amendments 129 to 131 by reason of pre-emption.

Baroness Masham of Ilton (CB): My Lords, it is vital that people with mental illness have adequate aftercare. I ask the noble Lord, Lord Patel of Bradford, if his Amendment 128A would cover such cases as the tragic case of the schoolgirl who was travelling by bus to school and was killed by a person who was mentally ill. There should be more protection for the public, who are at risk from mentally ill people who are let loose in the community without adequate aftercare and supervision. It is vital that people have aftercare, otherwise we will have more and more disasters.

Lord Patel of Bradford: I thank the noble Baroness for her question. I would not like to associate mental health patients leaving hospital with the case that she has outlined, but clearly it is true that if we do not provide good quality aftercare services and encourage people to take them up but rather leave people in hospital anxious about whether they will have to pay for some of these services, then that is a potential result that we will have to live with, in circumstances where people do not have accommodation, health and social services provided or someone coming in and saying to them, “Deal with your accommodation and social care issues as well as your medication”. This is a real anxiety.

Baroness Hollins (CB): My Lords, I commend the amendment of the noble Lord, Lord Patel of Bradford. I shall not say much more than that other than that he commented on the risk that the current situation could lead to more likelihood of a more medical approach to aftercare. Noble Lords might think that as a retired psychiatrist I would support that, but I do not; it is incredibly important that people who have a history of mental illness and need aftercare services receive the broadest possible support so that admission to hospital is not simply because there is inadequate support for them in the community. I commend his proposal.

Baroness Barker (LD): My Lords, I wish to indicate my support for the continuance of Section 117, as I have done on many occasions before, not least during the passage of the most recent Mental Health Act—when various people, whom I shall not embarrass now by saying who they were, did indeed stand up to defend some of it—because it works.

When the Law Commission first made this proposal in its report, I had occasion to talk to that body. The noble Lord, Lord Patel, is right; the commission relies very heavily on the Mwanza case, and there is a great

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deal of dispute about the advisability of doing that. The question that I had when I first met the Law Commission still remains: when everything else in the legislation is geared towards enabling health and social care to work together to enable the transfer of people from acute health settings back into the community, why rip up the one piece of legislation that has been there doing that for 30 years? It is not just that some of us see Section 117 as being important with regard to the individuals whom we might know or come across; rather, we see it as an important means of bringing about the transfer that some of us have long hoped would happen in mental health services whereby, instead of having patients who revolve between acute and the community, we could have proper care planning in which people’s mental health needs were addressed by some of the same people, whichever setting they were in. It is not just about trying to preserve a pot of money; it is about trying to keep open a pathway to good and better practice. That is why the noble Lord, Lord Patel, as he always does in this area, has presented the House with a very persuasive argument. I have not yet fully understood why the department feels the need to make the changes that it is making.

Baroness Wheeler: My Lords, we fully support my noble friend in his valiant efforts once again to try to get this important issue on mental health aftercare sorted out. We recognise the Government’s concession in removing “the” from subsection (5)(a), but my noble friend is right that there still remains the very real risk that leaving the rest of the subsection in place could lead to local authorities arguing that,

“a need arising from or related to a mental disorder”,

was the requirement only to provide psychiatric, medical and follow-up services.

The statutory definition of aftercare services in the Bill is confusing because it separates out the needs arising from the person’s mental disorder from the need to reduce the risk of deterioration in the person’s condition and the risk of readmission to hospital. My noble friend’s amendment would instead define aftercare services as those services that reduce the risk of deterioration in the person’s mental condition and the likelihood of the person requiring readmission to hospital.

It is right that the definition of aftercare services focuses on reducing the likelihood of hospital readmission and does not lead to confusion or legal disputes about a local authority’s role in this or what services should be provided under Section 117 of the Mental Health Act. It is also right that aftercare continues to be viewed as a comprehensive range of generic services across healthcare, social care and other services such as suitable accommodation and community support.

Amendment 128A is a compromise offered by my noble friend that I hope the Government will take up because, as he said, he would prefer to delete Clause 5 entirely, so that the current position in relation to Section 117 remains unchanged. Mind, the mental health and disability committee of the Law Society and the Mental Health Lawyers Association all consider that the best way to avoid confusion over the definition of aftercare is to remove Clause 71(5)(a) altogether.

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I hope that the Minister will have some good news for my noble friend and for other Lords who, too, are very frustrated that the mental health aftercare issue has not been laid to rest in the way we thought it had under our discussions as far back as on the Health and Social Care Bill.

Earl Howe: My Lords, I first would like to echo the comments made by my noble friend Lady Northover during Committee, when she paid tribute to the excellent work of the noble Lord, Lord Patel of Bradford, in the mental health field.

I think we can all agree that setting out a definition of mental health aftercare in legislation is important. A clear legal definition will mean that the scope of aftercare will no longer be entirely open to interpretation by the courts, whose views have varied over time. The question is what that definition should be. As updated by government Amendments 129, 130 and 131, our proposed definition contains a carefully framed duty that reflects the Government's policy on the appropriate scope of the duty to provide free aftercare services for a very small group of patients who have been detained for treatment under certain sections of the Mental Health Act. It has carefully drawn limits because the Government do not consider that it would be appropriate for the Mental Health Act to impose a duty on local authorities to commission services that are based on needs which neither arise from, nor are related to, a mental disorder.

Therefore we believe that the amendment tabled by the noble Lord, Lord Patel of Bradford, goes too far and would create an inequity between this group of people and others with equivalent needs for care and support who are not eligible for free aftercare, either because they have been detained under other provisions of the Act or not detained at all. They will be means tested and will have to meet eligibility criteria for the social care part of their aftercare package, so may not receive any social care from the local authority. In addition, with an ageing population, local authorities will have to be able to differentiate “mental health aftercare” in order to know when the “aftercare” finishes and ongoing support for other reasons begins.

The noble Lord suggested that the case of Mwanza was not a stable basis for primary legislation. He said that it is, after all, only one case. There is a bit of a misunderstanding around this. The Mwanza case merely triggered a debate; the issue is whether the definition is a good idea and, if so, how it can most helpfully be drafted. The Government’s definition of mental health aftercare services builds on the definition recommended by the Law Commission. The Government accepted the recommendation of the Law Commission as a sensible starting point, but we have gone further. We propose a wider definition than that suggested by the Law Commission, including that Section 117 services may relate to as well as just arise from the person’s mental disorder, and that the aftercare should prevent deterioration as well as readmission to hospital.

Because our definition is more precise, I feel that it will be more helpful than the noble Lord’s in ensuring that clinical commissioning groups, local health boards

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and both English and Welsh local authorities more easily agree on the aftercare services to be provided, so that these services can be put in place promptly.

I reassure the House that the definition we are now considering is the result of extensive consultation. In consequence, we have added a positive objective to prevent deterioration as well as preventing readmission to hospital, and have further changed the clause to remove the definite article when referring to “the mental disorder”, for which the noble Lord made the case in Committee. This is intended to remove any doubt about our intention that the scope of aftercare covers more than just one form of mental disorder, and is not necessarily limited to the specific disorder or disorders for which a person was previously detained under the Act and which gave rise to the right to aftercare.

7.15 pm

We will also clarify these matters in revised Explanatory Notes for the Bill. Lawyers from Mental Health Alliance have told us that this would be of considerable value in resolving disputes at a local level. In addition, we will further explain these issues when we revise the Mental Health Act 1983 code of practice in 2014. We have given a commitment to work with all interested stakeholders when revising that.

My noble friend Lady Barker asked why we should rip up the legislation that has promoted joined-up care. We are not ripping up this section; we are making the scope of the duty clearer. We are not changing the joint duty to commission Section 117 services, nor are we trying to introduce charging.

I hope that with the number of clarifications made to the clause and the commitments I have given, I have assured the noble Lord, Lord Patel of Bradford, that the Government’s position is the right one.

Baroness Masham of Ilton: My Lords, what will happen to the protection of the public from those who have schizophrenia?

