Personal Care at Home Bill — Committee (Continued)

House of Lords, 22 February 2010.

Earl Howe (Conservative)

My Lords, I will speak at the same time to Amendments 6, 14, 16, 27 and 40. One of the main concerns about this Bill which emerged at Second Reading was the deeply unsatisfactory way in which its provisions cut across the key arguments and principles articulated in the Government's Green Paper of last July, Shaping the Future of Care Together. For my own part, I found that Green Paper to be an extremely helpful analysis of the issues that should be uppermost in our minds as we consider the long-term reform of social care provision. Two conclusions from the Green Paper were inescapable. The first was that, as a nation, we cannot afford to deliver free personal care to all who need it and fund this out of general taxation. Any attempt to do that will not prove sustainable over time because of the demographic trends which are already in evidence. Therefore, as the paper says, the foundation of the new system lies in the partnership option-that is to say, in co-payment of one sort or another.

The Government are holding fast, as far as I know, to the conclusions of that Green Paper, but they are at the same time bringing forward a Bill which is completely at odds with it. The Bill is said to be a "bridge towards" a fully reformed social care system, but it is hard to see that phrase as anything more than just words. If the Government had been a bit straighter with us and said that the Bill was designed as a temporary stopgap in advance of long-term reform, that might have been a more credible and accurate description. I would have liked the Bill to point a clearer way towards the vision set out in the Green Paper; in other words, to be a genuine bridge and a genuine building block to long-term reform.

To be that bridge, the Bill needs to open up the way to a much more varied and flexible set of options. We have already considered some of the pitfalls that look set to await us as a result of the lack of clarity in some of the definitions that will determine eligibility for free care. In any decision about eligibility, so much will be at stake that people are unlikely to take a refusal lying down. I genuinely fear an explosion of complaints, appeals and litigation.

The obvious way forward is to preserve the core idea of a more generous deal for those in critical need of care, but to cut the cake differently so that there is a more graduated scale of preferential charging and therefore much less incentive for people to dispute the results of an assessment. The difference between having substantial needs and having critical needs will often be quite narrow. The difference between requiring help with four activities of daily living and requiring help with only three may be equally narrow. Therefore, I ask the Minister what thought the Government gave, as an alternative to offering free personal care to all those people with critical needs, to the idea of a graduated preferential scale of charging under which local authorities would be able to take into account not only the acuity of a person's need but also their personal financial means.

I mention means-testing here with no apology. The cost-benefit analysis contained in the impact assessment seems to me the loudest warning bell, if any were needed, that we are in danger of creating an unsustainable system. People who can afford to bear some or all of the cost of their personal care cannot in the current climate be considered a more important priority than those without financial means whose need for care may be only very slightly less acute. I am no advocate of the postcode lottery, but I believe in local authorities having discretion to manage their finances in ways that they consider fair and affordable. The Bill takes that discretion away from them in a material sense, and it does so, as we will debate later, in a very unstructured and ill planned way.

I have spoken up till now about the short term; the longer term should concern us equally. What are the ingredients of a sustainable and fair system of social care provision over, let us say, the next 100 years? To my mind, they are these. We should aim for a personalised service to enable people to buy the care that suits them best. One of the problems with the Bill, despite what the noble Baroness said earlier, is that it seems to cut right across the personalisation agenda, which, up to now, the Government have done rather well at. We need consistent national standards for the assessment of care needs. The Government are right about that, and I shall support them in their efforts to introduce them. We need to help people stay in their homes for as long as they can-again, the Government are right about that. We need also to find a way of protecting people from having to sell their homes to pay for long-term care. I should like to think that there is no disagreement between my own party and the Government on any of those four principles.

I do not want to exacerbate the public spat which has been going on between members of my own party and Ministers in another place, but I would simply say that we on this side part company with the Government over their apparent enthusiasm for schemes and ideas which directly cut across one or more of the four principles that I have mentioned. For example, we do not think that it is helpful to disempower people by removing national benefits from them, such as attendance allowance, and disability living allowance.

A national care service is a great idea, but if you mandate the service from the centre, and fund it centrally, it becomes inflexible and depersonalised. I do not think that that is the way to go. Equally, a compulsory state insurance scheme takes us in the wrong direction if we believe in empowering people through choice. It also acts as a strong disincentive to informal care, and I worry greatly about that.

If this Bill is to act as a bridge towards a flexible and personalised system of social care, under the banner of a national care service, it needs to offer a greater range of possibilities than it does at present. It needs to factor in the likelihood that people will wish to provide for their critical care needs by means of voluntary insurance, and to allow for those who wish to engage in preventive health programmes, not simply reablement. To incentivise the take-up of those programmes, it needs to protect those who cannot afford to pay for personal care, while at the same time giving due recognition to those who are prudent enough to provide for part of the cost of their care from their own resources. It also needs to recognise the value of informal carers. In general, it needs to be more enabling towards local authorities, and less prescriptive in terms of the structure of care services which they commission and fund. It is against that background that I beg to move Amendment 5, and I hope that the Minister will feel able to move at least a little way in my direction.

Baroness Campbell of Surbiton (Crossbench)

My Lords, I speak to Amendment 29, and I would like to thank the noble Earl, Lord Howe, for allowing me to pop in on his amendment group. This is a much better time for me, and I thank him.

It is a privilege to have this opportunity to again raise the vital issue of social care portability. It is so fundamental to the basic human rights of disabled and older people. Many noble Lords will remember the very positive debate that we had when my amendment on portability was debated during the passage of the Health and Social Care Act. Strong cross-party support then led directly to the commitment in the recent social care Green Paper to work towards a national care system with portability at its heart. I promised noble Lords during that debate that I would give portability my forensic attention. I am therefore very glad that I am today able rather modestly to place an amendment to make that commitment a reality for 280,000 disabled and older people with the highest support needs who are anticipated to qualify for the new free care provision.

The effect of my amendment would be to ensure that the new free personal care provision is portable between local authority areas. People who qualify for free personal care in one local authority area would be entitled to move to another, in the certainty that they would continue to receive that free care without anxiety, disruption or delay. The amendment achieves this by placing a duty on the receiving authority to pick up funding responsibility for a person's free personal care for a transitional period without being required to carry out a further assessment. Authorities would also be required to take other steps to ensure that the person enjoys full continuity of support.

It is vital that those with critical-plus needs receive seamless support if and when they move home to be near relatives. Delays as people wait for a new assessment could at worst be fatal and at best lead to grave health crises, putting disabled people and their families under enormous strain.

The Government have pledged that the new free care offer will be underpinned by a common assessment framework that will help to iron out inconsistencies between authorities. Some say that this negates the need for a portability clause in the Bill. However, a common assessment framework will not guarantee that the transition from one authority to another will be seamless. A receiving authority will be required to reassess people who previously qualified for free personal care, even though their needs will not have changed. I will now hand over to the noble Baroness, Lady Wilkins, to assist me.

At this point, Baroness Wilkins continued the speech for Baroness Campbell of Surbiton.

It is widely accepted that local authorities fail in their responsibilities to deliver seamless support to disabled people who move between authorities. Continuity of support is treated as an aspiration rather than as a necessity. Many people I know are too terrified to move for fear of their support falling apart. If they do move, they face huge stress and hardship as they struggle to renegotiate vital care and support. It is these fears and this hardship that my amendment seeks to address, albeit only for those with the highest level of need.

A major inspiration for the amendment, apart from a desire to address the harrowing experiences that disabled and older people face when moving home, is of course the desire to see human rights standards brought to life. The UK Government recently ratified the UN Convention on the Rights of Persons with Disabilities, which spells out that disabled people must be able to choose where we live on an equal basis with others, and that we have the right to work and participate in our communities and to be free from exploitation, violence and abuse.

The amendment has strong support from the Equality and Human Rights Commission, which states that,

"current arrangements place an unfair and inequitable restriction on freedom of movement and, at the very least, are very much against the spirit of the right to private and family life as set out in Article 8 of the European Convention on Human Rights ... the Commission supports enshrining portability within primary legislation. Any other approach would continue to restrict this fundamental human right".

At this point, Baroness Campbell of Surbiton resumed.

I am pleased to report that there are now local authorities out there itching to implement portability. I recently had the pleasure of being on the interview panel for the Department for Work and Pensions' Right to Control trailblazer sites. We were tasked with choosing eight local authorities to test the new Right to Control over one's support services. I was delighted to see that some local authorities put in their consortium bids, with one or two neighbouring councils, a right to portability. They did this to streamline support services between local authority boundary lines. Some are now very keen to test portability where once they were not. I think that this enthusiasm for portability, which really was not there one or two years ago, and certainly was not in the criteria for the trailblazer bids, demonstrates the beginning of a local authority culture sea change. Let us capitalise on that now, for we do not want best practice confined to only a noble few.

My amendment is short, sweet and to the point. In many ways, it is cost neutral-we are not asking for more funding. As time is short, I will just say two things on the detail. The first is that disabled people are very aware that the exact level of direct payments and type of services available will differ from one local authority to another. We are realistic about that. We understand continuity of support to be about creating a support package that meets our needs, rather than replicating identical services. Secondly, I want to emphasise that it will be particularly important to spell out in regulations and guidance the need for user and family involvement in all arrangements made to support someone in picking up their new life in a new place.

If the Government accept the need for action today, it will send a strong message of hope to thousands of disabled and older people in England that they may move without fear of reprisals. It will also keep the costs of this Bill down by ensuring scarce resources are not wasted on reassessing people whose needs have not changed. We have a momentous opportunity to test this out and make a start on portability, and I urge noble Lords to grasp it. I beg to move.

