In an interview reported in the press on 8 October, Robert Francis discussed the possibility of services being shut down if insufficient staffing levels were evident.

During September, I met directors of nursing from the teaching hospitals called the Shelford Group, who were grappling with staffing problems but in slightly different circumstances from those in other NHS trusts and NHS foundation trusts. I also discussed the issue with the director of nursing at Salford Royal NHS Foundation Trust, Elaine Inglesby, who gave evidence to the Health Select Committee that demonstrated clearly that the whole hospital was engaged in the safe staffing project. She had been able to implement the suggested staffing levels by using the acuity and dependency tools supplied by the Association of UK University Hospitals and using the ratio of one registered nurse to eight patients as a minimum, based on the evidence from Southampton University, King’s College London and the National Nursing Research Unit. Evidence suggested that there was a need for three registered nurses on night duty.

In this hospital there is a safe staffing steering group to support ongoing development. The introduction of a white board on every ward or department indicates the number of nurses and grades on each shift. This is posted so the patients and visitors can immediately identify how many staff at what grade are on duty at any time. There is a daily safe-staffing teleconference on daily rotas meeting each morning at 8.30. This looks at the morning, late and night shift and presents a true picture of ward and department nurse staffing. Obviously this is an ongoing development project involving the board members and the staff of the whole hospital. To date it is working to the satisfaction of patients, families and, above all, the staff involved.

During this time, I also noted the media and varying reports of events demonstrating failings in service delivery because of low staffing levels, including the reports of warning signs from the Royal College of Nursing and other organisations. I also listened to patients’ experiences, where shortage of staff appeared to be a major concern. The need for so many trusts to seek overseas recruits because of shortage was reported last week. There are also records from the Patients Association, which has received many complaints on staff shortages during this time.

I then went on holiday myself and reflected back over the eight weeks. I came to the conclusion, while declaring that I am a long-retired nurse not on the NMC register, that I could do nothing but support the amendment and continue campaigning for the future safety of patients. I hope I have persuaded the Minister. Although this amendment is only a very small part of this large Bill, because of the ramifications for the safety of patients in hospitals who rely on 80% of their

21 Oct 2013 : Column 823

care being given by nurses, we owe it to the nurses and to the patients they serve at least to acknowledge and accept the words of the amendment so framed to allow the flexibility required to meet patient need but avoid high risk to the delivery of care. I trust the Minister will respond accordingly to the amendment.

5.45 pm

Lord Willis of Knaresborough (LD): My Lords, I am delighted to follow the noble Baroness, Lady Emerton. May I say—not as an aside but as genuine comment—that we are all in awe of her commitment to nursing and the care profession? It is not just eight weeks, but a lifetime of commitment. I think the whole House is enormously grateful for the contribution she makes.

I rise to support Amendment 144 in the name of the noble Lord, Lord Hunt, having first thought that it was not required. It seems fairly obvious that the Care Quality Commission shall, in carrying out its functions,

“have regard to any official guidance on staffing numbers and skills mix”.

The idea that any inspector or regulator would look at the guidance and then apply that as criteria would seem an absolutely normal process. Yet on reflection, having read the Francis report and the Winterbourne View report, one suddenly realises that, certainly from 2009 but far back in time as well, the department under successive Governments has offered guidance about safe staffing levels. It has done that in everything, but particularly in acute settings, I appreciate that. The fact that that was not taken into consideration makes the noble Lord’s amendment absolutely appropriate. I cannot see for the life of me why my noble friend would not accept it as a very sensible addition for making sure that the CQC, when it carries out inspections, takes that into consideration.

I would like to spend a little more time on Amendment 159, which has been so superbly introduced by the noble Baroness, Lady Emerton. Amendment 159 covers a lot of the same ground but goes further in spelling out the direct link between staffing and patient safety. It is important for my noble friend to understand what it does not do; nobody on either side of the House has sought to impose statutory staffing limits in legislation. That would be counterproductive in getting the sorts of outcomes that we want.

I prefer, as I am sure colleagues on all sides of the House do, to have strong statutory guidance with good inspection, which is what we have had in the past. The amendment of the noble Lord, Lord Hunt, does this—it completes the circle. I am very concerned that this House and the department spend too little time addressing the question of safe staffing. What does that actually mean? I declare an interest as an honorary fellow of the Royal College of Nursing. The RCN associates safe staffing with nursing because nurses, together with healthcare assistants under their supervision, do most of the care. But safe staffing is about the total product, not simply about nursing. It is also about the ward managers and everything else that goes into ensuring that when patients go into any setting, whether it is domiciliary, a care home or an acute hospital, there is an appropriate level of staffing.

21 Oct 2013 : Column 824

When I was writing the Willis Commission report last year, one of the things that came up over and over again was a demand for mandatory staffing levels. I spent some time looking at the literature on safe staffing levels to see whether there was a correlation between having the right number of staff—registered nurses, care assistants, doctors or consultants—and outcomes. Frankly, it is very difficult to find empirical evidence to support it one way or another, simply because nobody in the healthcare system works in isolation from their colleagues. You are only as good as the team that works around you and their skills and training mix. I looked up what was happening in California where for more than 10 years they have had mandatory staffing levels for registered nurses. No other state has followed that. In April Senator Barbara Boxer introduced a Bill in the Senate to try to establish a federal system of ensuring that all hospitals had particular staff levels but nobody has followed that through.

There is some research being done in the UK, such as Anne Marie Rafferty’s 2007 study, with which Members are familiar. It was a really good piece of work which showed a 26% higher mortality rate in the cases of very high patient to nursing ratios. Kane’s meta-analysis in 2007 of all the literature indicated an emerging consensus that there are particular staffing levels beyond which the situation becomes dangerous. It is an issue for the department to constantly keep that under review. The amendment does not go over that ground but makes it clear in terms of safe staffing that there would be a duty on the provider, such as the hospital or the care home or those providing domiciliary care, to ensure that staff levels were appropriate and that staff competence is such to carry out safe care. After all, there is nobody in this House who does not want to see safe staffing within all NHS and other providers of health and care. That seems to be a basic starting point for a high-quality health and care system. We need to be able to ensure that that is the case. You will only find out what safe staffing levels are in a particular scenario and setting if you monitor them. That is why there is a requirement in the amendment to report on it. We are not talking about a report every three or five years, but there should be a continuous report so that when the CQC goes into a setting, it can look at the correlation between safe staffing levels, acuity and mortality rates and other factors, to see whether outcomes are dependent on particular mixes of staff.

Nor is the amendment saying that there should be annual reports. The Secretary of State would decide how often the department should be able to look at those reports. In essence, however, we are trying to establish that ensuring that the staffing mix is appropriate to the setting and to the patients who are being cared for is fundamental to healthcare. I hope that the Minister can give us some serious comfort on that. If we can get that right, we will have a good healthcare system.

Baroness Gardner of Parkes (Con): My Lords, I am of course impressed by what has been said by the noble Baroness, Lady Emerton, who always knows so much about this subject. We have benefited from her great expertise over time. I am also interested in what

21 Oct 2013 : Column 825

the noble Lord, Lord Willis, has just said on the same amendment; he cited Amendment 159 but I thought it was Amendment 158.

Lord Willis of Knaresborough: It was Amendment 159.

Baroness Gardner of Parkes: I leave it to the department to work out whether it was Amendment 158 or 159, but that is not too important.

In many ways Amendment 144 does not go far enough. I am sure that the point of the noble Lord, Lord Willis—that the Care Quality Commission should be capable of thinking of these things for itself in any case—is right. However, the phrase “the skills mix” concerns me. There can be huge differences in the skills mix. I was concerned that the Chelsea and Westminster Hospital, having waited for perhaps as long as 10 years, at last got a specialist nurse for neurological conditions. The hospital was delighted because it had had huge demand for such a service. I am a great supporter of specialist nurse services.

The Royal Free then came along and poached that nurse from the Chelsea and Westminster, which then looked at what it could do. I was informed by word of mouth that there was no question or even thought of a replacement because there was a long list, and it was a case of “the first cab on the rank” as to who was deemed to be most needed. It could have been an ordinary nurse, it could have been a surgical nurse or anyone. You moved on and did not replace the person with the skills that you needed and wanted. You had to replace your missing person with whatever the next thing on the waiting list was. That seemed to be a serious cause for concern.

It is essential to know what skills mix is needed. The amendment mentions “official guidance”. It would have to go much wider than official guidance. It has to be attributable to the particular hospital or service that is involved. Although the amendment covers many of the important points, it does not cover the need for every facility to have cover within that department and not to then find that they have lost it because someone left—they could have gone off on maternity leave, they could have left for any reason, but in this instance they were poached by another NHS hospital.

Whatever the answer, it is important. The relationship between the staffing levels is hard to assess and has to be individually done. The Care Quality Commission should be capable of having an indication of what it should be looking at, and needs to be aware of all these problems. Of course, not one of us could oppose having enough staff on the wards, which the noble Lord, Lord Hunt, said was necessary. However, we are now faced with positions where budgets are limited and they have to look at and work out what they need most. I do not agree at all that it should be just a progression from whoever has been waiting the longest; it should be whatever the hospital, or a particular department, needs the most. Although I support the principle, perhaps it needs more than this. I am hoping that the Minister will be able to assure us that he can incorporate some words within those he already has to make it clear that there must be this obligation. I strongly support Amendment 144 and I am open to conviction about Amendment 158 or 159.

21 Oct 2013 : Column 826

6 pm

Lord Warner: My Lords, I support both the amendments. They are not alternatives but complementary. I want to start briefly from where we are. The issue of staffing numbers, ratios and skill mixes is just a black box as far as the public are concerned. It is something that goes on within the NHS. This has some relationship to our earlier debate about failure. It is often very difficult for outsiders—and I include regulators as outsiders—to understand what is going on in institutions, particularly acute hospitals. This issue is not peculiar to hospitals; it is even more of an issue for community services, in some ways.

I would like briefly to share my experience as the chairman of the provider agency in London. If your Lordships think that things are bad in some hospital services, try the community services. When we started to poke around in the community services, we found huge variations in the staffing levels for populations with particular conditions. There were massive variations in the face time that clinical staff spent with their patients. We have issues in community services which are often probably more dangerous and less reassuring than we have in some of our hospitals. If we are to have such amendments to the Bill, it is clear that they must relate not just to acute hospital services.

We are not going to get public understanding about when hospitals are failing or unsustainable without a better sense of public education about what a safe level of staffing is to give the reassurance that you are going into a facility which is safe. I added my name to Amendment 159 because it opens up the issue of putting into the public arena some data and reassurance about what a safe level of staffing is for some of these services. It can then be prayed in aid by both commissioners and providers when there are issues about whether a unit is sustainable. We often talk about unsustainability as a financial issue, but it is often about staffing issues—the sheer inability to get a safe group of staff together to run the institution. One acid test of why a place is unsafe is the number of bank or agency staff in a unit, who come and go at ever-increasing frequencies. Public understanding of what is going on in these hospitals seems critical to public reassurance.

Nobody wants to put staff numbers into the Bill, but we need something better than we have now to give the public some idea about the staffing levels and skill mix in what are, at the end of the day, relatively closed institutions. It is difficult for the public to understand what is and is not safe without more data, and that would make it much easier to hold boards to account. Amendment 159 would make it clear that the boards of trusts need to come back continually to what they are providing to the public in the safety of their staffing levels. Amendments 144 and 159 certainly do no damage to the Bill. They strengthen it and it is much more in the interests of the public to have this data available locally, as the noble Baroness, Lady Gardner of Parkes, has said, relating to specific establishments and institutions.

Lord MacKenzie of Culkein (Lab): My Lords, I also support both amendments. It seems to me, as a nurse, to be a self-evident proposition that having safe staffing

21 Oct 2013 : Column 827

levels and the correct skill mix, taking into account dependency and acuity, is the right thing do. Anyone who has listened to the debates in this House on various Bills dealing with health and social care over the past few months knows that it is an enormously complicated issue. However, we must bring it back to this level of patient safety and the duty of providers to provide safe staffing levels and the correct skill mix. If that is not done, all the other things we talk about will be in vain and we will end up with more reports, more inquiries and more problems.

As has already been said, it is incumbent on Governments to take account of all these things: the Francis report, the review into Winterbourne View and some of the recommendations in the excellent report produced a few months ago by the noble Lord, Lord Willis. It is vital that we get this right. At a time when financial pressures will force authorities to look at diluting the numbers of trained nursing staff and trained staff in the community and replacing them with healthcare assistants or support workers with hugely varied levels of training and experience, it is absolutely right that we get the correct level. As has already been said, both of these amendments can only add to the Bill and take nothing away from it.

Earl Howe: My Lords, I hope that I can give noble Lords considerable reassurance on the Government’s position on these important issues. It is almost axiomatic that safe, high-quality care is dependent on people and that right-staffing, in terms of numbers and skills, is vital for good care. The importance of having the right staff with the right skills and in the right numbers is central to the delivery of high-quality care. Where staff are stretched because they are too few in number, corners will be cut, with inevitable adverse consequences for patient care. Equally, where staff do not have the right skills to carry out their tasks, the quality of care will suffer.

Patient safety is the first priority, and safe staffing levels really matter. The quality of care provided to patients is ultimately the responsibility of the leadership of provider organisations. It is their responsibility to ensure that they have the right staff with the right skills in the right place at the right time in order to provide high-quality care. In the final analysis, it is for hospitals themselves to decide how many nurses they employ, and they are the best placed to do that. Nursing leaders have been clear that hospitals should determine and publish staffing details and the evidence to show that staff numbers are right for the care needs of the patients that they look after.