Earl Howe: My Lords, the protection of the public is of great importance, as I need hardly say; but we are dealing here with quite a narrow point of definition about who should be entitled to free mental health aftercare. To expand the scope of that definition to include others would not be fair on many people, which is why I have argued that I believe we have positioned the definition in the right way. The noble Baroness’s question is a very relevant one in the broader context of how we look after those with mental illness, but I would like to think that this amendment should not affect her concern one way or another.

Lord Patel of Bradford: My Lords, I am clearly disappointed at the response. I was expecting at least a halfway point at which we could meet and perhaps change the definition once again. I will not detain the House for very long. The noble Baroness, Lady Barker, very clearly and succinctly put the benefits of Section 117 and the joint working that takes place. That is probably the only piece of legislation that has encouraged joint working really well and has worked.

16 Oct 2013 : Column 601

The noble Earl talked about the Government’s definition, and that is what it is: a Department of Health definition. However, it does not ride with everybody else out there. Everybody that I have spoken to clearly says that this is the wrong way. I fear that the department has got itself in a corner because it has accepted the Law Commission’s recommendation on this point. It did not accept the other three recommendations, which clearly shows, to me, that the Law Commission does not understand Section 117 services properly. Although the department has accepted this recommendation, I think it has realised that the basis on which it has done so is not appropriate; the case is unique and unrepresentative.

We have talked about inequity. These people have their liberty taken away: they are locked up against their will. They have been in and out of mental health services; they have had a raw deal. That is why they are there. This is a reciprocal duty on behalf of society to make sure that we give them free aftercare services. Yes, other patients may not get that, but this group of patients is extremely vulnerable. There is also the issue of public safety. We should give them the services they require.

I could go on, but I will not. I am really disappointed. This matter deserves that the House makes its views known, so I want to test the opinion of the House.

7.19 pm

Division on Amendment 128A

Contents 178; Not-Contents 198.

Amendment 128A disagreed.

Division No.  3

CONTENTS

Adams of Craigielea, B.

Anderson of Swansea, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bakewell, B.

Bassam of Brighton, L. [Teller]

Beecham, L.

Berkeley, L.

Billingham, B.

Bilston, L.

Blackstone, B.

Boateng, L.

Borrie, L.

Bragg, L.

Brennan, L.

Brookman, L.

Browne of Belmont, L.

Browne of Ladyton, L.

Butler-Sloss, B.

Campbell-Savours, L.

Carter of Coles, L.

Christopher, L.

Clancarty, E.

Clarke of Hampstead, L.

Collins of Highbury, L.

Corston, B.

Crawley, B.

Davies of Coity, L.

Davies of Oldham, L.

Dean of Thornton-le-Fylde, B.

Desai, L.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Elder, L.

Elystan-Morgan, L.

Evans of Parkside, L.

Evans of Watford, L.

Falkland, V.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Filkin, L.

Finlay of Llandaff, B.

Foster of Bishop Auckland, L.

Foulkes of Cumnock, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Golding, B.

Gordon of Strathblane, L.

Gould of Potternewton, B.

Grantchester, L.

Grenfell, L.

Grey-Thompson, B.

Grocott, L.

Hanworth, V.

Harris of Haringey, L.

Hart of Chilton, L.

Haskel, L.

16 Oct 2013 : Column 602

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Hilton of Eggardon, B.

Hollins, B.

Hollis of Heigham, B.

Howarth of Breckland, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hoyle, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Janner of Braunstone, L.

Jones of Whitchurch, B.

Jones, L.

Judd, L.

Kennedy of Southwark, L.

King of Bow, B.

Kingsmill, B.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkhill, L.

Knight of Weymouth, L.

Layard, L.

Lea of Crondall, L.

Levy, L.

Liddle, L.

Lipsey, L.

Lister of Burtersett, B.

Listowel, E.

Low of Dalston, L.

McAvoy, L.

McConnell of Glenscorrodale, L.

McDonagh, B.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

Mackenzie of Framwellgate, L.

McKenzie of Luton, L.

Mallalieu, B.

Mandelson, L.

Mar, C.

Masham of Ilton, B.

Massey of Darwen, B.

Mawson, L.

Maxton, L.

Meacher, B.

Mendelsohn, L.

Mitchell, L.

Monks, L.

Morgan of Ely, B.

Morgan, L.

Morris of Handsworth, L.

Morris of Yardley, B.

Morrow, L.

Noon, L.

Nye, B.

O'Neill of Clackmannan, L.

Patel of Bradford, L.

Patel, L.

Pendry, L.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prescott, L.

Prosser, B.

Quin, B.

Radice, L.

Ramsay of Cartvale, B.

Rea, L.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Rogers of Riverside, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Rowlands, L.

Royall of Blaisdon, B.

Scotland of Asthal, B.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Finsbury, L.

Snape, L.

Soley, L.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Blackburn, L.

Temple-Morris, L.

Thornton, B.

Tomlinson, L.

Tonge, B.

Touhig, L.

Tunnicliffe, L. [Teller]

Turnberg, L.

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

Watson of Invergowrie, L.

West of Spithead, L.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wilkins, B.

Wills, L.

Winston, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Norwood Green, L.

Young of Old Scone, B.

NOT CONTENTS

Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Ashdown of Norton-sub-Hamdon, L.

Ashton of Hyde, L.

Astor of Hever, L.

Attlee, E.

Avebury, L.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Bates, L.

Benjamin, B.

Berridge, B.

Bew, L.

Black of Brentwood, L.

Blencathra, L.

Bonham-Carter of Yarnbury, B.

Borwick, L.

Bottomley of Nettlestone, B.

Bourne of Aberystwyth, L.

Bowness, L.

Brabazon of Tara, L.

Bradshaw, L.

Brittan of Spennithorne, L.

16 Oct 2013 : Column 603

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Burnett, L.

Caithness, E.

Cameron of Dillington, L.

Cathcart, E.

Chadlington, L.

Chidgey, L.

Clement-Jones, L.

Colwyn, L.

Cope of Berkeley, L.

Cormack, L.

Cotter, L.

Courtown, E.

Craigavon, V.

Cumberlege, B.

De Mauley, L.

Denham, L.

Dholakia, L.

Dixon-Smith, L.

Dobbs, L.

Doocey, B.

Eaton, B.

Eccles of Moulton, B.

Eccles, V.

Edmiston, L.

Elton, L.

Emerton, B.

Empey, L.

Falkner of Margravine, B.

Faulks, L.

Feldman of Elstree, L.

Fellowes of West Stafford, L.

Fink, L.

Fookes, B.

Fowler, L.

Framlingham, L.

Freeman, L.

Garden of Frognal, B.

Gardiner of Kimble, L.

Gardner of Parkes, B.

Geddes, L.

Glasgow, E.

Glendonbrook, L.

Gold, L.

Goodlad, L.

Goschen, V.

Greaves, L.

Grender, B.

Hamwee, B.

Hanham, B.

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.

Howell of Guildford, L.

Hunt of Wirral, L.

Hussain, L.

Hussein-Ece, B.

James of Blackheath, L.

Jenkin of Kennington, B.

Jenkin of Roding, L.

Jolly, B.

Jopling, L.

Kilclooney, L.

King of Bridgwater, L.

Kirkham, L.

Kirkwood of Kirkhope, L.

Kramer, B.

Lang of Monkton, L.

Lawson of Blaby, L.

Lexden, L.

Lingfield, L.

Linklater of Butterstone, B.

Liverpool, E.

Loomba, L.

Lothian, M.

Lucas, L.

Luke, L.

Lyell, L.

MacGregor of Pulham Market, L.

Mackay of Clashfern, 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.

Mayhew of Twysden, L.

Montagu of Beaulieu, L.

Montrose, D.

Morris of Bolton, B.

Moynihan, L.

Nash, L.

Neuberger, B.

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.

Patten, L.

Perry of Southwark, B.

Popat, L.

Rawlings, B.

Ridley, V.

Risby, L.

Roberts of Llandudno, L.

Rogan, L.

Roper, L.

Rotherwick, L.

Scott of Needham Market, B.

Seccombe, B.