Lord Eden of Winton (Conservative)

My Lords, I support the amendment moved by my noble friend Lord Howe. In doing so, I confess to a certain amount of confusion in my mind. There is a possibility of conflict here between, on the one hand, the need for local authority autonomy and the ability that each local authority rightly has to administer and control its own budget as far as possible, and, on the other hand, the requirement-as put forward so ably by the noble Baroness who has just spoken-that there should be portability in the benefits or awards of assistance received by the individual in the event of a move from one local authority area to another. Will the Minister be able to clarify this for me? I am very much in favour of both but I do not quite see how we can have both.

The operative word that seems to be missing throughout much of our deliberations is "flexibility". There must be flexibility in identifying the needs of the individual, in allowing for that individual to move from one area to another and for the local authority to manage its own financial affairs. These are the issues that need to be ironed out because if we ultimately go the full course and achieve in this country what the Government are evidently aiming for-the establishment of a national care service-that predicates a degree of centralisation, of central control, of central direction and of central funding. I am not happy about any of those things because we are dealing with real individual cases which need to be assessed at ground level by people qualified and trained to do so. I hope the Minister will help me out of my confused state of mind.

Baroness Turner of Camden (Labour)

My Lords, I speak as somebody who supports the Bill and I am therefore somewhat confused by this group of amendments, although for a different reason from that given by the noble Lord who has just spoken. I do not support the amendment moved by the noble Earl, Lord Howe, but I support Amendment 29, which provides for a transition between one local authority and another. I think that was part of the Government's original intention when we discussed the Bill earlier. However, the rest of the amendments in the group, and particularly the Question whether Clause 1 should stand part, cut right across the general intent of the Bill, and I certainly would not be in favour of that. As I said at Second Reading, I support the intention of the Bill; I support what the Government want to do for these-mostly elderly-people who are in the neediest group. This is, I understand, a first step towards a much bigger national care programme, which I think many of us in this House would fully support. In the mean time, I support the Bill and therefore cannot support the amendments in this group, except Amendment 29.

Baroness Barker (Liberal Democrat)

My Lords, on my way here today I tried to work out how I would explain and justify to people what I had spent my afternoon doing. I set myself a goal: I would go through today's proceedings as though I were somebody who needed social care services, a carer or someone in the unenviable position of trying to organise this for a local social services department. I would try to get to the end with greater clarity and understanding about what the social care system in this country is. However, I have to say that it is not looking good at the moment. In fact, it is becoming more confused. That is an inherent problem when people talk of such things as a national care service without clarity about what it means. It is not about unanimity of provision; it is about agreeing about what care services are, who is entitled to them and how they are funded.

That leads me directly to both of these amendments and to ask a question. I can see the intent behind the amendments of the noble Earl, Lord Howe, and I have a great degree of sympathy with it. We are, after all, talking about a system which has never met-and never will meet-all the social care needs of the country, and about trying to find an equitable way of ensuring that such resources as we have are best applied to people who have needs. My question for the noble Earl, Lord Howe, is: who would set the preferential rates for services? When we talk about care services, by and large we talk about people carrying out care tasks for individuals. The cost of employing people does not vary much, whether they are in the private sector or the public sector, or whether they are in different areas of the country. It might vary ever so slightly. What is the rate for a care attendant in one area of the country? It may differ, but only very slightly, in another. I ask the noble Earl, Lord Howe, how this would work in practice. Would it be up to local authorities to set different rates for different services, as they deemed them to be needed in that area? That would be interesting.

I draw the attention of the noble Baroness, Lady Campbell, to the issue of portability. She said that we are not asking for more money. Care, in the terms of the Bill, applies not just to people providing care for others but to adaptations. The capital expenditure of adapting somebody's home might well be doubled if they moved. Both the noble Baronesses, Lady Campbell and Lady Wilkins, said, in relation to this amendment and Amendments 2 and 4, that personalisation and self-directed support now has a body of evidence behind it that proves that it is cost-neutral and cost-effective. I wonder whether they could both point me to that, as I have not yet seen evidence as strong as that. The IBSEN report on the pilots did not go that far.

Given that cost is at the absolute heart of this debate, I should very much appreciate seeing the evidence behind both those statements. That will help noble Lords when we come down to doing what we ultimately all have to do-to work out what we believe to be the best use of finite resources for the best benefit of the most people. Noble Lords who listened to the "Today" programme with as much attention as I did this morning will know that my colleagues and I have concluded that this Bill does not represent that. We would use the resources in other ways that we think would be to the greater benefit of the greater number of people. In that context, I believe that these are fair questions and I would appreciate some answers.

Lord Tebbit (Conservative)

My Lords, I wonder whether the Minister can help us, or at least help me. I refer to the proposals made by the noble Baroness, Lady Campbell, and the number of people who might move from one local authority to another, as there is a tendency for people to do in their old age, or relative old age, or when they become disabled. Quite a lot do so, either from a high-cost residential area to a lower-cost one or nearer to relatives and things of that kind. Therefore, there is bound to be a certain number of people washing backwards and forwards across local authority areas.

We can only guess at those numbers but it would help us if we had at least an idea of what was in the minds of Ministers as to the cost per individual involved in this scheme. How many people do the Government think will benefit? The Government's estimate of the cost of the whole thing is that it will be less than £650 million. I must confess that my reaction to that is "Come on, pull the other one". If the Government are going to stick to £650 million, how many people will be involved? That will give us an idea of how many of those people might be transients washing backwards and forwards across the boundaries.

Is there a cap? The noble Baroness, Lady Barker, added the cost of changes to homes to make them possible for people to live in. It might not be just the cost of a stairlift; it might be a substantial lift at a cost of £15,000 or £20,000. The cost of a bathroom being adjusted can be £2,000 or £3,000. That is apart from the recurring costs. We have to have a better idea of what the Government think will be the cost per head of those people who will qualify for this care and how many of them there will be. That would help us a great deal.

Lord Sutherland of Houndwood (Crossbench)

My Lords, not surprisingly, many of us had anticipated that as we probed into the details of the Bill we would find ourselves in a bit of a quagmire. It is quite a small Bill and quite a small area of quagmire, but my impression is that the depth is considerable and one gets out of one's depth very quickly.

However, I want to support Amendment 29 put forward by the noble Baroness, Lady Campbell of Surbiton. I supported the principle of this at Second Reading and I have seen no reason to change my mind. Here, there is at least one bit of hard ground on which we can walk where there could be a significant benefit from legislation that we might advance this afternoon. The benefit would be in three contexts. One is the individual. By and large, people who need substantial care packages do not move for frivolous reasons. If they are moving from one authority to another, there will probably be a good reason, normally to do with folks who are relatives and potentially informal carers. The benefit there is clear and significant.

However, there will also be a benefit to the local authorities involved. If someone with substantial care needs comes into a new area and has to be reassessed completely, that will involve significant time and the cost of their assessment, including professional time. One can be fairly sure that if significant capital costs are involved-which may well be the case, and that is a legitimate point to query-the move will, by and large, not be for frivolous reasons and there will not be a large number of people to whom this applies. They would not be moving if the capital costs were likely to be great, because the care needs would be equally great. The move would be for good reason.

Thirdly-this point has been made-some of us believe that one of the more important features of the Bill is that it moves towards a national care service, involving a degree of equity between different postcode areas and local authorities. That would be one way of establishing equity in a very specific way. Costs borne by a new authority are running costs-I accept not capital costs-lost by another authority. Surely it would not be beyond our powers of intelligence to devise a way of transferring money if the costs were significant and substantial. I support the amendment.

Baroness Gardner of Parkes (Conservative)

I wish to speak to Amendment 29 in the name of the noble Baroness, Lady Campbell. It is right that people should have portable rights, but a valid point was made by the noble Baroness, Lady Barker, about capital costs. When someone dies, it is deplorable if all the wonderful appliances that have been put into a property are wasted. A neighbour had a stairlift for only two or three months. When she died, the executors were advised by the selling agents for her property, "Take out everything that could possibly look as if someone disabled lived here if you want to get the best price". The executors tried to get rid of the lift. No council or anyone else would take it or reuse it anywhere else. In the end, the executors managed to sell the lift back to the providers for about a third, or even a quarter, of what it had cost to install only a matter of months previously.

It is important that if a property is adapted for special needs, if at all possible-and it should certainly be possible regarding social housing-that property should be passed on to someone else with special needs. Then the adaptations would not need to be so great and the loss to the council that had made the adaptations would not be so great.

As regards portability, apart from anything else, it would be of benefit to the receiving local authority if it had warning that someone who rapidly needed special care was coming. It would certainly reduce the need for reassessment. That is an important point.

Baroness Masham of Ilton (Crossbench)

I have a query on Amendment 29. If a person moves from one authority to another, it might be because their condition has deteriorated or because they have become older or more disabled and might need more help or reassessment. Therefore there needs to be flexibility. Does the Minister agree with that?

Baroness Campbell of Surbiton (Crossbench)

Before Report, we should certainly look at the concerns of the noble Baroness, Lady Barker. It is my understanding that if you have a significant adaptation to your house, you are not, as part of the criteria, allowed to move or resell the house within five years. Such issues should be looked into.

Baroness Thornton (Labour)

My Lords, for the ease of the debate, it might be simpler first to deal with Amendment 29 and then to move on to the broader themes that the noble Lord raised in his introduction and other noble Lords raised in the debate. Noble Lords will know that we are very much aware of the issues around greater portability of care, and it is something that will be addressed in more detail both in the review by the Law Commission into social care law and in the White Paper.

The noble Baroness, Lady Campbell, raised the very important point about consistency of care and the difficulties faced by those who move between different local authorities' areas. This is an issue that we have discussed across the Dispatch Box and outside the Chamber for the past couple of years. I commend her persistence in her championship of this very important matter. We debated this during passage of the Health and Social Care Act, and I explained at that time that we certainly had a lot of sympathy and understanding about it. We do recognise the potential for disruption to patterns of care, which can be the reality for an individual who moves from one authority to another. We speculated about why people might do that, and the noble Lord, Lord Tebbit, did so as well.