Although local providers are best placed to do this based on local need, we expect them to look to authoritative guidance and evidence-based tools and learn from best practice to deliver cost-effective and safe care. We recognise that there is a need for national action to ensure that local organisations meet those expectations. As a result of the national nursing and midwifery strategy and vision published in 2012, Compassion in Practice, a considerable amount of work is going on across England to ensure that providers use evidence-based tools, using acuity and dependency measures to set staffing levels, and for boards to publish these staffing levels on a regular basis.

21 Oct 2013 : Column 828

I want to explain what we are now doing to build on that work. First, the Chief Nursing Officer, supported by the National Quality Board, is developing guidance for the system, including a set of expectations, to support provider organisations in securing the appropriate staffing capacity and capability for nursing, midwifery and care. This guidance is being developed with the intention of ensuring safe patient care and that patient outcomes are not compromised. It will include expectations on transparency and publication of information on staffing.

This guidance is being developed jointly by the statutory organisations responsible for quality across the NHS, which are brought together as part of the National Quality Board and which include the Care Quality Commission, Monitor, the NHS Trust Development Authority and NHS England. It will be published next month. I can therefore only agree with the intention behind the amendment that providers need to be open and transparent about their staffing numbers. The positive news is that action is already in place to ensure that this happens.

Lord Willis of Knaresborough: What my noble friend has said is incredibly encouraging. However, before he leaves that point, could he take up the very important issue raised by the noble Lord, Lord Warner? This is not just about hospitals; it is also—particularly in my case—about care homes and other community settings. Will the regulations apply to all those settings, so that we get continuity throughout the system?

Earl Howe: My Lords, I am happy to come to that point. The short answer is that that is certainly our intention.

I turn to Amendment 159, about which I will be a little critical. We consider that requiring health or care service providers to,

“publish a report containing staffing levels based on evidence of safe staffing levels supported by acuity and dependency levels for each patient”,

is really not a viable alternative to what we are already putting in place and would not work in practice. It would be burdensome to implement in precisely that form and could detract from the ability of staff to deliver good clinical care.

I understand, of course, the thrust of the thought behind the first part of the amendment, which says that,

“the first duty that a health or care service provider must consider for any decision is patient safety”,

However, it carries the risk of unintended consequences. It could lead to other important factors, such as innovation and service improvement, not being given sufficient weight and providers becoming unduly risk averse. We need to reflect that any innovative treatment—which we want to encourage in the health service—carries some risk. That is always justified by benefits for the wider system. We do not want clinicians to become reluctant to take risks if this amendment were passed.

Also, we do not feel that specifying report requirements for provider boards is the role of the Secretary of State any more. Rather, the focus has to be to allow for local accountability and local decision-making. However, as I have said, we recognise that decision-making tools are needed and I agree with my noble friend Lord

21 Oct 2013 : Column 829

Willis about that. We are working with the CQC, NICE and others to ensure that providers have the evidence-based tools they need to make decisions to secure safe staffing levels. These decisions will then be subject to external scrutiny and challenge by commissioners, regulators and the public, and to inspection by the Chief Inspector of Hospitals.

However, at the end of the day we come back to the fundamental point, that it is the responsibility of individual providers to be accountable for staffing levels in their organisations. The existing registration requirements, which are enforced and monitored by the CQC, already recognise the importance of that. That is my response to Amendment 144. The requirements state that providers must take steps to ensure that at all times there are sufficient numbers of suitable staff to carry on the regulated activities that the organisation provides. Additionally, the Chief Inspector of Hospitals has also made it clear that appropriate staffing levels are part of the requirements of registration for the CQC.

In assessing whether a provider meets the registration requirement on staffing, the CQC refers to relevant guidance about staffing levels and skills mix published by professional councils and relevant expert and professional bodies. These include the Department of Health, Skills for Care, Skills for Health, the NHS and the Royal College of Nursing. Where a provider does not meet the staffing registration requirement, the CQC is able to use its enforcement powers to protect patients and service users from the risks of unsafe care associated with inadequate and/or poorly trained staff.

In its consultation document A New Start, published in June this year, the CQC stated that the focus of its new inspection methodology would be on five key domains. Are services safe, effective, caring, responsive to people’s needs, and well led? These domains will cut across all areas of activity, including levels of staffing and skill mix.

6.15 pm

Baroness Emerton: My Lords, on what evidence would the CQC base the answers to those questions?

Lord Warner: How easy will it be for members of the public to see this material when they are trying to be sure that they are going to a safe place?

Earl Howe: The answer to that question is the rating system, which the chief inspectors are planning to bring in. Proposals for that will be announced very shortly. We attach great importance to that kind of transparency, not only in the NHS but in the care sector. On my noble friend’s question about whether all this would cover the care sector as well as the NHS, as he will know, the CQC issues sector-specific guidance on how to meet staffing registration requirements. Obviously NHS England would only provide guidance that relates to the NHS. As I already said, the Chief Inspector of, say, Adult Social Care would inspect regularly against CQC guidance. The plan is to consult in April 2014 on the CQC guidance on social care.

My noble friend spoke about an emerging consensus on a minimum level of staffing below which care is unsafe. I understand his point, but I am sure he will

21 Oct 2013 : Column 830

acknowledge—and did, implicitly, in his remarks—that staffing is not simply about crude numbers; it is not just about nurses. Healthcare assistants and other members of the team all have a key role to play. My noble friend Lady Gardner was absolutely right to point out that the skill mix is relevant in these circumstances. Patient safety experts agree that safe staffing levels should be set locally. It is not for Whitehall to set one-size-fits-all staffing rules. That is exactly why we have asked NICE and other nursing experts to review the evidence, to help organisations to make the right decisions on staff numbers at a local level and then, essentially, to govern themselves. I make it absolutely clear that we fully agree that safe staffing should apply in all settings and that point will be taken into account as we develop our plans.

I hope noble Lords are reassured that action is already being undertaken in a combination of ways, through Compassion in Practice, the CQC registration process, and, shortly, through the role of the Chief Inspector of Hospitals. That will ensure that providers are open and transparent about their staffing numbers and that they assess these staffing levels, not just on the day of an inspection but on a regular basis, using evidence-based tools, and by taking into account local factors that relate to local patient needs and outcomes. I therefore hope that noble Lords will be content to take stock of what I have said and will not press their amendments.

Lord Hunt of Kings Heath: My Lords, I am grateful to all noble Lords who have spoken. I will say at once that I very much support Amendment 159. I agree with my noble friend Lord Warner that the two amendments run in parallel very well indeed.

I know that the noble Baroness, Lady Gardner, thinks that my amendment may be a little too modest. Perhaps it is a start. I assume that the noble Baroness was not chair of the Royal Free when the “poaching” that she described took place. The point was well made.

The noble Earl, Lord Howe, has listed a number of ways in which we could be assured that staffing numbers and skill mix will be okay both in the NHS and the care sector. The fact is that, however much information is published and however much this might be part of the licensing regime of CQC, these organisations have been around for some time. There is consistent evidence that staffing levels are not sufficient. We have already had the Francis report, which said that NICE should undertake benchmarking on staffing levels. The Keogh report on the 14 hospital trusts said:

“The review teams found inadequate numbers of nursing staff in a number of ward areas, particularly out of hours—at night and at the weekend. This was compounded by an over-reliance on unregistered support staff and temporary staff”.

The Berwick report goes over the same ground. At the end of the day, I do not think there is enough beef in the system to ensure that we have adequate support staff. If NICE is going to carry out the benchmarking, which is a very good thing, we need to make sure that the regulator actually has some beef in terms of ensuring that we get adequate staff levels in clinical areas. I think that my Amendment 144 ensures that that will happen. I should like to test the opinion of the House.

21 Oct 2013 : Column 831

6.22 pm

Division on Amendment 144

Contents 194; Not-Contents 204.

Amendment 144 disagreed.

Division No.  3


Adams of Craigielea, B.

Adonis, L.

Alli, L.

Alton of Liverpool, L.

Andrews, B.

Armstrong of Hill Top, B.

Bach, L.

Bakewell, B.

Barnett, L.

Bassam of Brighton, L. [Teller]

Beecham, L.

Best, L.

Bichard, L.

Bilimoria, L.

Bilston, L.

Blackstone, B.

Blood, B.

Boateng, L.

Boothroyd, B.

Borrie, L.

Bragg, L.

Brennan, L.

Brooke of Alverthorpe, L.

Brookman, L.

Browne of Ladyton, L.

Campbell of Surbiton, B.

Campbell-Savours, L.

Carter of Coles, L.

Christopher, L.

Clancarty, E.

Clark of Windermere, L.

Clarke of Hampstead, L.

Collins of Highbury, L.

Corston, B.

Crawley, B.

Cunningham of Felling, L.

Davies of Oldham, L.

Davies of Stamford, L.

Dean of Thornton-le-Fylde, B.

Desai, L.

Donaghy, B.

Donoughue, L.

Drake, B.

Dubs, L.

Eatwell, L.

Elder, L.

Elystan-Morgan, L.

Emerton, B.

Erroll, E.

Evans of Temple Guiting, L.

Falconer of Thoroton, L.

Farrington of Ribbleton, B.

Faulkner of Worcester, L.

Filkin, L.

Foulkes of Cumnock, L.

Freyberg, L.

Gale, B.

Gibson of Market Rasen, B.

Giddens, L.

Glasman, L.

Golding, B.

Gordon of Strathblane, L.

Goudie, B.

Gould of Potternewton, B.

Grabiner, L.

Grantchester, L.

Grenfell, L.

Grey-Thompson, B.

Griffiths of Burry Port, L.

Grocott, L.

Hannay of Chiswick, L.

Hanworth, V.

Hardie, L.

Harrison, L.

Hart of Chilton, L.

Haskel, L.

Hattersley, L.

Hayter of Kentish Town, B.

Healy of Primrose Hill, B.

Henig, B.

Hollick, L.

Hollins, B.

Hollis of Heigham, B.

Howarth of Newport, L.

Howe of Idlicote, B.

Howells of St Davids, B.

Howie of Troon, L.

Hughes of Stretford, B.

Hughes of Woodside, L.

Hunt of Kings Heath, L.

Irvine of Lairg, L.

Jay of Paddington, B.

Jones of Whitchurch, B.

Jones, L.

Jordan, L.

Judd, L.

Kakkar, L.

Kennedy of Southwark, L.

Kerr of Kinlochard, L.

Kilclooney, L.

Kingsmill, B.

Kinnock of Holyhead, B.

Kinnock, L.

Kirkhill, L.

Laming, L.

Lane-Fox of Soho, B.

Lawrence of Clarendon, B.

Layard, L.

Lea of Crondall, L.

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.

Macdonald of Tradeston, L.

McFall of Alcluith, L.

McIntosh of Hudnall, B.

MacKenzie of Culkein, L.

McKenzie of Luton, L.

Mallalieu, B.

Mar, C.

Martin of Springburn, L.

Massey of Darwen, B.

Mawson, L.

Maxton, L.

Meacher, B.

21 Oct 2013 : Column 832

Mendelsohn, L.

Mitchell, L.

Monks, L.

Morgan of Drefelin, B.

Morgan of Huyton, B.

Morris of Aberavon, L.

Morris of Handsworth, L.

Nye, B.

O'Loan, B.

O'Neill of Clackmannan, L.

Patel of Blackburn, L.

Patel of Bradford, L.

Patel, L.

Pendry, L.

Pitkeathley, B.

Plant of Highfield, L.

Ponsonby of Shulbrede, L.

Prescott, L.

Prosser, B.

Quin, B.

Ramsay of Cartvale, B.

Reid of Cardowan, L.

Rendell of Babergh, B.

Richard, L.

Rooker, L.

Rosser, L.

Rowe-Beddoe, L.

Royall of Blaisdon, B.

Sheldon, L.

Sherlock, B.

Simon, V.

Smith of Basildon, B.

Smith of Gilmorehill, B.

Snape, L.

Soley, L.

Stevenson of Balmacara, L.

Stoddart of Swindon, L.

Stone of Blackheath, L.

Symons of Vernham Dean, B.

Taylor of Bolton, B.

Temple-Morris, L.

Tomlinson, L.

Tonge, B.

Touhig, L.

Tunnicliffe, L. [Teller]

Turner of Camden, B.

Uddin, B.

Wall of New Barnet, B.

Walpole, L.

Warner, L.

Warnock, B.

Warwick of Undercliffe, B.

Wheeler, B.

Whitaker, B.

Whitty, L.

Wilkins, B.

Willis of Knaresborough, L.

Wills, L.

Wood of Anfield, L.

Woolmer of Leeds, L.

Worthington, B.

Young of Norwood Green, L.

Young of Old Scone, B.


Aberdare, L.

Addington, L.

Ahmad of Wimbledon, L.

Alderdice, L.

Allan of Hallam, L.

Anelay of St Johns, B. [Teller]

Ashton of Hyde, L.

Astor of Hever, L.

Astor, V.

Attlee, E.

Baker of Dorking, L.

Bakewell of Hardington Mandeville, B.

Barker, B.

Bates, L.

Benjamin, B.

Berridge, B.

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.

Bridgeman, V.

Brinton, B.

Brooke of Sutton Mandeville, L.

Brougham and Vaux, L.

Browning, B.