Selkirk of Douglas, L.

Selsdon, L.

Shackleton of Belgravia, B.

Sharkey, L.

Sharp of Guildford, B.

Shaw of Northstead, L.

Sheikh, L.

Shephard of Northwold, B.

Shipley, L.

Shutt of Greetland, L.

Skelmersdale, L.

Spicer, L.

Stedman-Scott, B.

Steel of Aikwood, L.

Stephen, L.

Stewartby, L.

Stoneham of Droxford, L.

Storey, L.

Stowell of Beeston, B.

Strathclyde, L.

Taylor of Holbeach, L.

Teverson, L.

Tordoff, L.

Trenchard, V.

Trimble, L.

16 Oct 2013 : Column 604

True, L.

Tyler of Enfield, B.

Tyler, L.

Ullswater, V.

Verma, B.

Waddington, L.

Wakeham, L.

Wallace of Saltaire, L.

Wallace of Tankerness, L.

Walton of Detchant, L.

Warsi, B.

Wasserman, L.

Wei, L.

Wheatcroft, B.

Whitby, L.

Wilcox, B.

Willis of Knaresborough, L.

Wolfson of Aspley Guise, L.

Younger of Leckie, V.

7.31 pm

16 Oct 2013 : Column 605

Amendments 129 to 134 agreed.

Schedule 4: After-care under the Mental Health Act 1983: direct payments

16 Oct 2013 : Column 606

9 In subsection (5)(a) of that section, for “meeting the child’s needs” substitute “discharging its duty towards the child under section 117 of the Mental Health Act 1983”.

Modifications to section 37

10 In subsection (1) of section 37—

(a) in the opening words, for “34, 35 and 36” substitute “34 and 35”,

(b) omit paragraphs (a), (b) and (c),

(c) in paragraph (i), for “a local authority’s duty or power to meet a person’s needs for care and support or a carer’s needs for support is displaced” substitute “a local authority’s duty under section 117 of the Mental Health Act 1983 (after-care) is discharged”, and

(d) in paragraph (k), for “34 to 36” substitute “34 and 35”.

11 Omit subsections (2) to (8) of that section.

12 After subsection (8) of that section insert—

“((8A)) Regulations under sections 34 and 35 must specify that direct payments to meet the cost of providing or arranging for the provision of after-care services under section 117 of the Mental Health Act 1983 (after-care) must be made at a rate that the local authority estimates to be equivalent to the reasonable cost of securing the provision of those services to meet those needs.”

13 In subsection (9) of that section—

(a) for “, 35 or 36” substitute “or 35”, and

(b) for “care and support” substitute “after-care services”.

14 In subsection (10) of that section, for “care and support to meet needs” substitute “after-care services”.””

Amendments 135 and 136 agreed.

Consideration on Report adjourned until not before 8.32 pm.

Probation Service

Question for Short Debate

7.32 pm

Asked by Lord Marks of Henley-on-Thames

To ask Her Majesty’s Government what is their assessment of the impact of the proposed provisions for the supervision of offenders by the private and voluntary sectors after the proposed reorganisation of the probation service.

Lord Marks of Henley-on-Thames (LD): My Lords, the probation service is facing fundamental changes, yet during the passage of the Offender Rehabilitation Bill through this House, there was very little chance to debate these changes in any depth. The central issue I wish to explore in this debate is how far, when these changes are made, can we maintain and even improve the quality of probation services for the rehabilitation of offenders?

That issue raises a number of questions. First, can we retain our existing probation officers within the new structure when the bulk of the service is in private ownership? Secondly, how do we maintain the standards, morale and ethos of the probation service? Thirdly, how can we maintain the high quality recruitment and training in the future? Fourthly, will the new structure deliver the promised new services we all want to see: the through-the-gate supervision, and supervision for offenders on release from short sentences? Fifthly, will the reorganisation genuinely lead to more diversity, more innovation, and better results or are we heading, as some fear, for low-cost uniformity, led by commercial

16 Oct 2013 : Column 607

organisations with bad records of failure which will be of no long-term benefit? Finally, will payment by results actually deliver results or will the targets be either too hard to reach to make them worth aiming for or insufficiently challenging so that they make no difference?

It might help if I set out my understanding of how the proposals stand now. On 1 April next year the probation service is to be split. The existing 35 probation trusts will be wound up, the new National Probation Service will be charged with looking after offenders classified as high risk, with providing advice to courts, with conducting the risk assessment of new clients and with handling cases of breach. They will have a clear responsibility for public protection. The NPS will look after 20% of the probation trusts’ current case load, while 21 new community rehabilitation companies will take over the remaining case load. It is intended that existing staff will be reassigned between the NPS and the CRCs.

Initially, each of the CRCs will be wholly owned by the Ministry of Justice. They will cover England and Wales split into areas and each will be charged with delivering the relevant orders of the court in its own area, including community payback, unpaid work, curfews and drug rehabilitation. The CRCs will generally be located in the same premises as the NPS and, initially at least, those will be the existing probation trust buildings.

Starting in late 2014, the intention is that the CRCs will be taken over by the successful bidders in the competition which is being organised. The bids will be judged on which provide the best package within what the department calls an affordability envelope. So there is a slightly uncomfortable compromise between competition on price, which risks reducing quality, and competition on quality. However, in this area, of course, an objective comparison of quality is very difficult because bidders are expected to propose a range of different ways of delivering the orders of the court.

In the first stage, following 1 April, the probation services will look to their clients and to the public much like the services provided by the existing probation trusts; the same staff doing much the same work in the same premises, though with some change in the allocation of work. However, after the new contracts are let, the shape of the probation services is going to be much more difficult to predict. The new through-the-gate resettlement and supervision following short sentences will only be implemented at this second stage, so the CRCs’ contractual obligations will then have to change. What other changes will there be in the obligations of the CRCs under their new ownership and will they vary from one CRC to the next?

These substantial changes take place against a background of considerable success for the probation trusts. Reoffending rates have been steadily falling for all offenders apart from those serving short prison sentences and they, to date, have had no contact with the probation service anyway. The trusts’ performance has generally been rated by the Ministry of Justice as good or excellent. The Merseyside Trust was last year

16 Oct 2013 : Column 608

the first public sector winner of the British Quality Foundation’s UK Excellence Award. All this has been achieved within a falling budget. It is therefore unsurprising that there is some bewilderment among the probation services as to why they need such reorganisation at all.

Against that background, I turn to my first question on the retention of existing probation officers. We currently have a highly professional, skilled and committed body of probation officers who are an asset of great value, impossible to price but once lost very difficult to replace. My concern is how far the new owners of the CRCs will in the medium and long term retain the staff they take over. Will they be required by their contracts to involve qualified probation officers in the delivery of their services?

My second question concerning the standards, morale and ethos of the probation service is closely linked. My concern is not for the new NPS. Indeed, as a national service, the NPS may develop more influence within the criminal justice system than could the individual probation trusts. However, how far will standards be safe under the umbrella of the new providers? Who are they likely to be? What mix will there be between commercial and voluntary sectors? What role will there be for mutuals? How will performance be monitored, and will that monitoring be effective?

My third question concerned recruitment and training. In relation to all these questions so far, one hopeful development is the proposed establishment by the Probation Association and the Probation Chiefs Association, with government approval, of an institute to be known as the “Probation Institute”. Such an institute could offer accreditation of courses and qualifications. It could maintain a register of qualified probation officers, and could ultimately take on the role of monitoring and enforcing professional performance standards. That would assist providers when recruiting, and probation officers when seeking new employment. The institute could also act as an information exchange on innovation and best practice and would be a valuable resource if it did so. The proposed institute might one day apply for charter status, and would establish probation officers as a strong and independent profession. In a world of diverse new providers, this would be a significant benefit.

My fourth question concerned the delivery of the new services. How confident are the Government that satisfactory bidders will commit to supplying through-the-gate resettlement and the extra supervision, within the same overall price package as we pay for current services? If the bidders do not emerge, the CRCs will stay with the Ministry of Justice and the reorganisation will have failed to achieve its object.