One thing that has not been mentioned-although I know that the noble Baroness, Lady Campbell, would mention it-is that this is also about, for example, young disabled people who go to university or who want to find a new job in a different part of the country. So we are not just talking about the elderly and elderly disabled. We are also talking about young people and their rights to fulfil their potential.

This amendment seeks to reduce the impact of disruption by putting in place transitional arrangements so that an individual can retain their entitlement to free personal care until a new community care assessment can be undertaken by the receiving authority. I think that that addresses the point made by the noble Baroness, Lady Masham.

I am grateful to the noble Baroness for identifying this issue, and I can confirm to her today that we intend as a result of her representations to include provisions to effect this transitional protection in regulations. The reason that we can do that, of course, is that we are seeking in the Bill and its regulations to make the assessments more standardised. So it is in keeping with the Bill and the direction of travel in terms of the national care service.

This will mean that, in addition to being able to put into place emergency care services under Section 47(5) of the National Health Service and Community Care Act 1990 as at present, the personal care element must continue to be free until such time as the community care assessment is commissioned. So in bringing forward these regulations, we want to remove the requirement to amend the Bill. I therefore request that the noble Baroness, Lady Campbell, withdraw the amendment. However, I undertake to continue discussing the regulations with her and the organisations that support this activity.

I hope that that also answers the points made by the noble Lord, Lord Eden, because the key is to allow an assessment to take place. It recognises that an assessment should take place eventually, and that will allow that assessment to take place in the new location. I therefore hope that that answers the point about how we maintain the integrity and independence of local services at the same time.

I now turn to the other amendments in this group: Amendments 5, 6, 14, 16, 27 and 40, in the names of the noble Earl, Lord Howe, and the noble Baroness, Lady Morris of Bolton. I have a very long speaking note about local government finance, but since nobody has actually asked me about local government finance, I do not intend to inflict that on the Committee unless somebody asks me for it at a later date.

I would, however, like to reflect on the issue raised by the noble Earl, that we regard the Bill as a stepping stone to the national care service and, indeed, to the White Paper. I do not know whether he used the word "transition" or a similar word, but we are not far apart on the direction of travel or on the fact that the Bill's proposals will help us to achieve what we want to do in creating a national care service. At the conference last Friday-at which other parties were present though the noble Earl's party was not-my right honourable friend Andy Burnham expressed similar sentiments to those reflected in the remarks that the noble Earl made about what we are looking for and the consensus that we are seeking.

My right honourable friend said that the current system is unsustainable and unfair and that we wish to move to a system that includes preventive services and provides the right support to enable people to stay independent for as long as possible. A national assessment should be established whereby care needs are assessed and paid for in the same way across the country. Services should work together smoothly and information and advice should be available to enable the care system to be easily understood and easy to navigate. Personalised care and support should be integrated and based on people's circumstances and need and there should be fair funding. Money will be spent wisely and everyone will get some help to meet the high cost of their care needs.

The Bill is a step towards setting up a national care service and is evidence of the Government's commitment to an area which has been neglected for far too long. It is a shame that the noble Earl's party chose to walk away from the discussions but I hope that they will walk back into them in the next parliamentary Session and that we can solve these difficult and important issues in the way that many organisations are calling on us to do; that is, together as a nation. There is no question but that there are still huge challenges in the care and support system. The Green Paper sought people's views on how we resolve those challenges and how we create a sustainable system in the long term. The White Paper will develop those proposals and will be available soon.

The noble Earl asked about the differences between three and four ADLs and how that would work. We recognise that there will be challenges in delivering care to people with the highest needs and that some people may be on the wrong side of that divide. We are also very mindful of the overall costs of this scheme. However, this is an interim measure before we introduce our proposals for long-term reform of the care and support system. This measure is designed to help those with the highest need. Our wider proposals on the transformation of social care will encourage investment in prevention, early intervention and supporting individuals.

The noble Baroness, Lady Barker, said that there was no evidence that personal budgets are cheaper. The IBSEN report showed that personalised services were no more costly than commissioned services, though user satisfaction was increased, and the evidence from councils introducing personal budgets is no less strong.

Baroness Barker (Liberal Democrat)

Unfortunately, that short statement does not encapsulate a very big, detailed report, which came out with some extremely tentative conclusions. For example, the costing for personalisation that the noble Baroness cited was predicated on the fact that there would be no significant increases in the cost of employing care staff. It is important that we are absolutely clear about the costs of what we are talking about and do not make sweeping assumptions. If we are not accurate about costing, we will head off into unsustainability in a different fashion. That would be equally as wrong as the faults in the Bill to which a number of noble Lords have already pointed.

Baroness Thornton (Labour)

I take the noble Baroness's point and recognise that she is much more expert on that issue, through her work and experience, than I am.

I turn to the specific amendments. They seek to give powers to the Secretary of State to require local authorities to charge for personal care at a set rate. I accept that the noble Earl is testing whether that would be a preferred system. This would mean that a centrally set figure would be decided upon and an amount of personal care would not be provided free of charge, but rather would be charged at a prescribed or preferential rate. Any personal care requirements beyond this set figure would then be free of charge. Clearly, this proposed amendment is not in line with the purpose of the Bill. The Bill aims to provide free personal care at home to those with the highest needs, providing freedom from worry that they will be unable to meet the costs of their vital personal care. Should local authorities be able to charge for elements of care at a prescribed rate, it would continue, we believe, to add worry and distress to those who have the highest levels of personal care. They would be in fear of a bill landing at the door, as is indeed the case in the current system.

We are content with our estimates for the funding of this policy. We therefore believe that these amendments are unnecessary and would resist Amendments 5, 6, 14, 16 and 27.

Amendment 40 would broaden the regulation-making power under Section 15(5)(a) so as to expressly say that not only would regulations make different provision for different prescriptions of qualifying services; they could also make a different provision for different circumstances. We do not believe that this amendment adds anything of substance, because Section 15 already gives the Secretary of State power to make a different provision for different qualifying services. Coupled with other existing powers to prescribe circumstances in which services would be provided free, we therefore already have the power to prescribe different circumstances in which different qualifying services are to be provided free. I therefore ask the noble Earl and the noble Baroness not to press these amendments.

Lord Tebbit (Conservative)

The Minister must have lost the piece of paper, which I am sure she has been handed by her officials, giving the estimates that the Government have made of the costs involved and how much people will be able to draw under this. I am sure that the officials have passed a piece of paper to her. Would she be kind enough to give us the figures, if she does not have them in her head?

Baroness Thornton (Labour)

I can give the noble Lord the overall costs of this scheme, which, as we are well aware, are £670 million. I can also tell him how that will be allocated across local authorities. It will then be down to local authorities to decide the best way-within the framework of the assessment, the tool that I referred to earlier-for that to be distributed and what people would get under, for example, the reablement scheme. Another noble Lord referred to adaptations, which we will be discussing in greater detail later. I think that that noble Lord referred to the cost of a lift. Of course that would have to be offset against the potential cost of someone being in a care home for many years. So it is not possible for me to say £10,000, £1,000 or £500, because it would depend on the individual circumstances of that person. It may indeed be cost-effective to spend thousands of pounds on installing a stair lift in a home because it would mean that that person could stay at home and be independent and would not need to go into a care home, which may cost a great deal more.

I did not have a piece of paper and I did not expect one which would tell me what the individual grant or availability would be for a person, because it would depend on the assessment for that person.

Lord Tebbit (Conservative)

I am most grateful to the noble Baroness, and understand some of her difficulties; but perhaps she could tell us how many people the Government estimate will benefit from this £650 million, or whatever it is?

Baroness Thornton (Labour)

Our estimate is that 400,000 people will benefit. The estimate is not that 400,000 people will have all their care costs met: that figure is likely to be between 100,000 and 130,000 people. However, within the envelope of support in terms of reablement and the support that people could receive, our estimate, which has not been significantly challenged, is that 400,000 people would benefit from the programme.

Baroness Gardner of Parkes (Conservative)

Perhaps the Minister could clarify that. Am I correct in thinking that the number of people who will newly benefit from this-those who are presently paying their own expenses-will be about 130,000 and not 460,000?

Baroness Thornton (Labour)

We have never said that 460,000 people will receive all their care costs. We estimate that the number of people who would receive the total care package of all their costs being met would be somewhere between 100,000 and 130,000. I will clarify that number, because I cannot find it in my notes. The total number of people who would benefit from this in different ways would be 400,000.

Lord Tebbit (Conservative)

My Lords, perhaps I might check with other noble Lords whether I have the decimal point in the right place. We are talking about roughly half a million people-400,000, but we will call it half a million-sharing the benefit of about £650 million. That would appear to work out at £1,300 per person. Have I got the decimal point in the wrong place?

Baroness Thornton (Labour)

The noble Lord has not got the decimal point in the wrong place. The figures work. I am not sure what other information the noble Lord wants. I am happy to write to him with much more information. Four hundred thousand people will benefit; 130,000 will receive re-enablement; 110,000 will receive free care for the first time; and 170,000 will receive care entirely or partially free, based on a means test, and will continue to do so. The 280,000 figure plus the 130,000 figure add up to 400,000.

Baroness Campbell of Surbiton (Crossbench)

Before the noble Earl, Lord Howe, responds, I thank the Minister for her extremely constructive response to my amendment. There is clearly a firm commitment on her part to breathe some life into the principle of portability that I have pursued for a number of years. I am not yet entirely sure whether the solution that she proposes would achieve all that my amendment would, but we have a chance to make real progress. I will seek an early opportunity to meet her and her officials to discuss the government proposal on the regulation, and look forward to achieving a significant degree of continuity of care for those with critical-plus needs through good, firm regulation.