Burnett, L.

Butler-Sloss, B.

Caithness, E.

Carrington of Fulham, L.

Cathcart, E.

Chadlington, L.

Chester, Bp.

Colville of Culross, V.

Colwyn, L.

Cope of Berkeley, L.

Cotter, L.

Courtown, E.

Craigavon, V.

Cumberlege, B.

De Mauley, L.

Deben, L.

Deighton, L.

Denham, L.

Dholakia, L.

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Faulks, L.

Fearn, L.

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Garden of Frognal, B.

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Glasgow, E.

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6.33 pm

Clause 83: Reviews and performance assessments

Amendments 145 and 146

Moved by Earl Howe

145: Clause 83, page 72, leave out lines 16 to 27

146: Clause 83, page 72, line 28, leave out “or local authority”

Amendments 145 and 146 agreed.

Amendments 147 and 147A not moved.

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Amendments 148 to 150

Moved by Earl Howe

148: Clause 83, page 73, line 14, at end insert—

“(13) Consultation undertaken before the commencement of this section is as effective for the purposes of subsection (9) as consultation undertaken after that commencement.”

149: Clause 83, page 73, line 16, at end insert—

“( ) In section 48 (special reviews and investigations), in subsection (1)—

(a) omit “, with the approval of the Secretary of State,”, and

(b) at the end insert “; but the Commission may not conduct a review or investigation under subsection (2)(ba) or (bb) without the approval of the Secretary of State.”

( ) Omit subsection (1A) of that section.

( ) In subsection (2) of that section, for “a periodic review” substitute “a review under section 46”.

( ) In that subsection, after paragraph (ba) (but before the following “or”) insert—

“(bb) the exercise of the functions of English local authorities in arranging for the provision of adult social services,”.

( ) After subsection (3) of that section insert—

“(3A) A review or investigation under subsection (2)(b), in so far as it involves a review or investigation into the arrangements made for the provision of the adult social services in question, is to be treated as a review under subsection (2)(bb) (and the requirement for approval under subsection (1) is accordingly to apply).””

150: Clause 83, page 73, line 25, at end insert—

“( ) in section 293 of the Health and Social Care Act 2012, omit subsections (1) and (2);”

Amendments 148 to 150 agreed.

Amendments 151 and 152 not moved.

Clause 84: Offence

Amendment 152A

Moved by Earl Howe

152A: Clause 84, page 73, line 42, leave out “exercises functions in connection with the provision of” and insert “provides”

Earl Howe: My Lords, I shall speak also to Amendments 152B to 152F. These are amendments to the clauses that establish a new offence and penalties where care providers provide certain false or misleading information. Together with the new duty of candour on providers that we considered last Wednesday, this measure is key to supporting openness and transparency among care providers.

We are making two substantive amendments. First, Amendment 152F extends the offence to directors and other senior individuals who consent to or connive in an offence committed by the care provider, as well as to cases where the negligence of senior individuals has led to the offence by the care provider. This amendment brings the offence into line with a number of other offences that are committed by organisations, such as Health and Safety at Work etc. Act offences and offences under the CQC legislation, where senior individuals are also liable for the offence. This will

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encourage directors and other senior individuals leading organisations to take greater ownership of the provision of information.

Secondly, since Committee, the Government have reflected on the penalties for this offence. The provision of accurate information is central to the safe functioning of the health and social care system as it provides the intelligence on which commissioners and regulators form judgments about the quality of care. Where that information is wrong, it can result in delays in taking action to protect patients and service users. Falsifying such information is a serious matter that can frustrate attempts to provide safe care for patients and service users. In the light of this, we believe that a custodial sentence is warranted in the most serious cases. I am therefore bringing forward Amendment 152E, which introduces a maximum penalty on indictment of two years’ imprisonment. I emphasise that the Government are not of the view that the custodial penalty will be used with any frequency. The aim of the offence is not to punish directors and other senior individuals but, rather, to drive improvement and performance.

The amendments also address a number of concerns that were raised in Committee. There was some debate about the scope of the false or misleading information offence. I should like to make it as clear as possible that the false or misleading information offence will apply only to the provision of publicly funded care. We will specify in regulations—a preliminary draft of which we have shared with noble Lords ahead of the debate—which information this will relate to, starting with information provided by hospitals. We are making a small number of amendments to clarify the scope of the offence. First, we are amending the definition of a care provider to make it clear that this does not include commissioners or regulators. We are also amending the wording so that the offence could apply to sole traders and all types of partnerships, such as GP practices, and to care providers who are funded by service users under direct payment arrangements. I beg to move.

Lord Hunt of Kings Heath: My Lords, I want to ask the noble Earl just one question. Why does it not apply to commissioners? We know from events that have happened in the past few years that in many cases commissioners have been responsible for issues by sins of omission or by not being completely open. It is a puzzle to me why all the emphasis is on providing and not on the way that commissioners actually operate. There is evidence, for instance, that the way some commissioners operate can have a direct impact on the quality of provision. We have already discussed this in relation to 15-minute visits. I am puzzled as to why so little attention is being paid to the way that commissioners themselves should operate.

Earl Howe: That is a perfectly reasonable question. The short answer is that, in determining the scope of this offence, our focus was and is on information that is closest to patient care, where inaccurate statements can allow poor and dangerous care to continue. That approach responds directly to the Francis report concerns about the manipulation of patient safety information. We believe, therefore, that the proposals are focused and proportionate. We are targeting this offence on

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the key patient safety and quality data that commissioners and regulators use to assess performance. We think that we have the balance right.

Amendment 152A agreed.

Amendments 152B and 152C

Moved by Earl Howe

152B: Clause 84, page 74, line 1, leave out “body (other than a public body) which” and insert “person who”

152C: Clause 84, page 74, line 4, at end insert “, or

(c) a person who provides health services or adult social care in England all or part of the cost of which is paid for by means of a direct payment under section 12A of the National Health Service Act 2006 or under Part 1 of this Act.”

Amendments 152B and 152C agreed.

Clause 85: Penalties

Amendments 152D and 152E

Moved by Earl Howe

152D: Clause 85, page 74, line 35, leave out “care provider” and insert “person”

152E: Clause 85, page 74, line 35, leave out from “liable” to end of line 36 and insert “—

(a) on summary conviction, to a fine;

(b) on conviction on indictment, to imprisonment for not more than two years or a fine (or both).”

Amendments 152D and 152E agreed.

Amendment 152F

Moved by Earl Howe

152F: After Clause 85, insert the following new Clause—

“Offences by bodies

(1) Subsection (2) applies where an offence under section 84(1) is committed by a body corporate and it is proved that the offence is committed by, or with the consent or connivance of, or is attributable to neglect on the part of—

(a) a director, manager or secretary of the body, or

(b) a person purporting to act in such a capacity.

(2) The director, manager, secretary or person purporting to act as such (as well as the body) is guilty of the offence and liable to be proceeded against and punished accordingly (but section 85(2) does not apply).

(3) The reference in subsection (2) to a director, manager or secretary of a body corporate includes a reference—

(a) to any other similar officer of the body, and

(b) where the body is a local authority, to a member of the authority.

(4) Proceedings for an offence under section 84(1) alleged to have been committed by an unincorporated association are to be brought in the name of the association (and not in that of any of the members); and rules of court relating to the service of documents have effect as if the unincorporated association were a body corporate.

(5) In proceedings for an offence under section 84(1) brought against an unincorporated association, section 33 of the Criminal Justice Act 1925 and Schedule 3 to the Magistrates’ Courts Act 1980 apply as they apply in relation to a body corporate.

(6) A fine imposed on an unincorporated association on its conviction for an offence under section 84(1) is to be paid out of the funds of the association.

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(7) Subsection (8) applies if an offence under section 84(1) is proved—

(a) to have been committed by, or with the consent or connivance of, an officer of the association or a member of its governing body, or

(b) to be attributable to neglect on the part of such an officer or member.

(8) The officer or member (as well as the association) is guilty of the offence and liable to be proceeded against accordingly (but section 85(2) does not apply).”

Amendment 152F agreed.

Amendment 153

Moved by Earl Howe

153: After Clause 85, insert the following new Clause—

“Training for persons working in regulated activity

In section 20 of the Health and Social Care Act 2008 (regulation of regulated activities), after subsection (4) insert—

“(4A) Regulations made under this section by virtue of subsection (3)(d) may in particular include provision for a specified person to set the standards which persons undergoing the training in question must attain.””

Earl Howe: My Lords, in Committee noble Lords were rightly concerned about the way that healthcare assistants and social care support workers are trained and supported to carry out the crucial tasks assigned to them. Amendments were also tabled concerning the regulation of this group of workers. I sought then to reassure noble Lords that the Government were determined to ensure that this important part of the workforce received high-quality and consistent training to deliver the best standards of support and care to patients and service users. Having listened very carefully to the views expressed in Committee, I have reflected a great deal on this important issue and today I am able to go further than I was able to do on that occasion.

First, however, I shall provide a short recap. What we are now doing will mean building on what we have been putting in place since your Lordships’ House last discussed this issue during the passage of the Health and Social Care Act 2012. Common induction standards have been in place in social care since 2005, but the sector skills councils jointly published a code of conduct and national minimum training standards in March 2013. The standards place dignity and respect at the centre of the knowledge required to provide safe and effective care. The sector skills councils engaged comprehensively in the development of both the NMTS and the code of conduct across the health and social care sectors, including NHS and social care providers, the Health and Care Professions Council, the Royal College of Nursing, the Royal College of Midwives, the Nursing and Midwifery Council, and patient representative groups.

We know that we need to build on these standards. The department is investing £130 million in training and developing the social care workforce this year. Working through Skills for Care, the Department of Health provides funding of some £12 million each year to social care employers to train and develop their workforce. Health Education England is also investing £13 million in the training and development of healthcare assistants.

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6.45 pm

Good employers understand that they need to ensure that their staff are properly trained. Compassion in Practice, launched in December 2012 by the Chief Nursing Officer for England and the Department of Health Director of Nursing, calls on NHS and social care providers to ensure that their staff are supported and trained to do their jobs effectively. The Social Care Commitment, launched in September 2013, is a public commitment by social care employers to improve the quality of care and support services that they provide through managing and developing their staff effectively.

The regulations covering CQC registration already place a legal obligation on employers in relation to the training of their staff. The regulations state that employers should ensure that their staff receive,

“appropriate training, professional development, supervision and appraisal”,

to enable them to carry out their responsibilities safely and to an appropriate standard. Where providers do not comply with registration requirements, the CQC has a range of enforcement powers that it can use, including prosecution. Statutory guidance on compliance with this registration requirement has also been published.

Employers across the health and care system are investing large amounts in training their staff, and the arrangements for induction, training and performance management of this workforce must take account of the type of care and support provided by various employers. Much of it is of a high standard, but it is fair to recognise that there are problems with the consistency and quality of training provided in some cases, and we know that we need to go further. For this reason, I am putting forward my amendment.

Amendment 153 will allow the Government to make regulations to specify who can set training standards for persons working in regulated activity, including healthcare assistants and social care support workers. Once the regulations come into force, the person or persons specified will provide a set of common training standards for healthcare assistants and social care support workers who provide regulated activities such as personal care. These standards can be used to evidence compliance with the CQC’s registration requirements, providing a consistency of approach in providing care that is dignified and respectful to patients and service users. The common training standards will also form the bedrock of what I am going to come to next.

In February, my right honourable friend the Secretary of State for Health commissioned Camilla Cavendish to review the training and support given to healthcare assistants and social care support workers. When we debated the issue in June, the review had not been published and could not be discussed in detail. Our plan is to respond formally to the Cavendish review at the same time as the Government respond to the Francis inquiry. However, recognising the strength of feeling on the issue, I pushed incredibly hard to be able to indicate our intentions today. In advance of that response, I can announce that the Government have asked Health Education England to lead work with skills councils, delivery partners, providers and other

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stakeholders, such as the Nursing and Midwifery Council, to develop a certificate of fundamental care. We want to call this a “care certificate”.

Our goal in introducing the care certificate is to ensure that healthcare assistants and social care support workers receive high-quality induction in the fundamentals of caring. This should ensure that they understand the skills required and that they demonstrate the behaviours needed to deliver compassionate care. The care certificate, and any training that underpins it, will need to take full account of the standards set by the person appointed by the regulations to do so. This will be key to ensuring that those standards are applied consistently throughout the health and social care sectors.

Camilla Cavendish recommends that the certificate of fundamental care should build on the national minimum training standards, published by the sector skills councils in March of this year, which will also need to be aligned to any standards set in future. She also suggests that Health Education England should work with the Nursing and Midwifery Council on ensuring that practical elements of the nursing curriculum are incorporated into the certificate. We have asked Health Education England to ensure that the NMC and other stakeholders are fully involved in its work on the care certificate. Its work should also build on the best of training provision currently on offer across the health and care sectors.

The care certificate will provide clear evidence to employers, patients and service users that the person in front of them has been trained to a specific set of standards and has the skills, knowledge and behaviours to ensure that they provide compassionate and high-quality care and support.

We will work with the CQC to incorporate into its guidance the requirement for staff to hold a care certificate. In the same way as completion of the common induction standards is currently used as evidence of compliance with registration requirements for social care providers, so completion of the care certificate could, in future, be used as evidence of compliance with CQC registration requirements. The care certificate could be used as a set of standards not only in relation to CQC regulated activities but across all health and adult social care.