My fifth question was on diversity of provision. Will we genuinely secure more voluntary sector involvement—more local partnerships between smaller local organisations and the main contractors? Will we secure the special arrangements we need and which have been promised for women and young offenders? Finally, will payment by results lead to improved reoffending rates? Was the Social Market Foundation right or wrong to conclude, as it did in its report this summer, that the extra payments would not make it worth while for providers to pay the extra money to

16 Oct 2013 : Column 609

improve the service? Will the payment by results provisions affect the prospect of more partnerships, even if main contractors cannot pass on the risk—as they should not be able to do—to their smaller providers?

I am not opposed to these reforms in principle. If they go well, they could lead to more diversity, to more imaginative and effective rehabilitation, to the provision of the new services, to lower reoffending rates, and to the prospect of fewer people in prison, with improved lives and substantial savings of public funds. However, I am concerned that there are many pitfalls on the road to these desirable outcomes. Perhaps some further time might be desirable for the transfer to private ownership. I look forward to hearing other contributions to this debate and to the response from my noble friend the Minister.

7.43 pm

Lord Judd (Lab): My Lords, the noble Lord, Lord Marks of Henley-on-Thames, deserves to be congratulated, not only on having secured the debate this evening but on the masterful way in which he introduced the subject. I found myself in great sympathy with the points he made.

I confess to the House that I feel very sad. If I was asked to pick an exemplary area of effective public service in British social history, I would pick the probation service. It has dedicated people of quality; people of education, training and practical experience. They do not just run a system or prove themselves as efficient in economic terms, but they have a mission to relate to the individuals, the young men, women and children —and not only young—who are their responsibility, and to work with them as individuals, trying to enable them to become productive. Rehabilitation is a sort of artificial word—it does not get to the human centre of all this. They enable these people to become constructive members of society, to feel that they belong to society, and to grow in confidence. I see that all that is in jeopardy because of a preoccupation with change—as far as I can see, almost for the sake of change.

Look at what has happened in recent years. We have seen reoffending down and the 35 probation trusts in England and Wales have been described as being good or exceptional. Why change a situation that is going so well? We have also seen—this is crucial—that reoffending has been coming down. The latest set of statistics published by the Ministry of Justice shows that for everyone under probation supervision, the probation service will reduce reoffending by 5%. The fall in reoffending has been even higher: when the figures for those serving community sentences are separated from those released from custody, there has been a 6% reduction for those serving community sentences. This is positive; it is not dramatic but is steady progress, which matters in this area. It is about working with people as people, not dramatic schemes against artificial targets.

I am sure that all of us commend the work of the Howard League. I was very struck by a paper it prepared for this debate which posed certain questions that we ought to take very seriously. The league says that in the context of this being a huge change to our justice system:

“Risk is key to the Transforming Rehabilitation proposals—who will supervise people under sentence will be determined by their

16 Oct 2013 : Column 610

risk level, with high risk cases remaining in the public sector and all low and medium risk cases (the vast majority) being transferred to private providers. Despite the central importance of risk levels to the proposals a risk assessment … is yet to be published, or possibly even developed. Furthermore”—

and the noble Lord referred to this—

“probation officers are currently being asked whether they would prefer to stay in the public sector or move to one of the 21 ‘Crime reduction companies’ … but they are not being provided with any information with which to make this decision. Probation officers do not know who their employers will be … what they will carry out or what the terms and conditions … will be. It is unacceptable to put forward radical plans that are central to public safety with so little detail about how it will work and how it will affect the people involved”.

I have another concern which I will share with the House. I have spent a great deal of my life in the voluntary sector. I was a director of Oxfam, which is quite a significant organisation. I am sure that if these proposals go ahead, a lot of voluntary organisations will have a great contribution to make. They will bring a great deal of sensitivity and commitment. However, I am anxious. Why? The real centre of purpose in the voluntary sector should be experimentation. It should be about becoming a catalyst for society as a whole, about vision and new approaches. Increasingly, the voluntary sector is being asked to become an extension of the public sector—subcontracting to get the work done more cheaply than it would be done under existing arrangements is usually a governing factor. That is the objective; rather like privatisation, we shall have to wait and see whether it will work out like that.

I am concerned that all this may be affecting the historical culture and ethos of the voluntary sector. It may be becoming a subcontracting culture as distinct from an innovative, imaginative, visionary, sensitive, dynamic purpose-challenging society with new experiences. I think of a very practical example. I have referred to my experience at Oxfam and other organisations in the voluntary sector, and I had for nine years the joy of being national president of YMCA England and Wales. I became particularly struck by the work the YMCA was doing with young offenders. I remember going to a young offender institution where it had won a contract to work. This, of course, was under the previous Government; I am not disguising that reality—it is a fact. The contract was to get young people into jobs—into work. It was judged by the Home Office in terms of how successful it was in getting those results against targets. What the team was discovering, as sensitive, imaginative people, was that some of those with whom it worked were not ready to go into a job straight away. They needed a lot more support and preparation for making a success of their life. To get them into a job straight away might be a recipe for disaster.

The YMCA therefore began to do more work on this area because it thought that it was its responsibility. It was told in no uncertain terms to stop doing that because, if it did not meet the targets on getting people into jobs, it would lose the contract to somebody else. This is the sort of problem I see ahead. These are the practical problems of the front line. I would like to hear much more reassurance from the Government on this.

I finish as I started: I think it is a word that can be used too loosely, but I genuinely feel we are at a tragic stage. We are about to tear up and remove something

16 Oct 2013 : Column 611

with a tremendous sense of purpose, of loyalty and of contribution to society, but above all of contribution to the individuals with whom they are working, for a system unproven with so many questions still unresolved. I do not understand why we are making this leap into something which is far from proven as a sensible way forward.

7.52 pm

Baroness Linklater of Butterstone (LD): My Lords, I am grateful for the opportunity this debate gives us to look at the work of the probation service today and examine its value in the context of the changes the Government want to make, the implications for its future and, equally important, the future of its clients.

I declare an interest that I was a patron of the Probation Boards Association in 2005, when I joined the noble and learned Lord, Lord Woolf, and I have had connections with the service for many years.

Since its origins more than 100 years ago, the probation service has developed into the national provision for people in trouble with the law at the interface between offenders and the courts, prison, community provision and the public. It represents the bedrock of the system by which we manage offenders in this country in conjunction with the myriad agencies—statutory, voluntary and private—which work to keep our society safe. It is a highly professional service with a hinterland of skills, knowledge and experience which is second to none and on which we all depend when dealing with offender management.

All the performance indicators show that the service is doing well. The MoJ rating system shows that targets have been reached with performance ratings of “good” or “excellent”, and just two years ago the service became the first public sector organisation to be awarded the British Quality Foundation’s Gold Medal for Excellence in recognition of

“outstanding and continued commitment to sustained excellence over a number of years”,

an achievement of which they—and we—should be proud.

We know that the cost of the service is considerable, as one would expect of a national public service. Indeed, the MoJ budget is second only to the costs of the Prison Service, and cuts are inevitably constantly sought by the Government, particularly in these times of recession. Savings of 20% have been found between 2008-9 and 2012-13, while the budget also fell by 19%, but costs are a persistent issue as they are in all the social services. What also matters, however, is the quality and professionalism of the service, which is dealing, in the community, with some of the most damaged, difficult, vulnerable and often dangerous members of our society. This requires skill and experience that comes only with time. It also depends on relationships with the police and on “integrated offender management” with a host of other colleagues in the social services world, health, education, employment and so on.

It is worth reminding the House that, in the recent past, prison numbers have been dropping. Last year there was a 5% decrease in those being sentenced on the year before, and the prison population itself fell in

16 Oct 2013 : Column 612

the past 12 months for the first time since 1999. Recorded levels of crime are at their lowest for 30 years, and youth crime is down 47%. This illustrates the effectiveness and significance of probation in helping to keep people out of prison, by managing them in the community, where they are less likely to reoffend, at a fraction of the cost of imprisonment. Where the figures go the other way relates to those 50,000 minor, persistent offenders, of whom 57% reoffend, serving a year or less in prison. Until now this group has never had any statutory probation support; hence the high reoffending rate which the Minister now wants to include.