Earl Howe (Conservative)

My Lords, I am grateful to all noble Lords who have taken part in the debate, and to the Minister for her reply. I am glad that she did not give us the benefit of a short talk on local government finance: no doubt we will come to those matters later when we talk about the affordability of the Bill.

I agree with her that there is only one way forward when it comes to reform of long-term care, and that is cross-party consensus. By definition, we should look at a long-term solution that will hold good for many decades to come.

I share her wish that the parties will come together and find a common way forward. It was partly for that reason that I wanted to see this Bill as a genuine bridge towards long-term reform, because I fear that to describe it as a bridge at present is an inaccurate use of words. The problem I have is that it is too narrow in its scope and too prescriptive. It might be worth my quoting to the noble Baroness a short extract from page 16 of the Government's Green Paper. It states:

"Because care and support costs can be so high, we think that the Government should provide some support to everyone who has to pay them. We therefore propose that, in the new National Care Service, everyone who qualifies for care and support from the state should get some help with paying for it".

That is a much more tenable and intellectually respectable approach than the one which the Bill invites us to take.

The noble Baroness, Lady Barker, asked me about the kind of preferential system that I was trying to advocate. Maybe she and other noble Lords were not here to hear me talk through that idea. You can achieve it in several ways with varying degrees of central prescription and local autonomy. My amendment would not rule out any particular solution. For example, you could have a graduated scale describing a varying acuity of need, defined centrally, as the foundation for a graduated charging system. That could be moderated at a local level by consideration of people's financial means and the affordability of certain charging bands.

Revised fair access to care services guidelines could well act as the basis for a more sophisticated charging structure, but you would leave it to local authorities to decide exactly how the available cake should be cut. Free care for those in critical need would not be precluded under my amendment. It could still be prescribed in regulations. However, you would at the very least avoid the cliff edge which the Bill will create in terms of its perceived unfairness towards those whose care needs are deemed to fall very slightly short of the level eligible for free personal care at home. That, in a nutshell, was where I was coming from. However, I have no fixed views on how one would structure this. It is for discussion.

That is as far as we can go at this stage. I am grateful for the noble Baroness's comments, upon which I will reflect. I beg leave to withdraw the amendment.

Amendment 5 withdrawn.

Amendment 6 not moved.

Baroness Pitkeathley (Labour)

If Amendment 7 is agreed to, I cannot call Amendment 8 for reasons of pre-emption.

Amendment 7

Moved by Lord Lipsey

7: Clause 1, page 1, line 5, leave out subsection (2)

Lord Lipsey (Labour)

First, I apologise on behalf of the noble Lord, Lord Warner, whose name is first appended to this amendment. An ocean separates him from us at the moment, but he will be back to participate at Report stage. Actually, at 12 o'clock our time, an ocean also separated me from this House. So if I am a little less coherent than I would otherwise be, I hope I can crave your Lordships' indulgence.

Noble Lords will realise that this amendment goes to the heart of the injustice that is built into the Bill. It is an injustice that was well described by the noble Lord, Lord Turnbull, in the debate on Second Reading. When the Bill takes effect, a very typical case of an older person will run like this. The person needs a bit of help at home, but they have money of their own so they do not get any help. More and more, councils are restricting the little bit of help that would enable them to stay at home. Suddenly the person reaches a threshold where they fail four activities of daily living-you have to be in pretty poor shape to fail four ADLs-whereupon the Government will pay for the whole of their care. The person can continue to live at home like that for a while, but there comes a day when they are not able to do so in any sensible way and they have to go into a home. On that day, not only does the person lose their home, not only are they suffering from extreme physical disability and often dementia, but they also have to pay in full.

This is an injustice that it is impossible to defend and it is why, when the Government published their excellent Green Paper on the subject, it produced the words just used by the noble Earl, Lord Howe, to the effect that whatever the setting in which someone gets their care, perhaps the state should meet part of the cost; that is, part of the cost if you need care at home and part of the cost if you are in a home and need care. That is not what is being proposed in the Bill. The proposal is that you get your care paid for in one setting only-at home.

In response to an earlier debate which touched on this subject, the Minister said that the kind of care you get should depend on your care needs. That sounds very plausible. I can imagine the person writing the words for the brief perhaps even believing them as they did so. But of course that is largely a nonsense because for the great majority of people it would be possible to be cared for in their own home until they die if sufficient resource was applied. It would be possible if they had full-time care from trained nurses working eight-hour shifts. I once saw a woman aged 101 receiving such care in Northern Ireland. With full-time care, the doctor popping in as often as needed and the complete re-equipment of the home into a sort of mini nursing home, it could be done, but it would be unaffordably expensive. It is simply not economic to provide one-to-one care 24 hours a day to someone in that situation, but it could be done.

Equally, it is possible for people with rather low care needs to go into residential care. Some individuals prefer residential care, odd though that seems to most people. It is not a question of the need that determines this; rather, it is a question of what is best when reviewing both the expert assessment and the wish of the person themselves about where they want to be cared for. I put particular emphasis on the latter half of that remark: the view of the person themselves is terribly important. What we are doing in this Bill as drafted is to build up a terrible conflict. The person is almost bound to want to be cared for in their own home. Not only is it perhaps a nicer place to be, but everything in the home is free. The local authority, on the other hand, has every incentive to put the person into a home because then they will have to pay for their own care. If they are in their own home, the local authority has to pay for the care. I am sure that we will come back to this at some length later in the day.

It is perfectly evident to anyone looking at the figures with an ounce of objectivity that the Government's assessment of the cost of this policy to local authorities is a grotesquely unrealistic underestimate. It makes no allowance for what will certainly happen, which is that many people who at present are paying for their own care at home or not getting any care will suddenly emerge as claimants. Anyway, we need not speculate because we know what has happened in Scotland. There the cost of care in someone's own home has doubled in just five years, leaving the original cost estimates in tatters, as will be the estimates of this Government. That is why this inequity in the treatment of people in their own homes and in homes cannot be allowed to persist. I am not arguing that care should be free everywhere-far from it. I say that the Government should be making whatever contribution is felt to be affordable and appropriate whatever the setting in which people are receiving care.

I want to add a second leg to the argument, which is as follows. We have not begun to conceive of the process that is going to be let loose by this piece of legislation. We heard about the Local Government Ombudsman and the Health Service Ombudsman already being swamped by appeals as to who should pay, but when this piece of legislation comes in with this built-in, grotesque unfairness, where will people go? Are they going to say, "Oh, I am sure this local authority officer who has come to see us is right-mum should go into a home and run down our inheritance"? Of course they are not. Today, we have personal injury lawyers stamping the land, offering their services to people who get hurt in accidents. I see a lot of their adverts because they are always on during the horseracing in the afternoon, where people are trying to look at ways to pay their gambling debts. Just as we get those personal injury adverts, up and down the country firms of solicitors will be set up seeking judicial review of every case that comes before them.

The case of extra care homes-the second of the amendments in this group I have tabled-is an example of the kind of thing that will happen. Systems like this get gamed; we know this. People will start gaming the system to try to turn whatever accommodation they are in into something that can be described as their own home. For example, care homes might start selling the rooms in which residents live to the individual within them, so that the rest of the care can be free. It is far from clear that extra care homes will be properly eligible-it depends on the nature of the care coming in. I read the Commons debate on this matter, which went on for some time. The answer given by the Minister-Mr Phil Hope, a man for whom I have some admiration-would not convince anybody that the Government are on top of this problem. The definitional changes and the ranks of lawyers looking to cash in on human misery as a result of these provisions will be absolutely enormous.

As so often, I finish in the same place as the noble Earl, Lord Howe. We need a consensus on this matter; I believe this would include a contribution from the state to care, whether it is in a care home or care at home. We need a consensus above all, but this Bill cannot provide a consensus. That is why, in the amendments that will be tabled this afternoon and in voting at subsequent stages, we shall have to make provisions to ensure that the Bill cannot go through before there has been a general election, which may well lead to a situation where the support of a single party-perhaps I should say a single Prime Minister-is not enough to determine what the right state of the law in our land should be.

Baroness Murphy (Crossbench)

My Lords, I have added my name to Amendments 7 and 10, and I support the words of the noble Lord, Lord Lipsey. In these amendments, we want to explore the boundaries that are proposed, the knock-on effects on other funding systems, and particularly the rationale for providing care funds only for those living at home. This was criticised widely at Second Reading, and I want to point out that three very different predictions were made then about the impact this would have on the use and costs of this Bill.

In my speech at Second Reading I predicted that financial incentives to stay put would deter people from going into residential care at the point at which it was clinically and socially desirable. There have been numerous times when I, as a clinician, have seen spouses or daughters absolutely exhausted and on the brink of a breakdown caring for an elderly person with dementia. By the way, it is usually not the activities of daily living which are the most stressful problem; wandering, emotional and behavioural difficulties and failures of recognition are far more likely to be the straws that break the camel's back. At some point, it almost feels as if you want to insist for the sake of the carer's health that a residential home place is found. If there are real financial incentives to maintaining a person at home, these decisions will be even more difficult.

Keeping people at home is an explicit aim of the Bill-a laudable one in many cases-but whenever one introduces financial incentives of this kind, it is remarkable how the flow of patients in and out of institutions changes.

I remind noble Lords of the major expansion of nursing homes and care homes which came about in the 1980s, the direct result of the funding of care places through individual, generous grants via social welfare budgets, which then created thousands of new residential places. One-third of business expansion scheme grants-the investment miracle of the Thatcher years-were invested in the care home sector. Care homes were, of course, basically property investments; but property companies were at first excluded from the BES initiative and so the care home sector was an attractive alternative as long as revenue was guaranteed by the Government. I used to watch the Laing and Buisson figures of the growth in residential care places with utter amazement. For a time I acted as an investment adviser to '3i' because the business investment companies were so worried about how much BES money was channelled through these schemes into care homes. They were very worried about the quality of what they were investing in-rightly so, as it turned out. It was a classic case of the Government having a genuinely philanthropic policy hijacked for the benefit of the small business community to the growing frustration and disbelief of the Treasury.