The Government recognise the concerns expressed on previous occasions in your Lordships’ House about the training of this critical part of the workforce. However, I hope that the House will recognise our commitment to bringing greater consistency and quality to the training provided to healthcare assistants and social care support workers, enabling them to place compassionate care at the heart of everything they do. I beg to move.

Lord Willis of Knaresborough: My Lords, I rise, somewhat gobsmacked, as they say in Yorkshire, at the launching by my noble friend of what has been a major breakthrough in the training of healthcare support workers. I notice that the noble Baroness, Lady Gibson, is nodding in approval as this is an area with which she too has been very closely concerned. I thank my noble friend for making that commitment. It makes most of my speech totally irrelevant but, nevertheless, I will add one or two bits just for good measure.

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There is no doubt that there is an overwhelming case for appropriately training the 1.3 million healthcare support workers who do such a fantastic job in care homes and domiciliary settings, as well as in hospitals. This has been a national scandal so far. These people are a hugely valuable part of the workforce and it is important to recognise them as such.

I should like to ask some brief questions. Camilla Cavendish recommended that the certificate of fundamental care be a baseline on which there would be an advanced certificate. That would lead directly into nurse training so that there would be no glass ceiling for healthcare support workers, particularly since nursing has moved on to being an all-graduate profession. When the Minister responds, I hope that he will be able to say whether that is within the psyche. The idea of having student nurses working alongside healthcare support workers, particularly those training for the advanced level, is a good one, so that you know the skills mix that you are working with.

In Amendment 153, I railed at the word “may”. The amendment states:

“Regulations made under this section by virtue of subsection (3)(d) may in particular include provision for a specified person”.

Surely, the Minister could go one step further and say that, at Third Reading, it will become a “must” and not a “may”. The one thing we must not have—there are a lot of musts—is a situation where people can move away from this need to be able to make sure that within a short period the whole of our social, health and care workforce will be properly trained to a standard approved by the sector skills council and the Nursing and Midwifery Council. That is a major breakthrough.

My noble friend is right that there are some excellent training programmes. I have seen many of them. I remember one for healthcare support workers at John Radcliffe Hospital in Oxford within the hospital setting. I know that many care homes give superb training to their staff because that leads to good patient outcomes which sell the product. Has any thought gone into existing training being recognised so that people do not have to go through another hoop for the sake of getting their certificate? Perhaps Health Education England can do that with this. I hope other noble Lords will comment on our amendment.

Amendment 160 remains a thorny issue. A mandatory regulatory system for healthcare support workers has been on the table. Francis himself made it clear that this workforce should be regulated. Until now, my problem with that has been that there has been very little to regulate because if people are not trained to approved standards, how on earth do you have a regulatory system by which you can judge their competence? Now that we are getting one, I hope that the Minister will look again at regulation so that we get the complete package and, my goodness, this will be a Care Bill that we can really celebrate.

Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Willis, has just referred to my Amendment 160. It relates to the regulation of health and care support workers. I have long thought that the regulation of support workers is necessary, desirable and inevitable because they play such an important role in caring for

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so many people. I pay tribute to the noble Lord, Lord Willis, for the outstanding work he did for the RCN’s independent commission which has informed this debate about standards of care workers.

I very much welcome what the Minister said about the development of a certificate of fundamental care. My noble friend Lord Young reminded me that I ought to ask the Minister at what level that is going to be because anyone who understands these issues will know that the level of a certificate is very important.

I want to draw together Amendments 153, 158 and 160. Given that in future when employers wish to take on care workers they will expect a certificate of fundamental care, does the Minister not think it inevitable that there will be a list of people who have been awarded the certificate? Does he not also think it inevitable that once you have that list, if you then have a person with a certificate and they transgress and there is concern about the way they care for people, there will inevitability be a drive to ask how you get that certificate off them? I believe regulation is inevitable now. There is no way away from the fact that once you have a certificate like this, there will have to be a list or a register and people will have to be evaluated. I for one very much welcome what the Minister has announced because it is a very important step along the road of regulation.

7 pm

Baroness Wall of New Barnet: My Lords, I, too, welcome the announcement, and I am sure that the noble Earl is not surprised at the depth of feeling I have in welcoming it. I see this as a step towards regulation. He might baulk at that but, as the noble Lord, Lord Willis, said, regulation is important for us, and I have been asking for it for a long time. However, I also have felt: what is it we are regulating in the sense of the absolute ultimate? So I think this gives us a very clear and descriptive way in which that can be measured.

I echo what the noble Lord, Lord Willis, said about “may”. That must be “must”, please, because “may” gives such a lot of flexibility that we may go back to exactly where we are right now if people are not required to carry this out. I very much agree that regulation helps in bringing value into the skill mix. My noble friend Lord Hunt referred to an aside by his colleague sitting alongside him. As somebody who is involved in skills heavily, whether it is NVQ level 1, 2 or 3—which I am sure my noble friend Lord Young was referring to—I know from the work that I have done with Skills for Care that the aim is that between level 2 and 3 will be competent level because obviously it depends very much on what people start with.

A final point, which the noble Lord, Lord Willis, picked up on and which we have in industry as well, is how we measure the skills and experience that people already have when we try to ascertain where they fit in. One of the dispiriting things that we find elsewhere is that, when people are asked to take a level 2 or 3, no recognition is made of what they have already gained while they have been doing the job. Skills for Care knows how to cope with that in the way that the skills levels are drawn up.

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I thank the noble Earl very much. I spoke before about being tedious. I am sure that the way in which he has pursued this issue has nothing to do with me or other people being tedious; it is because he has a belief in it.

Baroness Emerton: My Lords, I, too, thank the noble Earl the Minister for what he has said. I think I have probably been more of a pain than anybody on this subject. I thank the noble Earl very much for the assurances that he has given.

I have one or two very quick questions. He knows that I have a thing about Skills for Care and Skills for Health. Who is going to decide the membership of those groups? I am concerned that in teaching skills each individual care worker will want to have the background knowledge to support their skill. It is no good just teaching someone a simple skill without having the knowledge behind it. It reminded me that 63 years ago I was a St John Ambulance cadet. I did an elementary first-aid course where a doctor taught elementary anatomy, physiology and treatment of first aid. I then went on to home nursing and was taught by a registered nurse how to look after patients in the home, provide good nutrition and prevent bed sores. I think probably what I knew at the age of 11 is more than what some of our healthcare professionals know today. What will be the professional input into Skills for Health and Skills for Care? Who will do the syllabus, the curriculum and the teaching? Presumably Health Education England and the NMC will give the backing to that. If we could have that assurance, it would keep me quiet for a little longer.

Lord Warner: My Lords, I also thank the Minister for his persistence within Whitehall in actually getting progress in this area. I think we all feel that he has put a lot of personal effort into it and deserves a great deal of credit.

If I may, I will ask a couple of slightly nerdy questions. I think that the issue of where this stands in the pecking order is vital. Is it down at NVQ levels 1 and 2? Is it up at level 3? How far away is it from the degree-level professional qualifications? In some ways, the title that has been given to this rather diminishes its standing up the food chain, so to speak. A certificate of fundamental care sounds a bit basic, and I am not quite sure what signals are given about the level that Health Education England should strive for in overseeing this particular work. A lot more work needs to be done on that.

Perhaps I may also pick up the point that my noble friend Lord Hunt hinted at. At the end of the day, if employers are to make this operate, they need some kind of register of who has the certificate. They also need to know what happens when they fire somebody and take disciplinary action against someone who has this certificate. Who do they tell? That seems a quite critical issue, because this is a very large workforce and it would be quite surprising if each year we did not get a steady flow of bad cases where an employer has fired someone for a breach of good practice of one kind or another. This would all be set to nought if there was no record of where these cases of disciplinary action

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have been taken, and people with a certificate were still floating around the system when they have actually been released by an employer for poor practice.

Lord Patel: My Lords, I have put my name to Amendment 158. I also thank the Minister for pulling a rabbit out of the hat, so to speak. However, I am not as gobsmacked as the noble Lord, Lord Willis of Knaresborough, because I have lost count of the number of times and days in this Chamber that we have debated the need for training healthcare support workers. I am at least glad that it has now paid some dividends.

I am also glad that the noble Earl said that Health Education England would take the lead on this, and will involve the NMC in devising the standardised training programmes, because it has the expertise to do it. I agree with the noble Lord, Lord Hunt, and others that this inevitably means there will need to be some sanctions for those who do not fulfil the requirements for training and therefore fail to be regulated. I am not sure whether that is for this Bill or subsequently, but it will inevitably lead to that. However, I thank the noble Earl for his amendment.

Lord MacKenzie of Culkein: My Lords, I join in the congratulations to the Minister on his words this afternoon. For a long time I have felt that trying to get some movement on this issue of education and training for healthcare assistants was rather like the sufferings of Sisyphus pushing that stone uphill. Fortunately, I was wrong and the debates that we have had on this issue over the past few months have clearly borne fruit.

I join the noble Lord, Lord Willis, in saying that the permissive “may” in Amendment 153 should be changed to “must”. It is extremely important that that happens if at all possible. For me, regulating healthcare assistants has been an issue since the long preparation for Project 2000 and the eventual demise of the enrolled nurse, leaving the gap which has now had to be addressed in this way.

The Minister has always been careful to say that the Government do not have a closed mind on regulation. I hope that that remains the position because, given the position we have now arrived at, it is inevitable, for the reasons that my noble friends Lord Hunt and Lord Warner have given, that regulation will come some day. To coin the current phrase, it is a can that has been kicked down the road long enough. We ought to stop kicking it and get there sooner rather than later.

I heard the Minister say in the past that regulation is not a guarantor of good care. That, as far as it goes, is true, because if it was a guarantor, there would be no poor practice or misconduct in any profession. That is not an argument against regulation for all the professions that are properly regulated to safeguard the public. I hope that an open mind will be kept on this and that we can come back to the issue of regulation, which is now inevitable. Having said that, I am grateful and delighted that we have made the progress that we have today and again I thank the Minister for his persistence in this matter.

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Earl Howe: My Lords, I am very pleased that noble Lords have recognised the announcement I made today about the development of the care certificate, led by Health Education England working with professional bodies and the sector skills councils. It goes a long way to ensuring that we address training and quality standards for this part of the workforce.

I shall do my best to answer the questions that have been put to me. First, I pay tribute to my noble friend Lord Willis who has made a very important contribution to the debate on healthcare assistants in the Willis Commission on Nursing Education. I acknowledge his long-standing interest and expertise in this area. While the government position on a recommendation such as regulation is different from his—I will come on to regulation in a moment—we share his concern that healthcare assistants and social care support workers need to have the training to do the tasks that they are asked to do. I am well aware of the recommendations that he has made in that area and we will not lose sight of them.

My noble friend asked about government Amendment 153 and why it does not say “must” instead of “may”. First, I can confirm that we will make regulations in this area. The amendment provides an expressed power to delegate the standard-setting function to another body if we so choose. It is in the Secretary of State’s power to delegate. The amendment states “may” because the Secretary of State may in the future wish to set the training standards which he would be able to do under his existing powers. The Secretary of State would not be able to do that if regulations had been made that delegated this function to another body.

The noble Lord, Lord Warner, asked what the care certificate will look like. It is a little too soon for me to answer that in any detail. Health Education England is still considering that issue because of the range of settings in which healthcare assistants and social care support workers operate. We have asked Health Education England to ensure that the approach to the care certificate is flexible so that it is meaningful in every setting. As Camilla Cavendish recommends, they will need to build on the best of the training and development practice which is out there, and the good work that is being done on the code of conduct and the national minimum training standards. A key requirement is to ensure that the skills and behaviours are taught so that we move away from the tick-box approach identified in some instances in the Cavendish review. I know that that is a particular concern—rightly—of the noble Baroness, Lady Emerton. Equally, the noble Lord, Lord Warner, was right to say that we have to think about the mechanisms which would allow, in appropriate cases, the withdrawal of a certificate where an individual had been found wanting in their caring skills.

The noble Baroness, Lady Emerton, asked who will be involved in the development of the certificate. As I have said, Health Education England has been asked to lead this work. It will engage with sectoral bodies, including the sector skills councils, but also more particularly the NMC, the RCN and providers of care. The department will be involved as well. I can reassure her that the code of conduct and the national minimum trading standards were not solely the product of the

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sector skills councils but were very much the result of consultation and cross-sector working with a number of professional bodies.

My noble friend Lord Willis asked whether there would be an advanced certificate. An advanced certificate, bridging into nursing qualifications, certainly needs to be considered as part of the wider response to Camilla Cavendish’s report and we may have more to say about that when we make our official response. However, we agree that any work done by Health Education England must look at the broader picture and the other recommendations made by Camilla Cavendish.

My noble friend also asked about recognising existing high standards of training, where those pertain. He is absolutely right that we need to build on the best training that is out there and to recognise the tasks that people are called upon to do. The Cavendish review makes recommendations on better quality assurance which we are also considering.

The noble Baroness, Lady Wall, asked what we do about healthcare assistants and social care support workers who are already working in the field. That is a point of detail which is still to be worked through but, in principle, if someone is already working as a healthcare assistant or social care support worker and meets the standards there should be some way for them to demonstrate this without having to undergo unnecessary repeat training.