In the light of the probation service’s performance and background, it beggars belief that the Minister, Chris Grayling, should be contemplating handing over 80% of the probation service’s work to an almost untried and untested system of payment by results, which is still being assessed, to be administered by 21 crime reduction companies (CRCs) with no earthly idea of what the outcomes are likely to be. Probation officers will still have a guaranteed job for the first year up to 1 April 2015, when the scheme goes live, when their jobs will be “sold to the market”. There is no indication of what the workforce will consist of, except possibly most of those redundant probation officers. Their task will be to manage the 150,000 offenders that probation currently manages in the community each year—excluding the high-risk offenders —and at the same time to provide a year’s support to the 50,000 additional group of low-level offenders that the Minister now wants to be supervised for the first time. It is of course an admirable aim to have additional support for this group, and it could be of great benefit to offenders and public alike, but only if there is the skilled supervision available in appropriate numbers. The Minister’s solution of handing over the whole task to the new private sector, divided into 21 community rehabilitation companies, in contract package areas and overseen by six divisional heads, is what is being announced. Beyond this there is absolutely no indication where the staff on the ground are going to come from, who they will be, let alone what experience and skill sets these newcomers will have. I understand that this information comes under the heading of “commercial confidentiality”.

We know, however, that the 20% of current probation service staff who will be left will be required to manage all the high-risk, most challenging offenders, who will be assigned to them. Here their skills are recognised. This is very important and welcome. They will also have responsibility for bringing back all breach cases to the courts for review and sentence.

Risk management is part of probation’s professional work. It is a delicate skill, and the assessment and allocation of risk is inevitably subject to change. Of course, with professional help, people come off the risk register, but they can also fluctuate, which raises the question of whether each time offenders become low risk they will be transferred to a CRC and will then have to be reassigned again if circumstances change once more—as well they might. This is another “detail” of some significance, because continuity of offender management, as anybody in the business knows, is of extreme importance. However, how these issues will be expected to be dealt with remains unclear—as

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does whether people will be shifted between CRCs and probation depending on their assessed level of risk. What is clear is that the division of management between low and medium-risk, and high-risk, offenders means that the service will inevitably be fragmented, thus compromising accountability and effective community support. 1 would be grateful for the Minister’s comments on this.

The additional cohort of 50,000 offenders will be required to remain on supervision for a whole year, regardless of the length of the short sentence served or the nature of the offence. For example, it could be a two or three-month sentence for a driving offence. How appropriate is a year’s supervision for that?

Apart from issues of staff training and experience, there are considerable risks in the management of a whole year’s supervision. Offenders and professionals are likely to find a year disproportionate, which will make compliance very difficult and almost inevitably will increase the risk of breach by this group.

It is estimated by the Government that around 13,000 offenders each year will be recalled or will breach their conditions and end up in prison again, because for many a year is inappropriate and too long. It is not clear how the CRCs will manage this potentially enormous addition to their workload, and it will increase the prison population by an estimated 600 people. This in turn will impact on current prison management, which is simultaneously dealing with unprecedented cuts on the one hand and the reorganisation of resettlement prisons on the other. Resettlement is another big issue because it has already resulted, inevitably, in the mixing of young people, who are often vulnerable, with adults. This is highly undesirable and destabilising to the normal allocation of prisoners, which is an important part of prison life. It has already led to increased violence and drug use in HMP/YOI Portland, as reported by the IMB, and to a 50% increase in self-harm among young people within a year of mixing with adult prisoners.

I regret that the Government have not wanted to take more time and have not tried out the ideas in some pilot areas, for example. Instead, everyone in the service is now working to ever-tighter deadlines as the goal posts shift. Probation trust chairs are finding the time for transition impossibly short to plan for proper delivery of services, which will be damaging to both future performance and public protection.

Lord Gardiner of Kimble (Con): My Lords, I hope that my noble friend will forgive me for pointing out that there is a time limit of 10 minutes for each speaker, and that we have a speaker in the gap.

Baroness Linklater of Butterstone: I am sorry; I will wind up. I have had letters from professionals who are really worried about this. There is a blank wall of information about how they are to plan and budget beyond next April.

It is surely important to get this right and to reach greater levels of clarity. It is too big a project to be allowed to fail, when excellence should be the goal. The focus of our exercise should be the most vulnerable and difficult in our community.

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8.05 pm

Lord Ponsonby of Shulbrede (Lab): My Lords, I rise to speak in the gap. I will make one central point and ask the Minister two questions.

When we were dealing with the Offender Rehabilitation Bill, I visited a number of very senior professionals in the probation service. From a management point of view, they made one central point to me. It is a point that the noble Baroness, Lady Linklater, made, but I think that it is worth expanding on it after what they said to me. Currently, the probation trusts arrange their management in multi-expert groups of different levels of experience and expertise. The reason is that they can provide continuity of access to, and supervision of, the offenders they are now looking after. The point that was made very forcefully to me by senior probation trust managers was that they experience problems when offenders move between different institutions. Whether the move is from prison into the community or from one place in the community to a different address that is under the supervision of a different probation trust, there is always a dropout of people breaching conditions or not maintaining contact with probation officers.

The point that was made to me—which the noble Baroness, Lady Linklater, made—is that built into the proposed new system is the certainty that there will be more changes between institutions. You will be moving from the National Probation Service, which will make the initial assessment, to a private provider that will then run the supervision for whatever the period is. Then, if there is a breach or a change in circumstances—for example, if the offender starts taking drugs again—they will go back to the National Probation Service for a reassessment. Perhaps there will be a reassignment or perhaps they will go back to court. The point that the managers made to me was that with every transfer you get dropout, which builds inefficiency into the system. Therefore, my first question to the noble Lord, Lord Ahmad, is: has this point been addressed in the contracts that are being bid for? It is the central point that was made to me by senior probation trust managers.

My second question is about the Through the Gates pilots that I understand are currently being run. When will the results of these pilots be available? From what I have heard in unofficial gossip, if one may put it like that, a number of these pilots have been inadequately resourced and inadequately managed. Therefore, the results may be worse than the Government had hoped for. If this is the case, it would be a shame, because I for one think that the model of providing through-the-gate provision, perhaps with somebody who has experience of coming out of prison helping with supervision, is a good one. However, it needs to be properly supported and funded for it to work.

I close by thanking the noble Lord, Lord Marks, for tabling this debate. It is an important one. I cannot resist saying to both noble Lords opposite that there were plenty of opportunities to vote against the provisions of the Offender Rehabilitation Bill, and I am only sorry that they did not take advantage of them.

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8.10 pm

Lord Beecham (Lab): My Lords, I am sure that your Lordships would wish to join me in wishing the Minister a happy Eid. I daresay that it would be happier if he did not have to take his place in the Chamber tonight and answer for the Government in this debate.

It is customary to thank the Member who secured a debate of this kind, and I do so willingly. The noble Lord, Lord Marks, followed me to my Oxford college some eight years after I graduated. Unfortunately, as my noble friend has pointed out, he did not follow me into the Lobbies when we debated the future of the probation service and voted on the amendments to the Offender Rehabilitation Bill tabled and moved by the noble Lord, Lord Ramsbotham, who cannot be in his place tonight, and by me. Had we not taken that step this would have been the first time that the House had an opportunity to discuss the massive changes that the Government seek to impose on a crucial and, as we have heard, high-performing public service. Members will recall that the Bill contained no reference to probation, and that the leaked risk assessment on the Bill disgracefully declared it had been,

“kept slim to minimise the dependence of the reforms on the passing of the legislation”.