It did not last long, of course. In both the USA, where expansion was similarly funded by Medicaid, and in the UK our Treasuries soon woke up to the escalating unaffordability, but here, in 2010, we have witnessed a 15-year decline of the care home sector, although with some suggestion that sheer demographic pressures are now reversing that trend again. Even small shifts in incentives can have major impacts. There has been no modelling of the impact of this Bill on other revenue streams in spite of the theoretical impact of the ADL deficits on the demand for care and the need for modelling.

I was predicting in one direction and the noble Lord, Lord Turnbull, at Second Reading, cited the care needs of his mother-in-law, pointing out that after a classic hip fracture and hospital stay, at the very moment her care needs went up from perhaps 30 hours a week to 168 hours a week, her eligibility for financial support went down. That cannot make sense. Crucially, this fails the test set out by the Minister in her exposition of the Bill when she said that those with the highest needs must receive the greatest help. It was that injustice more than the issue of costs to which the noble Lord, Lord Turnbull, objected. A financial obstacle is being erected to prevent decisions being taken which are in the best interests of the elderly person.

The noble Lord, Lord Turnbull, and I were predicting in one direction but the noble Earl, Lord Howe, made the crucial point that there is an intermediary body which is going to be the vehicle for this new funding-the local authority. If the total cost of delivering the Bill should exceed the budget, local authorities will have to find whatever extra money is required. In other words, they are being landed with an open-ended commitment, not fully funded as expressed in the famous "new burdens doctrine". The noble Earl pointed out how predictable would be the response of local authorities. He suggested that there would be a stampede of applications for free personal care and, when the money available is used up, local authorities will do their utmost to avoid having to take more people on to the books, and we will find pressure being placed on the elderly to move into residential care instead of staying at home. It will prove harder for people to pass the test of eligibility.

Alternatively, and perhaps additionally, in order to fulfil their obligations to those in critical need, councils will be forced to remove social care funding from those who are in lower categories of need. To the extent that this happens, it may drive some people out of their homes and into residential care, thereby serving to dilute the main benefits of the Bill, which is supposed to enable more people to avoid or delay entering residential care. I further predict that, just as used to happen, very dependent old people will end up in acute hospital beds and acute psychiatric units. I hate the phrase "bed blocking"-which means a very frail, needy, older person whose health and social care needs are being denied to them-but that is what we will see. So we have four unpredictable scenarios which have not been explored and I would like the Minister to explain what work is going on to clarify which of these scenarios is likely.

Amendment 10 follows up the point made in Committee in the Commons by Andrew Lansley, who wanted to be sure that extra care accommodation would be regarded as a person's home and not residential care for the purposes of this Bill. People who live in extra care housing have their own self-contained homes, their own front doors, and a legal right to occupy the property. Extra care housing is also known as very sheltered housing, assisted living, or simply "housing with care". It comes in many built forms-blocks of flats, bungalow estates and retirement villages. But it can, and does, sometimes provide an alternative to a care home, and that is the nub of the problem. In addition to the communal facilities often found in ordinary sheltered housing, domestic support and personal care are also available, provided by on-site staff. Properties can be rented, owned, or part owned and part rented. The Government say that people who live in sheltered accommodation or extra care housing are not to be excluded on the grounds that:

"The accommodation and care provided in such accommodation are not provided together but under separate arrangements made by the individual".

The problem is that the increasing numbers of these types of schemes-which I was involved in developing myself when there was lots of Housing Corporation money around-are now providing 24-hour care seven days a week in exactly the same way that care homes do. That marvellous organisation, Methodist Homes for the Aged, or MHA, has, for example, at Moor Allerton resource centre in Leeds a 20-bed extra care scheme especially for people with dementia. It serves as a direct alternative to residential care. MHA established their housing association arm as a subsidiary of their well known care homes charity in order to benefit from the split in funding and also, admirably, from a wish to continue to provide even the most disabled older people with their own homes, however much they needed personal care and support. I applaud them for it.

But while the philosophy of care may be different, extra care housing in reality provides identical personal care and nursing services. There are at present only 25,000 or so extra care housing places, whereas there are 500,000 care home places. So maybe the Minister is not too worried about the outright favouring of the minority who find one of these schemes available in the area as an alternative to a care home. Nevertheless, does the Minister agree that, as soon as legislation of this kind is introduced, large numbers of care-service providers that currently make provision by way of a single contract with people-one that provides accommodation and care together-will suddenly find it desirable to provide different separate contracts for accommodation and care services? In just this manner, I and my colleagues in Lewisham managed to close long-stay beds for people with dementia in Bexley and Cane Hill hospitals and provide tenanted accommodation in conjunction with South London Family Housing Association-now part of the Horizon Housing Group-as similar to a specialist care home as to be indistinguishable, but all our residents had personal tenancies. In other words, they were indistinguishable from a residential care home. Is it not peculiar that if people are in extra care housing and they have two contracts-one for care and one for accommodation-they are eligible for free personal care that pays their care needs, but if identical care is provided under one contract it will be charged for. I cannot see how this flaw in the legislation can be reconciled. We could end up with a distortion in the care market with large numbers of care providers recreating their services so as to distinguish between accommodation and care. The Government, whether intentionally or not, are creating a potential loophole for people who are currently in long-term residential care who would not be regarded as being in extra care housing. They will inevitably restructure their arrangements at the point at which they enter care in order to make themselves eligible for free personal care. The Bill does nothing to prevent this from happening. That seems to be an obvious flaw in the legislation-unless this is the intent, but I doubt it. Personally, I have always been an advocate of separating housing and support costs but this is not the policy intention and I fear that we are going to end up with a great confusion.

Baroness Barker (Liberal Democrat)

I wish to speak to my Amendment 13 in this group. The noble Lord, Lord Lipsey, talked about the criteria for social care and their tendency to lead to gaming. My response to that is: whatever criteria exist for social care or NHS continuing care, there will always be somebody who endeavours to get round them for good or for ill. The noble Baroness, Lady Murphy, set out in considerable detail quite a number of government policies surrounding community care. Every one of these policies has a direct effect on the care market in some way. My small and perhaps seemingly innocuous amendment is about the distortion that I think may happen and that is that the services which local authorities currently provide for people with moderate to high needs-which enable many thousands of people and their carers to carry on-will go in order to meet the demands of this Bill. Over the weekend noble Lords might have read about what is likely to happen in the Isle of Wight, where local authorities will simply no longer be able to provide a number of services which have been in place, including telecare and so on.

At Second Reading I talked about the fact that back in the days before the NHS and social care were funded to the extent that they have been through this Government, the capacity of mangers mostly, but also frontline staff, in social care and the NHS to bat older people back and forth between them, in order to avoid having to pick up the costs of their medicines, adaptations or care, was considerable. That has not been the case for about the past 10 years, but when the NHS is looking down the back of the sofa for money and social care is ripping up the floorboards because it has already looked down the back of the sofa, it will happen again. Older people will find themselves being pushed between one and the other. At that point, what the law says is of utmost importance. I point noble Lords to the fact that the title of this clause is: "Free provision of personal care at home". It is not free provision of care to people living at home. There is a world of difference to a social services department that has no money between those two different phrases. Does care at home mean only care in a person's home or does it mean care to a person who lives in their home? As the noble Baroness, Lady Murphy, said, how do you define a home that is eligible under this Bill? That may seem like utter pedantry but on it rests the fate of thousands of people. I want to draw to noble Lords' attention the fact that there are thousands of older people who are unable to remain living at home because they and their carers use services in their locality but not in their homes.

We need to take into account the collateral damage to services provided in the community to people who have substantial, high-care needs that keep all the older people in an area-and their carers-going. They are at risk if we are not absolutely clear about the definition. Does the Bill refer only to services in a person's home, or services provided to them as they live at home in order to keep them living at home? It may be pedantry, but it is of the upmost importance in these matters.

Lord Best (Crossbench)

I shall speak against Amendment 10, which seeks not to apply the provision of free personal care to people in extra-care accommodation. I have to declare my interest as chair of the Hanover Housing Association, which is the largest provider of extra-care housing in the UK. Although the provision that those in extra care should receive their care free may present an anomaly, to remove-

Lord Lipsey (Labour)

I am sorry to interrupt the noble Lord. The purpose of the amendment is precisely the reverse of what he said; that is, to make sure that personal care is free in extra-care accommodation.

Lord Best (Crossbench)

Then I withdraw my objection to the amendment.

Earl Howe (Conservative)

My Lords, my understanding of the amendment is the same as that of the noble Lord, Lord Lipsey. It is confusing because the Bill is presented to us in a rather piecemeal form and one has to fit the jigsaw pieces together. The Government are saying to us, I think, "Those living in residential care will not get their personal care free, but by residential care, we don't mean extra care". I think that that is how it fits together.

Much has already been said very well by other noble Lords and I shall not take the time of the Committee in repeating it. However, I return to the theme of gaming, which was raised by the noble Lord, Lord Lipsey, the noble Baroness, Lady Murphy, and, in her own way-very ably-by the noble Baroness, Lady Barker. I share her view that precision in language and terminology is of the utmost importance in this Bill.

I set aside whether the exclusion from the Bill of those living in residential care amounts to unfair discrimination-we shall come that question later when we discuss the European Convention. What troubles me is the word that the Government have chosen in subsection (2). I should like to hear the Minister explain what will stop a care home operator who currently provides residential care by way of a single contract dividing himself into two or more legal entities such that the contract from one legal entity, which relates to the residential accommodation, is separate from the contract from the other legal entity, which relates to the care services. In that situation, as the noble Baroness rightly indicated, there would in law be two providers operating side by side, one the equivalent of a hotel, the other the equivalent of a domiciliary care service. In those circumstances, what will prevent the recipient of those services claiming eligibility for free personal care?