The noble Lord, Lord Hunt, suggested that, if we have gone this far, it is almost inevitable that we should proceed to regulate this sector of the workforce. I do not agree with him, but, in answer to the noble Lord, Lord MacKenzie, our minds are still open to the possibility of regulation at some time in the future. However, we need to bear in mind that statutory regulation is not just about training: it is a much broader process and we do not currently view it as appropriate or proportionate for healthcare assistants and social care workers. Statutory regulation involves setting standards of conduct required within a scope of practice; protecting commonly recognised professional titles; establishing a list of registered practitioners, which is quite an onerous process; providing a way in which complaints can be dealt with fairly and appropriately and allowing a regulator to strike off an individual from a register. We must make no mistake about how complex a business this is. I emphasise that we will continue to review this whole question as we go along but we do not think it is appropriate at present.

The noble Lord, Lord Patel, asked what sanctions there will be for people who do not meet the standards described in the certificate and the noble Lord, Lord Warner, asked a similar question. Unfortunately, I do not have a detailed answer for him today. However, it is a pertinent point that, as the development of the certificate continues, we will need to bottom out. Managers and the CQC will play a big role and are important in ensuring that the certificate is an effective way of evidencing people’s skills.

The noble Lord, Lord Warner, asked a related question about who an employer tells if they fire someone with the certificate. The process operated by employers under the existing system should include

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checks on various matters, including qualifications. However, the disclosure and barring service also provides a further layer of assurance by helping employers make safer recruitment decisions and prevent unsuitable people working with vulnerable groups.

The noble Lord asked what level the certificate would be set at. It is, at this stage, basic training but full details have not been finalised and I hope noble Lords will understand that if I go any further on this point I am in danger of pre-empting our formal response to the Cavendish report. Currently, the national minimum training standards cover issues such as how to communicate effectively with stakeholders, how to ensure that care is person-centred, how to handle patients, and infection control and prevention. However, no doubt those issues will be looked at and, if appropriate, built on.

I stress that I recognise how much of an issue of concern this is. I will take the opportunity to reassure noble Lords that, while what I am describing is the right course of action, we will continue to keep under review further measures as necessary. With that, I hope that noble Lords will feel reassured that there is already in place a proportionate system and process to provide public assurance, and that these measures, in addition to the commitments that I made today in relation to the training and development of the workforce, will in their totality be sufficient to enable them to feel comfortable in not pressing their amendments.

Amendment 153 agreed.

Schedule 5: Health Education England

Amendment 154

Moved by Earl Howe

154: Schedule 5, page 112, line 6, at end insert—

“(0 ) The non-executive members of HEE must include a person who will represent the interests of patients.”

Earl Howe: My Lords, I will speak also to Amendments 155, 156, 157, 161, 162, 163 and 164.

It is important that Health Education England, through its education and training functions, is able to develop a workforce that is informed by, and responsive to, the needs of patients and service users. Robert Francis QC highlighted the importance of embedding a culture of listening to, and engaging with, patients in his report of the Mid Staffordshire NHS Foundation Trust public inquiry. The report included a recommendation that Health Education England should include a lay patient representative on its board. The Government supported that recommendation and tabled Amendment 154 to require the Health Education England board to include a non-executive member who will represent the interests of patients. Indeed, we have already taken steps to recruit such a non-executive member to the board of the Health Education England Special Health Authority. However, it is our intention to go further. Amendment 162 would require local education and training boards to include a person who will represent the interests of patients.

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Amendments 163 and 164 reflect minor changes to the drafting of Clause 94. Together, they clarify that the regulations requiring clinical expertise on LETBs relate to the provision in subsection (3)(b) of Clause 94.

In setting Health Education England up as a non-departmental public body, it is important that we give it the appropriate levels of autonomy and flexibility to determine how it organises itself and performs its functions. Amendment 155 seeks to enable Health Education England to arrange for any of its committees, sub-committees, members or any other person to exercise its functions on its behalf. Linked to Amendment 155, Amendment 156 seeks to enable Health Education England to make payments to any of its committees, sub-committees or members, or to any other person to whom it delegates functions. These amendments bring Health Education England into line with other bodies established under the Health and Social Care Act 2012 that have powers enabling functions to be exercised by their committees and by their non-executive and executive members. It is also consistent with Amendment 165, which covers the Health Research Authority.

Amendment 157 seeks to amend the Bill to clarify that Health Education England may not delegate the functions of a local education and training board to any other committee, sub-committee, member or any other person. The functions of the LETB will continue to be the sole responsibility of those committees established as local education and training boards. This is important and reflects the discrete role of the local education and training boards and the separation in the Bill of responsibilities for national and local education and training functions.

We had an excellent debate in Committee on the important role that education and training can play in supporting research. I know we are all in agreement that it is vital to create a workforce in the health service that is innovative and research-literate, with the skills required to diffuse the latest ideas and innovations.

The noble Lords, Lord Turnberg and Lord Patel, and my noble friend Lord Willis sought reassurance that the duty placed in Clause 89 on Health Education England to promote research would be equally applicable to LETBs when exercising their local workforce planning, education and training functions. As I set out in Committee, our view is that local education and training boards are obliged to support Health Education England in delivery of its primary duties. However, I have given this some thought and agree that it is important to reinforce the Bill to make this clearer. Amendment 161 not only seeks to clarify that the duty to promote research applies equally to LETBs but makes it clear in the Bill that Health Education England’s duties relating to continuous quality improvement and promotion of the NHS Constitution apply also at a local level.

These amendments will strengthen the patient voice within Health Education England and the local education and training boards, provide greater autonomy and flexibility, and ensure a strong research duty. I hope that noble Lords feel able to give these amendments their support. I beg to move.

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Lord Aberdare (CB): My Lords, I shall speak to Amendment 160A, which is sandwiched in the middle of this group of government amendments. My amendment seeks to add an additional matter to which Health Education England must have regard when publishing its objectives and priorities—namely,

“the needs of patients to have their conditions diagnosed promptly”.

This is intended to promote the interests of patients suffering from diseases that are hard to diagnose but where early diagnosis can be critical. There are, of course, a number of such conditions, but the Minister may not be surprised to learn that the particular condition on which I shall focus is pancreatic cancer, for which early diagnosis is often literally a matter of life and death. This amendment is based on my work with the charity Pancreatic Cancer UK. I am also a member of the All-Party Parliamentary Group on Pancreatic Cancer, chaired by my noble friend Lord Patel, which has been conducting an inquiry into how survival rates can be improved. Speed of diagnosis is critical and depends largely on the level of awareness of pancreatic cancer and its symptoms in primary care.

The 2010 National Cancer Patient Experience Survey found that 40% of pancreatic cancer patients visit their GP three times or more before being referred to hospital for investigation. The National Cancer Intelligence Network has found that half of all pancreatic cancer patients are diagnosed only as a result of an emergency admission to hospital. Patients diagnosed via this route have far lower one-year survival rates—only 9%, compared to 26% for patients diagnosed as a result of GP referral. A 2012 survey of GPs found that half said that they were not confident that they could identify the signs and symptoms of possible pancreatic cancer in a patient. Education and training are needed to give them enhanced skills and tools in order to improve their ability to recognise and diagnose the symptoms of conditions such as pancreatic cancer, and to help prevent the sort of shuttling between GPs and a range of different secondary care providers that some patients undergo before a firm diagnosis is made. That needs to be a clear part of Health Education England’s brief.

The aim of this amendment, therefore, is simply to ensure that such a responsibility is formally included among matters to which Health Education England must have regard. It would require it specifically to recognise that time is of the essence in diseases such as pancreatic cancer, and encourage HEE to identify, share and promote best practice in achieving earlier diagnosis. It might, for example, lead to initiatives such as conducting case reviews with experts from the Royal College of General Practitioners to determine why cases identified through emergency admission could not have been diagnosed earlier. I hope that such initiatives would help to close the gap between the UK and other leading countries that do significantly better in terms of survival rates and other outcomes.

My amendment may not be the best way to achieve these goals but it is important that they should be achieved, and I look forward to hearing the Minister’s response as to how this can and will be done.

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7.30 pm

Lord Patel: My Lords, I rise to support the amendment in the name of the noble Lord, Lord Aberdare. He is extremely knowledgeable about issues relating to pancreatic cancer. While the principles of early diagnosis and related outcomes are important for all diseases, this is particularly so for cancers and especially for certain cancers, such as pancreatic cancer. I have spoken before in this House about how two members of my family—my mother and my mother-in-law—both died of pancreatic cancer. Emphasising the need for early diagnosis of any disease is important in the training of doctors and nurses.

Baroness Wheeler (Lab): My Lords, we very much welcome this important group of amendments. If one reads back over the debates on the Bill in Committee, there can be little doubt that the provisions for HEE and LETBs have been considerably strengthened and improved by your Lordships’ detailed scrutiny and deliberations. These amendments consolidate that work.

We have also been encouraged by the progress that HEE has been making under the leadership of Sir Keith Pearson. The website demonstrates this, and the HEE leadership team has been highly visible at conferences and forums, setting out its proposed strategic priorities and consulting on the way forward. In particular, HEE seems to have taken up the key message that, in educating and training staff for NHS and public health, it must have a strategic understanding of the workforce requirements across the boundaries of health and social care and of the need for staff to work in an integrated way. This has been a major concern. I was pleased, for example, to hear the HEE medical director, Wendy Reid, emphasise this at a recent Westminster Health Forum workforce conference that I chaired.

These amendments strengthen the role of LETBs by emphasising that HEE duties under Clause 89 to ensure that quality improvement in education and training, promotion of research—as the Minister has stated—and the NHS Constitution all apply to LETBs. This is an important provision and reflects concerns expressed in Committee that LETBs must pay attention to the maintenance of standards and quality in education and training, as well as ensuring that sufficient numbers of staff are trained locally. This was a point made by my noble friend Lord Turnberg and which the Minister addressed earlier.

Amendments explicitly providing HEE with authority to delegate its functions to its committees, sub-committees, members or other persons are important in allowing HEE the flexibility that it needs to deliver its priorities and functions, and we strongly support them.

On HEE board and LETB representation, we join other noble Lords in expressing our relief at the government amendments, which ensure that people with clinical expertise are appointed to both bodies. This was a serious omission and its inclusion now greatly strengthens the Bill, as does the Government’s commitment that regulations will place a specific requirement on HEE and LETBs to include a nurse and a doctor. It is particularly important, as my noble friend Lord Hunt underlined in Committee, for the people in the driving seat on education and training requirements, standards and future needs at local level

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to be those who provide the services. HEE and LETBs must understand the pressures that the service is under in relation to staffing and to ensuring that education and training is flexible and responsive to the rapidly changing face and needs of health and social care. The implementation of the Francis recommendations for a lay patient representative on the HEE board and LETBs is also a key change to the Bill, which we strongly welcome and which will only enhance the work and effectiveness of those bodies.

Finally, as supportive of HEE as we are, it is hard to see in HEE work to date a clear strategy for developing the vital cadre of NHS managers that is needed to lead the NHS in the coming months and decades. There was a strong concern about this in Committee and the need for close working with HEE and the NHS Leadership Academy was acknowledged by the Minister. The Joint Committee wanted to see a statutory commitment for HEE to work in partnership with the academy, to ensure that managers in training work alongside their clinical colleagues and to increase the number of managers in the future who have clinical experience. Does the Minister not agree that this needs to be an explicit, upfront priority for HEE, which translates through to the work of LETBs? How will the Government ensure that this vital issue is addressed?

Earl Howe: My Lords, I turn first to the amendment in the name of the noble Lord, Lord Aberdare. He has, of course, raised a very important matter. I think that it would be too ambitious for me to offer him complete comfort on this issue at the Dispatch Box, but I hope that I can give him some. It is essential that patients have their conditions diagnosed promptly and effectively. Both Health Education England and the other responsible bodies, such as the professional regulators and royal colleges that are involved in setting the standards and content of education and training, must work together to ensure that the latest best practice is followed to deliver the best possible outcomes for patients. That is fundamental.

Going further, I reassure the noble Lord that in delivering its education and training functions, Health Education England will be very focused on doing so in a manner that supports the efficient delivery of NHS and public health services and the achievement of the best possible outcomes for patients. Health Education England has a clear duty in Clause 89 to exercise its education and training functions with a view to securing continuous improvement in the quality of health services. Those are not idle words; they are significant.

It is also important to remember that the NHS Constitution includes pledges on access to NHS services, including the right to access services within maximum waiting times. The Government are clear that bodies in the new health system must support the NHS constitution, which is why in Clause 89 there is a clear duty for Health Education England to promote the NHS constitution.

Finally, the list in Clause 91 of matters that Health Education England must have regard to includes the Government’s mandate to NHS England. I reassure the noble Lord in that context that the mandate already contains an explicit objective for NHS England to make progress in supporting the earlier diagnosis of

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illness as part of preventing people from dying prematurely. I acknowledge that this is a very important matter. I hope that for the reasons I have set out the noble Lord will feel somewhat comforted and reassured, at least enough not to press his amendment. I have no doubt that this is a debate that we will continue to have at reasonably regular intervals.

The noble Baroness, Lady Wheeler, asked what role Health Education England will play in developing NHS managers and whether it should be a priority for it. Health Education England is working closely with the Leadership Academy to support the development of the next generation of managers and clinical leaders. The Government included this as an objective in Health Education England’s mandate.

Amendment 154 agreed.

Amendments 155 to 157

Moved by Earl Howe

155: Schedule 5, page 114, line 33, at end insert—

“(1A) HEE may arrange for any of its committees, sub-committees or members or any other person to exercise any of its functions on its behalf (but see sub-paragraph (4)).”