Your Lordships’ House passed a crucial amendment to the Bill requiring proposals to reorganise the probation service to be subject to parliamentary approval. The Government have yet to indicate even when the Bill will receive its Second Reading in the House of Commons. Perhaps the Minister could enlighten us as to when that is likely to occur. In the mean time, the Government have displayed their contempt for the views of this House by embarking on yet another bout of pre-emption, or as I have described it in respect of other matters, pre-legislative implementation of the kind roundly criticised by the Constitution Committee, by pressing ahead with arrangements to dismember the service and put 70% of its work out to contract, for which incidentally the existing service will not be allowed to tender. OJEC procedures have been initiated and a strange document entitled, Target Operating Manual—its initials presumably being derived from the noble Lord, Lord McNally—has been published.

This document sets out a complex structure analogous to the confusing and expensive shambles that was imposed on the National Health Service. Local probation trusts disappear to be replaced by a national service responsible for high-risk offenders while private companies supervise medium and low-risk offenders, including those released after serving sentences of 12 months or less. Yet the paper continues to be vague about the system of payment by results saying only that,

“a proportion of their payment will be at risk and dependent on their performance”,

while failing to establish the basis on which that will be measured, or indeed what proportion might be involved.

There are serious concerns about the largely undefined categories of risk between which some 25% to 30% of offenders move. The National Probation Service is supposed to assume responsibility for those moving from the lower categories to high risk. The document states this will follow the deployment of an “actuarial tool” combined with a “clinical judgment of risk”.

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Can the Minister explain what those terms actually mean? It goes on to establish a hierarchy of officers—a responsible officer, a supervising officer and a supervisor, all with different roles, piling complexity upon confusion and fragmentation. The model refers to the involvement of police and crime commissioners in the new arrangements, but not local authorities, clinical commissioning groups or NHS England, which has responsibility for commissioning primary care and mental health services, both highly relevant to the issue.

There will be £450 million worth of contracts offered to, among others, the likes of Group 4 and Serco, who gave us the Olympics fiasco, the tagging scandal, Oakwood prison and, as we have heard in the past few days, the transport to prison of male and female prisoners in the same van—but then this is the Secretary of State responsible for the lamentable failure of the Work Programme. No doubt he would be happy to see such organisations take over the entire system from policing to the court service, and from probation to prisons. As Caliban might have said:

“Oh brave new world that has such providers in it”.

The Government claim that the programmes will involve no extra expenditure despite estimating that it will result in some 200,000 coming under its auspices, 60,000 of whom are likely to be recalled into custody and, as the noble Baroness, Lady Linklater, pointed out, on the Government’s own figures 13,000 will receive short sentences as a result of the reforms who would not otherwise have done so. What is the basis for this improbable assertion in relation to overall costs? Payment by results has not been piloted—or at least not properly piloted, since the Government terminated the relevant pilots prematurely. The noble Lord, Lord McNally, admitted in debate on Report that formal evaluations were not available because the pilots were discontinued, but claimed that the Government had,

“learnt from the process of designing the pilots”—

I emphasise the word “designing” and were,

“applying that learning process to the design of the new system”.—[

Official Report,

25/6/13; col.681.]

Can the Minister tell us precisely what was learnt from the process of designing, but also, importantly, how the Government propose to implement the design that emerged from the short-lived pilots? For that matter can he explain the logic of including in the new regime offenders who may have served as little as one day of a custodial sentence? I repeat some of the questions that I raised on Report, to which no answer was given. In relation to payment by results, what performance indicators will be used to measure service delivery? How will the Ministry of Justice decide to deduct—and on what basis—a proportion of the fee for underperformance? What weight will be given to the nature of any reoffending? Will a motoring offence count the same as a burglary or crime of violence? How long is the period in which reoffending occurs to be measured? The Minister’s letter on the subject suggested 12 months—surely too short.

What of the questions raised by the Chief Inspector of Probation, which also went unanswered in the debate? Was she right to suggest that,

“only a small part of the contract price can be genuinely dependent on a reoffending measure”,

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or that,

“victim contact services should remain within the public sector probation service”?

What does the Minister say to her charge that the,

“current proposals for the management of risk cannot be judged as workable”?

Have they been modified; if so how, and with whom have they been discussed?

How do the Government respond to the chief inspector’s concerns that more full pre-sentence reports will be needed where cases are to be referred to contractors, that small local voluntary organisations will be squeezed out once they have been discarded as bid candy, and that national commissioning,

“could be at the expense of the local perspective and the good working relations at the moment between probation trusts and local partners”?

Does the Minister stand by the airy dismissal of the noble Lord, Lord McNally, of the leaked risk assessment which estimates a 51% to 80% risk that predicted cost savings will not be met? Finally, what is the Minister’s estimate of the number of probation officers who will lose their jobs as 70% of their work is transferred? Does he agree that the figure of 18,000 which has been mentioned is about right? If staff do transfer to contractors, will TUPE provisions apply?

The Government’s objective—the reduction of reoffending—is right. Their proposals, however, are complex, confusing, uncosted and potentially risky. They should be properly piloted with probation trusts being allowed to tender for the work for which they have a deservedly high reputation, as we have heard tonight. I thank all those who have contributed to this debate. If the Government railroad through their ill thought-out plans—in a sort of HS2 of the criminal justice world—it will be because they put ideology before criminology in an area where public safety should be paramount.

8.18 pm

Lord Ahmad of Wimbledon (Con): My Lords, first, I return the greeting from the noble Lord, Lord Beecham, who wished me a happy Eid. It is traditional to say khair mubarak to all. Indeed, my Eid celebrations are, of course, reaching a culmination in being with your Lordships this evening.

I take this opportunity to thank my noble friend Lord Marks for giving the House the opportunity to debate this important subject. I know that both he and my noble friend Lady Linklater recently discussed the reforms with senior officials responsible for the rehabilitation programme, and I am grateful for their continued interest in the reforms. I also take this opportunity to thank all other noble Lords who have contributed, including the noble Lords, Lord Judd and Lord Beecham. I was somewhat surprised when I saw the initial list and the omission of the noble Lord, Lord Ponsonby. I am glad that he resumed his place here. His thoughtful contributions are always welcome to a debate of this importance. The debate is of course a timely opportunity for your Lordships to reflect again on the Government’s reforms.

On 19 September, we published details of how the new model for supervision of offenders will work, alongside the launch of the competition to find future providers of rehabilitation services. Questions have

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been raised, and the noble Lord, Lord Judd, asked the obvious question of “why?”. The Government’s position is that these reforms are vital if we are to break the depressing cycle of reoffending. At the moment, nearly half of all offenders released from our prisons offend again within a year. I will look at a couple of reoffending figures—my noble friend Lady Linklater referred to one of them—almost 60% of prisoners released from under 12 months of custody go on to reoffend. That is a statistic that we cannot ignore. Equally, there is the cost of reoffending. The National Audit Office, back in 2010, estimated that the crimes committed by recent ex-prisoners cost anything between £9.5 billion and £13 billion to the economy. Notwithstanding some of the information about the probation service and its success, which I will come to in a moment or two, these provide valid reasons why it is important we also address the issue of reoffending, particularly among those serving sentences of under a year, which has not yet been addressed.

Legislating to provide that virtually all offenders released from custody will be subject to supervision is just one important aspect and benefit of our overall package of Transforming Rehabilitation reforms. The noble Lord, Lord Judd, asked why we need to change when probation trusts are performing so well. Under the current system, the most prolific group of reoffenders are those released form short custodial sentences. They receive no statutory rehabilitation support. Trusts currently do not have the opportunity to work with them, and we believe that our reforms will go towards addressing that particular issue. We need to stop offenders passing through the system again and again, creating more victims and damaging communities, and we need to have a system that is sustainable given our current financial constraints. That is, in essence, what is behind our reforms.

The noble Lord, Lord Marks, and the noble Lord, Lord Ponsonby, mentioned Through the Gate. In response, I will start with the impact of the reforms. First, there is the support that prisoners will get through the gate from custody into the community. This is an important reform. Providers will offer a resettlement service for all offenders in custody before their release. That may include support in finding accommodation, family support, mentoring and financial advice. I share the sentiment expressed by the noble Lord, Lord Judd. We want to ensure that every citizen of this country, if they commit a crime, is given an opportunity to reform but also to then become a productive citizen and contribute to the economy of our country. The services in custody will be underpinned by changes to the way the prison estate is organised. Through new resettlement prisons, in most cases, the same offender manager will work with offenders in custody and continue their rehabilitation work in the community. That continuity is very important.