The Government's answer, as I understand it, has been that the potential loophole will in practice be closed off by the Care Quality Commission and the registration system that will be put in place. I need the Minister to explain to me what that answer means, because I do not understand how the CQC will be in a position to influence the situation one way or the other. We may well end up with a market that is very distorted, with large numbers of care providers reconstituting their services in a different legal form that distinguishes accommodation from care. As the noble Baroness, Lady Murphy, said, that after all is what extra care amounts to. We have heard that someone living in extra-care accommodation will be treated as living in their own home for the purposes of this legislation.

In practice, the effect is little or no different from care delivered in a residential setting. The legal dividing line which the Bill seeks to establish will in practice be unsustainable.

Baroness Gardner of Parkes (Conservative)

My Lords, I listened to the noble Lord, Lord Best, and I too was pleased to be reassured. Extra-care housing is ideal for people. Every smart investor running a care home will of course go for that, because it will be a great bonus for them. We should not create something that makes it more attractive; we should aim at that standard of extra-care housing for as many people as possible. We should not have this difference between accommodation in a residential home where people get all their care paid for if they are in a certain category, and another category where care would not be paid for. We are inviting such a situation with the Bill, because we are covering those who should be able to pay their own bills. I would love it if someone paid all my bills, but I would not consider myself entitled to it-I would think that I was not needy enough.

The money should be spent on those who have real need. I find it strange that we are so concerned to bring in a law that will help only an additional 110,000 people, according to the answer that I had from the Minister earlier in our debates. The points raised by the noble Baroness, Lady Barker, about the damage that might be done to the services now available, were sound. Local authorities are very concerned that instead of being able to continue the amount of help they are currently giving to the most needy, in terms of assistance and finance, help will be so enlarged as to cover those who could well afford to pay their own bills. We risk doing away with services that are vital to those who cannot pay and who may find their services reduced. I support the amendment.

Lord Sutherland of Houndwood (Crossbench)

My Lords, the noble Lords who have proposed Amendment 7 make a very important point-that one of the great dangers of the Bill is that it drives an even deeper wedge between so-called care at home and care in residential contexts. As the noble Baroness, Lady Murphy, made plain, all the efforts of those working in detail in this field have been devoted to trying to break down a very rigid distinction between being cared for at home and being cared for in a residential institution. They explored extra care in the community, the use of residential homes for other purposes and a whole range of options, including the possibility of housing associations being involved in creating sheltered accommodation of an even higher standard. The risk is in the Bill. I hope the Minister can indicate how it will be dealt with.

The point has also been well made that, however pure, kind and noble you are-and I have worked for years in the academic world, where the intellectually pure apparently multiply-you soon learn how to follow the money. The Bill will suggest ways of following the money, which is another great danger. People are very inventive, often for the best of motives and reasons.

I get fed up speaking about Scotland, but I have to say that the increase in expenditure on care at home in Scotland is not a mistake but a deliberate policy, because the Scottish Government have set out to meet the wishes of people, which is, if possible, to remain in their own home and to reduce the costs. One of the ways in which they are doing that is by making it more attractive to remain at home than to go into far more expensive residential and nursing-care accommodation. That is the reason for the shift in cost, and you can see that the cost of residential care has pretty well stabilised. To do that is quite an achievement, but it is being done because they are finding cheaper and more appropriate ways of providing care.

There is, however, a real lesson from Scotland here, and I think that this relates to the point that the noble Earl, Lord Howe, was making. Scotland does have a divide between what you might call hotel costs, or accommodation costs, and care costs. The hotel or accommodation costs for those in residences are still means-tested. The picture of freedom and free supply of cash for everything is not the case. These costs are means-tested. They have ways of dividing them off from the actual costs of care, and in Scotland they make a contribution to the cost of care. So the danger to which he points-that such a division will be brought into place here in a way which distorts the system; it does not distort it in Scotland, it is deliberate-is real, and there is an example of how to do it.

Baroness Turner of Camden (Labour)

I may be mistaken, but my recollection is that a number of years ago, there was a commission that made recommendations, and I think that my noble friend Lord Lipsey was a member of that commission. The majority recommendation was that nursing and personal care should be paid for, but that accommodation and care would-as already indicated-be subject to means-testing and so on. We now have a situation in which care costs and nursing costs are regarded as one, and I would agree with that.

When the commission first made its report, I was in favour of it; but the report was not fully accepted by the Government, and so we had the distinction made between nursing and personal care. I always thought that that was not a very good division to make, because it very often came to virtually the same thing. In Scotland it was not accepted, and I see from an article which recently appeared in the Times thatthe allegation that Scotland is not managing to meet that cost is said to be quite untrue, and that Scotland is in fact managing those costs quite well. If this is what is intended in this section of the Bill, I would certainly be in favour of that, because I never believed that there should be a split between nursing and personal care. I always thought that they were the same care costs. If that is to be eliminated in this section of the Bill, then I would be all in favour of it.

Baroness Murphy (Crossbench)

I would like to support what the noble Baroness, Lady Turner, has just said about that element. I absolutely agree that it has always been an absurdity that nursing and care costs, both of which are related to the way in which an individual is cared for, should be separated. Any move away from those artificial and ridiculous distinctions is to be welcomed. My anxiety about this clause is that we are unfortunately imposing new definitions and new trenches down which people can fall, and new cliffs to fall over, making them ineligible. That adds to the difficulty. I agree with the main thrust of the thoughts of the noble Baroness, Lady Turner.

Lord Tunnicliffe (Labour)

My Lords, this group of amendments deals, in one form or another, with the Bill's provision on what counts as care at home. However, each amendment addresses rather different aspects of the provision. I shall therefore begin by making some general points about this aspect of the Bill.

First, it is important, and has been an aspiration of this Government for a number of years, to support people in their own homes. That is what people tell us they want, and indeed it has been supported by the Audit Commission's report Under Pressure,which was published just last week. This report highlighted that there is a growing trend towards care at home which meets the needs of people who need care and is something to which local authorities should aspire. We recognise that there are different residential settings, however, and so it is important to have a debate on what is classed as a person's home. We want to retain the flexibility in our definition to maintain the intention of the Bill while recognising that different settings or models of care may emerge over the coming years-something which we all know will need to happen to meet the needs of our growing ageing population.

The intention that underlies the Bill is that people with the highest care needs should be supported to live at home. We have made the specific point in the Bill that it is important that those adults who are part of an adult placement scheme, living in a family, do not miss out on this opportunity. It is therefore important to make it explicit that, for the purposes of the Bill, such adults are to be considered as living at home. In our opinion this is the only situation which is required to be excepted from the six-week restriction on free provision of personal care in accommodation where care is provided as an integral part of that accommodation.

In other situations it should be clear that people are either living in accommodation where care is provided as an integral part of that accommodation-a residential care home-and are not eligible, or living at home and may qualify for free personal care.

Some people have sought to argue that a residential care home could re-badge itself as extra-care housing and enable its residents to have their care free of charge. This is not about residential care or re-badging. We have always made it clear that it is about people living in their own homes for longer. Residential care is not the same. In any case, as was debated in another place and made clear there, where providers seek to change the provision of their services, it is for the regulator, the Care Quality Commission, to ascertain that they meet the relevant registration criteria.

Others have argued that residential care is a cheaper option than helping people to live at home. However, the experience of many local authorities shows that appropriate interventions and support-the right housing, adaptations and equipment, including telecare-can help people to live at home at a lower cost than going into residential care. Indeed, as I said a little earlier, last week's report by the Audit Commission, Under Pressure, made these points most effectively and forcefully. Local Authorities must invest in new models of care. It is no longer acceptable for them to invest in the same old models of care-home care and residential care-as they have in the past.

For some people, and at the right time, entry to residential care may well be the only option. We do not want to close off this option. However, the majority of people say that they want to stay in their homes for longer, and the provisions in the Bill will enable them to do so. We recognise that, by introducing this policy, there may be perverse incentives for local authorities to encourage people who would otherwise have funded their own care to move into residential care, thereby saving the cost of free personal care. However, that would be a completely short-sighted approach. Not only does it not deliver what the individual or the family wants-a little extra help that would allow them to stay at home for longer-but we know that entering residential care prematurely can lead to individuals running down their assets and then becoming a charge on the local authority. Surely it is better for the person and the council to invest to deliver more cost-effective care at home and to support local citizens to fulfil their wishes to stay in their own homes for as long as possible.

However, I also recognise that while it is important that this Bill supports people to stay in their own homes for as long as possible in order to live more independent lives, this does not mean that every care activity needed to support them happens inside their own home. Sadly, there may of course be situations where somebody is not able to leave their own home at all. For others, however, having support in the community is beneficial and maximises their ability for independent living in their own home. The Bill supports that principle and does not seek to prevent this; on the contrary, we will develop guidance which reflects that as good practice. I will talk a little further about that when I discuss in detail the specific amendments in this group.

Amendment 7, in the name of the noble Lords, Lord Lipsey and Lord Warner, the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy, is clearly a wrecking amendment. It wrecks the fundamental essence of the Bill by removing subsection (2), which is the linchpin of the Bill. To accept this amendment would prevent us being able to ensure that those in the highest need could receive free personal care at home for more than six weeks. This is clearly against the spirit of the Bill and should not be supported by anyone who supports the principles underlying this Bill. We therefore cannot accept this amendment and urge opposition to it.

The Bill is about specific help for a specific group of people: those in greatest need. I believe that my noble friend said earlier that it would help 280,000 people, as well as the 130,000 who will be helped by reablement. It is about doing this now. It is the first step of a total package. We have confidence in the estimates, and we have gone through the figures with ADASS.