156: Schedule 5, page 114, line 36, after “sub-paragraph” insert “(1A) or”

157: Schedule 5, page 115, line 1, after “LETB” insert “, or for a sub-committee, member or any other person,”

Amendments 155 to 157 agreed.

Amendments 158 to 160 not moved.

Clause 91: Sections 88 and 90: matters to which HEE must have regard

Amendment 160A not moved.

Clause 93: Local Education and Training Boards

Amendment 161

Moved by Earl Howe

161: Clause 93, page 80, line 5, at end insert—

“( ) Subsections (1), (2) and (4) of section 89 (quality improvement in education and training etc.) apply to an LETB in the exercise of its functions as they apply to HEE in the exercise of its functions.”

Amendment 161 agreed.

Clause 94: LETBs: appointment etc.

Amendments 162 to 164

Moved by Earl Howe

162: Clause 94, page 80, line 23, at end insert “, and

( ) a person who will represent the interests of patients.”

163: Clause 94, page 80, line 24, leave out “The regulations” and insert “Regulations under paragraph (b) of subsection (3)”

164: Clause 94, page 80, line 24, leave out “that expertise” and insert “the expertise mentioned in that paragraph”

Amendments 162 to 164 agreed.

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Schedule 7: The Health Research Authority

Amendment 165

Moved by Earl Howe

165: Schedule 7, page 126, line 36, after “any” insert “of its committees, sub-committees or members or any other”

Earl Howe:My Lords, at this point it will be convenient to consider also Amendments 166, 167 and 168. We have previously had some valuable debates about the Health Research Authority’s role in promoting transparency in research. I thank the Joint Committee that scrutinised the draft Bill and the Science and Technology Select Committee in the other place for their reports, which have informed Amendments 166 and 167.

In previous stages of the Bill’s passage, the noble Lords, Lord Patel, Lord Turnberg, Lord Warner and Lord Winston, the noble Baroness, Lady Wheeler, and my noble friend Lord Phillips of Sudbury have made particularly valuable contributions to the debate on this issue, which I have listened to with considerable interest. The Government have also discussed the Health Research Authority’s role in promoting transparency with stakeholders and with the existing special health authority.

The life sciences industry plays a key role in the Government’s strategy for economic growth and makes a valuable contribution to both the health and wealth of our nation. The Government agree that there is a powerful case for increasing transparency in clinical trials. Ensuring that research is registered and published and that data, information and tissue are available where relevant will help to make the best use of research, thereby maximising the health benefits for patients and the public from research undertaken and thus maximising the return on our investment in research. Amendment 166 makes it explicit that the Health Research Authority’s objective of facilitating the conduct of safe and ethical research includes promoting transparency in research. Amendment 167 lists some of the ways in which the HRA must promote transparency.

The existing special health authority is already making great strides in promoting transparency in research. The Health Research Authority published an action plan in May 2013, which received widespread support from a range of stakeholders including researchers, research sponsors, funders, professional bodies, stakeholders and members of the public with an interest in transparent research. Since 30 September, registration of clinical trials in a publicly accessible database has been a condition of favourable ethical approval from a research ethics committee.

These amendments will ensure that the Health Research Authority continues to promote greater transparency in research when it becomes a non-departmental public body. By doing so, that authority will continue to reassure people who participate in research that research is not duplicated unnecessarily and that unnecessary risks and burdens continue to be avoided. As promoting transparency in research is specifically included within its objective under Amendment 166, the Government would expect that the annual report would cover the authority’s measures to meet this section of its objective.

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While there is more to be done in this area, including by research funders, I hope that I have been able to reassure noble Lords that great strides are being taken and will continue to be taken.

Amendment 165 clarifies that the Health Research Authority may delegate any of its functions to any of its committees, sub-committees, members or any other person. The amendment mirrors a similar amendment that we have already debated with respect to Health Education England in Schedule 5—it was Amendment 157.

Finally, I would like to explain briefly Amendment 168, which corrects an oversight in the drafting of the Bill. It ensures that an appropriate body under the Mental Capacity Act (Appropriate Body) (England) Regulations 2006 is a research ethics committee recognised or established by or on behalf of the Health Research Authority, rather than a research ethics committee recognised by the Secretary of State.

I thank noble Lords and others for the contributions that have informed the amendments on the HRA’s role in promoting transparency in research. I hope that they will be welcomed. I beg to move.

Lord Willis of Knaresborough: My Lords, first, I declare an interest as the chair of the Association of Medical Research Charities. The brief comments that I am about to make are an amalgam of those made with the Academy of Medical Sciences, Cancer Research UK and the Wellcome Trust. On behalf of all those organisations, I can say how much we welcome these amendments and the way in which the HRA has so quickly become embedded into the research psyche. The work that it is doing ensures that on each of the major obstacles—of which ethics was the first, particularly in local ethics committees, but going right through to the regulation that it is starting to streamline, particularly with the Human Tissue Authority—we are really seeing a march forward. Frankly, the progress that has been made has staggered me. I congratulate not only the chairman and chief executive of that organisation but the Minister himself.

7.45 pm

However, I would like briefly to explore one or two issues with Amendments 166 and 167. Leaving out “such research” in Amendment 166 and inserting,

“research that is safe and ethical (including by promoting transparency in research)”,

is welcome, but we have concerns about the definition. In particular, as the Minister has tried in Amendment 167 to expand on that definition, I would like to press him on one or two of those requirements.

The HRA itself is concerned that expectation about transparency could get ahead of itself. For instance, on the provision of data and tissue, the research authority itself does not in fact have access to or grant permission for any tissue or data that is in the possession of researchers themselves. I hope that that does not become a blind expectation. Looking at the first of the ethical requirements—paragraph (a) in Amendment 167 on the need for registration of research—while we welcome the announcement that ethics approval for

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clinical trials will be conditional on trial regulation, the HRA’s remit extends beyond clinical trials to include all forms of research, including that with human participants. There is clearly no expectation or mechanism by which all research should be registered, so this requirement as tabled is currently not feasible or proportionate.

However, the HRA has indicated that it is giving further consideration to the registration of other studies, and I wonder whether the Minister—when this Bill goes back to the Commons, which is probably the most appropriate time—could suggest an alteration. Instead of saying, “the registration of research”, it perhaps should read, “the registration of clinical trials”.

Turning to paragraph (c) on the provision of access to data, we again support the emphasis on research data, but recognise that those data have to be appropriate. It would not be right to be able to give some of those data out for obvious reasons of patient and individual confidentiality. We wonder, therefore, whether the words “appropriate access” would be a better way to limit what the HRA is going to be responsible for. With respect to paragraph (d)—

“the provision of information at the end of research to participants in the research”—

again, I need to know what that means, because providing high-level summary information to every participant at the end of research would be a hugely demanding task. To aggregate it would not be, so “aggregated information” might be a more accurate way of dealing with that problem.

Finally, I come to,

“the provision of access to tissue used in research, for use in future research”.

All the organisations I am speaking for support the principle behind this requirement. It is important to recognise, however, that tissue is a limited resource. It is not always possible or appropriate to ensure that such access is provided. However, with those comments and requests for clarification, I can say that this emphasis on transparency is very warmly welcomed and we thank the Minister for it.

Lord Patel: I concur with what the noble Lord, Lord Willis of Knaresborough, just said. All of the research councils and charities support these amendments. There are the caveats to which he referred, particularly related to clinical trials and data. There is another important issue about the summary given at the conclusion of the research, which not only has to protect the confidentiality of the patients but also needs to be brief, because otherwise it is too cumbersome. On the whole, these amendments that we debated long and hard are most welcome.

Lord Mackay of Clashfern: I also agree with the view that these are important headings. The precise detail has been mentioned by the noble Lord. Regarding paragraph (c) of Amendment 167, I think that access to the data is quite important although it requires consideration. It is important that the experiment or trial can be repeated. One of the difficulties in the past has sometimes been the announcement of research findings. When those in the same area tried to find out exactly what the findings were based on, there was some difficulty in repeating the experiment and

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occasionally there was something seriously wrong with the research. Therefore, access to the data certainly has to be kept in view if one is going to have proper transparency. However, I accept that, like paragraph (c) of Amendment 167 and the other paragraphs, it requires an amount of restriction in certain cases.

Baroness Wheeler: My Lords, I welcome the Government’s decision in Amendment 167 to support the recommendation of the Joint Committee on promoting transparency in research and ensuring full publication of the results of research consistent with patient confidentiality. It is right that this should be a statutory objective of the Health Research Authority. The arguments in support of this at the Committee stage from noble Lords were very compelling and, since then, have been strongly reinforced by the House of Commons Science and Technology Committee report into clinical trials and, indeed, the strategy and ongoing work undertaken by HRA itself.

In particular, HRA’s September announcement requiring registration of clinical trials in a publicly accessible database as a condition of ethical acceptance—taking up a longstanding recommendation of the Association of Medical Research Charities—recognises the overwhelming support for this agenda. The HRA has much to do in the coming months to develop its guidance into practical measures, but the Bill now gives clear and explicit direction to its work. The HRA has stressed that it expects the vast majority of researchers, sponsors and funders to embrace the plans to realise greater openness, responsible data sharing and publication of all results, and this is very welcome news.

It is so important for patients and the public to have confidence that the research they have been involved in will be used in the best way to improve understanding and health outcomes for the groups involved. Improved transparency is vital if more patients are to be encouraged to become involved in clinical research—one of the key ambitions of AMRC’s excellent vision for research in the NHS. The noble Lord, Lord Willis, referred to reservations. I was going to raise them and I am glad he did. I look forward to the Minister’s response. He may need to write to us in detail about those reservations and his response to that, or there might be a need for some small rewording of the draft provisions before Third Reading.

Finally, we recognise that the HRA is strongly committed to working with other bodies to overcome the barriers to transparency and create a culture of openness. Changing culture is, however, a tough call in the NHS. We also know from the AMRC research survey covering both doctors and nurses that we have a long way to go to get NHS staff to take part in research in the first place, let alone sign up to the transparency agenda. GPs are an important gateway for getting patients involved in research. However, although a majority of GPs surveyed believed it very important for the NHS to support research and treatment for their patients, only 32% of those surveyed felt it was very important for them to be personally involved. Will the Government ensure that HRA and HEE work closely on this very important issue of buy-in to research and transparency by NHS staff? How will they ensure that the CCGs fully engage in this agenda?

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Earl Howe: My Lords, I am very grateful to noble Lords for their questions and comments. Without spending too much time, I shall try to cover the questions raised. Anything I do not cover, I undertake to answer in a letter. My noble friend Lord Willis asked a number of questions about how he should interpret the provisions in Amendment 167 in particular. Incidentally, it is important to point out that the way Amendment 167 is framed means that the HRA may do other things to promote transparency and research, not just the things that are listed in the amendment. The HRA should do what is set out in paragraphs (a) to (e), but it is not an exclusive list.

My noble friend asked me whether we should not be talking about registration of clinical trials instead of research. The amendment requires the HRA to promote the registration of research because we want to encourage transparency in all health and social care research. Greater knowledge about what research is under way or has already been undertaken is essential, so that new research can build on it, minimising the risks, intrusions and burdens for patients. We think that that applies to all research, not just clinical trials. The amendment requires the HRA to promote registration of research; it does not create a requirement for all research to be registered. I hope that that will ease my noble friend’s mind a little.

In delivering its objective of facilitating safe and ethical research, I would expect the HRA to take into account what databases are available for the registration of research, any existing requirements to register research, the need for requirements on registration to be proportionate and practical, and what is happening internationally. In doing so, presumably the HRA would consult stakeholders on achieving this part of its objective.

My noble friend asked me what is meant by,

“promoting … the provision of access to data on which research findings or conclusions are based”.

It is important that the data generated during research are made available to others, where possible, while protecting patient confidentiality. That helps to ensure that we maximise the benefit from investment in research. The Health Research Authority special health authority is currently planning to strengthen the research ethics committee review of researcher intentions, to make findings, data and tissue available. It is undertaking a pilot to consider whether the introduction of ethics officers will increase the proportion of favourable opinions at first review, improve the timelines of review and reduce the administrative burden on research ethics committees. That includes a review of researcher intentions to make findings, data and tissue available.

My noble friend referred to patient confidentiality. I stress, as I have on previous occasions, that in promoting the provision of access to data on which findings or conclusions are based, the common law duty of confidentiality and the Data Protection Act 1998 apply. The HRA will need to take account of these in delivering this part of its objective. We do not believe that it is necessary to state this explicitly in paragraph (c) of Amendment 167.

The noble Lord asked what is meant by,

“promoting … the provision of information at the end of research to participants in the research”.

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Participants who take part in research have said that they want to be able to access the results of the research, and that was confirmed by recent HRA public engagement work. The HRA is working with others to set standards and provide guidance on how information should be provided to participants. Consideration of these plans against agreed standards will continue to be an issue for research ethics committees to review at approval. That work will continue through the HRA’s involvement work stream.

My noble friend questioned whether the results should be released to every participant, perhaps in aggregated form. It will be for the HRA, as an NDPB, to set out in its guidance for researchers its expectations as to the information they should provide to research participants at the end of the study. We would expect the HRA to develop its expectations, not only with stakeholders but with research participants themselves. We do not think that it is necessary to state explicitly that information should be in aggregated form.