The noble Lord, Lord Ponsonby, talked about particular pilots and issues that have been raised about them. I suggest that we could have a further discussion, either through a meeting, or by correspondence, which I will of course share with other noble Lords.

I turn to the voluntary sector. The noble Lord, Lord Judd, raised this particularly important point. Its expertise is part and parcel of what we are seeking

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to integrate into the reforms. We are creating a much greater level of opportunity for voluntary and community sector organisations to play a role in rehabilitating offenders. I do not quite share the sentiment that they are there just for experimentation—they are there for their expertise. They are often best placed to tackle the issues that lead offenders back to crime, whether that is substance misuse, homelessness or a lack of training and education. They are often best placed to work with particular groups with complex needs; for example, many female offenders. I have seen during visits to different prisons—I have often cited Peterborough prison —where voluntary organisations such as the St Giles Trust play a vital role in the rehabilitation of prisoners.

The Government are committed to ensuring that the market is not simply cornered by the big players. In July, the Ministry of Justice awarded £150,000 to ACEVO to deliver a series of skills and information workshops aimed at supporting the voluntary sector and mutuals to compete for contracts and deliver services to cut reoffending. As part of the rehabilitation competition, we are also running a registration process for smaller providers in order to maximise, as far as possible, the opportunities for them to be involved. We want to draw on the best services that can be offered by practitioners across the public, private and voluntary sectors. I say that to underline the driving force behind these reforms. They are about improving the support we give to offenders to turn away from crime. We will be judging potential bidders on the quality of the service they offer, not just on price.

I turn to probation professionals and staff. All noble Lords, I believe, referred to this, including my noble friend Lord Marks in his opening remarks. The Government’s position remains that we cannot deliver these improvements unless we retain the skills and expertise of probation professionals as we move into the new system. Their excellence is not something to be ignored. I have the very greatest respect and admiration for the work that our probation officers do and am sure that the sentiment echoes across the Chamber. They play a fundamental role in protecting the public and helping offenders reintegrate into society. We do not want to lose their expertise. That is why the national framework for the transfer of staff to the new system gives an absolute commitment to fair processes and protection for staff within the system, including: a guarantee of employment for all probation staff employed by a probation trust on 31 March 2014, in either the appropriate community rehabilitation company or the National Probation Service; protection of current terms and conditions at the point of transfer; and no compulsory redundancies.

My noble friend Lady Linklater talked about 20% of probation staff going to the NPS. The proportion of staff who will actually move to the National Probation Service, or community rehabilitation companies, is still being finalised. There is certainly no set target of 20%. It will be the proportion needed to effectively manage the appropriate service. Alongside that, we will place contractual requirements on community rehabilitation companies to have and maintain a workforce with appropriate levels of training and competence throughout the life of their contracts.

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I turn to some of the other questions. The noble Lord, Lord Ponsonby, asked about the disruption caused by offenders moving. There will be 21 CRCs, which will cover larger areas. The Bill also makes sure that offenders subject to community orders do not move residence where such a move will hinder the offender’s rehabilitation. That is a very important point.

My noble friend Lord Marks also mentioned the idea of some kind of chartered institute of probation officers. I assure all noble Lords that this is an idea that the Government are taking forward and looking at seriously. We are working with interested parties across the board to develop a proposal for a Probation Institute that would promote the development of innovation and the sharing of good practice in the new system.

Payment by results and performance management were mentioned by several noble Lords. Community rehabilitation companies will be incentivised, through payment by results, to strive to reduce reoffending. In May this year, we published a detailed “straw man” proposal for the payment mechanism. We want to ensure that providers are incentivised to work with all offenders, including the most prolific, and have proposed important safeguards. We continue to test and refine this particular model. We will also put in place a clear performance framework to ensure that community rehabilitation companies meet the standards required of them in managing their cases and delivering the sentences of the courts. The system will be regulated through a combination of robust contract management, audit and independent inspections by Her Majesty’s Inspectorate of Probation.

I turn to risk and public protection, which were raised by the noble Lords, Lord Judd and Lord Beecham, and by my noble friend Lady Linklater. Public protection is absolutely at the heart of these reforms, and the National Probation Service will have a crucial role to play in this. It will risk assess every offender at the outset and retain the management of offenders who pose a high risk of serious harm to the public and who have committed more serious offences. Community rehabilitation companies will be contractually obliged to work with the National Probation Service to manage those offenders at risk of causing serious harm. Any offender whose risk level escalates to “high” during their sentence will be transferred back to the National Probation Service.

The noble Lord, Lord Judd, asked various questions about the ultimate responsibility for managing the risk of harm posed by offenders. The public sector has overall responsibility for public protection and the MoJ will ensure the effective management of risk of serious harms.

I draw noble Lords’ attention to the much greater influence the National Probation Service will give probation within government. The directors of probation for England and for Wales will both sit on the NOMS board and will be able to advise Ministers directly on policy and operational matters. That is a significant improvement on the current system, in which probation is very much the junior partner to the Prison Service.

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My noble friend Lady Linklater talked about transfer from the National Probation Service back to the CRC if the risk decreases. This will not happen: if an offender is transferred to the NPS they will remain with the NPS for the duration of their supervision.

The noble Lord, Lord Ponsonby, said that continuity of management and supervision is essential. He comes at this subject with great expertise and I agree with him. Each offender will continue to be managed by the same organisation—NPS or CRC—unless his or her risk escalates to high. For someone managed by the CRC, the NPS will have a role in dealing with a breach and in the risk assessment at the outset but the offender manager itself will not change.

To conclude, as I said at the start of my speech, we have now launched the competition to find providers of rehabilitation services. The Ministry of Justice is working closely with probation trusts to prepare for the implementation. We have also published detailed plans of how we see the new system working and we continue to seek views on key aspects such as the payment mechanism. I welcome the opportunity that this debate has given the House to discuss these details. I assure all noble Lords that the Government are committed to continuing to engage with noble Lords in these reforms as they progress.

I will end with what is at stake here: the extension of support and supervision through the gate for short-sentence offenders and the possibility of a sustained reduction in reoffending rates. In respect of what has been said today, I know that that is a global aim shared by all noble Lords across the House. These reforms will allow us to do just that and will bring significant benefits, most importantly, for both victims and communities.

Care Bill [HL]

Report (3rd Day) (Continued)

8.32 pm

Clause 72: Prisoners and persons in approved premises etc.

Lord Patel of Bradford (Lab): My Lords, Amendments 136A and 136B seek to ensure that people in prison and those residing in approved premises have equivalence of care when it comes to safeguarding inquiries by local authorities. Noble Lords may remember that I raised this issue in Committee but I was a little concerned by the response I received from the Minister on that occasion. I am grateful to Jenny Talbot and her team at the Prison Reform Trust for all the support and guidance they have provided throughout.

I welcome the Government’s commitment in this Bill to place responsibility for the social care of adult prisoners with the local authority in whose area the

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prison is located. The Bill outlines the responsibilities of local authorities towards people in prison who have care and support needs and would ensure that people in prisons are able to access care and support on a similar basis to those in the community. However, having made such a significant and welcome commitment to the social care of prisoners, there is an anomaly in the Bill, which states that people in prison and people residing in approved premises are not to receive equivalence of care when it comes to safeguarding inquiries by local authorities. Surely denying people in prison and people residing in approved premises the benefit of an inquiry by the local authority when safeguarding concerns are raised places an already vulnerable group of individuals at even greater risk.

Of course, I understand that prisons have a whole range of safeguarding measures in place. However, when there is a real problem that a prison has not resolved, why can a local authority not have an inquiry for a person who is vulnerable and at risk? Moreover, I cannot understand why people in approved premises—in other words, people who have been released from prison and are living in the community; for example, in a probation hostel—should be excluded from local authority safeguarding inquiries. If the local authority is not responsible for safeguarding vulnerable adults in approved premises in the community, who is?