The Bill is not the same as what is happening in Scotland. The other place has agreed to the basic concept. This House has given the Bill a Second Reading, which enclosed the basic concept, and I do not intend to participate in or respond to a further Second Reading debate at this point.

Amendment 8 would require that regulations specified every setting that was not considered to be a person's home for the purpose of provision of personal care, and therefore every setting of accommodation where the six-week restriction to provide free personal care would still apply. We consider that the proposed definition as set out in the Bill accurately describes and excludes a range of different settings that are not to be classed as a person's home. These exclusions are necessary because we wish to encourage and enable people to remain in their own homes where that is what they wish to do.

Were we to specify the specific different settings that should be excluded, that could require numerous changes to regulations as the nature of service provision changes over time. That seems unnecessary and undesirable. We are encouraging councils to look to provide care in a wide range of settings to meet people's changing and longer-term needs. Where providers wish to be seen to change the provision of services to benefit from the provisions, it will be for the regulator, the Care Quality Commission, to ascertain that they meet the revised registration criteria. We are not willing to accept this amendment, as the proposed definition set out in the Bill is accurate. I therefore hope that the noble Earl, Lord Howe, will withdraw his amendment.

The Bill seeks to remove restrictions on existing powers and will allow us to require people with the highest needs living at home to be provided with free personal care indefinitely. Amendment 10 from the noble Lords, Lord Warner and Lord Lipsey, the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy, seeks to make it clear in the Bill that personal care for people living in extra-care housing can potentially be required to be provided free indefinitely.

We believe that such an amendment is unnecessary. As the Bill already provides in new subsection (4D), a person should be considered to be living at home as long as they are not living in accommodation provided under Part 3 of the National Assistance Act 1948, or in accommodation where personal care is provided together with that accommodation. That definition of living at home would include a person living in extra-care accommodation as it would be neither Part 3 accommodation nor accommodation where personal care was provided together with that accommodation. That is because in extra-care housing, care and accommodation are provided not together but under separate arrangements made by the individual.

We would certainly seek to encourage people who wish to stay and receive the care they need at home to consider extra-care housing, as well as other forms of supported living such as sheltered housing, because they allow individuals to continue living independently. Because this setting of accommodation is already adequately covered by the provisions of the Bill, I hope that the amendment will not be pressed.

The noble Baroness, Lady Murphy, brought out a series of predictions and potential downsides. We have committed to review this legislation after 12 to 18 months and in that review we will see whether those predictions turn out to be true, but we believe that the predictions that we have made on cost and on numbers served are sound and will be borne out by experience.

Amendment 13, tabled by the noble Baroness, Lady Barker, raises an important point: these provisions should seek to ensure that those living in their own home are supported to do so for longer. However, it is important to reflect on the fact that this does not necessarily mean, as I believe the noble Baroness wishes to indicate with this amendment, that all the support activities needed to help the person must be carried out in the home itself. The noble Baroness used the example of a person whose needs were best addressed through being bathed in a day centre because it was not possible to make the necessary adaptations to their own bathroom at home. They should certainly be offered that.

We will ensure that this area is covered fully in the statutory guidance that we will be developing to provide support to local authorities. For that reason, I do not consider that this needs to be in the Bill. While I do not accept the noble Baroness's amendment and ask not to press it, I very much agree and commit to taking forward its principle.

The noble Earl, Lord Howe, as ever, made interesting points about the Bill. He was particularly concerned about "gaming" and language. That is a fair point, but we believe that many of the issues will be resolved in the development of regulations and guidance. With regard to the issue of residential homes being re-badged, we have said that the Care Quality Commission will create a definition that will stop that happening. We believe that the legal dividing lines will be practical, although we cannot go further into why we believe that. If it proves useful to elaborate on that in a letter, I will certainly send him one.

The noble Baroness, Lady Gardner of Parkes, referred to the number of people who will be helped. As I said earlier, some 280,000 people will be helped with support at home and some 130,000 by reablement.

I hope that some of the comments that I have made will meet the points made by the noble Lord, Lord Sutherland. The noble Baroness, Lady Turner, was perhaps giving us an insight into the broader picture that will be revealed in the coming weeks when we publish the White Paper.

Baroness Masham of Ilton (Crossbench)

My Lords, before the Minister finishes, I have one question. How is he going to make inflexible local authorities flexible?

Lord Tunnicliffe (Labour)

My Lords, this is almost the centre of every debate that we have about how we deliver services. An awful lot of us here have served in both national government and local authorities. There is a perennial tension between, for example, local authorities and the health service. At the end of the day, we must believe in good will.

There has been some reference to this being an area where we have to develop consensual politics. Many of us have the same common belief that services delivered locally are a good thing, but nevertheless there has to be intrinsic equity between the delivery of those services. There will be tensions between what we specify nationally and how that is interpreted, but one hopes that in this new world of consensus which I think even the noble Earl, Lord Howe, has promised us, we will be able to solve those problems.

Baroness Murphy (Crossbench)

My Lords, has there been any specific financial modelling on our Amendment 7 regarding the impact of the new funding systems on other service streams? We have heard a lot about the interrelationships between care funding modalities.

Lord Tunnicliffe (Labour)

I do not believe that there has been specific modelling. My understanding is that the fragility of the assumption you would have to make to do the modelling would make that modelling a not particularly valuable exercise. If that is an incomplete answer, though, I will write to the noble Baroness setting it out more completely.

Lord Lipsey (Labour)

My Lords, anybody listening to these debates might find them becoming increasingly surrealistic. There is a debate going on in this Committee between people with real depth of knowledge of this area-I include people like the noble Lord, Lord Sutherland, with whom I do not see altogether eye to eye, and also the noble Baronesses, Lady Turner, Lady Murphy and Lady Barker-and Ministers, doing their best to inject a show of conviction into reading out the notes prepared for them by their civil servants, who are themselves trying to inject a note of conviction into defending a policy that has been handed down to them by the Prime Minister and has no intellectual substance behind it, other than what they have managed to cobble together in the few months since he delivered his imprimatur.

That came out particularly in the remarks made by the Minister, in saying that this is about getting local authorities to invest in new models of care; it is unfair to expect him to be a great expert on long-term care and it is always great to see him on the Front Bench. Of course local authorities need to invest and to invest heavily in new models of care, but the plain and simple fact of the matter is that they will not have the cash to do so, because they are spending it all on free care for the Prime Minister's targeted electoral group. That is the reality of the situation.

There is no point pursuing this argument further with the Government, save to say this. The Minister said that he was not going to have a Second Reading debate because the House of Commons voted in favour of this Bill. That is perfectly true, but since then, Nick Clegg, the leader of the Liberal Democrats, has this morning announced that they made a mistake in doing so. He has thought it through and-I give him great credit for this-he has changed his mind and is now against the Bill. I hope that he is not the only one. In view of these debates, I hope that before we get to Third Reading the Government themselves may think again about this Bill and see if we cannot yet make this a stepping stone on which a consensus reform could be built. I beg leave to withdraw my amendment.

Amendment 7 withdrawn.

Amendment 8 not moved.

House resumed.

Earl Howe (Conservative)

I shall speak also to Amendments 12, 31, 35 and 43. We come to an issue which I personally find extremely troubling and difficult. That is the impact which this Bill and its regulations will have on those people who, by any criteria, have care needs that are of the most acute kind, but who nevertheless will be deemed ineligible for free personal care under the proposed assessment criteria. I refer specifically to people who are deafblind.

Deafblindness much surely be one of the most isolating and burdensome of disabilities, but it is important to understand that the kind of care which deafblind people typically need is quite different from the care usually given to a frail, elderly person. Deafblind people are often able to wash and dress and feed themselves, but without support in communication and mobility, many of them are effectively condemned to a life of solitary imprisonment in their own homes. It can be impossible for them to have access to food or basic information, and they are prevented from interacting with other people. Taking exercise, going out to the shops, visiting the doctor, dealing with household bills-all those things which we take for granted-are out of reach without physical help. Indeed, deafblind people are at extreme risk of having to go into residential care if their care needs are not addressed-exactly the imperative which has motivated the Government to bring forward this Bill.

Yet this Bill will be of no use to those suffering from deafblindness, despite the fact that under the current FACS guidance, deafblind people are frequently assessed as having a critical need under the category that relates to involvement in family and wider community life. The Bill in its current form will undermine FACS guidance because it prioritises the provision of personal care over other types of care, such as communications support-the one form of help above all others that gives deafblind people a lifeline to the wider world. As such, the Bill appears discriminatory.

Sense, the voluntary sector organisation which champions the interests of deafblind people, has submitted a paper to the Joint Committee on Human Rights in which it argues that the Bill violates the Human Rights Act. In particular, it says that a failure to provide adequate social care for deafblind people can result in a breach of Articles 3, 5 and 8 as well as Article 1, Protocol 1. I am not in a position to offer a legal opinion on the case that Sense has advanced. However, it needs to be taken most seriously.

The Government justify the Bill's discrimination on the grounds that there are limited resources available. In saying that, they argue that their policy is directed to reach those who have the highest needs. The counter argument to that is that the policy is neither reasonable nor proportionate because deafblind people with the highest care needs will not receive care under this policy.

Amendments 9, 12, 31 and 43 are designed to address these issues by broadening the definition of the kind of care that will be covered by the Government's policy. Amendment 35 takes a different approach deliberately distinct from that of Amendment 9 and the others. It is a much narrower amendment which would ensure that those deafblind people who have the greatest need and who are at most risk of needing residential care if their needs are not met may qualify for free care and support. I hope the Government will look at this. There is no doubting the recognition that Ministers have given to the unmet needs of deafblind people. Only in June last year they reissued the guidance document, Social Care for Deafblind Children and Adults. This guidance is aimed above all at social services staff. The case studies that Sense has provided to me, and I believe to a number of your Lordships, are of the most heartrending character. The noble Lord, Lord Low, has asked me to say how sorry he is not to be able to be present to support these amendments and to give the Committee a more graphic picture than I could ever give of the gravity of the disability that deafblind people have to endure. I am in no doubt that the needs of deafblind people should be factored into any revision of social care policy. Therefore, I beg to move.