As regards access to tissues, my noble friend made a good point. Human tissue is a valuable resource for research. Disposal should be a last resort. Making tissue available at the end of a study allows other researchers to make use of material already collected. Maximising potential for research from tissue collected helps to reduce the risks, burdens and intrusions placed on people by minimising the need to collect further tissue. Making tissue available at the end of a research study might involve the tissue being transferred to an appropriately licensed tissue bank, for example. We recognise that tissue has a limited life, and, through quality and assurance systems, tissue that should be disposed of is identified by either the tissue bank or the researcher. I can expand on that for my noble friend if he would like me to.

The noble Baroness, Lady Wheeler, asked whether the Government would ensure that CCGs and NHS staff engage in research. I am pleased to remind her that CCGs have a duty to promote research under the Health and Social Care Act 2012. I hope that that has covered at least the majority of the questions.

Amendment 165 agreed.

Clause 100: The HRA’s functions

Amendments 166 and 167

Moved by Earl Howe

166: Clause 100, page 85, line 12, leave out “such research” and insert “research that is safe and ethical (including by promoting transparency in research)”

167: Clause 100, page 85, line 25, at end insert—

“( ) Promoting transparency in research includes promoting—

(a) the registration of research;

(b) the publication and dissemination of research findings and conclusions;

(c) the provision of access to data on which research findings or conclusions are based;

(d) the provision of information at the end of research to participants in the research;

(e) the provision of access to tissue used in research, for use in future research.”

Amendments 166 and 167 agreed.

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Schedule 8: Research ethics committees: amendments

Amendment 168

Moved by Earl Howe

168: Schedule 8, page 132, line 45, leave out from second “a” to end of line 3 on page 133 and insert “research ethics committee recognised or established by or on behalf of the Health Research Authority under the Care Act 2013.”

Amendment 168 agreed.

Clause 112: Regulations and orders

Amendment 169

Moved by Earl Howe

169: Clause 112, page 92, line 25, leave out “or duty”

Amendment 169 agreed.

Clause 114: Commencement

Amendment 169A not moved.

Amendment 170

Moved by Earl Howe

170: Clause 114, page 94, line 23, after “cases)” insert “or 71 (after-care under the Mental Health Act 1983)”.

Amendment 170 agreed.

Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013

Motion of Regret

8.01 pm

Moved by Lord McKenzie of Luton

That this House is concerned that provisions in the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (SI 2013/380) to provide for the payment of universal credit awards on a monthly basis may result in budgeting pressures on low income families; and further regrets that universal credit awards being paid in respect of children or rent charges will not by default be paid to the main carer of the children or to the person liable for that charge, and expresses concerns that this may impact disproportionately on women and vulnerable members of society.

Lord McKenzie of Luton (Lab): My Lords, the regulations before us this evening cover a range of matters, including the claims and payment arrangements and contributory ESA and JSA, as well as arrangements for claiming and payment of the personal independence payment. The thrust of this Motion is to focus on the awards and payment arrangements for universal credit. Of course, these regulations are only one set of a raft of regulations that we have considered concerning universal credit and other benefit changes. Some may

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be a distant memory in terms of the legislative process, but they are a looming reality for many. The context of all this has shifted dramatically since the start of the Summer Recess, when we were assured by the Minister that we could rest easy in our beds, that universal credit was on time and on budget and that everything was going swimmingly.

The Secretary of State told Parliament in March that universal credit,

“is proceeding exactly in accordance with plans”.—[

Official Report

, Commons, 5/3/2013; col. 827.]

However, the September NAO report uncovered the truth, describing how the Major Projects Authority raised concerns about the DWP having no detailed blueprint and transition plan for universal credit, which must therefore be reset. It recites that the Government will not introduce universal credit to all new out-of-work claimants nationally from October 2013, but will add a further six pathfinder sites this month. The NAO report emphasises that the pathfinder systems have limited function and do not allow claimants to change details of their circumstances online, as was originally intended. The department does not yet know the extent to which the new IT systems will support national rollout. In its October 2011 business case, the DWP expected the universal credit caseload to reach 1.1 million by April 2014; that reduced to 184,000 in the December 2012 business case. What is it now? Can the Minister tell us when the Government will set out a detailed plan for the full rollout of universal credit?

At a time when some of the poorest families in the land are being forced into debt by the bedroom tax and other measures, it is a scandal that the Government are writing off tens of billions of pounds of wasted expenditure because of their incompetent management of the universal credit programme. It is against this backdrop—where the department has delayed rolling out universal credit to claimants, has had weak control of the programme, is not achieving value for money, has been overoptimistic about timescales and has demonstrated lack of openness about progress—that we are obliged to return to some of the basic architecture of the scheme, to challenge whether it, too, has lacked the rigour of full analysis and, in particular, whether some of the protections against the worst impact of monthly payments are fit for purpose.

We cannot yet look to the April pathfinders for help as their scope is very narrow, covering where universal credit is applied to those who are single, are without children, are not claiming disability benefits, do not have caring responsibilities and are not entitled to housing support, but have a bank account and national insurance number. Clearly, these pathfinders will not tell us much about the impact of universal credit on low-income families and those who rent. The characteristics of those admitted to the further October pathfinders are not clear. Perhaps the Minister will tell us what those characteristics are and especially whether they will involve those who rent their homes. If not, at what point will universal credit be applied to those that do? So far as monthly payments are concerned, has the payments exception policy been applied yet to any recipient of universal credit under the pathfinders?

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The substantive issues we raise tonight are not new—we raised them throughout our deliberations on the Welfare Reform Bill, and the Minister will doubtless hear from noble Lords with the same force and passion as was evident then. As our Motion sets out, our concerns are about the impact of monthly payments of universal credit on low-income families and about putting the clock back to the days where support for children did not go directly to the main carer and where the default position of rent support going directly to tenants increased the prospect of poor families losing their homes. We know that the justification for making monthly payments direct to claimants is that it will encourage personal budgetary responsibility and mirror the world of work. This is despite the fact that only half of those earning less than £10,000 a year are paid on a monthly basis. Life on benefits is not a comfortable existence for anyone who has tried it—and not just for a week here or there. There is the grinding awfulness of the poverty it brings, where there is simply no margin for error and where hanging on for the next payment date and juggling the cash to meet the next most pressing bill is the routine stuff of life. The temptation is to skip a payment here to meet a pressing payment there and risk becoming trapped in a cycle of debt.

How will monthly payments and assessments make things better? Research by the Social Market Foundation concludes that they will not, the Government’s exception policy notwithstanding. Although supporting the Government’s aim of encouraging greater personal responsibility and financial resilience, it concludes that changes to the payments and assessments system,

“could cause significant hardship for families on the lowest incomes”.

Its research outlined the budgeting methods that many households adopt to see them through, which inevitably involve debt of some sort, whether formal or informal. The households that it researched cited, in particular, the fact that more frequent payments served as a method to help them ration their income and restrain their spending. They feared that the larger payment might be spent too quickly, given the competing demands on their low income. On the exceptions policy, the Social Market Foundation expressed concern that a centralised system of identifying vulnerable claimants was an inefficient way of helping households and suggested an alternative of claimants being able to opt in to a budgeting portal. Have the Government given that any thought?

The Child Poverty Action Group focused on the “rough justice” that can ensue from monthly assessments where benefit claimants receive increased entitlements but which disadvantage claimants whose entitlement reduces. All of this is happening at a time when the discretionary social fund has been abolished along with crisis loans, community care grants and budgeting loans. They are to be replaced by payments on account or short-term advances and local welfare provision to be provided by local authorities. Short-term advances are much more restricted in scope than crisis loans and are only payable to benefit claimants in very tightly prescribed circumstances. As CPAG points out, that will not cover situations where a person has no, or insufficient, money to meet basic needs. Budgeting

21 Oct 2013 : Column 861

loans will continue to be payable to universal credit claimants, subject to strict criteria, on a discretionary basis with no right of appeal.

As for local provision, a recent Children’s Society report identified that money given to local authorities to replace community care grants and crisis loans is only a little over 50% of the equivalent spending at 2010 levels. Hard-pressed local authorities are in no position to make up any shortfall. Have any universal credit claimants under the current pathfinders been eligible for support for local welfare provision, short-term advances or budgeting loans, and what has been their experience?

We know that low-income families are poorly placed to cope with the current economic challenges. Some 10 million low-income households are in unsecured debt; three-quarters of those in the lowest income quartile have no cash savings. The cost of living squeeze is not only hitting the poorest, although it bears more heavily on them. Current levels of inflation will mean that universal claimants endure a real cut in their income at a time when energy bills are soaring and childcare costs are rising at almost 6% a year.

One thing is certain. For those who currently struggle to make their benefit receipt last until the end of the fortnight, the temptation to resort to payday lending will be enormous. For irresponsible payday lenders, the temptation to exploit an expanded market created by monthly payments will be irresistible, and with it the risk that continuous payment agreements will drain bank accounts as soon as benefit payments arrive. We applaud the work that the Minister is doing in encouraging the expansion of credit unions, but note that he is on record as seeking to restrict continuous payment agreements to accounts of benefit claimants until utility bills and rent have been accounted for. Could we have an update on that work? Will the Minister support the call that Ed Miliband has made for a special levy on these payday lenders, so that further moneys can be channelled into credit unions?

We raised the issue of the impact of universal credit payments on women, because time and time again it is women who are being hit hardest by this Government’s measures. It is women who are paying three times as much to get their deficit down, even though they still earn less than men. New mothers particularly are being hit, with House of Commons Library research showing that they will lose almost £3,000 during pregnancy and their baby’s first year.

My noble friend Lady Lister will say more about the wallet to purse issue, given her deep understanding of its history, and why the hard-won settlement should not be put in jeopardy. However, the Government have implicitly acknowledged the concerns we have raised about monthly payments, payments going to the main carer where children are involved, and payments going directly to landlords, because those have all been covered in their proposed alternative payment arrangements. As far as it goes, that is to be welcomed, but it raises a number of issues about how it will work in practice. The main concern is that this is a centralised system. Jobcentre Plus will decide whether an individual can have an APA and there is no right of appeal against an

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adverse decision. The key issue is whether Jobcentre Plus will have the capacity to make the determination a potential entitlement on a fair basis, given the range of circumstances that has to be taken into account.

Will the Minister indicate the expected number of claimants who will receive an alternative payment arrangement by, say, April 2014 and by full rollout? We have seen the first draft of the local support framework, which sets out the principles of the support that will be offered. However, what was planned as phase 2 of the universal credit rollout was supposed to provide the basis for the DWP and local authorities to start to plan these vital services. What is the plan now, given the revised universal credit rollout?

The Government have also launched demonstration projects to test how claimants can manage monthly payments of housing benefit. These are supposed to inform the final development and design of the exceptions policy. Will the Minister please update us on whether the projects will include any circumstances where monthly payments of rent are made under universal credit, rather than under the existing benefits regime?

We have supported the introduction of universal credit and will continue to do so, despite the project being seriously off-track. We have offered our support to help to restore confidence in the project. We have an unease about some of its components, especially combined monthly payments as the default position, and we will continue to press for the development of fair, comprehensive and practical exemption arrangements. We make no apology for promising to revisit these issues regularly and robustly. I beg to move.

8.15 pm

Baroness Lister of Burtersett (Lab): My Lords, there are many issues raised by the claims and payments regulations, but I plan to focus on the two that I raised in our debates on the Bill itself: monthly payments and payment into single accounts. These are lumped together in the guidance on personal budgeting support in a way that is not very helpful, because there are different issues at stake—a point to which I will return. Nevertheless, some questions relate to both matters: most fundamentally on both, the Government have rejected the arguments made by many noble Lords for choice about payment arrangements in favour of a convoluted system of personal budgeting support, which I suspect is going to be pretty difficult and staff-intensive to administer.

The clear injunction in the guidance that alternative payment arrangements are not available through choice would appear to contradict the earlier claim in the guidance that they would be claimant-centric—that is, done with, rather than to, the claimant. While I am pleased that the policy is no longer couched in the language of exceptions and vulnerability, designed to make a claimant feel different, this still appears to be the underlying philosophy.

This is also revealed in the argument that alternative payment arrangements should be temporary, to avoid labelling claimants as financially incapable. However, it is the Government who are in effect labelling them as such, by requiring claimants, who may be managing as well as can be expected, to adapt to payment systems that might simply be inappropriate for their

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circumstances. This determination to change claimants’ behaviour smacks of the kind of social engineering that sits uneasily with both traditional Conservative and liberal philosophy.

In our previous debate on regulations, the Minister said that he would be able to provide more information about the department’s working assumptions on the number and proportion of claimants likely to be deemed to require personal budgeting support,

“as we work our way through”.—[Official Report, 13/2/13; col. 755.]

As that was eight months ago, is the Minister now in a position to provide more information, as requested by my noble friend Lord McKenzie of Luton in his excellent and passionate opening speech? In particular, will he provide the information regarding those requiring monthly or split payments? Does he accept SSAC’s warning that the range of claimants who require these facilities may be greater than anticipated?

Will the Minister also explain how personal budgeting support will work with couples? In the case of joint claimants, will just one or both need to demonstrate the facts as listed in the annexe to the guidance? Will the decision about whether it is needed be based on a joint interview? Will money advice be offered to both members of a couple and will the Minister also advise us about the progress made with financial products such as jam jar accounts, which he earlier presented as a solution to just about all payment problems?

In July, the Minister was still able to tell the Work and Pensions Select Committee only that he hoped to be,

“coming up with something in the not-too-distant future”.