When I raised this issue in Committee, the noble Baroness, Lady Northover, stated,

“if local authorities must also conduct inquiries in prisons and approved premises, we run the risk of duplicating inquiries. Prison governors and directors have the primary responsibility for preventing abuse or neglect of prisoners with care and support needs. Prison governors already have a duty to care for and safeguard prisoners. If we duplicate this responsibility, we run the risk that the lack of clarity will mean that safeguarding concerns fall between agencies”.—[

Official Report

, 29/7/13; col. 1585.]

I have a number of concerns about this response, two in particular. First, with regard to people in prison, the noble Baroness talked about the duplication of effort and lack of clarity. I suggest that this is simply not the case. My amendment would not limit the responsibility that prisons already have. On the contrary, their involvement on safeguarding adults boards would help to ensure shared learning and expertise, including, where necessary, the option for a safeguarding inquiry should safeguarding concerns not be resolved by the individual prison.

In fact, inquiries by local authorities should be viewed as another tool to help ensure our prisons are safe for both vulnerable prisoners and the staff who work with them. I am not suggesting that local authorities need to be directly involved in all interventions in prisons or that local safeguarding teams would need to be called upon to intervene in every safeguarding concern raised. However, directors of adult services need to be confident that their standards are consistent with those set out in the report No Secrets and any exceptions are explicit and jointly agreed. Therefore, I believe that an inquiry by a local authority will not duplicate the excellent work undertaken by Her Majesty’s Inspectorate of Prisons, or by the prison itself. It will complement and enhance it, and could potentially help save lives.

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Secondly, the noble Baroness did not provide an answer as to who would be responsible for the safeguarding of people in approved premises, if it is not the local authority. For the sake of clarity, I will ask the question again. As I understand it, approved premises are the responsibility of the probation service and not of the prison service. Any responsibilities that prison governors have for safeguarding adult offenders end once that person is released and physically leaves the premises. As the Bill currently stands, people living in approved premises will not be the responsibility of local authorities as is everybody else who lives in the community. So if someone is living in approved premises, such as a probation hostel, and is part of the community, as is anybody else, and that person has been abused or neglected or is at serious risk, who will have the obligation to carry out a safeguarding inquiry?

In terms of safeguarding inquiries by the local authority, not providing people in prison or who reside in approved premises with the same equivalence of care as for other people in the community makes little sense. The Bill establishes that equivalence of care applies to prisoners, and this should extend to safeguarding and to how safeguarding concerns are dealt with. Local authority adult safeguarding procedures are well established within local communities and the safeguarding of people in prisons and of those residing in approved premises should not be excluded from this body of expertise.

Of course, prisons and approved premises, such as hospitals and care homes, should have their own internal safeguarding arrangements and responses to safeguarding concerns. However, by excluding prisons and approved premises from safeguarding inquiries by the local authority, prisoners and people residing in approved premises will be denied the equivalent protections afforded to other vulnerable adults. Further, the opportunity for constructive dialogue and shared learning, which some prisons and local authorities currently enjoy, may also be lost. As the Bill stands, this is a serious gap which places a very vulnerable group at risk. Therefore, I hope the Minister can provide some clarification, reassurance or, better still, accept my amendments. I beg to move.

Baroness Masham of Ilton (CB): My Lords, I hope that the Minister will take note of the very serious points which the noble Lord, Lord Patel of Bradford, has made to your Lordships tonight.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, these two amendments deal with changes to Clause 72 to impose a duty on local authorities to make safeguarding inquiries in prisons and approved premises. I thank the noble Lord, Lord Patel, for tabling these amendments. We strongly agree that a person with care and support needs should be protected against abuse or neglect wherever they live.

Prison governors and directors, and the probation trust in the case of approved premises, are responsible for safeguarding prisoners and for protecting them from abuse and neglect. They have in place procedures to follow in response to allegations of abuse or neglect,

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and they must provide assurance on this to the National Offender Management Service. The UK operates a comprehensive level of monitoring and scrutiny within prisons to ensure that prisoners are kept safe and secure and that governors and directors are accountable for taking steps to improve matters if necessary.

We have in place a fully independent prison inspectorate that carries out a rigorous programme of scrutiny; more than 1,700 volunteers on prison independent monitoring boards who monitor the treatment of adult prisoners; and a Prisons and Probation Ombudsman who investigates both the complaints of those in prison and all deaths that occur among prisoners. Her Majesty’s Chief Inspector of Prisons and the Prison and Probation Ombudsman require assurance that safeguarding procedures are in place and their implementation provides equivalent protection to that available in the community. Investigations by the Ombudsman will provide learning to improve effectiveness. The important thing is not to impose a duty on another body to conduct inquiries in prisons and approved premises, but to ensure that the procedures within the prisons and approved premises are informed by best practice and local expertise.

The Ministry of Justice and the National Offender Management Service have acknowledged that there is a need for improved directions on safeguarding to the Prison Service and probation trusts. They will be working with officials from my department and stakeholders to develop instructions and guidance that will give improved clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding adults in their care. The Ministry of Justice encourages prison staff to be involved with local safeguarding adults boards, but the nature of that involvement is best determined at local level.

The Ministry of Justice and the National Offender Management Service will be producing guidance for prison staff on safeguarding in conjunction with their partners. This will be consistent with the broader advice and guidance on safeguarding adults in the community and will ensure that the importance of active engagements with SABs is routinely reiterated to prison staff. Any particular safeguarding considerations for older prisoners and those with dementia will be part of this operational policy. The guidance will set out clear instructions on the need for structured relationships with local safeguarding boards; for example, the model being employed by Surrey, where a memorandum of understanding sets out how prison staff will benefit from the expertise of social services and local authority safeguarding teams. It will also set out how and in what instances referrals to SABs will be made.

I hope that I have reassured the noble Lord, Lord Patel of Bradford, that the existing position makes clear the responsibility and accountability for the safeguarding and protection of prisoners, and that further guidance to prisons and approved premises will bring about the improvement and joint working that we all want to see. The proposed amendments to Clause 72 are therefore not necessary and I would respectfully ask him to withdraw this amendment.

Lord Patel of Bradford: My Lords, I thank the Minister for that informative response and I take on board completely the fact that prisons and the MoJ

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have developed some good safeguarding measures. I am pleased that further guidance is to be issued to encourage governors and directors to attend local authority safeguarding adults board meetings. I am fairly happy about prisons, prisoner safeguarding and liaison with local authorities. However, for clarification, if someone is living in approved premises, my understanding is that that has nothing to do with the prison governor or the prison because they are in the community living in, say, a bail hostel. Who has responsibility for any serious issue of neglect? I do not think that the probation service undertakes safeguarding inquiries. It would be the local authority, but this clause seems to suggest that it would not be; rather, that it would be the prison governor. That does not make sense to me, although perhaps I do not understand it completely. Of course, one assumes that the local authority would have responsibility for someone in the community, but this provision clearly states that it does not.

Earl Howe: My Lords, the advice I have received is that the probation trust would have that responsibility.

Lord Patel of Bradford: For the record, because no one on the outside seems to have been able to give me an answer, someone would have to report to the probation trust that a person is being neglected or abused and it would carry out a safeguarding inquiry. It would not be the local authority or the prison.

Earl Howe: That indeed is my understanding.

Lord Patel of Bradford: If that is the case and it is correct, I beg leave to withdraw the amendment.

Amendment 136A withdrawn.

8.45 pm

Amendment 136B not moved.

Amendment 137 not moved.

Clause 74: Guidance

Amendment 138 agreed.

Clause 75: Delegation of local authority functions

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The Deputy Chairman of Committees (Baroness Morris of Bolton) (Con): My Lords, are Amendments 138A and 138B consequential and therefore to be moved formally?

Earl Howe: My Lords, I do not think that the noble Lord, Lord Low, wished to move these amendments. He did of course move his earlier amendment which the House decided upon, but I think that he indicated he was satisfied with my reply on these amendments. I do not want to mislead the House at all, but I believe that that is right.

Amendments 138A and 138B not moved.