Baroness Thornton (Labour)

Again, I have a very long note about all the different issues that I thought the noble Earl might raise to do with Scotland and all sorts of other things which I will not inflict on the Committee at this point. I will deal with the very important deafblind issue that he raised and make one or two comments about the generality of the other amendments in the group.

I absolutely accept the point that the noble Earl made about the gravity of the situation of deafblind people and the problems that they face. It is very important that their needs should be recognised. There is no doubt about that at all. The services concerned are clearly of high importance to people who are deafblind or have multiple sensory impairments. As the noble Earl said, specific guidance, updated and published in June 2009, advises local authorities that they must ensure that services provided to deafblind people are appropriate and that deafblind people are able to access specifically trained one-to-one support workers if they are assessed as requiring them. For that reason we published statutory guidance on that issue. I have an assurance that the guidance that we will produce will cross-reference with that guidance. However, between now and Report I will have discussions with Sense and its supporters to ensure that we are doing that in the right way because this is very important. I reassure Sense that we are taking these issues very seriously and that they are taken into consideration, if not in the Bill at least in the guidance that we will produce. I undertake to do that because, apart from anything else, I want to reassure myself that this is okay.

Amendments 9, 12, 31 and 43 seek to allow regulations on local authority functions and reablement to relate to overall care packages to individuals free of charge, and not, as the Bill intends, provision of the personal care element only without charge. I understand the intention of this is to ensure that the financial burdens for those in the highest needs are reduced as far as possible, but this falls outside the scope of this Bill and outside the cost envelope which has been allocated.

It is fair to say that it is our intention to reform the care and support system so that it is fairer for all in the longer term, and we will be setting out in detail in the White Paper how we intend to do this. However, full care provision through taxation and free of charge at the point of need is something that we know is not sustainable now, or for the longer term, and was ruled out in the Green Paper. That is why we cannot accept Amendments 9, 12, 31 and 43, and ask that they are withdrawn.

Earl Howe (Conservative)

My Lords, I am grateful to the Minister. The reason for tabling amendments omitting the word "personal" was not to widen the scope for delivering free services to those living at home; it was rather to highlight the importance of defining "personal" in a way that did not exclude deafblind people. While I note what she said in relation to the guidance, I am a little doubtful that it will of itself be sufficient because the definition of "personal care" in the draft regulations that the Government have promulgated does not to my mind include the kinds of tasks and activities with which deafblind people typically require help.

Baroness Thornton (Labour)

As I think I have said to other noble Lords, I regard this Committee stage as feeding into the consideration that will be given to the issue. As the Committee knows, the closing date for consultation on the regulations finishes tomorrow. We will need to look at this discussion and the doubts that the noble Earl has expressed about the regulations.

Earl Howe (Conservative)

My Lords, I very much welcome that assurance. I know that Sense will be very pleased that it will have the opportunity to make its case to the Minister. In the light of her assurances, it is appropriate for me to beg leave to withdraw the amendment.

Amendment 9 withdrawn.

Amendment 10 not moved.

Amendment 11

Moved by Lord Lipsey

11: Clause 1, page 1, line 16, leave out "requiring" and insert "permitting"

Lord Lipsey (Labour)

My Lords, one thing that has come out very clearly from the debate is the extreme doubt about the cost to local authorities of what is proposed in the Bill. Wide-ranging figures have been suggested but I will not go into that now. Local authorities have asked that if the estimated cost is exceeded the Government should agree to pick up the whole of the bill. It cannot be asking much of the Minister kindly to give them that assurance this evening since it is in accordance with the new burdens doctrine. That led me on to another thought which relates back to a debate we had earlier this afternoon-should we be imposing this scheme on all local authorities at once in one go?

We have learnt a lot from the Scottish experiment. Some people think that it has worked well, some do not, but we have learnt a lot from it. Would it not be best to try this scheme in a few local authorities as part of a holistic package of addressing the long-term care issue? Should we not try it in a few local authorities, see how the cost works out, and give them incentives from the Government to try it out? We would then be running a kind of pilot experiment, rather than imposing in one great movement a whole package which we would have great trouble untangling should the fears that I and other noble Lords have expressed here and elsewhere prove to be justified. Why are the Government determined on a national scheme?

Baroness Gardner of Parkes (Conservative)

I support the idea of a pilot scheme, but if it is introduced, it is important that it covers widely differing areas. I am told that, for example, in Buckinghamshire, the majority of people meet their own costs and yet, perhaps, in Dagenham, they do not. It is very important that any pilot scheme should cover a wide range of areas, to give an assessment of the different situations that occur.

Baroness Thornton (Labour)

Amendments 11 and 15 in the names of my noble friends Lord Warner and Lord Lipsey and the noble Baroness, Lady Murphy, focus on the discretion of local authorities in providing personal care at home. Before I come to the specific amendments, some of which are, of course, against the spirit of the Bill's principles, I say to noble Lords that we recognise that, when determining people's care needs, local authorities are best placed to judge what is appropriate in their own situations, depending on their clients and on the availability of services. However, we want to move towards greater consistency of care provision and, as noble Lords know, we will soon have a White Paper.

We believe-I know that my noble friend Lord Lipsey disagrees with this-that this is a stepping stone towards greater consistency of care provision. The Bill requires all local authorities to offer free personal care at home to those with the highest needs in order to end the postcode lottery which this House has discussed on and off for many years. It will allow councils to have elements of continuing discretion so that they can provide the most appropriate services, which will be dependent on them knowing what works well in their community.

We think that it is right that the Bill proposes that functions imposed on local authorities relating to eligibility for free provision should include the exercise of that discretion, so that they can effectively manage the provision of free personal care in their area. There will be a need for some cases to be considered in light of other healthcare services being provided to an individual and we have already discussed that.

There is sometimes confusion about continuing care and what it means. It is care provided over an extended period of time to a person aged 18 or over to meet physical or mental health needs that have arisen as a result of disability, accident or illness. If an individual has primary healthcare needs, NHS continuing care should meet this and the individual's package of care would be provided by the NHS and not by the local authority. It is important to recognise that if an individual needs continuing care to meet needs which do not include a significant health component, this will be provided by the local authority-it is right that they should be able to receive their personal care free of charge, if they qualify for it. It is important that NHS continuing care and free personal care are recognised as different ways of delivering health and social care where the balance between health and care may differ.

I think that the noble Lord, Lord Lipsey, is trying to seduce us by his proposals of pilot schemes, but I am afraid that he is not going to divert us from our intention in this matter. We oppose Amendment 11, which is a wrecking amendment. It refers to regulations under Section 15 of the Community Care (Delayed Discharges etc.) Act 2003 as having the power to be able to "permit", as opposed to "require", free provision of personal care. However, Section 15 enables the Secretary of State to make regulations requiring-as opposed to permitting-qualifying services to be provided free of charge. This amendment does not change the fundamental nature of the power under Section 15 and therefore the reference to regulations permitting free provision of personal care does not correctly reflect the nature of that power. Therefore, the amendment is not necessary. Local authorities have the power to charge for non-residential community care services but are not obliged to do so. They are therefore already able to provide free personal care if they wish and do not need additional powers to be able to do so.

Amendment 15 seeks to limit the functions relating to eligibility for free provision of personal care which can be imposed on local authorities in regulations. However, in doing so, it would prevent a very important sub-delegation of powers by removing reference to those functions included in the exercise of discretion. We believe that local authorities are best placed to judge what is appropriate in their own situations, dependent on their specific clients' needs and circumstances and the availability of services. It is therefore right that functions imposed on local authorities relating to eligibility for free provision should include the exercise of discretion, so that they can effectively manage the provision of free personal social care in their area.

I ask the noble Lord to withdraw his amendment.

Baroness Murphy (Crossbench)

I apologise profoundly that I was not here at the beginning of this debate-I was whipping through the previous group. Amendment 15 deals with the exercise of a discretion. Can the Minister tell me whether that refers to the reablement clause? I am not sure, from reading the Bill. My understanding is that the local authority might have a discretion when or not to insist on the reablement. If it does, I am not sure how that might relate, for example, to a stroke patient returning home with profound disabilities, who would probably not reach his maximum potential for several years, but whose carers might feel it was inappropriate to subject to reablement at that point. Can the Minister reassure us about how the discretion could be exercised in relation to reablement?

Baroness Thornton (Labour)

My understanding on the discretion with regard to reablement is that, indeed, the local authority has the power to use its discretion. We addressed this issue, I think, when I was asked about people receiving palliative care and whether subjecting them to reablement would be appropriate. At that time, as I recall, I said that it would depend. You would not necessarily say that someone who is receiving palliative care should not have reablement, but it may not be appropriate. The local authority would have the discretion to decide whether that was the right course of action. I will write to the noble Baroness in detail if I need to, but my understanding is that this discretion covers reablement.

Baroness Masham of Ilton (Crossbench)

Would it cover people with cancer and motor neuron, where reablement might make them worse rather than better?

Baroness Thornton (Labour)

That is the point-you have to look at each person's issues and problems. With cancer, reablement might be appropriate, because someone might be in remission for a long time, so reablement might be exactly the right thing to offer. On the other hand, it might not be, because the illness is terminal and what is needed is palliative support as an end-of-life strategy.

Baroness Masham of Ilton (Crossbench)

That is another example of flexibility.

Baroness Thornton (Labour)

That is exactly the point, yes.

Lord Lipsey (Labour)

My Lords, of course I regret my failure to seduce the Minister: I shall bear it with as much equanimity as I can muster. Therefore, I beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendments 12 to 16 not moved.

House resumed. Committee to begin again not before 8.19 pm.