That is not very encouraging. Has he also taken on board the Social Market Foundation’s warning that jam jar accounts, while potentially beneficial,

“have only partial applicability across the claimant population”,

because of strong resistance from a significant number? Part, though not all, this resistance was because of the likely cost to the claimant. As the Communities and Local Government Select Committee observed:

“More information is needed … on how these accounts would work and who would pay for them”.

The Social Market Foundation cites evidence from the financial inclusion taskforce of the lack of appetite for financial products among about half of the unbanked. Those without a bank or Post Office account will be able to use the Simple Payment service to receive their benefit. As the Minister confirmed in a Written Answer, the problem with this is that it requires claimants to withdraw the whole amount, and not part, of each benefit payment at the same time, up to a limit of £600. This is potentially a lot of cash to withdraw in one go and leaves the claimant vulnerable to both robbery and temptation. Although it is estimated that only about 60,000 working-age claimants will be paid in this way, it is a cause for concern. Why is it not possible to draw part of the payment, as this would surely often be the responsible thing to do?

This brings me to the question of monthly payments, because if it were a more frequent payment, this would not be such an issue. Since noble Lords from across the House first raised concerns about monthly payments,

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evidence has been mounting to demonstrate just how un-claimant-centric this policy is. It is clear, from both government and independent research, that a significant number of claimants—particularly those out of work—see this as posing a real risk to their financial security. They fear it will upset their budgeting strategies and leave them running out of money.

In a DWP press release about early findings from the direct payment demonstration projects, the Minister acknowledged that the findings,

“show that most people on low incomes manage their money well.”

As SSAC has noted, one of the key lessons was that:

“Budgeting support needs to recognise that people on low incomes often budget on a fortnightly or weekly basis.”

Has it not occurred to the noble Lord that there is a connection here? As the demonstration projects show, many people on low incomes use fortnightly or weekly budgeting strategies as a means of managing their money well. Research shows that mothers, in particular, often take great pride in doing so. By forcing them to change their budgeting strategies, the Government could be setting them up to fail, a message that comes across clearly from the SMF study cited by my noble friend.

That is likely to have an adverse impact on morale, as well as living standards and, in doing so, could undermine the very objective of making claimants more work-ready. Where a more frequent payment is agreed, it will be paid in arrears, in addition to the new seven-day waiting period for some claimants. As the Women’s Budget Group has pointed out, this means that,

“claimants would be paid only half what they are owed for the month seven days after the end of that month and will then wait another half month for the remaining half. This would seem to contradict the Government’s wish to help those who find monthly payment most difficult and can result in hardship cases and requests for advance payments.”

Women’s Aid, to which I am grateful for its briefing, warns that most survivors fleeing domestic violence will have no alternative to claiming a budgeting advance. I appreciate why the Government are not keen to make a half payment in advance, but does the Minister accept that it would create fewer problems than paying in arrears?

As I said earlier, the question of payment into a single account versus a split payment raises rather different issues to that of monthly payment, even if both are likely to have adverse gendered impact. It is about access to, and control over, money rather than about managing it. The erroneous treatment of split payments as a management issue is illustrated by the guidance on when to review alternative payments. It says that the adviser,

“will decide that the claimant is now capable of managing the standard monthly payment.”

Where a split payment has been granted because of domestic violence, as opposed to a partner’s financial mismanagement, such advice is surely irrelevant. On what basis will a decision whether to continue a split payment be made? Does the Minister accept that there may be some situations where it cannot be treated as a temporary measure?

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At present, the guidance seems to suggest that split payments will be an option only in cases of financial abuse or domestic violence. Can the Minister confirm that they will not necessarily be restricted to such cases? With whom will an adviser discuss this question and, even more importantly, the initial decision to make a split payment? Will it be both partners, and if so, will it be discussed separately or together, or will it be just the partner in need of diversion? If the latter, what will the other partner be told about the interview? How will advisers negotiate with gendered power relations which are likely to be at work between the partners to ensure that they have a true picture of the situation?

The department’s study of the implementation of JSA DB easement revealed a reluctance to disclose domestic violence to advisers, a concern that was raised by SSAC. This is likely to be the case here too. How will advisers detect domestic abuse, particularly when it is not manifested physically? Where a male partner uses the threat of abuse of various kinds to control a female partner, it could well be kept hidden. What steps can be taken to ensure that a split payment, which reduces the money paid to the perpetrator, does not provoke further domestic violence? Will the Minister indicate what training in financial abuse and domestic violence is proposed for universal credit advisers? More generally, what is the department’s response to SSAC’s recommendation for an effective training programme designed to ensure that advisers have a sufficient understanding and capability to manage the complex and dynamic nature of risk and vulnerability within universal credit?

It is important that the evaluation does not conflate the effects of wrapping up a number of benefits in one payment with payment into a single account under the rubric of a single payment, as did earlier departmental research.

At present, the guidance seems to suggest that split payments will be an option only in cases of financial abuse or domestic violence. Can the Minister confirm that they will not necessarily be restricted to such cases? It is not always possible to foresee situations in which they might be appropriate, and it would therefore be wrong to rule out other scenarios in advance. Indeed, Fran Bennett, to whom I am grateful for her briefing, suggested adding the scenario where a lone parent with children from a previous relationship takes an unemployed new partner into her rented accommodation. It may not be conducive to the success of a new relationship if one partner has control of all their joint universal credit.

I apologise for asking so many questions, but I cannot find the answers in the public advice and guidance. Reading that guidance, I am not convinced that the department fully appreciates how delicate and difficult an issue this is in any couple where there are difficulties of any kind with regard to control over money. Indeed, only last week, in discussing other regulations, the Minister drew attention to the extent of domestic abuse. If the fears of organisations such as Women’s Aid are realised, I suspect that the Government will have to revisit the policy and rethink

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the default position to ensure that both members of a couple have direct access to their share of universal credit, if they want it.

The Government’s refusal to listen to reason on these key payment issues could derail the successful implementation of universal credit, which is already looking somewhat shaky, to put it kindly. During the passage of the Bill the noble Lord, Lord Boswell, said,

“if this is the nail in the shoe that gets the whole thing discredited because it does not work or gives rise to disturbing social consequences, we will have lost the great prize of universal credit that many of us want”.—[

Official Report

, 10/10/11; col. GC 434.]

We should remember the lessons from the child support legislation, when widespread consensus about key principles meant that insufficient scrutiny of the practical details led to one of the worst examples of social policy-making in recent history. I hope that even at this late stage, the Minister will take heed and remove the payments nail from the universal credit shoe.

Lord German (LD): My Lords, I agree with some of the sentiments that we have just heard from the noble Baroness, Lady Lister, and with some of those that we heard in the opening speech of the noble Lord, Lord McKenzie. It seems that there are questions which need to be asked and questions which are still outstanding. However, perhaps some of the clues to the answers that we need to those questions can be found within the noble Lord’s opening speech. He said that we do not yet have the evidence from the rollout of universal credit to give us the learning pattern that we need to establish the route forward for some of the detailed questions which lie before us. They are real issues.

8.30 pm

I draw back to the principles that lie behind the way in which you construct a process dealing with these three major, complex issues. It depends on which way you look through the prism or telescope. As was rightly said, they are all about changing behaviour and the way in which people do things. It is about where the balance lies. Is it in devising, on the one hand, a system where the needs of the most difficult determine its shape, or, on the other hand, do you run with the generality of people’s capabilities and then provide specific support for those who cannot manage, whether that is in the short or long term or transitionary?

I am drawn to the second of those approaches. That is how you encourage self-reliance and how people will be better able to manage their lives and futures: working with the flow and giving a helping hand to those who need it as appropriate. The difficulty, of course, is in where to draw the balance—the line between the one and the other—then in devising structures which are based on a general capability, and then in devising where the boundaries are in providing that assistance and support. From what I have heard so far in the debate, whatever support is provided it must be local, flexible and based upon a local assessment of where people are. Perhaps the Minister can tell me what those processes might be.

In annexe A to the universal credit guidance on budget support, we were given two tiers of categories under which people might need extra support and, possibly, alternative payment arrangements: highly likely

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factors in tier one and less likely factors in tier two. That was quite an extensive list of 22 different categories of people who will need some form of support with the way in which universal credit is rolled out. If you have a rigid, centralised structure which comes from decisions taken here in London, it will not necessarily meet the ambition of a flexible approach provided with local understanding and assessment.

I will also address some of the issues relating to how these payments will be made. One of the conflicting issues which has now arisen is the consequence for the Post Office card account, which the Government support and which provides a form of basic banking. One of the primary reasons that many in your Lordships’ House would like to see that sort of support continue is that it provides footfall across our local post offices. For many post offices, particularly in urban inner-city areas, that is the means by which they continue to survive. I hear of the Post Office card account plus, which is a trial going on in the east of England with an additional capability for providing jam pots by means of direct debits. Can my noble friend the Minister reassure me that the Post Office card account, or a replacement for it, will exist when the contract for that account comes to an end in March 2015, and that we are trying with the rollout of universal credit to provide the best facilities for people so that they can take advantage of cheaper budgeting arrangements by means of direct debits and other means of payment, particularly to energy companies?

On the issue of monthly payments, which is a major change, perhaps we should look back at the evidence from 2009 when the previous Government changed from a weekly to a fortnightly payment system. That was a doubling that we discussed during proceedings on the Welfare Reform Bill. What evidence came out of that shift? Did the department undertake any active research to find out whether the shift in 2009 had caused any behavioural change, whether there had been major difficulties as a result, whether people’s budgeting arrangements made them fall into arrears, whether they were unable to cope, and whether we could learn any lessons appropriate for the current regime?

After all, we know that claimants will face many management challenges and, where there is a clear need, they will require a level of assistance. It is in this area that I wonder whether Jobcentre Plus, given the strictures placed upon it, has the capability to handle that money advice. We are told in the information with which we have been provided that claimants will be referred to online, telephone or face-to-face support with expert providers at a national or local level, depending on the issue. I understand that this money advice has to be readily available but will it be available to people locally? Will the people making decisions on the back of the advice that people have been given be able to take those decisions and treat people differently? There are concerns about vulnerable people moving on to a monthly payment. It matters that we as a Government are able through Jobcentre Plus to manage the whole process in a local and flexible manner. That goes back to the first set of principles that I outlined.

In respect of payment to one member of the family—the split payments issue that the noble Baroness, Lady

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Lister, raised—the decision on who will receive the funding in a household is crucial. Given that we have not had the rollout in any area where this policy will have an effect, has the Minister had any thought as to how the need to be flexible regarding who receives the payment will be dealt with? Who will make that decision? Will it be the household? If the household makes a nomination, how will we be certain that that is correctly the view of the whole household, given that there are sometimes pressures that may not be appropriate? Given that there are 12 categories of people who may be treated differently because of the need for alternative payment arrangements, how will that be taken into account locally and how will it be dealt with?

I should like to turn to the question of what level of arrears might be built up, on which we have some evidence from demonstration projects. Can my noble friend confirm that the findings in May 2013 from the department’s work on these trials show that the level of payments were on average 94%, with the lowest being 91% and the highest 97%? Whatever is the case—and the percentage figures are in the 90s—a whole range of people is falling into arrears and represent the gap between 94% and 100%. Can my noble friend provide us with more information on how that will work?

Finally, I reiterate the point about the rollout of universal credit. This is something in which we have all invested our support because it is a crucial change to the way in which we make more efficient and effective ways to support people. It is concerning that we are having to extend that rollout. May we have the latest information on how that will be projected into the future and when we can expect the regime to be fully in place?

The Lord Bishop of Ripon and Leeds: My Lords, I am very grateful to the noble Lord, Lord McKenzie, for bringing this matter to our attention again, and for the three powerful speeches which we have already heard. First, I want to emphasise my concern about that part of the Motion which speaks of the way in which universal credit awards paid in respect of children will not necessarily by default be paid to the main carer of the children and the disproportionate impact this will have on women. Through my work, I have become increasingly aware of the mother’s crucial role in the sorts of situations that we have been discussing over the past few minutes and indeed over the past few years. The mother needs to have proper control of the money which is coming for the benefit of the family and in respect of her children. I hope that in our discussions and the way in which the regulations and the whole universal credit system are worked out we shall be able to pay attention to the mother’s role, which in many circumstances is crucial when the whole family is under severe stress.

Secondly, I share the concerns which have been expressed by all previous speakers about the impact of the monthly payments system. It is already beginning to make it more difficult to control the finances of the family and, as the noble Lord, Lord McKenzie, said, there is the danger of opening the way for payday lenders. We are already seeing considerable growth in the work of payday lenders. That in itself is not yet

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due to universal credit but my fear is that universal credit will become a factor as the monthly payment system comes into being.

I wanted to take up one particular detail of the regulations which fits in with the monthly payment concerns but is also specific. Regulation 26 of Part 2 speaks of the back-dating of universal credit and limiting that back-dating to some very narrow categories. This contrasts with the present situation for tax credits, which can be back-dated for up to 31 days so long as the claimant meets the rule of entitlement throughout that period.

I raise that question for two reasons. One is that many people will become eligible for universal credit at the birth of a new child—a particularly difficult moment to be making your claim. Secondly, the regulations acknowledge the possibility of the failure of systems. However, it will be hard to prove that failure if a claim is delayed or not made until three or four weeks after the claimant is entitled to make it, especially if that reason involves the inability of the claimant to access the system, whether due to a fault in the system itself or due to the claimant’s online skills.